Burdine v. Sewell

• Decision Date: 27 July 1926
• Citation: 109 So. 648,92 Fla. 375
• Parties: BURDINE et al. v. SEWELL et al.
• Court: Florida Supreme Court

109 So. 648

92 Fla. 375

BURDINE et al. v. SEWELL et al.

Florida Supreme Court

July 27, 1926

Rehearing Denied Sept. 22, 1926.

En Banc.

Suit by John Sewell and another, copartners, under the firm name of John Sewell & Bro., against John M. Burdine and another, for an injunction. From a decree for complainants, defendants appeal.

Reversed with directions.

Strum and Ellis, JJ., dissenting.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Dade County; H. Pierre Branning, judge.

COUNSEL

R. F Burdine, of Miami, for appellants.

Price Price, Neeley & Kehoe and A. B. Small, all of Miami, for appellees.

Prior to June 23, 1899, Ft. Dallas Land Company, a corporation, was the owner of lots numbered 1 and 2 of block 122 north, in the city of Miami. These lots had a frontage to the north on Twelfth street. Lot 1, being a corner lot, had also a frontage on avenue C to the east.

According to the official plat, there was no alley through block 122 at the rear of these lots.

On June 23, 1899, Ft. Dallas Land Company sold and conveyed lot 2 of said block 122 to John Sewell and E. G. Sewell, who immediately went into possession and became the occupants of the lot, building thereon a store building which they have ever since occupied as retail merchants.

There was no way of reaching Avenue C from the rear of this store building on lot 2 except across an open space on the south end of lot 1. Ft. Dallas Land Company had a building on lot 1 which was occupied by its tenants, and the space to the rear was used by these tenants, and also by the Sewells, in reaching avenue C from the rear of these buildings.

A few years after the Sewells purchased lot 2, there was a fence erected along the east line of lot 1, from the rear of the building of Ft. Dallas Land Company to a building on another lot in said block 122, to the rear of lot 1. This fence cut off the way that had been used by the Sewells for reaching the rear of lot 2 from Avenue C. They took up the matter with J. R. Parrott, the president of Ft. Dallas Land Company, a corporation, the owner of lot 1, and from whom they had purchased lot 2.

After these negotiations, the following agreement relative to the use of the space at the rear of lot 1 as an alley was, on December 26, 1905, entered into between the Ft. Dalla Land Company and John Sewell, to wit:

'This agreement, made this 26th day of December, A. D. 1905, by and between the Ft. Dallas Land Company, a corporation under the laws of the state of Florida, hereinafter called the company, and John Sewell, of Miami, Fla.,

'Witnesseth: That in consideration of the mutuality hereof, and the further consideration of one dollar paid by John Sewell to said company, the receipt whereof is hereby acknowledged, said parties have agreed as follows:

'Said Ft. Dallas Land Company agrees to allow to remain open an alley ten feet wide along the south line of lot one (1) of block one hundred twenty-two (122), in the city of Miami, and that said Sewell may, without any further rent, have the right of passage over said alley to and from his lot number two (2), of said block one hundred twenty-two (122), for and during such time as said Sewell keeps open and allows said company a right of way and easement over an extension of said ten-foot alley across the south end of said lot two (2) of block one hundred twenty-two (122), and does not permit the use of said alley by adjoining property owners, unless and until such owners shall grant to the company and its tenants a like right of use and easement over lands owned by them.

'Said Sewell agrees to open and allow to remain open across the south end of lot two (2) of block one hundred twenty-two (122), a ten-foot alley, and to give said company and its tenants an easement over the same without rent or charge, for so long as the alley over lot one of said block remains open, the further agrees not to allow the use of said alley by adjoining property owners or their tenants, other than the company and its tenants, unless and until such owners also open and allow the use of a ike alley in extension of said alley over their lands.

'It is understood and agreed that the alley or way, hereinabove provided for, is and shall remain a private way for the use of said Sewell and said Ft. Dallas Land Company and their tenants, and shall not be used nor permitted to be used by adjoining owners or other persons, unless and until such adjoining owners or other person shall enter into an agreement in writing with the parties hereto covering the permissive use of said way, and further, that said Sewell shall keep and maintain a gate over and across the entrance to said way and a sign in a conspicuous place at the entrance of said way, indicating that it is a private way.

'In witness whereof, said Ft. Dallas Land Company has caused these presents to be signed by J. R. Parrott, its president, and its corporate seal to be hereto affixed, and said John Sewell has hereunto set his hand and seal the day and year first above written. Ft. Dallas Land Company, by J. R. Parrott, President. [Seal of Ft. Dallas Land Co.] John Sewell. [Seal.] John B. Reilly. E. C. Welsh, as to John Sewell.'

Subsequent to the making of this agreement, the fence on the east line on lot 1 was opened and a gate erected at the entrance of the alley, as provided for in the agreement, the gate continuing there for some time, and the alley was used by the owners of lot 2 and the tenants of Ft. Dallas Land Company, the owner of lot 1.

Some years after the execution of the agreement relative to the use of the alley, the Ft. Dallas Land Company, a corporation, sold lot 1 of block 122 to Model Land Company, a corporation, which subsequently sold same to John B. Reilly, the stockholders of the Model Land Company, a corporation, being practically the same as the stockholders of the Ft. Dallas Land Company, a corporation, and John B. Reilly being the resident agent of both said corporations. In the year 1904 John M. Burdine, or the firm of Burdine and Quarterman of which he was a member, became a tenant of the building on lot 1. He, or his firm, continued as a tenant of the respective owners of the building on lot 1 until 1919, when he leased the entire lot from John B. Reilly, who was then the owner of the same, this lease being a thirty years' lease. After acquiring this long-term lease on lot 1, John M. Burdine, with the intention of utilizing the entire lot for erecting a building, began the construction of a stone wall along the west line of the lot, thus obstructing the west end of the alley across the south end of the lot mentioned in the agreement between the Ft. Dallas Land Company and John Sewell.

Upon the erection of this obstruction, John

Sewell and E. G. Sewell, copartners, trading as John Sewell & Bro., on October 23, 1919, filed in the circuit court of Dade county, Fla. a bill for injunction, praying for an order restraining and enjoining John M. Burdine from closing, or attempting to close, the alley along the south line of lot 1.

The facts set forth in the bill of complaint are substantially as stated above, with further allegations as to the use of the alley by the complainants prior to the written contract or agreement above quoted, this agreement being attached to the bill of complaint as Exhibit A. It is also alleged that the written contract was made to continue and confirm the prior verbal agreement. The bill also alleges that the complainants had, from the time of their purchase of lot 2, occupied, used, possessed, and maintained the said alley for the purpose of reaching the rear of lot 2 from Avenue C, and that the alley had also during such time been used by the owners of lot 1 and their tenants, including respondent John M. Burdine, and that the agreement, after its execution, was recorded in the Miscellaneous Records of Dade county, and that John B. Reilly, who purchased the said lot 1, and John M. Burdine, the lessor thereof, each had notice of the alleged easement claimed by the complainants over said lot at the time their respective interests were acquired.

Upon the filing of the bill of complaint and before answer was filed, an application was made for an order temporarily enjoining respondent John M. Burdine from closing, or attempting to close, the said alley ten feet in width across the south end of lot 1 of block 122. This application was denied, and the bill of complaint dismissed by the chancellor. Upon appeal from the order of the court below denying the injunction and dismissing the bill of complaint, the case was reversed. See John Sewell & Bro. v. Burdine, 80 Fla. 718, 87 So. 143.

After the case was reversed and remanded to the court below, respondent John M. Burdine filed his answer, as did also John B. Reilly, who, by order of the court, upon stipulation between counsel, was made a party respondent and permitted to file answer. The answers of the respondents were practically the same, and there was incorporated in each a demurrer to certain paragraphs of the bill of complaint.

The answers of respondents maintain that there was only a mere personal privilege or license granted John Sewell and his tenants to use the alley on lot 1 which was subject to be revoked, and which was, in fact, revoked when the property was sold by the Ft. Dallas Land Company, a corporation.

The answers deny that the intent and purpose of the written agreement was as claimed by complainants in their bill of complaint, and also deny that complainants had been in the occupancy and possession of the said alleged alley across lot 1 by virtue of any permanent right of easement.

It is further claimed in the respective answers that the...