Okaloosa County Gas Dist. v. Enzor, A-11

• Decision Date: 04 February 1958
• Docket Number: No. A-11,A-11
• Citation: Okaloosa County Gas Dist. v. Enzor, 101 So.2d 406 (Fla. App. 1958)
• Parties: OKALOOSA COUNTY GAS DISTRICT and Alexander Potash & Sons, Inc., Appellants, v. Bon B. ENZOR, Appellee.
• Court: Florida District Court of Appeals

Page 406

101 So.2d 406

OKALOOSA COUNTY GAS DISTRICT and Alexander Potash & Sons, Inc., Appellants, v.Bon B. ENZOR, Appellee.

No. A-11.

District Court of Appeal of Florida, First District.

Feb. 4, 1958.

Yonge, Beggs & Lane, Pensacola, for appellants.

Adams & Wade, Crestview, for appellee.

O'CONNELL, STEPHEN C., Associate Judge.

Bon B. Enzor was plaintiff below in an action for trespass to his land.Defendants were the Okaloosa County Gas District and Alexander Potash & Sons, Inc.Defendants appeal the judgment entered against them consequent upon the jury's verdict for plaintiff.

Plaintiff owned a tract of land with frontage of 350 feet along U. S. Highway 90 in Okaloosa County.There was on this property a large gully between plaintiff's house and the highway.Plaintiff, two years prior to the alleged trespass, improved his property by filling in the gully and constructing an artificial lake.The lake was supplied with water by an artesian well and by natural drainage.It was retained on its south side, along the highway frontage, by a dam consisting simply of a dirt wall or bank, created by the filling in of the gully.

Plaintiff complains that in 1955the defendants dug alongside the highway and on his property a trench in which they laid a gas line.Also, he claims that in the construction of said trench the defendants operated, backed, parked and ran on his property heavy machinery and equipment.These trespasses, plaintiff argues, caused the subsoil of his lake to shift in such a way that the lake was virtually drained, his contention being that the jarring by the machinery and equipment caused the soil to become porous or loose so that the lake water drained through the sides of the lake and through the dam into the trench and thus away from the lake bed.

At the trial it was shown that the trench was dug 67 feet north from the center line of the highway, towards plaintiff's land.Plaintiff's deed to his land described his southern boundary as being 'along North side said highway 350 feet'.

Defendants' answer denied entering upon plaintiff's land, digging a trench thereon or running or parking machinery thereon.

Plaintiff attempted to testify as to the extent of the right-of-way owned by the State in front of his property.He was asked about markers which indicated the total right-of-way was 200 .By his testimony he attempted to assert it was only 100 .The court, however, ruled that the plaintiff was incompetent to testify as to the location of the boundary of his property.No evidence was produced from which the jury could ascertain the boundary.

When the jury retired from the courtroom at the conclusion of the plaintiff's case, the defendants moved the court to instruct a verdict for the defendants.Argument was had on the motion whereupon the court announced:

'* * * I think the pivotal question involved here, the one that causes the Court some concern, is the question of the boundaries of the property.The testimony, while not...