Daugherty v. Latham

• Decision Date: 25 July 1939
• Citation: 139 Fla. 477,190 So. 742
• Parties: DAUGHERTY v. LATHAM et al., County Com'rs (LEE, Intervener).
• Court: Florida Supreme Court

190 So. 742

139 Fla. 477

DAUGHERTY v. LATHAM et al., County Com'rs (LEE, Intervener).

Florida Supreme Court

July 25, 1939

En Banc.

Suit by Mrs. Florence Daugherty against E. A. Latham and others, as County Commissioners of Volusia County, and their successors in office, to enjoin abandonment of a road. From an order or decree denying plaintiff's motion to set aside an order permitting Mrs. Sallie Lee to intervene, strike the petition for intervention and intervener's answer and counterclaim from the file, and enter final decree for plaintiff, she appeals.

Reversed and remanded. Appeal from Circuit Court, Volusia County; H B. Frederick, judge.

COUNSEL

Metcalf & Finch, of West Palm Beach, for appellant.

John D Broome, of De Land, and Thomas N. Tappy, of Daytona Beach for appellees.

OPINION

BUFORD Justice.

The appeal brings for review order or decree made by the Circuit Court on the 25th day of January, 1938, as follows:

'And now this cause coming on this day to be heard upon the motion of plaintiff by her solicitors, Metcalf and Finch, to----

'1. Set aside, vacate and hold for naught the order permitting Sallie Lee to intervene;

'2. Strike from the file the petition for intervention filed by Sallie Lee;

'3. Strike from the file the answer and counterclaim filed by Sallie Lee; and

'4. To make and cause to be entered a final decree upon the pleadings and proof;

'And the Court having heard argument by the respective parties and being advised in the premises, it is thereupon ordered, adjudged and decreed that said motion be and the same is hereby denied.'

This is the second appearance of this litigation in this Court. See Daugherty v. Latham et al., 128 Fla. 271, 174 So. 417. ASyllabus by the Court in this case is:

'Dismissal for want of equity of bill to enjoin closing of a public highway held erroneous, where complainant alleged that highway was her only means of ingress and egress to her farm, that closing would deprive her of means to transport her farm products and necessities of life to market, and that highway was closed for benefit of other private property owners and in an effort to deprive complainant of highway's use.'

The record shows that certain citizens, including the intervenor, Sallie Lee, petitioned the County Commissioners of Volusia County as follows: 'To the Honorable Board of County Commissioners of Volusia County, Florida, Greeting:

'We, the undersigned, citizens and freeholders living in the vicinity of the road herein prayed to be abandoned would respectfully represent unto your Honorable Body that it is necessary and expedient that a public road be abandoned as follows:

'Beginning at a point in the South line of the 'Perkins Highway' 587.5 feet easterly from the west line of lot 5, subdivision of M. E. Levy Grant, per map book 3, page 154. Thence S. 42 degrees 45 Min. East 210 feet, thence south 25 degrees 30 min. East 248.4 feet to the south line of said lot 5.

'Wherefore, we pray that your Honorable Body issue an order directed to three disinterested free-holders of Volusia County, Florida, to view and mark out the said road to be abandoned, and that after said road is marked out by said viewers, and their report made of the same is accepted, that your Honorable Body will after giving notice thereof as required by law, make an order for the abandonment of said road, and declaring the same to be no longer a public road.

'Said road having been ----- feet wide and known as ----- Road #1.

'All of which is respectfully submitted by the undersigned petitioners, on this the 31st day of July, A. D.1935.'

Other petitions of like character were also filed.

Viewers were appointed and reported.

Thereafter, certain citizens and freeholders living in the vicinity of the old road filed objections to the abandonment of the old road and establishment of a new road.

When the County Commissioners ordered the road changed, or the abandonment of the old road and the laying out of the new road, Mrs. Daugherty exhibited her bill of complaint in the Circuit Court seeking to enjoin the abandonment of the road referred to as the old road.

Motion to dismiss the bill of complaint was filed. The motion was granted.

Appeal was taken to this Court and the order reversed.

Thereafter the County Commissioners filed answer.

Paragraph 4 of the bill of complaint alleges:

'Plaintiff attaches hereto as Exhibit A, and makes a part hereof, a map of lots 5 to 8 inclusive and Lots 30, 31 and 32 of the said subdivision of M. E. Levy Grant situated in Volusia County, Florida, recorded in said Plat Book 3, page 154 in said Clerk's office, which map will be referred to hereinafter; that lot 5 shown on the said map, except the road running north and south thereon, is owned by Mrs. Sallie Lee and Blish D. Lee and the plaintiff owns a life estate in the W 1/2 of Lot 6, which abuts upon the road which defendants have signified their intention to close and abandon, hereinafter described, and the W 2/3 in said Lot 7, and her residence is situated at the point marked 'residence' on said map; that she does not own any portion of the east one-half of Lot 6 or any portion of Lot 7 lying east of the line designated on said plat as 'dividing line' that the dotted line leading north from plaintiff's residence across lots 6 and 5 to the Perkins Highway represents a public highway which is about fifteen feet in width, and which highway has been opened and traveled by the public in general at all times since the residence was erected, in which plaintiff now resides, which was fifty years before this date; that during the said period of time, the said highway has been, and still continues to be, the only road over and along which this plaintiff and her family residing in her said residence can travel to reach a public highway leading to DeLand about six miles away, which is now, and has been for the past fifty years, the market where plaintiff and her husband and family have sold their crops and purchased their supplies; that it has been, and is now, the only road over which plaintiff's friends and relatives could travel in going to and from plaintiff's home, and has been, during the said period of time, and now is, the only road over and along which plaintiff can transport her agricultural and grove products in order to reach the market; that the line designated as 'Perkins Highway' on the plat hereto attached is a paved public highway leading from DeLand, Florida, in a northeasterly direction to points far beyond plainiff's residence, and is the only road which is available for plaintiff to travel in reaching the said City.'

Answer to the fourth paragraph of the Bill of Complaint is as follows:

'That these defendants deny each and all of the allegations of the Fourth paragraph of Plaintiff's Bill of Complaint except these defendants admit the allegations of ownership of property described in said paragraph, as stated in said paragraph Fourth of the Plaintiff's Bill of Complaint.'

The seventh paragraph of the answer is as follows:

'That these defendants further answering the plaintiff's bill of complaint say that they would not discontinue the road described in the plaintiff's bill of complaint except and unless another road was provided so that the plaintiff could go to and from her home over and upon the public roads described in her bill of complaint. That these defendants are willing to build and construct a better and more suitable road from the Perkins Highway to the place of residence of the plaintiff providing a sufficient right-of-way can be obtained therefor from the Plaintiff and her relatives.'

On October 15, 1937, Sallie Lee filed petition in the Circuit Court to be allowed to intervene. In her petition she alleged, inter alia:

'that she is the sole owner of lot number 5 of the Moses E. Levy Grant, Section 37, Township 16 South of Range 30 East, Volusia County, Florida; and that she has been such owner since 1890; that the said property was acquired by deed from her father and mother, John and Margaret Daugherty. That as the time she acquired the said property from her father there was an orange grove of between five and six acres which was located on the Southeast corner of lot number 5; and that the said lot contains 15 acres; that the balance of lot number 5 was wild, unimproved and vacant lands.

'2. And your petitioner further alleges that there never has been any dedication by her for the road across lot number 5 to the public use but that by the way of necessity the family of Florence Daugherty located on lot number 7 of the Moses E. Levy Grant have been permitted to use the said road, always with the understanding that should the balance of lot number 5 be used for cultivation of farm or citrus crops, that another road would be established, furnishing the family of Florence Daugherty and those living with her, a way of ingress and egress to Perkins Highway for the purpose of transporting her farm products to a near market, and she further alleges that in 1932 when an orange grove was set out on the remaining three-quarters of lot number 5 and that when the same was discussed with John Daugherty, the husband of Florence Daugherty, as to the opening of another road to the property on lot number 7, owned by the said John Daugherty and now owned by the plaintiff, there was no objection to the change.

'3. That in conformance with the statement in paragraph 2, your petitioner did deed to the County Commissioners who are defendants in the above entitled cause, a road on the Eastern border of lot number 5, a road to replace the former road which was used as a way of necessity; and that Charles Lungren, owner of lot number 31 of the Moses E. Levy Grant did also...