Florida State Turnpike Authority v. Anhoco Corp.

• Decision Date: 10 June 1959
• Citation: 116 So.2d 8
• Parties: FLORIDA STATE TURNPIKE AUTHORITY, State Road Department of Florida and Dade County, Petitioners, v. ANHOCO CORPORATION, a Florida corporation, and Theatre Associates, Inc., a Florida corporation, Respondents. ANHOCO CORPORATION, a Florida corporation, and Theatre Associates, Inc., a Florida corporation, Petitioners, v. FLORIDA STATE TURNPIKE AUTHORITY, State Road Department of Florida and Dade County, Respondents.
• Court: Florida Supreme Court

Page 8

116 So.2d 8

FLORIDA STATE TURNPIKE AUTHORITY, State Road Department of Florida and Dade County, Petitioners, v. ANHOCO CORPORATION, a Florida corporation, and Theatre Associates, Inc., a Florida corporation, Respondents.

ANHOCO CORPORATION, a Florida corporation, and Theatre Associates, Inc., a Florida corporation, Petitioners, v. FLORIDA STATE TURNPIKE AUTHORITY, State Road Department of Florida and Dade County, Respondents.

Supreme Court of Florida.

June 10, 1959.

As Amended Nov. 6, 1959.

Rehearing Denied Dec. 17, 1959.

Gilbert A. Smith, Fort Lauderdale, for Florida State Turnpike authority.

Ross H. Stanton, Jr., and Richard B. Austin, Tallahassee, for State Road Department of Florida.

Darrey A. Davis and Thomas C. Britton, Miami, for Dade County.

Walsh, Simmonite, Budd & Walsh, and Garland M. Budd, Miami, for respondents and petitioners.

THOMAS, Chief Justice.

Upon presentation of two petitions for certiorari by parties who had been appellants and appellees, respectively, in a case decided by the District Court of Appeal, Third District, the court concluded that in view of an apparent conflict between the decision of that court and a decision of the Supreme Court in Irv Enterprises, Inc. v. Atlantic Island Civic Association, Inc., Fla., 90 So.2d 607, the court would hear argument on the jurisdictional question involved in the first captioned cause and, once jurisdiction in this court was established, would pass upon the merits, and further that upon deciding jurisdiction should be assumed, would determine the second cause also because both present controversies arose from the same transaction and the points of law and salient facts involved in them were, therefore, closely allied.

We will discuss the cases in the order they are named in the caption.

The District Court of Appeal in the present litigation and the Supreme Court in the cited case dealt with instruments of identical form titled 'Right-of-Way Deed to Dade County Conveys The Title for Highway Purposes.' By the deeds were conveyed certain lands 'for the purpose of a public highway and purposes incident thereto' and in them was expressed the intention of the grantors 'to convey to the said County and its successors in interest, the land * * * for use as a public highway and for all purposes incidental thereto' with the stipulation that upon discontinuance of the use intended the title would revert to the grantors, their successors and assigns.

This court held in the cited case that the county by the deed became the holder of an easement.

In the instant case the District Court of Appeal construed a deed of the exact form from Ellen S. Ragen to Dade County, conveying the south 30 feet of lots she owned, as including 'not only the fee title to the twenty feet previously dedicated by plat but an additional ten feet in fee subject to the reversion contained in the deed.' (Italics supplied.) Florida State Turnpike Authority v. Anhoco Corporation, Fla.App., 107 So.2d 51, 54.

This suit was instituted by the respondents who described themselves as owners and lessees of lots formerly owned by Ellen S. Ragen, facing State Road 826, on which they operated two outdoor motion picture theaters. They charged that the petitioners, by widening the road, had shut off direct ingress and egress to and from their property and so had destroyed their business. They sought a mandatory injunction restoring direct access to their theaters, and a judgment for the value of their land bordering the road, which they alleged the petitioners had taken, and for damages they claimed to have suffered.

Adverting briefly to the history of the property affected, this land, including the four lots of respondents, was subdivided by the then owner, Florida Southern Securities Company, in 1914. These lots were shown to abut a 20-foot strip, bounded on the south by the section line, and designated a 'roadway'. On the plat appeared the statement that roadways defined on it were 'perpetually dedicated to the free use of the public * * *.'

As we understand the case the facts are comparatively simple. The four lots border a 'perpetual' easement established 45 years ago by the subdivider. The subsequent owner of them executed the deed we have described. The immediate question is whether by that instrument the grantor conveyed the south 30 feet of her property, including not only the fee title to the 20 feet previously dedicated by plat but an additional 10 feet in fee subject to the reversion contained in the deed, as the District Court held, or created by the deed an additional easement across the south end of the lots making the total right-of-way 50 feet wide.

We are constrained to adopt the latter construction. Following our opinion in Irv Enterprises, Inc. v. Atlantic Island Civic Association, Inc., supra, we cannot conclude that the deed in this case was intended to convey a larger estate, that is, the fee of the 20 feet already dedicated and an additional 10 feet in the same manner. In that case we held that a deed identical in form vested in the grantee-county only an easement and we are unable to detect any reason why the deed presently under study transferred any different, or greater, estate. Whether or not the District Court of Appeal was referred to our decision in the cited case we do not know but no mention of it appeared in that court's opinion.

Since the county had under its supervision a right-of-way of the width of 20 feet and obtained a deed conveying an easement 30 feet wide, it is difficult for us to understand how it could have been meant that the later deed included the earlier dedicated roadway. This is the interpretation given by the District Court of Appeal because that court felt that the later deed conveyed the fee but once it is held that only an easement was conveyed such an overlapping seems to us illogical.

Having reached the conclusion that the deed only added an easement 30 feet in width to a roadway already dedicated there is no occasion to explore respondents' proposition that the notation on the plat relative to measurement of lots in the subdivision should be taken into account. In the note it was provided that '[a]ll lots, unless otherwise marked are 330' by 660'. Measurements of lots adjoining roads are taken from center of roadway.' Whether the depth of the lots in question is measured from the center of the 20-foot roadway, shown on the plat, or a roadway of 40 feet that might have been contemplated becomes unimportant under our construction of the deed for the north line of the roadway is fixed and it became the south line of the additional easement.

In construing the deed with reference to respondents' lots we have been influenced by the provision of the same deed with relation to other property in the same subdivision but facing a road 40 feet wide. The easement granted was 15 feet, and, plainly, it could not overlap the one created by the dedication for the simple reason that it was narrower. In the light of all the facts, we must reject respondents' argument that the deed given the effect they claim for it was of special advantage to the county because it operated to deprive the grantor of the 'right to dig ditches in the roadway,' to quote from respondents' brief. We have already quoted the part of the initial dedication we considered relevant, that is, the part referring to the roadway. Added to the dedicatory language was the provision that the subdivider reserved unto itself and its successors and assigns 'the right to construct along said roadways * * * canals for the drainage and use of said lands.' (Italics supplied.) It is clear to us that this language does not justify the position that the purpose of the deed, so far as it related to this property, was to be rid of Ellen S. Ragen's right to dig a ditch 'in' the roadway or, rather, in 15 feet of it.

We decide that the petition in the first cause was properly granted and that this portion of the judgment of the District Court of Appeal should be quashed with directions to enter one consonant with these views.

We are now brought to a discussion and decision of related problems arising in the second, companion, cause.

As we have already observed the petitioners, Anhoco Corporation and Theatre Associates, Inc., operated outdoor moving picture theaters on the property involved in this litigation. Patrons, it appears, could reach the theaters directly from Road 826 by a common entrance and could depart by separate routes. Then the respondents by a new road location and designation plat incorporated the right-of-way of the road and a strip of land 14 feet in width, claimed by petitioners, into a new highway called 'Palmetto Feeder Road'. Without permission of the petitioners, so they averred, and without compensating them, the respondents seized the 14-foot strip, excavated dirt from it, and impaired the use of the exit from the easternmost theater.

The chancellor found that the respondents changed the character of the road to such an extent as to cause a reversion of a part of the original right-of-way so that the petitioners were entitled to compensation for the reversionary title seized, for the strip taken, the value of the appurtenant easement of direct access destroyed, and all damages proximately flowing from the respondents' invasion, seizure and destruction.

The chancellor while recognizing the right of the respondents to elect to acquire petitioners' rights and titles did not command that condemnation be effected, but he entered a mandatory injunction requiring the respondents to restore to petitioners the right of access to their property until by eminent domain they were justly compensated.

The chancery court held that inasmuch as the respondents had taken some of petitioners' land and violated their right of access, the respondents were responsible for damages arising from the wrongful acts and that the court with the help of a jury would fix the...