S.H. Kress & Co. v. City of Miami

• Decision Date: 10 July 1919
• Citation: 78 Fla. 101,82 So. 775
• Parties: S. H. KRESS & CO. et al. v. CITY OF MIAMI.
• Court: Florida Supreme Court

82 So. 775

78 Fla. 101

S. H. KRESS & CO. et al. v. CITY OF MIAMI.

Florida Supreme Court

July 10, 1919

Appeal from Circuit Court, Dade County; H. Pierre Branning, Judge.

Suit by the City of Miami against S. H. Kress & Co. and others for an injunction. From a decree for complainant, defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

A municipality cannot deprive a person of his property or property rights, by declaring by ordinance or otherwise that to be a nuisance, which in fact is not a nuisance.

The owner of the fee in a street has the right to use the subsurface in front of his property, so long as he does not interfere with the rights of the municipality below the surface for sewers, and pipes for water, gas, or other proper purposes.

The owner of the fee in a street has the right, subject to reasonable municipal regulation, to make openings in the sidewalk to give access to the area beneath; but he is bound so to construct and cover the opening that it shall at all times be as safe for the use of the public as if it did not exist, and public travel over the same be not unreasonably interfered with.

A city has the right to require the owner of the fee in a street to procure a permit before making an opening in the sidewalk and it has the right to see that proper safeguards are thrown about the work, and that in its progress the right of the public to use the sidewalk is not unreasonably interfered with.

A city may regulate how excavations in the subsurface of a street shall be made by the owner of the fee, and may regulate how trapdoors or other appliances for closing the opening shall be constructed; but it may not arbitrarily refuse to grant a permit, nor, under the guise of regulation, place an additional burden upon the abutting owner, or make regulations that would in effect deprive him from exercising his rights in the subsurface.

COUNSEL Lilburn R. Railey, of Miami, for appellants.

Hudson Wolfe & Cason, of Miami, for appellee.

OPINION

BROWNE, C.J.

This is an appeal from the decree of the chancellor permanently enjoining S. H. Kress & Co., its agents, servants, and employés, from constructing a vault or subway under a sidewalk in the city of Miami, and requiring them to place the sidewalk in the condition in which it was prior to the time any excavation was made thereunder.

We have considered but will not discuss all the assignments of error but confine ourselves to such as relate to the vital issue the right of a person owning land abutting on a street in which he has the fee, to excavate and construct a subway or cellar beneath the surface of the sidewalk, and have access thereto by properly constructed and safeguarded trapdoors or other equipment.

The authorities are not in harmony, but they may be grouped into three classes: Those that hold that the owner of the fee to the street is also the owner of the subsurface and may make excavations therein if he does not unreasonably interfere with the public easement; those that hold that excavations may be made as long as they are not forbidden by ordinance or other regulation of the city; those that hold that every excavation in the street or sidewalk made without municipal consent is a nuisance per se.

Those in the first group follow the older, and we think the better rule, as laid down by so eminent an authority as Lord Mansfield, who said:

'1 Ro. Abr. 392, Letter B, pl. 1, 2, is express--'that the king has nothing but the passage for himself and his people; but the freehold and all profits belong to the owner of the soil.' So do the trees upon it, and mines under it (which may be extremely valuable). The owner may carry water in pipes under it.' Goodtitle ex dimiss. Chester v. Alker and Elmes, 1 Burrow's Rep. 133.

This doctrine has been modified by some of the later decisions of the courts of this country, but we cannot follow those that seek to extinguish all rights of the owner of the fee to the subsoil, or give to municipalities the power to take from such owner his unsurrendered right in the subsurface. The distinction between the doctrine of those courts that hold every excavation under the street or sidewalk made without municipal authority is a nuisance per se, and those that hold they are lawful so long as not forbidden by the ordinances of the city, is more in name than in substance. A right that may be taken from a person at the will of the city is not a right but a privilege, and, when we sustain the right of the city to grant or withhold from the owner of the fee the privilege of making excavations in the subsoil of a street adjacent to his property, his right vanishes. Neither can a municipality deprive the owner of his property or property rights, by declaring by ordinance or otherwise that to be a nuisance, which in fact is not a nuisance.

When the excavation for the areaway beneath the sidewalk was commenced by the appellant, there was no ordinance prohibiting it; but subsequently one was enacted that did, and it is contended that the abutting owner thereby lost his right to proceed with the work of constructing the cellar and trapdoors. We call attention to this as illustrative of the proposition, stated supra, that a recognition of the right of the city to enforce such an ordinance, denies the right of the abutting owner to the subsoil of a street, because where property rights exist they cannot be taken away by an ordinance except when the property or the use to which it is put is a nuisance.

Any attempt to discuss the cases holding the various doctrines on this subject would extend this opinion to too great length, without any beneficial result, and we shall content ourselves with citations from some of those that hold as we do.

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