Brooks v. Patterson

• Decision Date: 08 July 1947
• Citation: 159 Fla. 263,31 So.2d 472
• Parties: BROOKS et al. v. PATTERSON, Mayor, et al.
• Court: Florida Supreme Court

31 So.2d 472

159 Fla. 263

BROOKS et al. v. PATTERSON, Mayor, et al.

Florida Supreme Court

July 8, 1947

Rehearing Denied July 30, 1947.

Appeal from Circuit Court, Pinellas County; T. Frank Hobson, judge.

Clair A Davis, of St. Petersburg, for appellants.

Carroll R Runyon, Harry I. Young, Lewis T. Wray, Frank D. McDevitt, and Bussey, Mann, Simmons & Fielding, all of St. Petersburg for appellees.

BURFORD, Justice.

The appeal brings for review final decree entered by the Chancellor in a suit wherein the bill of complaint and the amended bill of complaint prayed:

That the defendants 'be perpetually enjoined and restrained from suffering or permitting any aeroplane, using said airport, and under the control and/or supervision of any of them, from using or invading the airspace over the area and properties first described by plaintiffs in this Bill of Complaint, at an altitude of less than five hundred feet (500') above the surface of the earth below or less than whatever altitude the Court may judicially find and determine is or may be necessary in order to protect plaintiffs against the commission of a nuisance by such aircraft in flight.

'2. That the Court order, adjudge and decree that Ordinance #981-A of the City of St. Petersburg, Florida, is unreasonable, arbitrary and discriminatory; that it denies unto plaintiffs the equal protection of the laws; that it deprives them of their property without due process of law and is violative of the Declaration of Rights of the Constitution of the State of Florida and the Fourteenth Amendment to the Constitution of the United States and that said ordinance be decreed by the Court to be absolutely null and void and of no force or effect and that defendants herein be perpetually enjoined from enforcing or attempting to enforce the same or any or the provisions thereof.

'3. That in the event plaintiffs are mistaken as to any relief herein prayed for that they be granted such other general or additional relief as the Court deems they are entitled to in equity and good conscience.'

And 'That the Court adjudge and decree that Albert Whitted Airport in St Petersburg, Florida, used as an airport by airplanes and/or the operators thereof, in taking off from and in landing upon said airport constitutes a nuisance and that the operation and continuation of said airport for such purposes be perpetually abated and enjoined.'

A perusal of the pleadings and the testimony brings us to the conclusion that the final decree clearly sets forth the pertinent facts disclosed by the record and enunciates the correct principles of law to be applied thereto.

The decree is as follows:

'The bill of complaint sets forth various contentions of plaintiffs in support of their position that the defendants should be enjoined from operating Albert Whitted Airport upon the theory of abatement of a nuisance. It is true that such relief is not the only relief requested by plaintiffs. However, such objective is the ultimate and only and sought for fulfillment of the alternative prayer, seeking an injunction against planes flying not less than five hundred feet above the property of plaintiffs, is impossible of attainment in taking off and landing at said airport.

'The only objections to the operation of the airport, which have impressed this Court, are to-wit: Excessive noise and fear of property damage, as well as personal safety created and engendered by unnecessarily low flying particularly in taking off from and in landing upon Albert Whitted Airport. All other complaints are deemed by this Court either to be untenable or unavailing to plaintiffs for several reasons.

'The establishment of Albert Whitted Airport in 1928 was not adventitious. Its creation was planned and publicized. Moreover the enlargement and improvement program was made known to the citizens of St. Petersburg, including plaintiffs, by newspaper articles and by the work itself as it progressed. The City of St. Petersburg and the Federal Government in the establishment, enlargement and improvement of the airport in question expended approximately One Million, Two Hundred Fifty Thousand Dollars of public funds without a voice being raised, in a legal sense, against the project until the institution of this suit. In connection with the matter of improvements, it is important to consider that the city council in May, 1944, entered into an agreement with the United States Government, looking to the further improvement and extension of Albert Whitted Airport, whereby the United States Government was to proceed with the development of the airport and expenditure of large sums of money therefor, upon the condition that the City would, among other things, continue to operate Albert Whitted Airport as a public airport throughout the life of the improvements so to be made, and pursuant to said agreement the Federal Government expended a sum in excess of $500,000 to complete its part of said agreement.

'Plaintiffs' counsel contends that his clients have not been guilty of laches. Plaintiffs attempted to avoid laches by their own testimony to the effect that they were too patriotic to institute an action of this kind during the time that our country was embroiled in the devasting conflict of World War II, and that prior to the war the airport was not used extensively. This excuse was seriously considered by the Court at the time of taking testimony but when the file of this case was inspected and the Court observed that the instant suit was initiated on May 14, 1945, three months before cessation of hostilities with Japan, plaintiffs' contention became a mere brutum fulmen. Counsel for plaintiffs further contends that laches will not bar action against a continuing nuisance. He cites respectable authority in support of his position. It is somewhat difficult, at least for this Court, to draw a definite, clear line of differentiation between a continuing and a permanent nuisance nor is it considered essential in the determination of this case to do so. It is sufficient to observe that laches is applicable in this case as against the attempt to enjoin the operation of Albert Whitted Airport, except and unless it should become mandatory upon the Court, in order to protect the inalienable rights of the plaintiffs to life, liberty, pursuit of happiness and the free use and enjoyment of their property, to rule otherwise. The airport is not a nuisance per so. So long as the defendants operate the airport, in the usual, normal and customary manner for operation of airports or this character, it cannot be declared a nuisance and its operation cannot be enjoined by plaintiffs and others similarly situated. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817, 99 A.L.R. 158; Delta Air Corp. et al. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R. 1352; Batcheller v. Commonwealth, 176 Va. 109, 10 S.E.2d 529. Regardless of laches the individual, although harassed, annoyed and subjected to inconvenience, cannot stand in the way of progress but must yield to the summum bonum--the greatest good for the greatest number. Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E. 385, 69 A.L.R. 300.

'The City of St. Petersburg established, has operated and is operating Albert Whitted Airport by virtue of legislative authority. See National Container Corporation et al. v. State ex rel. Stockton, 138 Fla. 32, 189 So. 4, 122 A.L.R. 1000; Watson v. Holland, 155 Fla. 342, 20 So.2d 388; City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446, 447; Chicago & Eastern R. Co. v. Loeb, 118 Ill. 203, 8 N.E. 460, 59 Am.Rep. 341; Thrasher v. Atlanta, supra. Such authorization though it recognizes the essentiality in this progressive era of municipal airports in order that Florida may keep pace with modernity and its attending innovations, is not a license to the City to ignore or run rough-shod over the individual citizen in disregard of his constitutional rights. The City should be mindful at all times of the admonition which comes to us from the days of the Roman Empire, 'sicutere tuo ut alienum non laedas'-- so use your own property as not to injure another's. That aviation is as much a part of modern civilization is as the railroad, steamship and automobile as a means of transportation of both freight and passengers is too obvious for serious discussion. The place which aviation now occupies was envisaged, probably initially, by Alfred Lord Tennyson in his prophetic dream which we find recorded in his frequently quoted poem, 'Locksley Hall,' when he wrote:

"For I dipt into the future, far as human eye could see,

Saw the vision of the world, and all the wonder that would be;

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