O'Dell v. Walsh
| Decision Date | 24 June 1955 |
| Citation | 81 So.2d 554 |
| Parties | W. M. O'DELL and James M. O'Dell, Appellants, v. Spencer WALSH, Appellee. |
| Court | Florida Supreme Court |
Carroll W. Fussell, Bushnell, for appellants.
P. B. Howell, Bushnell, for appellee.
The appellants pose three questions but we think it will be necessary to answer only one of them because it constitutes a challenge of the right of the appellee to bring the suit-a challenge which we think must be sustained.
The appellee sought an injunction against the obstruction by the appellants of a certain public road, and a mandatory writ requiring them to remove the barricade they had placed across it. He described himself as a citizen and resident of Sumter County, and alleged that he had been employed by a lumber company to cut trees and deliver them to the company's mill. In carrying out the undertaking it was necessary, so appellee alleged, for him to use the road the appellants had blocked.
The chancellor found that the question whether or not the appellee was qualified by interest to bring the suit was not presented to him, although he had the view that the appellee had 'a special and valuable interest at stake in keeping the road open.'
We agree with the appellants in their contention that an issue relative to appellee's right to sue was formed by the portions of their answers containing averments that there had been a failure to state a cause of action entitling the appellee to any relief; that the appellee owned no land bordered by the road involved and did not live on the road; and that an adequate, practical and better way was available to him for use in hauling his logs 'therefore plaintiff (appellee) is an improper plaintiff and has no right to maintain this suit.' (Italics supplied.)
The appellee testified that he lived in another county, had not lived in the county of Sumter for seven years, and had never lived on the road in question. He admitted he could 'take the other end' of the road which was the same type as the road in dispute. He was asked: 'As a matter of fact, would it be about the same distance to the hard road as the other way?' and he answered: 'Yes I guess it would.' He was then asked: 'Would that (the other road) be available to you at all times?' and he answered: 'Yes it has been available.' Later, in reply to a question whether or not he owned property facing the road, he said: 'No, I don't own any real estate on it, I just think it ought to be open, that's the road I...
To continue reading
Request your trial
-
Save Sand Key, Inc. v. U.S. Steel Corp., 72--712
...Dade County (Fla.1972), 261 So.2d 832, and cases cited therein.10 See, e.g., Boucher v. Novotny (Fla.1958), 102 So.2d 132; O'Dell v. Walsh (Fla.1955), 81 So.2d 554; Henry L. Doherty & Co., Inc., v. Joachim (1941), 146 Fla. 50, 200 So. 238; Rickman v. Whitehurst (1917) 73 Fla. 152, 74 So. 20......
-
U.S. Steel Corp. v. Save Sand Key, Inc.
...we agree with the chancellor in his finding and holding that the plaintiffs are not in a position to maintain this action. (O'Dell v. Walsh, 81 So.2d 554 (Fla.1955)). Plaintiffs claim as authority to bring this action as authorized by Section 64.11, Florida Statutes, F.S.A., is untenable as......
-
Tiedeman v. City of Miami
...at the Dinner Key Marina in Miami, Florida, see North Broward Hosp. Dist. v. Fornes, 476 So.2d 154, 155-56 (Fla.1985); O'Dell v. Walsh, 81 So.2d 554, 555 (Fla.1955); Paul v. Blake, 376 So.2d 256, 259 (Fla. 3d DCA 1979); and (b) it was plain on this record that the plaintiffs could not by am......
-
Central and Southern Florida Flood Control Dist. v. Scott
...the severed Town adequately allege special damages differing in kind from those sustained by the public at large. Compare O'Dell v. Walsh, Fla.App.,1955, 81 So.2d 554, a suit to remove an obstruction on a certain public road. There is, of course, no doubt that administrative boards created ......