Fox v. City of West Palm Beach

• Decision Date: 26 September 1967
• Docket Number: No. 23947.,23947.
• Citation: 383 F.2d 189
• Parties: Maurice FOX, Appellant, v. CITY OF WEST PALM BEACH, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

383 F.2d 189 (1967)

Maurice FOX, Appellant, v. CITY OF WEST PALM BEACH, Appellee.

No. 23947.

United States Court of Appeals Fifth Circuit.

September 26, 1967.

Morris M. Schnitzer, Neward, N. J., Irvin L. Langbein, West Palm Beach, Fla., for appellant.

John M. Farrell, Palm Beach, Fla., John H. Evans, City Atty., West Palm Beach, Fla., Burns, Middleton, Rogers & Farrell, Palm Beach, Fla., for appellee.

Before JONES, GEWIN and SIMPSON, Circuit Judges.

JONES, Circuit Judge:

The appellee, City of West Palm Beach, and the nearby Town of Palm Beach, Florida, had obtained their water supplies from a private utility company. This company, commencing in 1924, used a water catchment area in a marsh west of the City. In 1949 the company constructed earthen dikes on the northern, eastern and southern sides of the portions of the marsh which it owned, leaving the western side, about seven miles in length, open for the inflow of water. In 1954 the appellant, Maurice Fox, a resident of New Jersey, acquired a tract of land having an Eastern boundary 2¾ miles in length along a part of the undiked Western boundary of the utility company's catchment area. In 1955 the City acquired the properties of the utility company including the catchment area. In 1963 the City decided to pump water from Lake Okeechobee into its catchment basin to increase its water supply. Before it had started this operation, the appellant brought an action for injunctive relief and money damages. The complaint, which was filed on March 2, 1965, prayed that the City be enjoined from pumping except under such safeguards as would assure appellant from artificial flooding and from interference with natural drainage from appellant's land, and requiring steps to be taken to restore his land to a condition of natural drainage.

On February 1, 1966, the appellant sought leave to amend his complaint by alleging that all of the City's acts were willful and deliberate and seeking $48,000 as costs of the litigation. Leave to file the amendment was denied. Some facts were stipulated. Some depositions were taken. The trial of the case began on May 31, 1966. During the examination of the first witness court and counsel embarked upon a colloquy which took considerable time and covered many pages of the transcript. During this discussion the judge made frequent factual statements based upon his own experience with respect to lands in the area. The court stated that mandatory injunctive relief would not be granted. Counsel for the appellant stated that no past or future damages would be sought, except, we assume, the claim for costs of litigation as asserted in his proposed amendment which the court rejected. By leave of court, the appellant made a tender of proof. When this was concluded the court announced:

"Well, in view of the situation, I am going to call a jury in this case and set it over for the fall term on the ground that I think there is an adequate remedy at law, and particularly in view of the fact that it requires engineering and executive action on the part of the Court, under the supervision of the Court, to give you the relief that you proposed by injunction and also requires the drainage district\'s cooperation, which is not before me, and I am unable to order them to do anything.

"It may be that if you get assurance on that that Judge Fulton will take another idea. I think it is very practical. I appreciate your suggestion. I think perhaps moneywise it might be the practical thing to do if it can be done as cheaply as you think it can be done. But I do think that there are no questions about an adequate remedy at law. If I may predict, I think it may be done in the future, anyway. I will repeat: If you want me to predict, like some people are given to do, I think it will be done in the future. The present thing will dry up of its own volition, because of the development of the higher land to the west."

This was followed by an opinion and order. In the opinion it was said that it was the decision of the court that the appellant was not entitled to a mandatory injunction to require the City to drain the appellant's land. The order recited that he could "sue for money damages and receive full compensation for any injuries caused by wrongful interference with his natural drainage." On the damage issue the City had requested a jury trial. The opinion concluded "whether any other equitable relief prayed by plaintiff is appropriate may be entertained by the court at the trial on the issue of damages." By the court's order,

"1. Plaintiff\'s claim for mandatory injunctive relief is denied, and plaintiff is relegated to his action for damages, and/or such other relief as might be found proper by the trial court.

"2. Defendant\'s ore tenus motion for jury trial is granted."

The cause was continued until the further order of the court. Fox filed a notice of appeal from the foregoing order denying mandatory injunctive relief and from the order denying leave to amend the complaint. The City filed in this Court a motion to dismiss the appeal on the ground that neither order is appealable. The motion was carried with the appeal.

We first consider the appealability of the order denying injunctive relief. The order is not an interlocutory order refusing an injunction which would be appealable under 28 U.S.C.A. § 1292(a). No application for an appeal under 28 U.S.C.A. § 1292(b) was made. If this Court has jurisdiction of the appeal it is because it is from a final decision under 28 U.S.C.A. § 1291. The initial difficulty is in determining what the district court decided. The opinion and the order are one document. In the opinion the court states as the most pertinent consideration the ancient rule that an equitable remedy, that is, injunction, is not available. The opinion recites that "The plaintiff may sue for money damages and receive full compensation for any injuries caused by wrongful interference with his natural drainage." Thus it may be that the district court has held or intended to hold that the appellant would not be entitled to any injunctive relief, either mandatory or prohibitory. Yet the court also said that in addition to money damages, "whether any other equitable relief prayed by plaintiff is appropriate may be entertained by the court at the trial on the issue of damages." By the order the claim for mandatory injunctive relief was denied and the appellant was "relegated to his action for damages, and/or such other relief as might be found proper by the trial court." The relief prayed by the appellant was:

"(a) That defendant be enjoined from pumping except under such safeguards as this Court may find reasonably necessary and appropriate to assure plaintiff against any artificial flooding of his land.

"(b) That defendant be enjoined from interference with the natural drainage of water from plaintiff\'s land on to defendant\'s land, and that the defendant be required to take such steps as this Court may find reasonably necessary and appropriate to restore plaintiff\'s land to its condition of natural drainage.

"(c) That this Court determined the amount of damage done to plaintiff\'s land by defendant\'s acts in past maintenance of structures which so interfere with such drainage, and require defendant to pay that amount to plaintiff."

The prayer of the complaint is for compensatory damages in addition to injunctive relief. The injunctive relief sought seems to be in part prohibitory and in part mandatory. The order, by its terms, denies only the right to mandatory injunctive relief and preserves the appellant's right to "other relief" and this, we think, can be only other injunctive relief. It may be that a prohibitory injunction, without mandatory injunctive relief, would not be adequate or even remedial to any extent. We do not know and will not guess. The appellant, before the district court and before this court disclaimed all damages for past and future injuries. He did not amend his complaint by the deletion or striking of the prayer for compensatory damages. If there remains in the cause a claim for prohibitory injunctive relief or for compensatory damages, or both, then the orders from which the appellant has sought to appeal leave the cause incomplete, and the order without appealable finality. The Supreme Court has thus stated the rule:

"The effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. * * *

"Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528.

On the other hand, if the effect of the Court's order was to deny all injunctive relief or if any prohibitory injunctive relief that might be granted would be wholly ineffective, and if the appellant had waived, renounced or had estopped himself to assert a claim for compensatory damages, then it would seem to follow that the court's order was, for all practical purposes an end of the litigation and a final judgment in the cause from which an appeal to this Court will lie.

On the issue of appealability plausible and forceful reasons can be urged for and against. What then must we do? We think the answer is to be found in Gillespie v. U. S. Steel Corporation, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed. 2d 199. The Court said:

"Under § 1291 an appeal may be taken from any `final\' order of a district court. But as this Court often has pointed out, a decision `final\' within the meaning of § 1291 does not necessarily mean the

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