79 Fla. 509 | Fla. | 1920
This suit was brought by E. A. Smith to enjoin the city from construcing or attempting . to construct a sidewalk along and in front of stated property in the city upon the theory that the particular street is a private street and not a public street or highway. Upon a hearing on bill and answer the Chancellor dismissed' the bill of complaint, and the plaintiff appealed.
The recorded dedication plat of a subdivision called Edgewater, now a part of the City of Miami, states that “the streets, avenues, drives and alleys indicated upon said plat, are' hereby perpetually dedicated to the free use of all purchasers of lots contained'-in the' above-described plat.”
The answer, among other matters,, avers that the streets “have been dedicated to the use of the inhabitants of the city of Miami generally by the use that has been made of the same by said inhabitants with the consent of the lot owners in said subdivision, and' defendants
The rule is that when a case is heard on bill and .answer all the pertinent averments of the answer are taken as true. Saussy v. Liggett, 75 Fla. 412, 78 South. Rep. 334. See also Lee v. Bradley Fertilizer Co., 44 Fla. 787, 33 South. Rep. 456; Garrison v. Parsons, 45 Fla. 335, 33 South. Rep. 525; Godwin v. Phifer, 51 Fla. 441, 41 South. Rep. 597.
In view of the averments of the answer which were admitted by the complainant to be true by setting the cause down for hearing on bill and answer, before the time for taking testimony had expired, the bill of complaint was properly dismissed. Assuming that the original dedication in recording the plat was in law a limita
Decree affirmed.