Jacksonville, T. & K.w. Ry. Co. v. Lockwood

• Decision Date: 01 May 1894
• Citation: 15 So. 327,33 Fla. 573
• Parties: Jacksonville, R. & K.W. Ry. Co. v. LOCKWOOD et al.
• Court: Florida Supreme Court

15 So. 327

33 Fla. 573

Jacksonville, R. & K.W. Ry. Co. v. LOCKWOOD et al.

Florida Supreme Court

May 1, 1894

Action by Mrs. Lockwood and her husband against the Jacksonville Tampa & Key West Railway Company. Judgment for plaintiffs. Defendants appeals. Affirmed.

Appeal from circuit court, Putnam county; Jesse J Finley, judge.

COUNSEL

J. R Parrott and T. M. Day, Jr., for appellant.

George P. Fowler, for appellees.

OPINION

RANEY C.J.

Mrs. Lockwood and her husband, Arthur H. Lockwood, the appellees, sued the appellant, for body corporate under the laws of Florida, on May 7, 1988, in an action of trespass quare clausum fregit, alleging that such railroad company, on June 25, 1985, and on divers other days intervening that day and the institution of the action, with force and arms, and without the leave or license of plaintiffs, and against their will, broke and entered upon a certain close of the plaintiffs in the town of Palatka Heights, in Putnam county, and described as lots l, 2, and 3, in block 10, as shown by a plat of the town recorded in the clerk's office of the county, such lots being bounded on the east by Thompson street, and on each of the other three sides by a named street; and also all that land lying in Thompson street, in said town, adjoining and abutting said lots, to the middle and center of such street,--all of which land the plaintiffs are alleged to have been the owners of, and in lawful possession of. The substance of the trespass alleged is grading the street for a railroad track for the distance of 381 feet in length, by 40 feet in width, and digging, excavating, and carrying away dirt, and laying down wooden ties and iron rails, and constructing a railroad track on such street, and using the same as a railroad track for the period above stated, the street as thus used being alleged to be the property of the plaintiffs; and that by such means and the use of the track for daily and frequent passage thereon over the land and close of the plaintiffs of of defendant's railway locomotives, cars, and trains, the public road and street aforesaid to and from and over the land and close of plaintiffs was then and there impaired, impeded, and obstructed, so that plaintiffs could not have ingress and egress or passage to and from and over and across their land and close aforesaid, to wit, Thompson street, for the passage and travel of carts, wagons, carriages, and other vehicles, and by means whereof the said land and close of the plaintiffs became and continued to be greatly depreciated in value, and injured, and the comfort, convenience, and safety of the plaintiffs' family and property and greatly impaired and endangered; the ad damnum being $5,000.

The pleas of the defendant, upon which issue was joined, are the general issue; (2) that the plaintiffs have no right or title to the property mentioned; and (3) that the premises described in the declaration are not, and were not at the time stated, the property of the plaintiffs.

I. The first error alleged is as to the ruling of the trial court permitting Mrs. Lockwood to testify. The record states that the plaintiffs, to prove the issues on their part, introduced as a witness Mrs. A.H. Lockwood, who, upon being duly sworn, testified that she was a plaintiff in this suit, and then state the place of her residence and the duration of such residence. Here the defendant objected to her testifying, "on the ground of competency, she being coplaintiff with her husband, and for the further reason that her husband cannot testify." This was September 20, 1889. Under the statutes of this state applicable to the whole period of time covered by this case and its trial, a husband was qualified to testify in his own behalf, and the wife qualified to testify in his behalf where he was a party and could testify, and to testify for herself, independently of his having or not having any interest in the cause. Haworth v. Norris, 28 Fla. 763, 10 So. 18. The husband (Mr. Lockwood) was properly excluded as a witness, the suit being really one in right of the wife, and Mrs. Lockwood was properly admitted as a witness in her own behalf. Haworth v. Norris, supra.

II. The theory of the objections made to certain questions propounded to the witness, and the answers thereto, as to the damage sustained by the plaintiffs, was that, as plaintiffs' grantor was not shown to have owned to the middle of the street, there was no evidence that plaintiffs owned to that point. It is conceded that a description bounding land by a highway conveys to the center of the highway (Railroad Co. v. Brown, 23 Fla. 104, 1 South, 512; Sherman v. McKeon, 38 N.Y.266; 3 Washb. Real Prop 420 et seq.; Gould v. Railroad Co., 142 Mass. 85, 7 N.E. 543; Clark v. Parker, 106 Mass. 554), but it is asserted, on the principle of non dat qui non habet (Church v. Stiles, 50 Vt.642, 10 A. 674), and very properly, that it does so only where the grantor himself has the title. The abutting proprietor is prima facie owner of the soil to the middle of the highway, subject to the easement in favor of the public; the rule being founded on the presumption that the ground was originally taken from such proprietors, and for the sole purpose of being used as a highway. Dunham v. Williams, 37 N.Y.251; Stiles v. Curtis, 4 Day, 328, 333. In our judgment, the presumption arising from the deed from Hargrove, conveying the land, and bounding it on the east by Thompson street, is, in the absence of proof to the contrary, that Hargrove owned to the center of the street.Unless this presumption prevails, then the title must, in all cases of this kind, where there is such description, be deraigned back to an ownership to such center at the time the street was laid out; for, if the presumption of such ownership does not obtain in favor of one grantor, then it cannot in favor of another. It is not to be presumed that Hargrove conveyed more than he owned, and the deed is as strong evidence of plaintiffs' title to the center of the street as it is of title to any part of the named lots.

III. Mrs. Lockwood was asked what the property was worth before the railroad company placed the track there, and replied that she could have sold the three lots for $6,000. The record shows that the answer was objected to, but not on what ground. The grounds urged here are that the witness was not qualified to testify to the value of the property as an expert, and the amount for which she could have sold the land was not relevant, and that she had not been asked any questions to test her qualifications to give an opinion as to the value of the property. If there was anything in either of these grounds, they should have been urged at the proper time,--on the trial. There is no evidence that any such objection was made. Such objections cannot be urged primarily in the appellate court as against the admission of evidence. Gladden v. State, 12 Fla. 562; Ortiz v. State, 30 Fla. 256, 11 South, 611. The case of Railway Co. v. Coon, 15 Neb. 232, 18 N.W.62, does not conflict with this conclusion.

IV. A witness was asked by the defendant's counsel, on cross-examination, if it was not a fact that he had testified in no less than a dozen suits against the defendant in the last 15 months. The ground urged in support of the question is that its purpose was to show, in connection with the fact that the had a suit pending against the defendant for obstructing a highway, his bias and animus. The question was properly excluded.

V. The same witness was called, in rebuttal, and after stating that he knew one Alfred Bishop Mason, and that he was vice president of the defendant company in 1885, was shown a letter to the witness from Mason as such officer, dated Jacksonville, Fla., October 19, 1885, in which Mason acknowledges a letter from the witness of the 13th of the same month, and states that he thought "our" arrangement was to have the borrow pit fixed within a reasonable time, not within 30 days; and that he finds, on consulting with Gen. Bentley, that Mr. McCarty, "our roadmaster," was instructed a month ago to fill in at that point as soon as it could be done without impeding construction; and that the writer would see that his attention is called to the matter again; and saying: "As a railroad man, you will appreciate better than an outsider could the necessity we are under of pushing the work southward as fast as possible," and praying that he would be patient, as "we" intend to try to satisfy you fully. Witness then testified that the signature was Mason's, and that Mason had acknowledged this signature to be his. Plaintiffs then offered the letter in evidence, and defendant objected on the ground of irrelevancy and incompetency. The witness was then asked whether he had any conversation with Mason about this time about the building of the track, and defendant objected on the ground of irrelevancy. The witness replied that he had. In each case the objection was overruled and an exception noted. The purpose in introducing the letter and the conversations, subsequently explained, was to overcome the testimony adduced by the defendant to show that another company had constructed the railroad along Thompson street. We think the testimony was relevant to this particular issue, and properly admitted.

VI. The remaining assignments of error, except one, involve the question whether or not in an action of this kind there can be a recovery for the entire damage sustained by the plaintiff, or only for damage incurred anterior to the institution of the suit. It is a proposition on which there is very positive conflict of authority. In Railroad Co v. Jackson (1884) 21 Fla. 146,--a suit by the appellee to restrain the appellant company from continuing to run cars...