Mcgourin v. Town of De Funiak Springs

• Decision Date: 11 June 1906
• Citation: 41 So. 541,51 Fla. 502
• Parties: McGOURIN v. TOWN OF DE FUNIAK SPRINGS et al.
• Court: Florida Supreme Court

41 So. 541

51 Fla. 502

McGOURIN v. TOWN OF DE FUNIAK SPRINGS et al.

Florida Supreme Court, Division A.

June 11, 1906

Appeal from Circuit Court, Walton County; Charles B. Parkhill Judge.

Bill by T. F. McGourin against the town of De Funiak Springs and others. Decree for defendants. Complainant appeals. Reversed and remanded.

Syllabus by the Court

SYLLABUS

A court of equity has jurisdiction to enjoin a municipal corporation and its officers from opening up and using as a public street, without the owner's consent, land belonging to an individual, which has not been condemned, dedicated, or used as a street or highway.

Where the bill alleges that the complainant is seised and possessed of land, and the sworn answer, where the oath has not been waived, denies such seisin and possession, the burden is upon the complainant to prove the seisin and possession by sufficient evidence.

Where a bill alleges that the respondents are endeavoring to unlawfully subject land of the complainant to public use as a street, and the answer admits the attempt to subject the property to the uses of a public street, but avers a dedication of the lands to public use, the averment of dedication, being new matter, puts upon the respondents the burden of proving such dedication.

The intention to dedicate should be considered in determining the existence and character of a dedication of land to public use.

Where the owner of land makes a town plat thereof, laying the same out into blocks and lots, with intervening streets clearly indicated upon the plat separating the blocks, and conveys lots with reference to such plat, he thereby evinces an intention to dedicate the streets to public use as such.

Where a dedication is alleged to have been made by making and filing a map or town plat and by selling lots with reference thereto, and the locus in quo appears to be located in a street as clearly indicated upon the map or town plat, the map or plat is evidence of an intention to dedicate the same for public use as a street; but where the locus in quo does not appear to be located in a street as clearly indicated upon the plat, the plat unexplained is not evidence of an intention to dedicate.

Where it appears that the locus in quo is not located in a street as clearly indicated upon a map or town plat made and filed with reference to which lots were sold, that the locus in quo was never abandoned and was never accepted or used as a public street or highway, and that it was from a date soon after the filing of the plat for 18 years inclosed and occupied by the owner and those holding under him, such inclosure and occupancy are inconsistent with an intent to dedicate.

When a bill for an injunction alleges and the proofs show seisin and possession of land and an attempt by a town and its officers to unlawfully take and subject it to public use as a street and the answer avers a dedication of the land, but the dedication is not proven, the injunction should be granted.

COUNSEL

Maxwell & Reeves, for appellant.

S. K Gillis, for appellees.

OPINION

WHITFIELD J.

This is an appeal from a decree of the circuit court for Walton county dissolving an injunction and dismissing the bill of complaint filed by the appellant against the appellees on May 10, 1902.

The bill in substance alleges that the complaintiff is seised and possessed in fee simple of two certain described parcels of real estate south of the right of way and track of the Louisville & Nashville Railroad, in the town of De Funiak Springs, Fla., which town claims to be a legally incorporated town under the laws of Florida, and to have been such since July, 1901; that complainant's title to said land is deraigned by grant from the United States to the state of Florida about the year 1856, by grant from the state of Florida to the Pensacola & Atlantic Railroad Company about the year 1881, by deed from the Pensacola & Atlantic Railroad Company to Thomas T. and Catherine P. Wright, by deed from Thomas T. and Catherine P. Wright to the Lake De Funiak Land Company, by deed to one of the above parcels to complainant, and by deed to the other parcel to the West Florida Land Company, and from said last company to complainant; that from about the year 1883, and at the time complainant acquired title to said tracts of land, there had been and were standing upon the same valuable houses, which during the whole of said time and to February 16, 1902, were continuously used and occupied exclusively, adversely, and solely by the grantors of complainant and their tenants, and by complainant and his tenants for store and office purposes; that on February 16, 1902, the buildings standing on said lands belonging to the complainant were totally destroyed by fire, save and except the brick foundations and pillars; that shortly after the fire aforesaid certain named persons, assuming to act as the town council of the said alleged town of De Funiak Springs, without notice to complainant, passed an ordinance, or what purports to be an ordinance, in and by which it was attemped to be enacted that Eighth street in the said town should be projected southward across said railroad, so as to intersect Wright avenue; that if said Eighth street is projected as directed it will pass through and completely occupy complainant's said lots of land, so that he will be deprived entirely of all beneficial use, occupancy, or enjoyment of the same, and the same will by such projection of said street be entirely confiscated; that on or about April 15, 1902, by direction of respondent G. P. Henry, the respondent Malcolm McCaskill, claiming to act as the marshal of said town of De Funiak Springs, and claiming to have and derive ample and full legal warrant and authority for his acts from and by virtue of said pretended ordinance and under and by virtue of the directions then and there given him by the said G. P. Henry, who was then and there claiming to act as mayor of said town of De Funiak Springs, to put the said ordinance into execution and effect, entered upon the said lots of land belonging to complainant, with a great force of laborers and against the protests of complainant then and there made, and utterly tore up and removed from complainant's said land all of the said brick pillars, which were of great value to complainant for the purpose of erecting new buildings thereon; that ever since the destruction of said brick pillars the respondents G. P. Henry and Malcolm McCaskill have avowed their intention of enforcing said ordinance, so that complainant's land shall be converted into and used as a street, and to this end have repeatedly caused teamsters to drive their wagons over and across complainant's said land, and both by acts and words have invited and encouraged the general traveling public to attempt the use of complainant's said lots of land as a projection and continuation of the said Eighth street; that for the purpose of assuring the use by the general public of complainant's land as a street, and a projection of said Eighth street, the said respondents have collected and deposited on Baldwin avenue, north of complainant's said land, but not on it, a great quantity of planks and timbers, which complainant is advised the respondents intend to use in the construction of such crossings over the Louisville & Nashville Railroad Company's track and sidewalks over complainant's lands as will invite and cause the general public to use and occupy complainant's said land as a street, by reason whereof, if the said acts be permitted to be continued by the respondents and be not restrained, complainant will be wholly deprived of his said property; that if the design and evident intention of respondents to project Eighth street in accordance with said ordinance through, over, and across complainant's land be permitted to reach consummation complainant will be deprived of his said land in the manner in which it has heretofore been used and enjoyed by him, to wit, as a site for store and office buildings and such other lawful use as he may put the same to; that the town of De Funiak Springs and respondents, as complainant is advised, believes, and therefore alleges, claim no other warrant or authority for their said acts than is contained in said ordinance; that the said respondents have neither instituted nor caused to be instituted any proceedings for the condemnation to public or other use of complainant's said lands, and have never condemned or caused the same to be condemned, save and except as the said ordinance might be deemed to be a condemnation, and have never made or offered to make or tendered to complainant any compensation for the said lands; that complainant, notwithstanding the said ordinance, has recently caused the said land to be inclosed with a substantial fence, which he is advised the respondents threaten to tear down and destroy, and which he believes they will tear down and destroy, and thereby throw open the said land as a public street, unless restrained from doing so; that the opening up or complainant's land is not necessary to the good order and benefit of the said town. An injunction was prayed for and granted.

An answer was filed in which respondents admit that certain buildings were standing on the described property and were destroyed by fire on February 16, 1902, and that the ordinance referred to was passed; that respondent McCaskill entered...