Adams v. Elliott

• Citation: 128 Fla. 79,174 So. 731
• Court: United States State Supreme Court of Florida
• Decision Date: 22 April 1937
• Parties: ADAMS v. ELLIOTT.

174 So. 731

128 Fla. 79

ADAMS v. ELLIOTT.

Florida Supreme Court

April 22, 1937

Rehearing Denied June 16, 1937.

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action by Jane K. Elliott, joined by her husband, Graham Elliott against W. H. Adams. Judgment for plaintiff, and defendant brings error.

Affirmed.

BROWN J., dissenting.

COUNSEL

Charles A. Powers and Charles A. Powers, Jr., both of Jacksonville, for plaintiff in error.

Evan Evans, of Jacksonville, for defendant in error.

OPINION

WHITFIELD Presiding Justice.

The writ of error herein was taken to a judgment for damages in favor of the plaintiff, Jane K. Elliott, against the defendant, William H. Adams, for personal injuries caused by the collision at night of an automobile, in which she was riding with her husband, with a piling of a pier used by the defendant riparian upland owner built over the highway along the beach or foreshore between high and low water mark of the ocean at Atlantic Beach, Fla., there being spaces between the pilings for the passage of vehicles upon the highway on and along the beach, the highway being authorized by chapter 10486, Sp.Acts 1925.

The amended declaration in its first count alleges:

'That during the month of May, 1933, and for a long time, to-wit, many years, prior thereto, the defendant was the owner and was in possession of a pier or wharf extending from the bulkhead line at Atlantic Beach in Duval County, Florida, into the waters of the Atlantic Ocean; that said pier or wharf was built approximately 20 feet above the ground and rested upon piling which were approximately 8 feet apart; that at said time and for a long time, to-wit, many years, prior thereto, the beach at said point was used as a public highway, and during said time motor vehicles in large numbers were driven on said beach and under said pier or wharf and between said piling, and that said beach was so used as a public highway during many hours of the day and night during said period of time. That the said piling in said highway constituted a peril to the safety of persons operating or riding in motor vehicles on said beach, by reason whereof it became and was necessary that a light or other warning of the presence of said piling be exhibited upon said pier or wharf at night so that such motorists might avoid collision with said piling. That the defendant knew or in the exercise of reasonable care should have known of the said usage of said beach as a public highway, and knew or should have known that the said piling constituted a peril to the safety of persons operating or riding in motor vehicles on said beach in the night time, and knew or in the exercise of reasonable care should have known that a light or other warning of the presence of said piling was necessary upon said pier or wharf at night so that such motorists might avoid collision with said piling.

'That on or about the 15th day of May, 1933, the plaintiff Jane K. Elliott was riding as a passenger in an automobile which was then and there being operated in and upon said beach in the night time.

'And plaintiffs allege that the defendant then and there carelessly and negligently failed and neglected to have and maintain any light or other warning of the presence of said piling in the said beach so used as a public highway, although it was in the night time and dark and foggy, and there was no other light or warning present on said pier or wharf at said time, by reason whereof the automobile in which said plaintiff was riding as aforesaid came into collision with one of said piling and said plaintiff was thereby painfully, seriously and permanently injured, bruised and lacerated in and throughout her head, body and limbs, her skull was fractured, her olfactory and gustatory nerves were injured and destroyed, and her face was disfigured, by reason whereof said plaintiff has suffered great mental and physical pain and anguish and will continue so to suffer for a long time, to-wit, permanently, and said plaintiff was thereby rendered incapable of performing her duties and services by her to be done and performed, and will continue so to be, to-wit, permanently; to the damage of plaintiffs in the sum of $25,000.00.

'Wherefore, plaintiffs bring this suit and claim $25,000.00 damages of defendant.'

In the order sustaining a demurrer to the declaration it is stated that, 'the Court having common knowledge of location of the property, and it appearing to the Court that the beach at that point where the accident occurred is not a public highway, and it further appearing to the court that the demurrer to said declaration should be sustained,' it was ordered that the demurrer be sustained with leave to amend the declaration. The words 'is not a public highwat' as used in the interlocutory order did not make the order the law of the case in view of the statute making the beach at that point a public highway. The original declaration alleged that 'the beach at said point was a public highway and was used as a public highway.' In the amended declaration the words 'was a public highway' were omitted and the words 'was used as a public highway' were retained. The second count of the amended declaration alleged damages to the husband; but, as the verdict was 'against the plaintiff' husband, the second count will not be stated here.

The title of the owner of lands abutting on the ocean extends to high-water mark, and such owner's riparian or littoral rights are those allowed by law in the use of the waters and of the beach or shore between high and low water mark. Such uses include access to the water from the abutting property over the beach or shore, and, in common with the public, the rights of bathing, fishing, and navigation in the waters subject to appropriate valid governmental regulations. While the primitive uses of the beach or shore are purposes incident to the use of the water of the ocean for bathing, fishing, and navigation, the sovereign state may in the interest of the general welfare authorize the beach or shore to be appropriately used as a public highway, subject to a reasonable use of the beach or shore for its primary public purposes and subject to lawful governmental regulation. Riparian or littoral upland owners may construct appropriate piers or wharfs over and across the beach to reach the water for authorized purposes; and proper pilings or supports to sustam the pier or wharf over the beach or shore may be placed upon the beach or shore at proper distances to allow the use of the beach as may be authorized by law. When public vehicular travel along or over the beach or shore is duly authorized, a riparian or littoral owner who negligently maintains on the beach or shore pier supports or other obstructions to travel on the beach or shore, and such negligent maintenance is the proximate cause of injury to those who lawfully and with due care are travelling on the beach, the riparian or littoral owner is subject to legal liability for such negligent injury to be redressed by due course of judicial procedure.

Pleas were, not guilty; denies that the pier or piling was not lighted, and avers that there was due and sufficient warning of the presence of the pier, and it could have been seen by plaintiffs by the exercise of ordinary and due care; denies that the night was dark and foggy; contributory negligence; sole negligence of the plaintiff wife; the wife's joint control of the automobile with her husband in speeding and joy riding; exceeding lawful speed limit.

Asserting error in the judgment for the plaintiff wife, it is urged that the declaration is bad because it does not allege that the use being made of the beach as a highway was a lawful use by the public, and because of failure to allege any 'special or unlawful injury arising out of an infraction by the defendant of the rights of the public as to navigation, commerce, fishing, bathing, or other rights held in trust for the public.'

'The rights of the people of the states in the navigable waters and the lands thereunder, including the shore or space between ordinary high and low waters marks, relate to navigation, commerce, fishing, bathing, and other easements allowed by law. These rights are designed to promote the general welfare and are subject to lawful regulation by the states, and such regulation is subordinate to the powers of Congress as to interstate commerce, navigation, post roads, etc., and to the constitutional guaranties of private property rights.' Brickell v. Trammel, 77 Fla. 544, 82 So. 221, 226. (Italics supplied).

This rule is in general applicable to littoral rights as well as to riparian rights. See Sullivan v Moreno, 19 Fla. 200; Freed v. Miami Beach Pier Corporation, 93 Fla. 888, 112 So. 841, 52 A.L.R. 1177; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; Barnes v. Midland Railroad Terminal Co., 193 N.Y. 378, 85 N.E. 1093, 127 Am.St.Rep. 962; Trustees, etc., of Town of Brookhaven v. Smith, 188 N.Y. 74, 80 N.E. 665, 9 L.R.A. (N.S.) 326, 11 Ann.Cas. 1; Barnes v. Midland Railroad Terminal Co., 218 N.Y. 91, 112 N.E. 926; 45 C.J. 490; 27 R.C.L. pp. 1078, 1366. The riparian acts of 1856 (Acts 1856, p. 25) and 1921 (Acts 1921, c. 8537) relate to owners of riparian lands 'lying upon any navigable stream or bay of the sea or harbor.' See Geiger v. Filor, 8 Fla. 325; Williams v. Guthrie, 102 Fla. 1047, 137 So. 682. The Legislature may authorize the shore or beach to be used as a public highway, see Kean v. Stetson, 5 Pick. (Mass.) 492; Chase v. Cochran, 102 Me. 431, 67 A. 320; Inhabitants of Marblehead v. Essex County Commissioners, 5 Gray (Mass.) 451; Hope Township Commissioner of Highways v. Ludwick, 151 Mich. 498, 115 N.W. 419, 15 L.R.A. (N.S.) 1170, 14...