Kirma v. Norton

• Decision Date: 07 May 1958
• Docket Number: No. 289,289
• Citation: 102 So.2d 653
• Parties: F. KIRMA, Appellant, v. Robert NORTON and Helen Norton et al., Appellees
• Court: Florida District Court of Appeals

Page 653

102 So.2d 653

F. KIRMA, Appellant, v. Robert NORTON and Helen Norton et al., Appellees.

No. 289.

District Court of Appeal of Florida, Second District,

May 7, 1958.

Arthur Knudsen, Jr., of Allen & Knudsen, Fort Myers, for appellant.

Thomas Shands, Fort Myers, for appellees.

SHANNON, Judge.

Appellees, plaintiffs below, are the property owners in a certain subdivision in Lee County, Florida, which is known as Russell Park Subdivision. This property lies in front of the appellant's, defendant below, property, separated only by a road, and plaintiffs are connected to a sewer line that runs under defendant's land to the Caloosahatchee River, where it protrudes about eight inches through the defendant's seawall and empties into the river. The plaintiffs brought a bill for permanent injunction restraining the defendant and his successors in title from interfering in any way with the flow of sewage through the sewer line to the river. Thereafter an answer and counterclaim were filed and testimony was taken. By his final decree the Chancellor found the equities with the plaintiffs and granted to them the right to maintain said sewer line and restrained the defendant and his successors in title from interfering with any part of the sewer line or its operation and maintenance. This appeal is from the Chancellor's determination.

It appears from the evidence that this subdivision was put on the market in 1925, at which time the subdivider advertised in the newspapers concerning the lots in said subdivision in part as follows:

'A Paradise For The Homeseeker

'Each lot brings with it the last word in modern improvements; curbs, sidewalks, water, sewers and lights-the most advantageous yet economical investment at the door of the fastestgrowing city on the West Coast. Only a short drive from the center of town-on the highest elevation in this vicinity.' (Italics ours.)

In evidence is an affidavit by L. F. DeBordenave, who was an engineer and codeveloper of the subdivision, who states that the engineered the project and supervised the installation of all sewer lines in Russell Park including the present ones prior to October 1, 1925, and that the same were in use in 1926. The plaintiffs or their predecessors in title have used the sewer lines ever since they were installed. The defendant purchased his property in the subdivision during April, 1951.

In his deposition Charles W. Russell, the developer, testified that he represented to the purchasers they had a sewer right, that he felt he conveyed such right to them, that he intended to convey such rights. During March of 1951 he executed a quitclaim deed to all the purchasers of the subdivision lots, in which there was spelled out the sewer system which he had intended to convey to the purchasers. He received no consideration for this quitclaim deed.

The grantor to the defendant testified that the sewerage pipe emptied into the Caloosahatchee River and that the defendant asked him about the pipe and was advised by the witnesses that the pipe was a sewerage pipe.

The final order of the Chancellor decreed the plaintiffs' use of the sewer line to be a permanent easement. The defendant has posed four questions but, in deciding the case, it will only be necessary for us to determine two of them, the first of which is the alleged violation by the plaintiffs of Section 387.08, Fla.Stat.1955, F.S.A., and the second one is whether or not the plaintiffs have a valid easement. Section 387.08 provides:

'Any person, firm, company, corporation or association in this state, or the managing agent of any person, firm company, corporation or association in this state, or any duly elected, appointed or lawfully created state officer of this state, or any duly elected appointed or lawfully created officer of any county, city, town, municipality, or municipal government in this state, who shall deposit, or who shall permit or allow any person or persons in their employ or under their control, management or direction to deposit in any of the waters of the lakes, rivers, streams and ditches in this state, any rubbish, filth, or poisonous or deleterious substance or substances, liable to affect the health of persons, fish, or live stock, or place or deposit any such deleterious substance or substances in any place where the same may be washed or infiltrated into any of the waters herein named, shall be deemed guilty of a misdemeanor, and, upon conviction thereof in any court of competent jurisdiction, shall be fined in a sum not more than five hundred dollows; provided, further, that the carrying into effect of the provisions of this section shall be under the supervision of the state board of health.'

In the testimony, John W. Wakefield, the sanitary engineer for the Florida State Board of Health, said in part:

'Q. Mr. Wakefield, in your opinion as a sanitary engineer, will septic tanks work adequately in Block 5?

'A. In my opinion the general area there including Block 5 could not be expected to give satisfactory operation with septic tanks year around.

'A. * * * The State Board of Health would very much like to see a sewage treatment plant. However, so far we haven't found any legal entity to undertake the construction of such a plant. To install individual septic tanks at each house would in my opinion create more of a sanitary nuisance than the discharge of sewage into the river. So we have taken the lesser of the evils and have not attempted to require the removal of the sewer.

'Q. You ...