53 Fla. 832 | Fla. | 1907
On the 7th day of September, A. D. 1906,. appellee, filed its bill of complaint against appellants,, alleging as follows: “Southern Investment Company, a corporation organized and existing under the laws of the state of Delaware, by John P. Wall, its solicitor, brings its hill against the Florida West Shore Railway, a corporation organized and existing under the laws of the state of Florida, and the Seaboard Air Line Railway, a corporation organized and existing under the laws of Yir
Your orator further represents unto youir honor that the defendants have unlawfully and forcibly entered in and upon said Stebbins avenue, adjoining to and in front of the said real property of your orator, above described, for the purpose of constructing a spur track in and upon the said Stebbins avenue, from the town of Manatep to the town of Bradentown, and the said defendants propose to operate over said spur track its engines and cars for the transportation of passengers and freight; and that the' said defendants have dug up the surface of said Stebbins avenue, and are now engaged in making excavations in said avenue, and have so occupied and obstructed said avenuue as to permanently impair the use of said avenue as a public thoroughfare, and especially to prevent your orator, its officers, agents and employees from going to and from its said real property over along said avenue, to the great and irreparable injury, of your orator’s said property.
Your orator charges that your orator has never consented to the location or construction of a railway of any kind in and along said avenue, that the damage to the land of your orator abutting on said avenue, on account of the location and construction of said proposed railway has not been ascertained and paid to your orator as required by law; that if the said location and construction' of said railway upon said avenue is not prohibited and its location and construction is not restrained, your orator will sustain irreparable injury to* the damage to its said real property aforesaid, and adequate remedy cannot be afforded to your orator by an action for damages.
The bill was sworn to in the following affidavit:
“State of Florida, County of Hillsborough.
I hereby certify, that before me, the undersigned authority, personally appeared John P. Wall, who being first duly sworn, deposes and says: That he is the solicitor for the Southern Investment Company, the complainant in the foregoing bill of complaint, and he further says that the statements and allegations contained in the foregoing bill of complaint are true, and that unless immediate remedy is afforded the said complainant will suffer irreparable injury.
Affiant further says that to give the defendant notice
Sworn to and subscribed before me this 7th day of September, A. D. 1906.
(Seal.) Grace H. Gardner.
Notary Public, in and for the State of Florida at Large.”
Thereupon, on the 7th day of September, 1906, the chancellor made an order granting a temporary restraining order, whereby the defendant corporations were restrained until further order of the court, from obstructing the said Stebbins avenue, adjoining to and in front'of the parcels of land described in the bill of complaint, and especially from digging in said avenue and from locating or constructing any railway therein, upon the giving of bond, &c.
From the order of the 7th day of September, 1906, an appeal was taken and made returnable to the present term of this court.
The errors assigned are: First, the court erred in granting the temporary injunction adjudged by said order against the defendants. Second, the court erred in .making said injunctional order.
Appellants urge several reasons why the injunctional order appealed from should not have been granted.
I. It is contended that the injunctional order appealed from should not have been granted because “the bill does not show that the complainant’s ownership, or the boun
We do not think this contention is well founded. This court has already held adversely to this contention of appellants. In Garnett v. Jacksonville, St. A. & H. R. Ry. Co., 20 Fla. 889, the bill of complaint alleged that the complainant “is the owner and seized in fee of a large piece or lot of land within the city of St. Augustine, and having an extensive front on said street on which it abounds.” In the brief filed here in that case, counsel for appellants admitted that “there is no allegation in this case as to where the fee of the street is,” but contended that “in such case, where complainant alleges that his lot bounds on the street, the fee will be presumed to be in him to the center of the street.” On page 904 of the opinion, this court said: “So far as the title is concerned, it is presumed from the allegations of abutting proprietorship that the fee to one-lialf of the street is in the owner of the lot adjoining and bounded by the street.” And so- in Rawls v. Tallahassee Hotel Co., 43 Fla. 288, 31 South. Rep. 237, this court said: “The proprietor of lots abutting on a public street is presumed in the absence of evidence to the contrary to own the soil to the center of the street.” See, also, Jacksonville, T. & K. W. Ry. Co. v. Lockwood, 33 Fla. 273, 15 South. Rep. 327, where this court said: “The abutting proprietor is prima fuoi& owner of the soil to the middle of the highway, subject to the easement in favor of the public.” We think, therefore, the allegation here that
II. Another reason urged by appellants why the injunctional order appealed from should not have been granted is as follows: “If the bill shows any cause of action it is only one of a public nuisance to be abated by a suit in behalf of the state, and does not show that it operates as a special and peculiar injury to the complainant, either in its individual property, or its right to the use of the street, so as to give it an individual cause of action.” Appellee, who was complainant below, admits “that this is not a suit instituted for the purpose of abating or restraining a public nuisance,” but contends that “the injunction is prayed for under the constitutional provision which provides that no private property nor right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money.” Misc. Prov. section 29 of the constitution of Florida, of 1885.
We have here presented, then, the question whether the owner of a lot on a public street and the owner of the fee
At the very threshold of ouir investigation we are confronted with the decision by this court in Garnett v. Jacksonville, St. A. and H. R. Ry. Co. supra: “The construction of a railway to be operated by steam along the streets of a municipal, corporation to be used for a private purpose on a line of route not authorized by the charter of the company proposing to construct it, and authorized only by the municipal corporation in a resolution clearly beyond its powers, may be a public nuisance. But if so, it is to be abated by a suit in behalf of the state. The owner of the land or lots abutting upon the street over which the railway is proposed to be constructed has not an equity to enjoin its threatened construction as a public nuisance, operating to his special and peculiar injury, where the road intended to be constructed is an ordinary surface railway to be operated by steam..”
The respect we entertain for the ability of the learned justice who wrote that opinion would cause us to hesitate before we take issue with him on this question. The importance of the subject, however, to the owners of property abutting on public streets, as well as the railroad companies in this state, demands careful investigation and consideration on our part.
On page 904 of the Garnett case the court said: “We
It must be observed that the case above quoted from was decided here just a year prior to the framing of our present constitution with its peculiar inhibition against the taking of a right of way without prior payment of compensation.
In the case of the Florida Southern Railway Co. v. Brown, 23 Fla. 104, 1 South. Rep. 512, this court held that where a person owns a lot on a public street of a town or city and the fee in the soil as far as the center of the street, the laying of a railroad track along said street, wholly or partly, on his soil without his consent, and without taking and paying just compensation therefor, in accordance with the statute regulating the method by which private property may be taken for public use, is an unlawful appropriation of the property of such owner.
The abutting proprietor has the fee to the middle of the street. He is the owner of the soil to the middle of the highway. Garnett v. Jacksonville, St. A. & H. R. Ry. Co., supra; Jacksonville, T. & K. W. Ry. Co. v. Lockwood, supra.
In Protzman v. The Indianapolis and Cincinnati R. R.
While the abutting proprietor has the fee to the middle of the street, his right, title and interest as against the public so long as it remains a street is a right of way in the street and a right to its continued use as a street. His ownership of the soil to the middle of the street is subject to the easement in favor of the public. Jacksonville, T. & K. W. Ry. Co. v. Lockwood, supra; Garnett v. Jacksonville, St. A. & H. R. R. Co., supra.
In Theobold v. Louisivlle, N. O. &. T. Ry. Co., 66 Miss. 279, 6 South Rep. 230; it is said: “The weight of judicial authority undoubtedly is that where the public have only an easement in the street, and the fee of the soil of the street is retained in the abutting owner, under the constitutional guaranty of private property, a steam railroad cannot be lawfully constructed and operated thereon, against his will, and without compensation;” and the court cites in support thereof, Lewis, Eminent Domain, sections 113, 115; 1 Hare, Const. Law, 362; Mills, Em. Dom. (2nd ed.), section 204; 2 Dill. Mun. Corp. (3rd ed.), section 725. And that court goes on to say: “If the rights of the abutting owner may be taken from him without his consent, and without compensation, ‘a system has
Now as to the remedy of the abutting owner, where the soil of the highway or street passing over his land is appropriated to, and occupied for, a use not falling within the easement granted to the public. The supreme court of Indiana in Cox v. Louisville, New Albany & Chicago R. R. Co., 48 Ind. 178, text 192, says: “We are justified by the authorities, we think, in the statement that he has all the remedies of any other o^ner of the soil. In so deciding, we are aware that the ruling is contrary to several decisions heretofore made by this court.” The propositions already decided necessarily lead us to this conclusion, and we can see no good reason why we should not adopt it. It seems to us that it is necessary to the proper application and harmonious operation of the principles already enunciated; for if the abutting proprietor is the owner of the fee, subject only to the easement in in the public, and if the occupancy of the soil by the railroad is an appropriation, not authorized by the grant of the easement, it must follow that the owner should have' his remedy to the extent of the injury, as fully and completely as any other owner of the soil. In Moody v. Jacksonville, T. & K. W. Ry. Co., 20 Fla. 597, this court said that the granting of an injunction was proper to restrain the defendant company from appropriating to the construction of its road certain land of the plaintiff, not a street, without her consent and without previous condemnation of her land. We think, therefore, that an injunction may be granted to restrain the defendant com
In speaking of the remedies to prevent the laying or operating of commercial or steam railroads in streets, Lewis, in his treatise on the law of eminent domain, says, in section 635: “Upon this subjecct the authorities are conflicting. It is generally held that, where the fee of the street is in the abutting owner he may have the same remedies to prevent the use or occupation of his land as though the street did not exist, and consequently may en-' join its use by a railroad company until the right has been lawfully acquired by condemnation or otherwise. In Florida and West Yirginia a contrary doctrine is held.” The Florida case cited in support of the exception to the general rule is Garnett v. Jacksonville St. A. & H. R. Ry. Co. already referred to elsewhere in this opinion. After a thorough examination of the authorities we are fully persuaued that, upon reason arid principle, we should follow the great majority of the courts in holding that where the fee of the street is in the abutting owner, he may have the same remedies to prevent the use or occupation of his land as though the street did riot exist. As we have seen, the abutting owners’ right to use the street is as much property as. the street itself. As we have seen, the abutting proprietor’s ownership of the soil'to the middle of the highway is subject to the easement in favor of the public — not in favor of a part of the public, an individual or a corporation.
In speaking of the use-or occupation of a street by a commercial or steam railroad, Lewis on Eminent Domain,
Judge Dillon, Municipal Corp., Vol. 2, p. 657, says; “If the fee in the streets or highways is in the public, or in the municipality in trust for the public use, and is not in the abutter, the doctrine seems to be settled that the legis
In Theobold v. Louisville, N. O. & T. Ry. Co., supra, it is well said: “The laying out of a public street creates two co-existent rights — one belonging to the public, to use and improve the street for the ordinary purposes of a street; the other to the abutting owner to have access to and from his property over the-street, and to make such use of the street as is customary and reasonable. Both are valuable and the one as inviolable as the other. It would be as unjust and unwarrantable for the public to use and appropriate the street so as to impair or destroy the rights of the abutting owner, without his consent, and without compensation, as it would be for him, by a like course of conduct to impair or destroy the rights of the public. So that it appears that the abutting owner has special interests and rights in a public street, which are valuable and indispensable to the proper and beneficial enjoyment of his property. * * * If the street is needed for the purpose of a railroad, or for any other purpose inconsistent with the ordinary uses of a public street, the rights and interests of the abutting owner must, be obtained, with his consent, or by the exercise of the right of
In Graham v. Connersville and New Castle Junction R. R. Co., 36 Ind. 463, the court said: “There must be super-added, in order to make the ¡remedy at all efficient, an injunction to stay the taking until the damages shall be paid. But this is not provided for by the statute. It is an appeal to the extraordinary power of the court exercising equity jurisdiction.”
In Ford v. Chicago & N. W. R. R. Co., 14 Wis. 609, S. C. 80 Am. Dec. 791, it is held: “Railroad company may be restrained by injunction from laying its track in public street, Avithout first taking'steps to acquire the right of way by the assessment and payment of damages to the owners of lots bounded by the street.” See, also, The Morris and Essex Railroad Cbmpajny, and the Delaware, Lackawanna and Western Railroad Company v. The Hudson Tunnel Railroad Co., and Haskins, 25 N. J. Eq. 384.
The ninth headnote in the case of The Attorney General ex rel. Stickle and others v. The Morris and Essex Railroad Company, and Pruden v. The Same, 19 N. J. Eq. (4 C. E. Green) 386, is as follows: “The construction of a railroad operated by steam upon a public highway without authority of law, is a nuisance which will be restrained by injunction.” On page 392 of the opinion, it
In Hodges v. Seaboard & R. R. Co., 88 Va. 653, 14 S. E. Rep. 380, the court held that owners of lots abutting on streets own the fee in the land to the middle of the street subject to the rights of the public to travel over it. Locating a railroad track on the street is an additional
In coming to the contusions here announced we have not overlooked the difference between the provisions of our constitution which provide, section 12, Declaration of Rights, “nor shall private property be taken without just •compensation,” and section 29, Misc. Prov., “no private property nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money;” and those provisions of the constitutions of other states which provide, as in South Dakota, Art. 6, section 13, “private property shall not be taken for public use, or damaged without just compensation,” &c., and in Nebraska, Art. 1, section 21, “the property of no person shall be taken or damaged for public use without just compensation therefor.” We hold that, under the provisions of our constitution, a commercial or steam railroad on a street, being .foreign to such purposes, is an interference with the adjoining owner’s proprietary rights in the soil, and an appropriation or taking of an estate or interest in his land, for which he is entitled to compensastion as in other cases. 1 Lewis, Em. Domain,
III. It is contended further that “the act complained of had been ¡consummated before the injunction was granted or the bill was filed.” The act complained of is the building of a spur track in and upon Stebbins avenue and the operation over said spur track of engines and cars for the transportation of passengers and freight. It' is true the bill alleges that the defendants have unlawfully entered upon said avenue and have dug up the surface of said avenue, but the bill also alleges that this has been done for the purpose of constructing the spur track and shows that the spur track has not been completed; because the bill also alleges that defendants “are now engaged in making excavations in said avenue.” The allegations of the bill show further that the injury complained of, the operation over the spur track of engines and cars, is a continuing one; and injunction will lie. Smith v. Davis, 22 Fla. 405; Cox v. Louisville, New Albany and Chicago R. R. Co., 48 Ind. 178.
IY. It is contended further that “the bill and affidavit do not, nor does either disclose sufficient reason for dispensing with notice to the defendants of the application for the temporary injunction.” The affidavit does not simply assert the legal conclusion that notice to the defendant of the application for injunction will accelerate the injury complained of, but the bill and affidavit show further that before the said application could be heard the defendants would be able to lay their track and have their cars in operation over that part of Stebbins avenue, upon which complainant is an abutting property owner.
V. Again, it is contended that “the bill it not sworn to
The bill is sworn to by the solicitor for the complainant, and he swears that the allegations contained in the bill are true. This affidavit is positive and direct to all the allegations of the bill and such an affidavit by counsel for complainant is sufficient. Bowes v. Hoeg, 15 Fla. 403; 22 Cyc. 932, and cases cited.
The decree appealed from, is affirmed, at the cost of the appellants.