Bradshaw v. Prasek, 1126
Decision Date | 30 September 1959 |
Docket Number | No. 1126,1126 |
Citation | 114 So.2d 821 |
Parties | Charles E. BRADSHAW and Lillian D. Bradshaw, his wife, Appellants, v. Malcolm W. PRASEK and Callie Lou Prasek, his wife, Appellees. |
Court | Florida District Court of Appeals |
H. Russell Troutman, of Akerman, Turnbull, Senterfitt & Eidson, Orlando, for appellants.
J. Russell Hornsby, Orlando, for appellees.
The appellants, defendants below, filed this their interlocutory appeal from the chancellor's denial of their motion for summary judgment. The point argued on appeal is whether the chancellor erred in denying defendants' motion for summary judgment when the facts are undisputed that defendant neither rejucted nor refused to permit plaintiffs the use of a right-of-way for purposes of ingress and egress to their property.
On May 17, 1958, plaintiffs were conveyed a certain piece of real estate. On or about November 25, 1958, they filed their amended complaint in which, among other things, they charged and prayed the court: 'That plaintiffs have an easement of necessity across the lands of defendants, because the tract of land now owned by plaintiffs is completely surrounded by other lands and does not touch or border on any public road at any place.' Sufficient allegations are contained in the amended complaint to make this case one wherein the court below would have jurisdiction. The plaintiffs had filed their amended complaint, and the defendants had taken the deposition of one of the plaintiffs at the time the defendants filed their motion for summary judgment. Included in the deposition of Malcolm W. Prasek is the following:
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Section 704.01(2), Florida Statutes, F.S.A., provides in part:
'* * * The owner [of hemmed-inlands] *...
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Stein v. Darby, C-41
...no Florida precedent directly in point, the constitutionality of the subject statute has inferentially been recognized in Bradshaw v. Prasek, Fla.App., 114 So.2d 821, affirming the denial of a summary judgment, in which the court quoted § 704.01(2), Florida Statutes, F.S.A., with approval. ......
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Dinkins v. Julian, 1543
...Florida has ruled that easements by implication may come about by way of necessity for ingress and egress. See Bradshaw v. Prasek, Fla.App.1959, 114 So.2d 821. Since there is no allegation of necessity, we cannot uphold the complaint on this ground. There are also numerous Florida cases tre......