Atlantic Coast Line R. Co. v. Town of Sebring

• Decision Date: 13 April 1926
• Docket Number: No. 4749.,4749.
• Citation: 12 F.2d 679
• Parties: ATLANTIC COAST LINE R. CO. v. TOWN OF SEBRING.
• Court: U.S. Court of Appeals — Fifth Circuit

12 F.2d 679 (1926)

ATLANTIC COAST LINE R. CO. v. TOWN OF SEBRING.

No. 4749.

Circuit Court of Appeals, Fifth Circuit.

April 13, 1926.

T. Paine Kelly, of Tampa, Fla., for appellant.

Hilton S. Hampton, of Tampa, Fla. (Hilton S. Hampton and Hampton, Bull & Pencke, all of Tampa, Fla., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The appellee, town of Sebring, a Florida municipal corporation, filed in a Florida state court a petition for the condemnation, under statutory authority and pursuant to an ordinance of said town, adopted April 7, 1925, of an easement in described land the fee-simple title to which was alleged to be in the appellant, the Atlantic Coast Line Railroad Company, for the use and purpose of construction of described streets, one of them called Eucalyptus street; the appellant being the defendant named in the petition. On the application of the appellant the case was removed to the court below. In that court the appellant filed a plea which contained allegations to the following effect:

In the year 1915 and thereafter the town of Sebring, as laid out and constituted, consisted of various streets, and other ways dedicated to the use of the public as highways. The location of said streets and other ways was duly indicated upon a map or plat comprising the corporate limits of said town of Sebring, placed of record in the public records, by which said map or plat the location and physical position of the said streets, alleys, and other ways was defined. Appellant constructed its line of railroad through the town of Sebring, and in the construction of its railroad acquired by purchase certain lands to be used for the purpose of maintaining its right of way and roadbed, upon which to construct its rails and tracks for the operation of its trains. In securing and laying out its line of road through said town, the appellant, in defining its route through said town, so located the same as to avoid, as far as possible, crossing public highways with its railroad tracks, and so as to avoid paralleling public highways in close proximity thereto.

"Defendant further says that, in accordance with the map or plat of the said town of Sebring, prior to and at the time when the defendant's route was located through the said town, Eucalyptus street, a public highway in the said town, was located at a point and along a route parallel to various other streets in the said town of Sebring running in the same direction, and that, in laying out its route through the said town of Sebring, it so defined its route to avoid paralleling the said street in close proximity thereto, as far as was possible to do so.

"Defendant further says that it secured its right of way through the said town by purchase, and is the owner of its said right of way in fee, and that its said right of way through the said town consists of a strip of land 130 feet wide, being measured and described as 65 feet wide on each side of the center line of its main track; that its right of way as so constructed through the said town, at the time of its construction, did not abut or parallel the said Eucalyptus street north of the line of Bamboo street, in accordance with the plan of the town as then constituted.

"This defendant further says that between the line of Bamboo street, as located on the said plan of the city, northwardly and south of the right of way of this defendant, is a vast tract of land, which this defendant is informed and believes was on or about the 7th day of April, 1925, owned by a certain resident of the town of Sebring, to wit, one H. O. Sebring, and that on the said date, to wit, the 7th day of April, 1925, the town council of the town of Sebring, by ordinance sought to change the location in the said town of Eucalyptus street from the location in which it was designated and at which it was fixed prior thereto, and to locate the said street along and abutting on the right of way of this defendant on its southerly boundary; that in the change of location of the said street as hereinbefore recited the regularity of the said street and its general direction with regard to other streets set apart and located upon the town plat were altered and changed, so that the said Eucalyptus street, as located by the terms of the said ordinance, does not follow the general direction of all streets running in a general eastern and western direction through the town, but diverges therefrom.

"This defendant further says that the said ordinance so attempted to be passed by the town council of the said town was not passed in good faith, but was an act in violation of and in perversion of the public trust imposed upon the members of the said town council, and was passed solely for the purpose of according greater convenience and greater facility to the individual owner of...