Jabour v. Toppino, 73--740

• Decision Date: 09 April 1974
• Docket Number: No. 73--740,73--740
• Parties: Maurice JABOUR and Frances Jabour, his wife, Appellants, v. Orsolina TOPPINO, Appellee.
• Court: Florida District Court of Appeals

Page 123

293 So.2d 123

Maurice JABOUR and Frances Jabour, his wife, Appellants, v. Orsolina TOPPINO, Appellee.

No. 73--740.

District Court of Appeal of Florida, Third District.

April 9, 1974.

Feldman & Eden, Key West, for appellants.

Neblett & Sauer, Key West. Joseph C. Jacobs, Tallahassee, for appellee.

Before CARROLL, HENDRY and HAVERFIELD, JJ.

HENDRY, Judge.

Appellants, defendants in the trial court, seek review of a final judgment declaring that the defendants no longer have any rights on the plaintiff's land and enjoining them from any use thereon.

Following a nonjury trial, the court requested memoranda of law and oral argument from counsel and thereafter rendered its decision. We adopt, the views expressed in the written opinion of Judge Lester, the able Circuit Judge for Monroe County, which reads as follows:

'FINAL JUDGMENT

'Plaintiff seeks a judicial declaration that she has rightfully revoked an agreement between plaintiff and defendants dated October 23, 1963, and that the defendants no longer have any rights in the property owned by the plaintiff, which was the subject of said agreement. The plaintiff further seeks an injunction enforcing such a determination.

'The plaintiff and defendants are now adjoining landowners due to purchases made by defendants from plaintiff of certain parcels in Square 11, City of Key West.

'The controversy between the parties to this suit concerns Parcel D and Parcel F as shown in plaintiff's Exhibit 1. Defendants purchased Parcel D from plaintiff in July 1959, and at that time no Easement, license or any other interest in land was given over any of plaintiff's land.

'In October, 1963, defendants purchased Parcel F from plaintiff. Situated on Parcel F is a warehouse which extends practically to the property line. At the time of the conveyance, connected to the warehouse but located across the property line and upon plaintiff's property, was a small loading ramp or platform.

'In connection with the purchase of Parcel, F, on October 23, 1963, the parties executed an Agreement for Easement. The boundaries of said Easement are delineated on plaintiff's Exhibit 1, in red ink. Plaintiff contends that the buffer zone around Parcel D was so delineated because of the defendants' prior aggressive attempts to extend and improve the ramp adjacent to said Parcel D. It is admitted that defendants have access to said Parcel F over other lands which they own, however, the northerly entrance to Parcel F over plaintiff's land made it more convenient to defendants to fully utilize the building located on Parcel F for a moving and storage warehouse.

'The agreement recognizes that there were various traffic, ingress, egress and parking problems created by the sales of land by plaintiff to defendants. The stated purpose of the instrment is to clearly delineate the various permitted uses of plaintiff's land by the defendants and place conditions and limitations upon these uses.

'The determinative parts of the agreement are as follows:

"NOW, THEREFORE, in consideration of the premises recited, ORSOLINA TOPPINO, a widow, does hereby grant an easement for ingress and egress only, and for no other use, over the hereinabove described land to MAURICE JABOUR and/or FRANCES JABOUR, to run personally to said MAURICE JABOUR and/or FRANCES, JABOUR, or their assigns, but not as a covenant running with the land.

"It is a condition of this Easement that the GRANTEE'S rights to use the said land for ingress and egress is inferior and subordinate to the use of the said land by GRANTOR or her lessees or assigns, and that in exercising the use of said land for ingress and egress GRANTEE will not interfere with the activities and operations of GRANTOR or her lessees or assigns, otherwise the rights of GRANTEE under this Easement shall cease and determine.

"It is a further condition of this Easement that GRANTEE shall not use said land for parking any vehicle, but only for ingress and egress and that any loading or unloading of vans or vehicles by GRANTEE shall be accomplished expeditiously, and that during such loading or unloading GRANTEE'S vans or vehicles shall be so positioned as to cause the minimum possible interference to traffic or movement on said land of GRANTOR.

"It is a further condition of this Easement that GRANTEE may continue to use ramps or loading platforms which extend from GRANTEE'S buildings on to GRANTOR'S described land, provided that the only such ramps or loading platforms to be used shall be those which were in place when the land and buildings were conveyed or contracted to be conveyed from GRANTOR to GRANTEE. The said use of said ramps or loading platforms is expressly declared to be permissive and the right of GRANTEE to use the same may be revoked by GRANTOR.

"The temporary waiver of any condition of this Easement shall not be construed as invalidating any other condition of this Easement and shall not deprive GRANTOR of any rights reserved herein or otherwise afforded in law and equity to GRANTOR."

'Subsequent to the conveyance agreement in October, 1963, the Defendants enlarged the ramp adjacent to Parcel F, but located upon plaintiff's property. This enlargement of the ramp was made despite plaintiff's demands that it not be made and caused interference with plaintiff's tenants' use of plaintiff's waterfront property.

'The complaint in this case alleges that the relations between plaintiff and defendants are and have been adverse because of defendants' failure to pay on notes and mortgages owed plaintiff, and the defendants' aggressive acts of encroachment upon plaintiff's land and the abuse by defendants of the provisions of the agreement by interference with the use of plaintiff's land by plaintiff's tenants.

'These violations prompted the plaintiff, through her attorneys, in a letter dated May 4, 1972, to revoke the rights granted the defendants under the October 23, 1963 agreement and to demand the removal of the unauthorized ramps.

'Plaintiff alleges that the defendants continue to use the aforesaid revoked permissive rights, continue to interfere with plaintiff's tenants and have made no attempt to remove the unauthorized construction from plaintiff's land, and further that these actions constitute a continuing trespass and seriously interfere with plaintiff's rightful use of her property.

'Plaintiff seeks a declaration that defendants violated the October 23, 1963 agreement and that said agreement is terminated by plaintiff's revocation. Likewise plaintiff seeking an order requiring that defe...