Mccreary v. Lake Boulevard Sponge Exchange Co., Inc.

• Decision Date: 01 August 1938
• Citation: 133 Fla. 740,183 So. 7
• Parties: McCREARY et ux. v. LAKE BOULEVARD SPONGE EXCHANGE CO., Inc.
• Court: Florida Supreme Court

183 So. 7

133 Fla. 740

McCREARY et ux. v. LAKE BOULEVARD SPONGE EXCHANGE CO., Inc.

Florida Supreme Court

August 1, 1938

Suit by the Lake Boulevard Sponge Exchange Company, Inc., against John McCreary and wife to enjoin the defendants from attempting to tear down, alter or change buildings which plaintiff had through mistake constructed on defendants' lot, and to enjoin them from interfering with or molesting plaintiff in removal of buildings. From an order denying defendants' motion to dismiss the bill of complaint on the ground that it was wholly without equity, the defendants appeal.

Affirmed. Appeal from Circuit Court, Pinellas County John I. Viney, judge.

COUNSEL

Archie Clement, of Tarpon Springs, and J. C. Davant, of Clearwater for appellants.

McMullen McMullen & Pogue, of Clearwater, and Carey & Harrison, of St Petersburg, for appellee.

OPINION

BUFORD Justice.

The appellee owned a certain lot in Tarpon Springs, Pinellas County, Florida, the same being lot 22 in block 7 of Lutean Shores Subdivision. The appellants owned the adjoining lot No. 21. Appellee, wishing to erect buildings on its lot, had a survey of the lots made. The surveyor surveyed and staked out a plat of land which he found to be lot 22. Thereupon, appellee who was complainant in the court below, erected two buildings on the property surveyed as lot 22. Appellants were cognizant of the erection of these buildings as construction went along. After the buildings were completed appellants advised the appellee that the buildings were on lot 21.

A resurvey shows that the first survey was erroneous and that one of the buildings erected was entirely on lot 21 and about two-thirds of the other building was on lot 21. Appellants then notified appellee that they intended to remodel and change one building and that part of the other building which was on lot 21 to suit appellants' convenience and that they would do so under claim of ownership of the buildings having vested in them by reason of having been built on their land.

Appellee then filed suit in equity in which it alleged the facts above set forth and prayed:

'Wherefore, the premises considered, your plaintiff respectfully prays that this Court forthwith, upon the filing of this bill of complaint, shall issue a temporary restraining order restraining and enjoining the defendants and each of them from attempting to tear down, alter or in anywise change the buildings located on the premises above set forth and forthwith enter an order restraining and enjoining the defendants from interfering with or molesting the plaintiff in the removal of the buildings from the defendant's premises to the plaintiff's premises, and to enter an order permitting the plaintiff to remove his buildings from the defendants' premises, and upon final hearing, decree what damage, if any, the defendants have sustained by reason of the plaintiff's error in building its buildings upon the defendants' property.

'And your plaintiff prays that the temporary restraining order as hereinabove prayed for be entered by this Court without notice to the defendants for the reason that the defendants, if notice is received of a hearing, your plaintiff believes will immediately begin to demolish, tear down or destroy the building above mentioned to the irreparable harm, injury and damage of your plaintiff.'

Motion was made to dismiss the bill of complaint upon the one ground 'because said bill is wholly without equity'. Motion was denied and from the order denying the motion appeal was taken.

The appellant has stated one question in the brief for our consideration, as follows:

'Question One: When a party, through a mistaken idea of the location of boundary line, separating his property, erects one building wholly upon the property of another, and another building partially thereon, can the adjoining owner forbid removal of such buildings and change and remodel them himself?'

The question is differently stated by the appellee, as follows:

'Does a bill of complaint alleging that the plaintiff and the defendants owning adjacent lots, the plaintiff deciding to erect a building upon his lot and employing a surveyor to stake out his boundary line, and one of the defendants pointing out to the surveyor what she conceives to be the boundary line of her property, and the plaintiff relying on the survey, erects building partly on the plaintiff's land and partly on defendant's land, and immediately discovering the mistake offers to do equity by either buying the defendant's land or by paying the defendant damage sustained by reason of the mistake, contain equity?'

The whole contention of the appellant is that because the law recognizes that any buildings erected on real property become a part of the realty and cannot be removed without consent of the owner that in this case the owners of lot 21 acquired title to the buildings erected on such lot and have the right to retain the same. There are some authorities supporting appellant's contention but we think, and hold, that while it is true that buildings erected on real estate become a part of the realty, it does not follow that under certain circumstances and conditions they may not be removed.

The bill in this case alleges, among other things, that:

'Plaintiff further alleges that at the time the surveyor was making the survey as hereinabove set forth that the defendant Mrs. McCreary, pointed out to the surveyor what she thought to be the defendant's property line; that said line so pointed out by the said defendant was in error some 15.4 feet; that this error on the part of the defendant is largely responsible for the plaintiff's surveyor making the error in locating the building line and staking out the lines of the plaintiff's lot.'

The bill also alleges that plaintiff had offered to do equity by paying the defendant any damages which might have been sustained by reason of the erection of the buildings on the property, or by paying the defendants a reasonable price for the property and taking title thereto, but the defendants refused either to sell the lot to the plaintiff or to allow the plaintiff to remove the buildings from the lot.

Section 3239, R.G.S., section 5047, C.G.L., to section 3245, R.G.S., section 5053, C.G.L., apparently establish a policy contrary to the doctrine that buildings and improvements erected upon real estate become the absolute property of the owner of the real estate.

Courts of equity were established to grant relief in accordance with right and justice in cases where the law by reason of its universality was deficient. We think the weight of authority sustains the proposition that in a case of this sort, especially where both parties are shown by allegations of the bill to have been mistaken as to the boundary line, that as between the original parties, if by mistake one erects his building on the land of the other, the land-owner on his part may by mandatory injunction compel the removal of the building, and, on the other hand, he who has by mistake erected the building may by proceedings have leave to remove the same on payment of any damage accruing to the free-hold by reason of his mistaken action.

Such was the holding in the case of Trunnell et ux. v. Tonole et al., 104 Or. 628, 208 P. 583, a case decided by the Supreme Court of Oregon, in the following language:

'One who by mistake has erected a building on the land of another may by proper proceeding have leave to remove the building on payment of any damage to the freehold.'

In Calloway Bank v. Ellis et al., 238 S.W. 844, the Court of Appeals of Springfield, Missouri, held (page 846):

'The law is also well settled that where a person in...