73 Fla. 146 | Fla. | 1917
On September 21st, 1915, Mary A. Mulhern filed her bill in equity in the Circuit Court of Pinellas County, Florida, in which she alleges that she is seized'in fee simple of certain lots in the city of St. Peters-burg-, Florida, which abut on Second Avenue South, a public street of said city, and also the grounds included in the bed of Second Avenue South, adjoining and abutting on said lots to the center line of said street. That the Tampa and Gulf Ooast Railroad Company without authority or right, and without condemnation proceedings, and without compensating her therefor, entered into and upon said street and took possession thereof and constructed thereon and thereover a -railroad track down the center of said street, and is operating a railroad by cars and trains drawn by steam engines, at intervals each'day
She prays that the amount due her from said railroad company be ascertained by the court and it be decreed to pay her said amount, and that the amount so found be decreed to be a superior lien on the property of the railroad wrongfully taken from her, and if the amount so found to be due her be not paid by the railroad within — days the property be sold and the proceeds applied to the satisfaction of her claim.
To this bill the appellant demurred on the grounds: First, that there is no equity in the bill; second, that there is a complete and adequate remedy at law; third, that the only relief prayed for is a money judgment which is recoverable at law, and not in equity; fourth, that a court of equity has no jurisdiction to grant the relief prayed for in the bill. The demurrer presents the question,
The Chancellor overruled the demurrer, and stated in his order that he did so upon the authority of Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 South. Rep. 566. The case is before this court on appeal from this interlocutory order.
The doctrine in the Hill case does not support the ruling of the Chancellor in the instant cause. In the former, the court reached its conclusion that complainant might have his remedy in equity upon the theory that the landowner stood towards the railroad company in the relation of a vendor who sells his land on credit, and that while he holds the title, equity will enforce his claim against the land as it would a vendor’s lien, and Mr. Justice Carter who rendered the opinion of the majority of the court, said: “This view impresses us as being eminently right and just, and correct in principle. For the transaction is nothing more nor less than an implied sale of an easement in the land.” To-bring this case within the doctrine of the Hill case, we would have to hold that there was an implied sale by the abutting owner of the easement in the street. This easement being in the public, the abutting owner cannot sell it, as it has already been dedicated for the purpose of a public highway, and as his fee in the street is appurtenant to the title to the abutting land, he cannot sell the fee in the street independent of the same.
The complainant prays that if the amount found by the court to be due her be not paid within a given time that it be decreed “a lien upon the property of the defendant wrongfully taken by the defendant from your oratrix,” and upon default of payment ‘‘that said premises be sold.” The prayer in this respect is substantially in the
In the case of Garrett v. Jacksonville, St. A. and H. R. R. Co., 20 Fla. 889, this court said: “The abutting proprietor here has the fee to the middle of the street, but 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.” -
In the same case this court held that an abutting proprietor has no equity to enjoin the use of a street by a steam railway. I11 the case of Brown v. Florida Chau
The rule in this State is that “the construction of a steam railroad track and the running' of steam railroad trains thereon is an added burden upon a street, not contemplated by the mere dedication of land for ordinary street purposes, and for such added burden the owner of the .soil has appropriate remedies.” Jarrett Lumber Corp. v Christopher, 65 Fla. 379, 61 South. Rep. 831. It is clear therefore that it is for the damage to his abutting land that he is entitled to compensation, and no question of an implied sale enters into- the act complained of. His damage and injury arising from tort, the remedy is on the law side of the court.
In order to maintain the contention that appellee, the complainant below, has no adequate remedy at law, the bill alleges on information and belief, that appellant, the Tampa & Gulf Coast Railroad Company, is insolvent, and that a judgment at law ag'ainst it would be uncollectible and of no value. The inadequacy of a remedy at law to produce money, is not the test of the applicability of the rule. All remedies, whether at law or in equity, frequently fail to do that; and to make that the test of eq
Whatever damage the complainant below may have sustained by the operation of the steam railroad on the street abutting on her land, she may recover in a proper proceeding at law, and the Chancellor erred in overruling the defendant’s demurrer to the bill.
The order'appealed from is reversed.
Taylor, Shackleford, Whitfield and Ellis, JJ., concur.