Pasco County v. Johnson

• Court: Florida Supreme Court
• Writing for the Court: MATHEWS; ROBERTS
• Citation: Pasco County v. Johnson, 67 So.2d 639 (Fla. 1953)
• Decision Date: 23 October 1953
• Parties: PASCO COUNTY v. JOHNSON et ux.

Page 639

67 So.2d 639

PASCO COUNTY v. JOHNSON et ux.

Supreme Court of Florida, Special Division A.

Oct. 23, 1953.

W. Kenneth Barnes, Dade City, for appellant.

Larkin & Larkin, Dade City, for appellees.

MATHEWS, Justice.

In this case Pasco County filed a bill of complaint for mandatory injunction against certain landowners in Pasco County seeking the removal of barricades placed by the owners across an alleged public county road.

It is alleged in the bill of complaint that at the time the owners (appellees) acquired title there was a 'roadway across the said lands' and that soon after they acquired title to the land, the owners 'fenced up the said lands and closed the said road.' It was then alleged that the road had been used continuously by the county and the general traveling public since approximately the year 1940, and since then had been worked, maintained and kept in repair by the county so that the people could travel freely from State Road No. 35 or Federal Highway No. 301 to get to their places of residence. It was further alleged that the said road has been maintained by the county at least ten years next preceding the filing of the complaint.

As a part of the history of the road, the bill alleges that, while the predecessors in title to the appellees owned the land, there was a meandering road through the property in question. The predecessors in title fenced the old meandering road and laid out a new road or relocated the old road to another position across the property. The predecessors in title not only laid out the new road but recognized the right of the county to maintain the same for the use of the traveling public.

After the lands were purchased by A. V. Johnson and wife, the appellees here, they had the land surveyed and it was determined that the road was located on a part of the lands conveyed to them. The road was there and in use at the time appellees purchased the land. The appellees thereupon erected a barricade and closed the road to the general public. The appellant claims that it had acquired the right to maintain the said road as a county road and to keep it open for use of the citizens and taxpayers as provided for by F.S. Sections 341.59 and 341.66, F.S.A.

A motion to dismiss was filed which was granted by the Chancellor with leave to amend. In due course an amendment to the bill of complaint was filed in which the same facts with reference to the meandering road, the closing of the same and the laying out of the new road or the relocation of the old meandering road were set forth. It was then alleged that prior to the purchase of the land by the appellees, the county entered upon said land and constructed a road by filling the ruts, clearing out of the brush around it and preparing it in proper condition for the traveling public, and that the road had been continuously used by the county and the traveling public since 1940, and that it had been worked, maintained and kept in repair by the county during that time.

A motion to dismiss the amendment to the bill of complaint was filed and in due course was granted by order of the Chancellor, in which he stated:

'2. That in order to avail itself of the four years provision of said Statutes, as against the twenty years adverse possession otherwise provided, it is incumbent upon the County to allege and prove that the road in question was 'Constructed' by the County, in addition to its subsequent maintenance and repair for the four year period.

'3. That plaintiff's allegation in the present Amendment to Bill of Complaint that Plaintiff County '* * * constructed said road by the filling of the ruts cleaning out of the brush around it and preparing it in a proper condition for use by the traveling public * * *' is not a sufficient allegation to meet the requirements of the statutes above cited, for the reason that to 'Construct' a thing is to establish, to build or erect it. The allegation of Plaintiff indicates to this Court that the road was originally constructed by someone else, otherwise there would have been no ruts to be filled.

'4. That the maintenance and repair of a road already in existence by the County is not an 'Appropriation of lands for road purposes' within the contemplation of a statute that expressly requires that the road be 'Constructed' by the County in addition to its maintenance and repair for the four year period.'

F.S. Section 341.59, F.S.A., contains the following:

'Whenever any road or portion thereof, heretofore constructed by any of the several counties of this state or by the state road department of Florida, shall have been maintained, kept in repair or worked continuously and uninterruptedly for a period of four years by any such county or by said department, or by either or both, such road shall be deemed to be dedicated to the public to the extent in width which has been actually maintained, kept in repair and worked for the period aforesaid, whether the same has ever been formally established as a public highway or not, and such dedication shall be conclusively presumed to vest in the particular county in which the road is located or situated, if it be a county highway, or in the state road department of Florida, if it be a state road, all right, title, easement and appurtenances therein and thereto being the fee simple title to the extent in...