Stein v. Darby, s. 31074
| Decision Date | 11 October 1961 |
| Docket Number | Nos. 31074,31075,s. 31074 |
| Parties | Abe STEIN and Alice N. Stein, his wife, Petitioners, v. Fred W. DARBY and Jack Darby and Seaboard Air Line Railroad, a corporation, Respondents. SEABOARD AIR LINE RAILROAD COMPANY, Petitioner, v. Abe STEIN and Alice N. Stein, his wife, Respondents. |
| Court | Florida Supreme Court |
James H. Bunch, Jacksonville, for petitioners-respondents.
Botts, Mahoney, Whitehead, Ramsaur & Hadlow and Edward P. Mulcahy, Jacksonville, for respondents-petitioner.
The above titled causes were consolidated by order of this court, were presented as one, and will be determined here accordingly.
The plaintiffs in the Circuit Court, the Steins, had alleged that property which they proposed to use as a site for a dwelling and to promote agriculture and forestry was enclosed on the north, south and west by the lands of other owners and on the east by the right-of-way of Seaboard Air Line Railroad, 60 feet in width. Immediately east of the right-of-way and paralleling it is United States Highway No. 17. They claimed all the owners had refused them a way of ingress and egress and that the Seaboard Air Line Railroad Company had also declined to grant them such a way across its right-of-way.
The plaintiffs alleged that since 1881 a public road 60 feet wide had been established extending southward from their present property along the right-of-way of the railroad to a road running east and west across the right-of-way to what is now Highway 17. The respondents-Darby operate a sawmill on land adjacent to that of the Steins on the south, and the deed to the Darbys expressly excepted the land occupied by the road. Many years ago owners of land lying south of Steins' property conveyed to one another by partition deed describing the property conveyed by reference to a recorded map which showed exclusion of the land occupied by the road.
When the Darbys received the deed for their property in 1934 they built on the right-of-way of the road a lumber shed and warehouse which they have maintained ever since. Ten years later they and the railroad company arranged for the construction of a spur track from the main line across the road to their land. The Steins bought their property in 1955 in reliance upon the recorded plat. When they undertook to use the road as a means of reaching their property they were halted by respondents-Darby who threatened them and obstructed the road although it had been in use by the public nearly 75 years.
The Steins sought (1) a decree granting a way of necessity eastward across the right-of-way, or (2) a mandatory injunction for removal by Darbys of the obstructions they had erected, or (3) if the road was found to be a private one, a way of necessity over it for which they expressed a willingness to pay compensation.
This bill was dismissed and an appeal was taken by the Steins to the District Court of Appeal, First District. That court observed that the appellants' way of necessity was governed by Sec. 704.01(2), Florida Statutes, F.S.A., securing, under certain conditions, to an owner of land without a municipality which he used or proposed to use for agricultural or timbering purposes an easement over intervening lands.
The District Court of Appeal sustained the view of appellee-Seaboard that the complaint contained no allegation that the land lay outside a municipality, but rejected the contentions of appellees-Darby that there was defective establishment of the character of the road as a public one and that the appellants were chargeable with laches. The court thought that the question whether an outlet across the right-of-way or over the obstructed road was a more practicable routs was one for decision by the chancellor founded upon proof.
Upshot of the decision was that there had not been a total failure to state a case against appellees-Darby and that the appellants should be permitted a limited time to amend, so far as appellee-Seaboard was concerned, to show that the land was situated beyond the limits of a municipality. Stein et ux. v. Darby et al., Fla.App., 114 So.2d 368.
Turning now to the opinion of the District Court of Appeal, when next the controversy reached that tribunal, we find that the appellants had, within the allotted time, amended their complaint to show that their property lay outside the limits of any municipality. Even so the chancellor granted a second motion of appellee-Seaboard to dismiss for failure to state a cause of action, and dismissed the complaint with prejudice.
The court considered first the effect of the amendment to preclude the railroad from raising again, as a matter of pleading, the sufficiency of the complaint after it had been amended in conformity with the appellate court's decision on the first appeal.
Upon the first appearance of the case the Railroad had apparently urged affirmance of the ruling that the complaint failed to state a cause of action only because of the absence of the allegation with reference to location of the property, and the decision of the District Court of Appeal obviously directed that the cause go to trial if the pleading was amended to allege that the land lay outside a municipality. But on the second appearance the Railroad added two specific grounds in support of the chancellor's ruling, namely (1) that an attempt was being made to take its property unlawfully for private use pursuant to Sec. 704.01(2), Florida Statutes, F.S.A., and (2) that that act was unconstitutional as applied to the facts of the case. The chancellor ruled that the application of the statute to the facts detailed in the complaint would contravene Secs. 1 and 12 of the Declaration of Rights of the Constitution of Florida, F.S.A., and the Fourteenth Amendment of the Constitution of the United States.
We pause here to summarize. The case so far as it involved the Darbys rests in the Circuit Court awaiting trial and their interests need not now be further considered. As for the petitioner-Seaboard that would have been the situation, too, inasmuch as the complaint was amended to comply with the district court's ruling, had not a second motion to dismiss on the ground of failure to state a cause of action become the vehicle to convey to the District Court of Appeal the question of the constitutionality of Sec. 704.01(2), supra, as it affected the petitioner-Seaboard. The court seems to have frowned on the procedure nevertheless it accepted and decided the question.
The case came here on a petition of appellants for certiorari based on the claim that the decision of the District Court of Appeal treating of the constitutional question was in conflict with the decision of this court is South Dade Farms, Inc. v. B. & L. Farms Co., Fla.Sup., 62 So.2d 350, on the same point of law and it came here, too, on the certificate of the District Court of Appeal that the decision of the that court was one passing upon a 'question' of great public importance. It should be noted that the singular is used.
Under the provisions of paragraph two of Sec. 4(2) of Art. V of the Constitution as amended, this court 'may review by certiorari any decision of a district court of appeal that * * * passes upon a question certified by the district court of appeal to be of great public interest, or that is in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law * * *.' (Italics supplied.)
The controversy was brought to us via proceedings in certiorari under both provisions, that is to say, a certificate of the District Court of Appeal and a claim of conflict.
It is a bit difficult for us to determine precisely what question of public interest we are now expected to entertain by virtue of the certificate of the District Court of Appeal which is a condition precedent to the exercise of our power, but we apprehend that it is the treatment of jurisdiction of the court, for the scholarly opinion of Acting Chief Judge Sturgis at the outset bore the statement that although the parties had not questioned the power of the District Court of...
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