Stein v. Darby
| Decision Date | 08 September 1959 |
| Docket Number | No. B-116,B-116 |
| Citation | 114 So.2d 368 |
| Parties | Abe STEIN and Alice N. Stein, his wife, Appellants, v. Fred W. DARBY and Jack Darby and Seaboard Air Line Railroad, a corporation, Appellees. |
| Court | Florida District Court of Appeals |
James H. Bunch and J. Quinton Rumph, Jacksonville, for appellants.
Edward P. Mulcahy and Botts, Mahoney, Whitehead, Ramsaur & Hadlow, Jacksonville, for appellees.
Plaintiffs have appealed from a final judgment dismissing with prejudice their third amend complaint. The sole question to be determined is whether the allegations of the complaint, if true, are sufficient to authorize equitable relief.
The complaint avers that plaintiffs are owners of a parcel of land in Duval County which they desire to use for a dwelling, for agricultural and for timber raising and cutting purposes. Their land is shut off and hemmed in on the east by the right of way of defendant Seaboard, and on the north, west and south by lands privately owned by others who have refused to grant plaintiffs a way of ingress and egress from their property to United States Highway No. 17 running north from Jacksonville to Fernandina. Defendant Seaboard, whose right of way is sixty feet wide and lies between the eastern boundary of plaintiffs' land and the highway, has likewise refused and denied plaintiffs a way of ingress and egress across its right of way to the highway.
As early as the year 1881 a public road was established by the owners of property lying south of that owned by plaintiffs. This road is sixty feet in width and runs southward from plaintiffs' property adjacent to the railroad right of way to an east-west road which crosses the railroad right of way and intersects with Highway No. 17. Since the establishment of the road in 1881, it has been used by the public, including the defendants Darby who own and operate a sawmill on land adjacent to the south of plaintiffs' property. The deed under which the Darbys claim title to their land specifically excepts therefrom the public road mentioned above. In 1939 the owners of the land lying southward from plaintiffs' property executed a partition deed by which they conveyed to each other numerous tracts and parcels of lands in the immediate neighborhood of the land owned by plaintiffs and the Darbys. The partition deed describes the various parcels being conveyed thereby with reference to a plat and survey made by one Yancey, which plat is recorded in the public records of Duval County. This plat shows the public road in question which was excluded from the lands conveyed by the partition deed. Various parcels of land have been sold with reference to the plat subsequent to its recording in 1939.
In 1934, after acquiring title to their parcel of land, the Darbys constructed on the road right of way a lumber shed and warehouse which they have occupied and maintained from that date to the date of the filing of this suit. In 1944 the Darbys and Seaboard entered into an agreement whereby a railroad spur line was constructed from the mainline of Seaboard across the road in question onto the land owned by the Darbys. Neither the Darbys nor their predecessors in title have returned the land lying within the boundaries of the public road for taxes, nor have they or anyone else paid taxes on the road right of way from 1881 to the date of the filing of the complaint. Plaintiffs acquired their property in 1955 relying upon the recorded Yancey plat showing the public road in question as a means of ingress and egress from their property to Highway 17. When plaintiffs attempted to improve the road so as to permit access to their property they were stopped by the Darbys, who threatened them if they attempted to use the road, and who immediately thereafter placed obstructions across the road so as to prevent its use by plaintiffs in reaching their land. The road has been continuously used by the public for more than twenty years prior to the filing of the suit, and has been used as a public road since 1881.
The complaint prays for a decree granting plaintiffs a way of necessity eastward from their land across the railroad right of way to Highway 17, or in the alternative, for a mandatory injunction requiring the Darbys to remove the obstructions placed by them across the public road and enjoining them from molesting or interfering with plaintiffs in their use of the road, and from further obstructing or blockading the same. It is further prayed that if the road in question is found to be a private road, then plaintiffs be granted a way of necessity over the road from which they are willing to pay such compensation as may be fixed by the court.
The judgment of dismissal is silent as to which grounds of the motions to dismiss were sustained by the lower court in reaching its conclusion. We must, therefore, look to the motions themselves and the grounds asserted therein for the purpose of determining the propriety of the lower court's action. It appears that the motions are primarily predicated upon the ground that the complaint fails to state a cause of action on which the relief prayed can be granted.
Plaintiffs' right to a way of necessity from their property to the public highway is controlled by Section 704.01(2), F.S., F.S.A., which is as follows:
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Stein v. Darby, C-41
...Ramsaur & Hadlow, Jacksonville, for appellees. STURGIS, Acting Chief Judge. This is the second appeal of this case. See Stein v. Darby, Fla.App., 114 So.2d 368, 372. As the facts of the case are fully set out in the opinion on the first appeal no useful purpose would be served to repeat On ......
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Stein v. Darby, s. 31074
...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......