State Ex Rel. Harris v. City of Lakeland
| Decision Date | 16 February 1940 |
| Citation | 193 So. 826,141 Fla. 795 |
| Parties | STATE ex rel. HARRIS et al. v. CITY OF LAKELAND. |
| Court | Florida Supreme Court |
Proceeding by the State of Florida, on the relation of James Harris and others, against the City of Lakeland, Fla., to abate a public nuisance. The answer tendered various defenses to which a motion to strike was interposed. The motion was overruled, and the relators appeal.
Reversed. Appeal from Circuit Court, Polk County; H. C. Petteway, judge.
John S. Edwards, of Lakeland, for appellants.
J. P. Marchant and Carver & Langston, all of Lakeland, for appellee.
Appellants filed their bill of complaint in the Circuit Court to abate a public nuisance as provided by Section 5029, Compiled General Laws of 1927. There was an answer to the bill tendering various defenses to which a motion to strike was interposed. The latter motion was overruled and this appeal was prosecuted.
The doctrine of comparative negligence is relied on to defeat the bill. This doctrine has a very important place in private nuisance cases but it has rarely if ever been applied in strictly public nuisance cases. The briefs evidence misunderstanding on the point.
The chancellor undertook to adjudicate the merits of the case on the pleadings without taking testimony, and in doing so, assumed that facts constituting a public nuisance were not stated. In this, he was in error. If the allegations of the bill are proven, they are sufficient to support a public nuisance. It will then be time to determine whether the doctrine of comparative negligence has any application. If a public nuisance is conclusively proven, the responsibility will be on the city to remove it. This it may do by modernizing its present sewage disposal facilities or by providing additional ones. It cannot plead poverty or inability to remove a nuisance created by it that has become deleterious to the public health.
The judgment appealed from is reversed.
Reversed.
WHITFIELD and CHAPMAN, JJ., not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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...in pollution cases. Iowa Water Pollution Control Comm. v. Town of Paton, (Iowa 1973) 207 N.W.2d 755; State ex rel. Harris v. City of Lakeland, (1940) 141 Fla. 795, 193 So. 826; Board of Purification of Waters v. Town of Bristol, (1931) 51 R.I. 243, 153 A. 879. More specifically, the Indiana......
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Penn v. City of Lakeland, 552
...and lake. The Harris case was before the Supreme Court twice, but both times prior to the final decree granting the injunction, 141 Fla. 795, 193 So. 826, and 143 Fla. 761, 197 So Testimony was taken as to the injunctive portion of the complaint, and it was shown that a public nuisance did ......