Summary
In Town of Crystal River v. Williams, 61 So.2d 382 (Fla. 1952), this Court applied an ordinance against the Town when the ordinance was not introduced into evidence because the ordinance had been lost by the Town.
Summary of this case from Holmes v. StateOpinion
November 14, 1952.
Appeal from the Circuit Court for Citrus County, F.R. Hocker, J.
Scofield Fitzpatrick, M.C. Scofield and Chas. B. Fitzpatrick, Inverness, for appellant.
Scofield Bradshaw, George W. Scofield and Donald J. Bradshaw, Inverness, for appellee.
In its bill of complaint the Town of Crystal River alleged that Norman Williams had taken possession of a part of Hardman Street, had fenced and otherwise obstructed it, and had signified his purpose to continue his possession. The town prayed for a mandatory injunction and an order restraining the defendant from ever again interfering with use of the property as a street by the public.
The defendant's answer, aside from certain denials, contained averments that there was never an offer to dedicate the street in the first place or any act of the city, or of the public, by user, constituting an acceptance even had an offer been ostensibly made; and, further, it was stated that, anyway, the street had long since been expressly abandoned by an ordinance of the town council, not to mention revocation by the successor in title of any person who may have appeared to make a dedication of the street. These representations were embellished by the pleader, but we think we have given, even in this severely abridged form, enough of the substance of them to serve as an introduction to the origin and history of Hardman Street.
An irregular section of land bordered on the south by Crystal River was platted in 1885 and the plat was recorded three years later. On it appeared Hardman Street extending from a street along the north section line to the water. There is nothing whatever on the map referring to the name of the subdivider, much less to any dedication. This property, or so much of it as borders the street in question, appears on the map of the town of Crystal River as late as 1926, in practically the same form as on the initial plat.
The town was very small in the latter part of the nineteenth century and the early part of the twentieth and its economic welfare was doubtless affected in large degree by the fortunes of a cedar mill operated there by Joseph Dixon Crucible Company. This factory was destroyed by fire about nineteen ten, and, conceivably, the town, in order to encourage its reconstruction, ordained that all streets in the mill yard, among which was the presently disputed part of Hardman Street, be closed.
There seems to be ample justification from the map itself for the conclusion that there was never a formal dedication, and from the evidence the chancellor believed, for the opinion that there was never any user by the public. On the contrary, the site of the proposed street was possessed and improved year upon year by private parties without protest or interference by the town — until this suit was brought.
The remaining matter, posed with considerable emphasis by appellant, is the competency of the proof of the passage of the ordinance of abandonment. It pales in importance, we think, in view of lack of both dedication and user; nevertheless, we will pass upon the question because of the chancellor's reference to this element of the case and the appellant's challenge of the means of proof and the reasoning of the chancellor.
The appellant insists that although this aspect of the controversy was introduced as an affirmative defense and the appellee assumed the burden of proving the ordinance, the appellee failed in this respect because the ordinance itself could not be produced. In support of this position we are referred to familiar opinions that ordinances will not be judicially noticed but must be proved.
We do not intend to deviate from this ruling, but we think a comparison of facts to which it was applied and the facts here will demonstrate its inappropriateness in this case. The ordinance was no myth. The minutes of the council showed that 18 March 1910 an ordinance closing certain streets within the crucible company yard was voted upon and that each councilman voted aye. It was further shown that the council was petitioned 6 May 1910 to rescind the action and each member present voted nay.
Obviously, the appellee could only have produced the ordinance by obtaining it from the appellant who was its lawful custodian as part of the public records of the town. The appellant was responsible for the preservation of this record, and if it was lost the dereliction was appellant's. It cannot now take advantage of its failure to care for its own records by invoking the rule of evidence that ordinances must be proved because courts will not take judicial notice of them. As we have said enough evidence was introduced to show the passage of an ordinance abandoning streets in the mill site, and it will be presumed that the officers performed all duties in connection with its passage and publication. The city will not be heard to question its contents on the sole ground that the original ordinance, presumably in the city records, actually cannot be found. It will, on the contrary, be considered to have become victim of the doctrine of estoppel. See City of Miami Beach v. Miami Beach Improvement Company, 153 Fla. 107, 14 So.2d 172.
It should be borne in mind that there is a distinction between the rights vesting in purchasers of lots according to a plat and those vesting in the public, City of Miami v. Florida East Coast Railway Company, 79 Fla. 539, 84 So. 726, and that the issues in the immediate case involve only the latter; and further, that a municipality may not enforce private rights deriving from sales of lots according to a plat where the municipality has not accepted the offer of dedication. Kirkland v. City of Tampa, 75 Fla. 271, 78 So. 17.
No error has been demonstrated, so the decree dismissing the bill of complaint is —
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.