Duval Engineering & Contracting Co. v. Sales

• Decision Date: 03 December 1954
• Citation: 77 So.2d 431
• Parties: DUVAL ENGINEERING AND CONTRACTING COMPANY, a Florida corporation, the State Road Department of the State of Florida, a body corporate, and Florida State Improvement Commission, an agency of the State of Florida, Petitioners, v. Louis M. SALES and Susan G. Sales, his wife, Respondents.
• Court: Florida Supreme Court

Page 431

77 So.2d 431

DUVAL ENGINEERING AND CONTRACTING COMPANY, a Florida corporation, the State Road Department of the State of Florida, a body corporate, and Florida State Improvement Commission, an agency of the State of Florida, Petitioners, v. Louis M. SALES and Susan G. Sales, his wife, Respondents.

Supreme Court of Florida, Division A.

Dec. 3, 1954.

Rehearing Denied Jan. 18, 1955.

J. Turner Butler, Jacksonville, for Duval Engineering and Contracting co.

Richard W. Ervin, Atty. Gen., T. Paine Kelly, Asst. Atty. Gen., and D. Fred McMullen, Tallahassee, for State Road Dept. and Florida State Improvement Commission, petitioners.

Daniel & Poucher and Walter G. Arnold, Jacksonville, for respondents.

TERRELL, Justice.

Louis M. Sales and Susan G. Sales filed their complaint in the appropriate court against Duval Engineering and Contracting Company, a Florida corporation, the State Road Department of Florida and the Florida State Improvement Commission, a State agency, as defendants. The complaint alleged ownership by complainants of Lot One, Block A, of Palm Park Subdivision, City of Jacksonville, as per plat duly recorded, and that by virtue of such ownership they claim the fee simple title to the south thirty feet of a platted street (Gary Street) delineated upon said plat, abutting the described lot, including riparian rights appurtenant thereto in the St. Johns River, a navigable stream upon which said lands border.

The complaint further alleges that preparatory to construction of Gilmore Street Bridge, being part of Jacksonville Expressway over the St. Johns River, defendants invaded said lands and riparian rights of the plaintiffs and threaten to appropriate them, that the construction of said bridge will depreciate the value of said lands and render them unfit for the use to which they are devoted. The complaint prays that defendants be enjoined from proceeding further with construction of said bridge and to restore the property of plaintiffs to its original condition, or, in the alternative, that defendants be required to commence proceedings in eminent domain to condemn the rights and property of the plaintiffs to public use.

Defendants interposed their several answers to the complaint in which they admitted ownership of Lot One, Block A, of Palm Park Subdivision to be in the plaintiffs but they denied any right, title interest or ownership of the plaintiffs of any part of Gary Street as shown on the official plat of the subdivision. On the contrary, they averred that Gary Street at the location in question is a part of the system of State roads, duly designated as such by act of the legislature, to wit: Chapter 25002, Laws of 1949. The trial court decreed that any part of plaintiffs' proprietory claim to Gary Street was in subordination to the easement of the State of Florida for use of the State Road Department in the construction and operation of State roads and that riparian rights appurtenant to Gary Street of the extension thereof are vested in the State Road Department with the right to use said street and riparian rights for State road purposes.

Defendants interposed the further defense that under Chapter 26776, Acts of 1951, F.S.A. § 253.12, and Chapter 15861, Acts of 1933, F.S. § 420.05, F.S.A., the Trustees of the Internal Improvement Fund did on April 8, 1952, convey by deed to the Florida State Improvement Commission, for the use and benefit of the State Road Department, a perpetual easement for the construction of the Gilmore Street Bridge in and over all the submerged lands under the St. Johns River lying within 200 feet on each side of the center line of State Road 5, as surveyed for the construction of said bridge across the St. Johns River. This defense was stricken on motion of the plaintiff by order of the chancellor, to which error was assigned.

November 6, 1953, the chancellor entered an order in which he found that respondents were the owners of riparian rights appurtenant to Lot One, Block A, of Palm Park Subdivision lying between parallel lines drawn from the northwesterly corner and the southwesterly corner of said lands to the point of contact with the edge of the channel of the St. Johns River, and at right angles thereto, which were appropriated and taken by petitioners in the construction of Gilmore Street Bridge. November 27, 1953, the chancellor entered a further decree in which he held that respondents were entitled to compensation from petitioners for appropriation and taking petitioners' riparian rights appurtenant to said lands and directing transfer of the cause to the law side of the docket to determine what compensation should be paid respondents for appropriating their riparian rights, said compensation to be determined by the law governing eminent domain. We are confronted with an appeal from both decrees.

The first question presented may be stated as follows: What was the effect of Chapter 26776, Acts of 1951, on the rights of riparian owners acquired under Chapter 8537, Acts of 1921, Butler Bill, F.S.A. § 271.01 et seq., said owners not having complied with the condition of the grant by filling in or permanently improving the submerged land continuously from high water mark in the direction of the channel.

In Holland v. Fort Pierce Financing & Construction Co., 157 Fla. 649, 27 So.2d 76, this Court held that Chapter 8537, Acts of 1921, clothed the upland owner whose lands were bounded by high water mark with title to the submerged lands to the edge of the channel but that such title was a qualified one and did not become absolute until the upland owner actually bulkheaded and filled in from the shore to the edge...