Winthrop v. Wadsworth
| Decision Date | 18 October 1949 |
| Citation | 42 So.2d 541 |
| Parties | WINTHROP et al. v. WADSWORTH et al. |
| Court | Florida Supreme Court |
W. J. Oven, Jr., Tallahassee, attorney for appellants.
Ausley, Collins & Truett, Tallahassee, attorneys for appellees.
State Road No. 61 (formerly Road No. 10) leading from the City of Tallahassee, Florida, to the Georgia line was created by Chapter 9311, Acts of 1923, Laws of Florida. Subsequently the designated road was surveyed, located and graded and pavement thereof completed about 1927. Road No. 61 followed the general course of the then existing Tallahassee and Thomasville road, but many curves in the old road were eliminated when the new road was constructed.
The parties to this suit own land situated in Section 19, Tp. 1, North, Range 1 East, abutting on or adjacent to the new highway No. 61 or the old Thomasville road at a point situated north of the City of Tallahassee, where a curve was eliminated in the old road in the construction of the new highway No. 61. The highway, in 1927, was constructed to the west of the old Tallahassee and Thomasville road and left between the old and new roads a small strip of land, triangular in shape, which approached within a few feet of the new highway at the north end and the south end of the tract. An easement over and along the path of the old road, running north and south parallel with the new highway, is the basis of this suit. The old road, by an order of the Board of County Commissioners, was closed during the year 1947.
Paragraph 4-a of appellants' amended bill of complaint in substance alleged that between the years 1824 and 1851 a certain road was constructed across described land, which later became known as the Tallahassee and Thomasville road and included that portion of the old road involved in this suit, but no deeds conveying the land for public road purposes were ever executed. The general public, in the course of time, acquired by prescriptive use a right of way and easement of the road bed here involved. The land in question originally was a part of the General LaFayette grant and by mesne conveyances became the property of John S. Winthrop. Prior to 1887 John S. Winthrop and his predecessors in title used the road bed in controversy as a means of ingress and egress by foot, horseback and vehicles for themselves and tenants, as well as the passage of livestock to and from their property abutting the road bed. The use of the road for the enumerated purposes supra, on the part of Winthrop and his predecessors in title, was open and notorious for years.
The amendment alleged further that on June 10, 1887, John S. Winthrop and his wife conveyed to John MacNicol, predecessor in title to the appellants, described lands situated south and east of State Highway No. 61. The lands so conveyed abutted on the old Tallahassee and Thomasville road and the conveyance described lands situated on the west side of the old road to the center thereof, as the same traversed the Southwest Quarter of Section 19, supra. The pleading alleged that it was the intention of the parties, implied as a matter of law, to convey to John MacNicol the land abutting on the west of the old Tallahassee and Thomasville road. Also an easement for the continued use of the east half of the old road, as it then existing, as a means of ingress and egress to and from the property abutting on the old Tallahassee and Thomasville road. Such easement by the conveyance was reserved by Winthrop and his successors to lands abutting on the east side of the old Tallahassee and Thomasville road. Likewise, a similar easement was reserved for the continued use of the abutting property on the west side of said road.
The pleading recited that John S. Winthrop conveyed a portion of said lands to Watson, a predecessor to some of the appellants, and it was the intention of all the parties to said conveyance, implied as a matter of law, that the existing easement over the old road bed as a means of ingress and egress to abutting property should be reserved and continued as an easement into the original Watson and his heirs, who are appellants to this suit. Other allegations appear in the amendment unnecessary to recite in order to rule on the point of law presented.
The plaintiffs-appellants offered evidence in the court below to establish the existence of a private easement continuously since the year 1927 on the west side of the old road, being the east side of the triangular shaped tract, from a point where the Betton Road intersected the new highway on the north to a point on the south where the Watson land approached the new highway. The defendants-appellees offered evidence in contradiction thereof and contended that the private easement, as a matter of fact, has not existed as they now own to the middle of the old road free of the existence of a private easement as asserted by the appellants.
The record reflects that the old Tallahassee and Thomasville road, inclusive of the portion involved in this suit, has been used by the traveling public for a period of more than one hundred years. It is true that the record fails to disclose deeds or other conveyances to the public authorities from the original owner or owners of the portion of the road involved, but its dedication to the use by the public as a road for years cannot be successfully challenged. Chapter 4338, Acts of 1895, Laws of Florida, F.S.A. § 343.01 et seq., provided for the establishment, working and repairing and the maintence of the public roads and bridges of the several counties of Florida and the power and authority to accomplish these objectives were lodged in the Board of County Commissioners of the several counties of Florida.
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