Broward County v. Bouldin

• Decision Date: 25 September 1959
• Docket Number: No. 674,674
• Citation: 114 So.2d 737
• Parties: BROWARD COUNTY and State Road Department of Florida, Appellants, v. H. E. BOULDIN et al., Appellees.
• Court: Florida District Court of Appeals

Page 737

114 So.2d 737

BROWARD COUNTY and State Road Department of Florida, Appellants, v. H. E. BOULDIN et al., Appellees.

No. 674.

District Court of Appeal of Florida, Second District.

Sept. 25, 1959.

Rehearing Denied Oct. 21, 1959.

John U. Lloyd, Fort Lauderdale, for appellant, Broward County.

Jack W. Pierce, Tallahassee, for appellant, State Road Department.

George W. Kates and Lewis M. Ress, North Miami, for appellees.

THORNAL, CAMPBELL, Associate Judge.

The appellants Broward County and the State Road Department of Florida, who were defendants below, seek reversal of a final decree in favor of Bouldin, plaintiff below, in a proceeding to enjoin appellants from extending a public road over the land of the appellees.

The determining point is whether the appellants had the power to widen a roadway acquired by prescription and if so, the extent of the widening.

For more than four years prior to December 1956, appellant Broward County had maintained and repaired a public road extending over a portion of land owned by appellee Bouldin. The paved portion of the road was 18 feet in width. The county maintained the shoulder and ditch 6 feet in width on each side of the pavement. The center line of the pavement was the south line of Bouldin's property. Neither the County nor the State Road Department had ever acquired by conveyance either an easement or the fee title to the maintained roadway. It will, therefore, be noted that the easement by prescription was acquired over the sough 15 feet of Bouldin's property. In December 1956, the County and the Road Department undertook to widen the pavement to an overall width of 24 feet, using 3 feet of the ditch and shoulder on each side for pavement. Obviously, this would have left only 3 feet for shoulder and ditch on each side of the pavement after it was completed. Bouldin sought a temporary restraining order to stop the road building. This was denied. The County and Road Department proceeded to widen the pavement as planned and on final hearing the Chancellor concluded that the widening of the pavement, in effect, constituted a trespass on Bouldin's property to the extent of 3 feet, and that as a result the County and Road Department, as well as the public, were trespassing an additional 3 feet over the Bouldin property. This conclusion was reached in the light of testimony to the effect that a 6 foot shoulder was essential to the maintenance of the 18 foot road. The Chancellor drew the conclusion that after the road was paved to 24 feet, a shoulder at least 6 feet in width would be needed. He found as a fact that the appellants were actually trespassing on the lands of Bouldin to the extent of 3 feet. By the decree he directed the County to condemn this additional 3 feet or else remove 3 feet of the new pavement on Bouldin's side of the road. He also concluded that the County should be held liable for the costs. Reversal of this decree is now sought.

The appellants contend that they were within their lawful authority when they widened the pavement; that the width of necessary shoulders should be determined by the Road Department rather than by a court, and finally, that the County should not be held liable for the cost.

Bouldin contends that the result of the widening was an actual trespass on his land and as much as he was compelled to bring this proceeding to force the appellants to do their lawful duty, he should not be required to pay the costs.

The parties are not in accord as to the width of the original pavement or the width of the roadway as maintained by Broward County. The evidence, however, adequately supports the conclusion of the Chancellor to the effect that the original pavement was 18 feet wide with a 6 foot ditch and shoulder on each side. The evidence on the point being in conflict we find no basis for disturbing the finding of the Chancellor on this point. He was, therefore, correct in concluding that under Section 337.31, Florida Statutes, F.S.A. (formerly Section 341.59, Florida Statutes) the County had acquired an easement for road purposes over the 30 foot strip, 15 feet of which were located on Bouldin's land.

Generally, the width of a prescriptive way is limited to the extent of the actual user. However, it is well settled that when a public easement by prescription is acquired for road purposes, the width of the easement is not limited to that portion of the roadway actually traveled or paved. It includes also the land which is needed and used for the support and maintenance of the paved or traveled portion. This includes shoulders and ditches. 25 Am.Jur., Highways, Section 36, page 359; 39 C.J.S. Highways § 20, p. 938; Campbell v. Covington County, 161 Miss. 374, 137 So. 111; Grubb v. Teale, 265 Ala. 257, 90 So.2d 727.

We have examined the cases cited by the appellants for a contrary rule but do not find that they are applicable in the case at bar.

Section 337.31, Florida Statutes, F.S.A., recognizes the acquisition of an easement for road purposes and the dedication of the roadway to the public 'to the extent in width which has been actually worked' for a period of four years. We think that our conclusion is further supported by Section 337.03(13), Florida Statutes, F.S.A., which defines a road as including the road bed, right-of-way, culverts, ditches, slopes and embankments. We, therefore, conclude that Broward County had acquired an easement for public road purposes to the extent of the sough 15 feet of Bouldin's land.

Having acquired the easement for road purposes the County, with the assistance of the State Road Department, was authorized to extend the pavement within the area of the acquired easement so long as the result of the improvement was not a further encroachment upon the Bouldin property. The added pavement was widened with the use of the property pursuant to the highway easement acquired. This, however, does not authorize the...