Opinion
July 3, 1951.
Appeal from the Circuit Court, Sarasota County, Lynn Gerald, J.
Burket Burket, Sarasota, for appellant.
William Dart, Sarasota, for appellees.
Ralph R. Reeder and wife and J. Maud Geissinger, a widow, filed their bill of complaint in the Circuit Court of Sarasota County, Florida, against William R. Grove in which they prayed for an order restraining the defendant Grove from the further obstruction of a described road and also requiring him forthwith to remove any and all obstructions previously by him placed thereon, inclusive of the construction of a certain gate across the road, as described in the bill of complaint. An answer was filed by Grove, testimony taken and a decree entered by the Chancellor below as prayed for in the bill of complaint. From this final decree the defendant Grove appealed, and in his brief and orally presents here three questions for a reversal of the decree entered below.
The record discloses that the parties to this suit owned and resided on described properties situated on Little Sarasota Bay some few miles south of the City of Sarasota. Ingress and egress to and from these properties by the parties and the public were afforded by a country or settlement road therefrom into the Sarasota-Venice Highway, a distance of less than a mile. The defendant-appellant Grove acquired title to his property during the year 1936 through A.E. Blackburn and wife and the executor or trustee of the Estate of William H. Parsons. This suit was filed in 1948, about the time it was alleged that defendant Grove constructed a gate across the settlement road. The United States Government by patent conveyed Lots One and Two, situated in Sections 23 and 26 and comprising 153 acres, to one Mary Flint on December 12, 1898. An examination of many of the deeds filed as Exhibits discloses a reservation of an easement of a strip of land twelve feet wide across the property. Likewise a conveyance by the Trustee of the Palmer Estate into A.E. Blackburn on June 1, 1925 reserved described property "as a road right of way only."
Mr. A.B. Edwards testified that Mary Flint became Mrs. Mary Harris and that she homesteaded the 153 acres of land on the Little Sarasota Bay. The road in question was traveled by fishermen and the witness Edwards traveled the road from 1893 until 1903. The road now before the Court is the same one he traveled many years ago, with slight changes made from time to time. According to this witness' testimony, the road in question was traveled by the home owners in the vicinity of Little Sarasota Bay as well as the public until the year 1925, but since then he was not informed about the use of the road. Mrs. Wilkinson, as a bride, went to a home on the Bay in 1910 or 1912 and the road in question was then used by the public. E.J. Bacon went to the settlement on the "Little Sarasota Bay" and traveled the road in question. He was without knowledge of any objection to the use of the road until the suit was instituted in the lower court.
A.E. Blackburn, a witness for the defendant, had been acquainted with the land for fifty years and was reared in the vicinity of the road in question. It was his view that the road was not traveled a very great deal prior to the year 1925 on account of standing water. He cut ditches through the property, repaired the road, drained the water away and removed the curves from the existing road. It was the witness' conclusion that the road in question was a "private road", as he kept it in a state of repair until it was sold to defendant Grove in 1936. On cross examination Mr. Blackburn admitted that fishermen traveled the road from time to time going into Little Sarasota Bay.
Counsel for appellant contends that the use of the road in question by the appellees and the public for many years past was a permissive use which could be granted or withheld by the appellant and the use thereof was not an easement. Chapter 704, F.S.A., and cases from other jurisdictions are cited to sustain the contention. Our answer to the contention is found in the testimony adduced by the plaintiffs-appellees, Exhibits placed in the record, and the conclusion reached by the Chancellor on disputes and conflicts in the testimony. The case of Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625, is hereby controlling. We have been favored with well prepared briefs and able oral argument at the bar of this Court.
Affirmed.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.