Rawls v. Tallahassee Hotel Co.

• Decision Date: 26 November 1901
• Parties: RAWLS v. TALLAHASSEE HOTEL CO. et al.
• Court: Florida Supreme Court

31 So. 237

43 Fla. 288

RAWLS v. TALLAHASSEE HOTEL CO. et al.

Florida Supreme Court

November 26, 1901

Appeal from circuit court, Leon county; John W. Malone, Judge.

Bill by the Tallahassee Hotel Company and others against William A Rawls. Decree for complainants, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Assignments of error must be argued, or they will be deemed abandoned.

2. The proprietor of lots abutting on a public street is presumed in the absence of evidence to the contrary, to own the soil to the center of the street.

3. Under section 2071 of the Revised Statutes, the care and management of a wife's separate statutory property is committed to her husband, and a decree perpetually enjoining him from making use of her property, or a portion thereof, in a particular manner, beneficial to the property necessarily affects the interest of the wife adversely, so as to require that she be made a party to the suit in which such decree is sought.

4. A decree rendered in the absence of an indispensable party will be reversed, and an objection of this character can be urged for the first time in the appellate court, or be considered by the court of its own motion.

COUNSEL

F. T Myers, for appellant.

R. W. Williams, for appellees. On April 1, 1895, the appellees, the Tallahassee Hotel Company (a corporation), Sarah S. Lewis, George Lewis, Edward Lewis, and William C. Lewis, filed their bill of complaint in the circuit court of Leon county against the appellant, William A. Rawls, alleging, among other things, that during or about the month of January, 1887, 'with the consent of the legal authorities of the city of Tallahassee,' they 'constructed and laid a sewer pipe extending from the Leon Hotel, which hotel is situated in said city, on McCarty street, between Monroe and Adams streets, along said McCarty street easterly, crossing said Monroe street, Calhoun street, and Gadsden street, to the eastern end of said McCarty street,' and thence through the private lands of the said George, Edward, and William C. Lewis, for a distance of about 500 feet, to the St. Augustine Branch; that this sewer pipe was laid by them for the exclusive use of said Leon Hotel and the family residences of Sarah S., George, and Willaim C. Lewis; that they owned, were in possession of, occupied, and used all the city lots and tracts of land along McCarty street between the Leon Hotel and the eastern end of said street, which was the eastern boundary of the city of Tallahassee, thence to the said St. Augustine Branch, except those city lots between Monroe and Calhoun streets; that the entire expense of said sewer was paid by them, and 'the said sewer, and all the rights and privileges attached thereto, and its use,' were their private property.

The bill then alleged that the appellant, William A. Rawls, had given notice to complainants that he intended to, and would notwithstanding their objection, 'tap said sewer pipe,' and connect therewith a sewer pipe for his own use; that they had refused to permit such use of their sewer pipe, and notified Rawls that he must not use it, but he persisted in his determination to do so; that Rawls threatened and was about to tap their said sewer pipe, which would be an injury to them, and cause the casting of waste, refuse, and other matter upon their premises; and that Rawls threatened to cast and empty and to deposit quantities of rubbish, waste, refuse, and other matter upon their premises, for which they had no adequate remedy at law.

An injunction was prayed for, perpetually enjoining Rawls from 'tapping, joining to, or otherwise interfering with the said sewer pipe,' and 'perpetually enjoining him from dumping said matter' on complainants' premises.

Appellant filed a general demurrer to the bill for want of equity, which was overruled, and thereupon he answered the bill. He admitted that there was a sewer pipe laid between the points and along the route mentioned in the bill, but averred, upon information and belief, 'that there was no official authorization or license by the legal authorities of said city to said complainants for laying said sewer,' and he denied that said sewer was laid with the consent of said authorities. He averred that he had no information as to whether said sewer was laid for the exclusive use of complainants, as alleged in the bill, or as to whether the entire expense of said sewer was paid by them, and the sewer, and all the rights and privileges attached thereto, and its use, were the private property of complainants, and further averred, upon information and belief, that, if said allegations were true, neither the city of Tallahassee, nor its legal authorities, had any right or power, under the law, to grant to complainants the right to construct and lay said sewer through the public streets of said city; and he prayed the same benefit of this defense as if it had been raised by demurrer to the bill.

The answer admitted that complainants owned all the lots on the north side of McCarty street from Adams street to the eastern boundary of the city, except those lots situate between Monroe and Calhoun streets, and averred that two of the lots between said last-named streets were owned at the time said sewer was laid, and ever since, by Mary M. Rawls, appellant's wife, and appellant and his family had their home and residence thereon; that the said lots had a frontage on McCarty street of 130 feet, and that said sewer pipe was laid along the entire frontage of said lots, on the half of McCarty street next thereto, and within a few feet of the sidewalk in front of appellant's residence; that for such distance the sewer pipe was laid in the soil of the street, the fee of which was vested in appellant's wife, Mary M. Rawls; and that she had never granted or in any way given to complainants, or any of them, the right or privilege of laying said sewer in the soil in front of her said lots, and the complainants were trespassers thereon.

The answer alleged, on information and belief, that at the time of institution of suit the sewer pipe did not empty into the St. Augustine Branch at any point on the lands of any of the complainants, but upon the lands of the estate of the late James D. Westcott, and that since the institution of suit the complainants, or some of them, had the eastern extremity of the sewer moved to a point further north than where it formerly debouched, and onto the lands of the complainant George Lewis.

The defendant admitted that before the institution of suit he made preparations to connect with said sewer at a point immediately in front of the lots owned by his wife, and in the soil of the street the fee of which was in his wife, for the purpose of domestic or house drainage, as he had been advised and believed, and thereupon alleged, he had a legal right to do, but, in a spirit of abundant caution friendliness, and courtesy, before beginning said work he sought the complainant Edward Lewis, who, he was informed and believed, was practically the owner and manager of the Leon Hotel, and who, defendant understood, had laid said sewer for the drainage of said hotel, and asked his consent to connect therewith a pipe from defendant's residence; that complainant Edward Lewis gave such consent, and defendant thereafter began to dig a ditch from the lot of his wife to the sewer; that...