Kotick v. Durrant

• Decision Date: 18 June 1940
• Citation: 143 Fla. 386,196 So. 802
• Parties: KOTICK et al. v. DURRANT et ux.
• Court: Florida Supreme Court

196 So. 802

143 Fla. 386

KOTICK et al. v. DURRANT et ux.

Florida Supreme Court, Division B.

June 18, 1940

Suit by George A. Durrant and wife against Julius Kotick and others to enjoin the interference with plaintiffs' easement by the construction of a fence and to require defendants to remove all obstacles interfering with the easement. From a final decree granting a permanent injunction, defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

A. N Spence, of Miami, for appellants.

J. H Mercer, of Miami, for appellees.

OPINION

PER CURIAM.

This appeal is from a final decree permanently enjoining defendants from interfering with plaintiffs' easement over their land and requiring defendants to remove all obstacles interfering with said easement.

George A. Durrant and Catherine C. Durrant, his wife, brought their bill of complaint against Julius Kotick and Carmen Kotick his wife, Chester A. Osborn and Millicent Osborn, his wife, Adolphus Stephens and Dixie B. Stephens, his wife, and Eph Phelps, Jr., praying that defendants be enjoined from completing the fence involved in controversy, to remove so much of it as impairs plaintiffs' easement, and to restore the land of plaintiffs, which had been disturbed by the erection of said fence, to its natural condition, as far as possible.

The bill of complaint alleged, among other things, that plaintiffs own the following described property: 'Beginning at a point on the West line of County Road 313.06 feet North of N.W. corner of junction of the prolongation of Biscayne Avenue as proposed, and the County Road on the East boundary of Section 13-53-41; Thence West 146.49 feet to starting point; Thence West 270.93 feet parallel with Biscayne Avenue; Thence South 94.35 1/2 feet parallel with County Road; Thence Easterly 271 feet on slant line; Thence North parallel with County Road 100.51 feet to starting point, containing .6 acres, more or less, less the West 50 feet, an easement is hereby granted on North and South lines of above property for use as a road connecting with County Road.'; that said property is located in Miami, Florida, being 220.93 feet long by 101.59 feet wide, and lies 146.49 feet west of N.E. Second Avenue and will be referred to as tract #1; that the N 1/2 of the land lying between tract #1 and N.E. Second Avenue is owned by Chester A. Osborn and will be referred to as tract #2, and the S 1/2 of said land lying between tract #1 and N.E. Second Avenue is owned by Adolphus Stephens and Dixie B. Stephens, his wife, and will be referred to as tract #3; that the Trustees of the First Baptist Church of Lemon City, on April 6, 1918, owned in fee simple all of tracts #1, #2 and #3, and on said date executed to M. R. Gillette a deed conveying tract #1, together with an easement over the north line of tract #2 and the south line of tract #3, connecting with N.E. Second Avenue, which at that time was the County Road, a certified copy of said deed being made an exhibit and a part of the bill; that plaintiffs by mesne conveyances and muniments of title became the owners of tract #1; that on February 15, 1928, a Special Master's Deed was issued to Chester A. Osborn for tracts #2 and #3; that thereafter on January 25, 1936, tract #3 was conveyed to Adolphus Stephens and Dixie B. Stephens, his wife, 'subject to any easement of record along the south side of the above described property.'; that dwelling houses are located on plaintiffs' land and the tenants therein are threatening to move because of the construction of the fence obstructing their ingress and 'egress; that the only outlet and inlet to and from plaintiffs' tract #1 is over and upon said tracts #2 and #3; that plaintiffs and their predecessors in title have used said easements continuously, uninterruptedly and adversely for more than 20 years; that said easement was and is appurtenant to the ownership and enjoyment of plaintiffs' tract #1 and dominant upon the ownership and enjoyment of tracts #2 and #3; that notwithstanding said easement, Julius Kotick did, on April 6, 1938, obtain a city permit to construct a fence immediately east of plaintiffs' tract #1, and a fence is now being constructed which runs the entire length of the eastern boundary of plaintiffs' property and cuts off their ingress and egress to and from N.E. Second Avenue; that although plaintiffs have demanded that said defendants cease construction of the fence, they continue with the construction thereof.

A temporary injunction was granted ordering the defendants responsible for construction of said fence to remove it so far as it obstructs plaintiffs' ingress and egress over and upon the south line of the property lying between plaintiffs' property and N.E. Second Avenue, encumbered by said easement, and further ordering that said defendants be enjoined from obstructing ingress and egress over said easement during the pendency of this suit.

Three answers were filed, one by Julius Kotick and Carmen Kotick, his wife, another by Adolphus Stephens and Dixie B. Stephens, his wife, and another by Chester A. Osborn and Millicent Osborn, his wife. The answers denied the material allegations of the bill of complaint, and the latter two embodied motions to strike and to dismiss.

Motions to strike portions of the answers of the Koticks, and the Stephenses were filed by plaintiffs.

The court denied all motions to strike or to dismiss the several pleadings and referred the cause to Hon. John C. Gramling, as Special Master, to take testimony and report the same together with his findings of law and of fact back to the chancellor.

After hearing all of the testimony, the Special Master made his report to the court, to which report exceptions were filed. The exceptions were overruled and the report confirmed in every particular, except that the costs were divided between Adolphus Stephens and Julius Kotick.

The final decree found that plaintiffs are entitled to an eight foot easement for use as a road extending from their property to N.E. Second Avenue, in Miami, Florida, the south line of said easement being a prolongation of the south line of said property; that plaintiffs are entitled to an eight foot easement for use as a road extending from plaintiffs' property to N.E. Second Avenue, in Miami, Florida, the north line of said easement being a prolongation of the north line of said property; that defendants are forever enjoined from obstructing said easements, and defendants Julius Kotick and Adolphus Stephens are required forthwith to remove all obstacles obstructing free ingress and egress over and upon said easements.

Petition for rehearing was denied. Then this appeal was taken.

The only real material question to be determined here is whether the pleadings and the evidence are sufficient on which to predicate the final decree finding that plaintiffs have an easement eight feet in width over the north line of tract #2 and over the south line of tract #3.

On April 6, 1918, at the time the Trustees of the First Baptist Church of Lemon City deeded tract #1 to M. R. Gillette, the Baptist Church owned tracts #1, #2 and #3. Tract #1 was entirely surrounded by other property, not abutting on any street or thoroughfare. Because of the situation of tract #1 it would have been necessary to have given the purchaser thereof an easement over the land owned by the Church connecting with the County Road, if one had not been given by the deed conveying the property. ...