author: DREW, Justice.

text:
    David ROTT and Harry Rott, Appellants, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Appellee.
    Supreme Court of Florida, En Banc.
    March 13, 1957.
    Rehearing Denied April 24, 1957.

      Copeland, Therrel & Baisden, Miami Beach, for appellants.
    Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for appellee.
   DREW, Justice.

This controversy between David Rott and Harry Rott and the City of Miami Beach commenced about April 6, 1955 when the attorney for the Rotts appeared before the City Council and requested that a notice be advertised that a public hearing would be conducted on an application to permit the construction of a multiple level parking garage at the corner of 27th Street and Collins Avenue, on Lots 5, 6, 7 and 8 of Block 7, of the ocean front property of the Miami Beach Improvement Company, according to the plat thereof recorded in Plat Book 5 at pages 7 and 8 of the public records of Dade County. The advertisement requested was run in the local newspaper and hearing was held thereon on the 20th of April following, at which time the attorney for the Rotts again appeared and was heard by the Council. The Council took no action on the application but postponed a decision thereon until further study and consideration could be given the proposal. The following July 6th the attorney again appeared before the City Council on behalf of the Rotts and extended discussions took place between the members of the Council, the attorney for the applicants for the permit, city attorney and others. From an examination of these proceedings it appears that what the Messrs. Rott desired to do was to construct a multiple level parking garage on the subject property according to certain plans which were apparently exhibited to the Council in connection with the application for a building permit. These plans called for the construction of the multiple level parking garage on the subject area and revealed that a considerable number of mercantile stores were to be located on the street level for the purpose of financing the project, it appearing from the disclosures of the proceeding that a successful financial venture could not be undertaken in the absence of the revenue that would be derived from the rent from such mercantile establishments. The subject property had been zoned as “RE” Multiple-family District from 1930 to about 1950 when the zoning was liberalized to the extent of allowing in said district the construction of multiple level parking garages without store fronts on the street and with certain other qualifications and limitations. [The full regulations are set forth in Parking Facilities, Inc., v. City of Miami Beach, Fla. 1956, 88 So.2d 141]. We glean from the record that in other areas of the city, notably in business districts, such multiple level parking garages were allowed with stores on the street level and facing the street. It was around this controversy that the argument revolved.

The Council finally concluded that it would not grant a permit for the construction of the multiple level garage with the stores along the street as it was contrary to the ordinance so far as it related to multiple level parking garages in “REE” Multiple-family Districts. Final action was taken rejecting the permit at the meeting of July 6th.

Inasmuch as the chronological events occurring subsequent to that time have a significant and material bearing upon' the conclusions which we reach in this litigation, we find it expedient to note: (1) the events in chronological order arising in the eminent domain proceedings instituted by the City of Miami to acquire this property for public parking area (the suit with which we are primarily dealing in this opinion) and (2) the events in chronological order arising out of the action in equity seeking to declare the subject ordinance restricting the use of the plaintiffs’ property as above noted to be unreasonable, arbitrary, confiscatory and unconstitutional; enjoining and restraining the City from enforcing said zoning ordinance against the property of the Rotts insofar as the construction of a structure as shown by the plans and elevations attached to the complaint or a structure of similar utility including multiple level parking garage (the structure referred to was one for multiple level parking of automobiles with stores along the street); enjoining and restraining the prosecution of the condemnation proceedings pending the determination of the equitable action and for general relief. In chronological order these events are:

1. July 6, 1955, application for permit to construct the multiple level parking garage with stores on the ground floor rejected by the Council.

2. October 26, 1955, petition for condemnation of the land in controversy filed by the City of Miami Beach in the Circuit Court of Dade County.

3. November 15, 1955, answer filed in condemnation suit by defendants Rott.

4. March 21, 1956, complaint for injunction filed by the Rotts against City of Miami Beach to enjoin enforcement of zoning ordinance as to subject property and to allow construction of multiple level parking garage with stores along the street.

5. June 6, 1956, notice was served on Rotts’ attorneys of application for trial of condemnation suit on July 5, 1956.

6. June 22, 1956, answer of the City of Miami Beach to injunction complaint.

7. June 29, 1956, order denying temporary injunction to restrain condemnation suit.

8. July 2, 1956, motion of Rotts’ attorney for continuance of condemnation suit.

9. July 5, 1956, order denying motion for continuance of condemnation suit.

July 5, 1956, order determining that the City had the right to condemn the lands and that the condemnation thereof is necessary and proper in the condemnation suit.

10. July 10, 1956, verdict of the jury fixing award of compensation in the condemnation suit.

11. July 12, 1956, final judgment of the court in the condemnation suit.

12. August 20, 1956, order denying motion of City of Miami Beach for summary final decree in the injunction suit.

The condemnation case is now before us on an appeal from the final judgment and the Rotts present three questions for determination, viz.:

1. Did the trial court err in denying the motion for continuance pending the determination of the issues on the equity suit?

2. Did the trial court err in finding in favor of the City on the question of the necessity of taking and the good faith of the City?

3. Did the trial court err in admitting certain evidence of expert witnesses concerning a lease and in refusing to allow defendants’ witness McCune to give certain testimony relating to leases on comparable property as a basis for establishing market value?

Before entering upon a discussion of the three principal issues in this case and as a preliminary thereto, this Court in the case of Parking Facilities, Inc., v. City of Miami Beach, supra, upheld the reasonableness and constitutionality of the very ordinance we are dealing with in this case as it related to certain other property in the City of Miami Beach. The question raised in that case was the identical question raised before the City Council at its meeting on July 6 hereinabove alluded- to, and that was that it was unreasonable, arbitrary, capricious and confiscatory to allow the construction of a multiple level parking garage in hotel and apartment districts but at the same time and in the same ordinance prohibit the use of the ground floor for mercantile establishments of a defined and restricted character. While the decision in that case was filed January 8, 1956, it was not officially released until rehearing was denied September 13, 1956, ■ about two months after the entry of the final judgment in the condemnation suit and nearly a month after the entry of the order of the trial court denying the motion for summary decree in the chancery case. In Parking Facilities, Inc., v. City of Miami Beach, supra [88 So.2d 142], we had this to say with reference to the reasonableness of the ordinance which is the basic subject matter of all of this litigation:

“ * * * There is nothing in the record to indicate that the ordinance under question deprives the plaintiff of the beneficial use of its property. Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642. Not only does the record show that the parking of automobiles is one of the gravest problems faced by the City of Miami Beach but this Court judicially knows that such problem is one of the most pressing and serious confronting governmental bodies. The solution of this problem or anything which tends to solve it necessarily contributes to the general welfare. The construction of a parking garage as required in the ordinance in a multiple-family district is not detrimental to the district or inconsistent with the uses allowed therein but, on the contrary, is essential to the maintenance of the integrity of such district. On the other hand, the use of a portion of the building for stores or other business enterprises would violate the integrity of the district and plant therein a growth which could well spread and destroy the character of the neighborhood. It would constitute spot zoning of the worst order, a practice which we and all other courts have universally condemned. Moreover, these zoning ordinances come to us with the presumption of validity. City of Miami Beach v. Hogan, Fla., 63 So.2d 493, and cases there cited. We are not authorized to substitute our judgment in matters of this kind for that of the constituted authorities of the City of Miami Beach so long as their actions are, as here, within constitutional limitations.”

Having decided that the ordinance under attack was a valid and reasonable regulation of the City of Miami Beach, the very foundation of the equity suit is completely destroyed and the original action of the City Council of July 6 denying the application to build a multiple level parking garage with stores on the street was a valid, legal and justified act of the City Council of that City. Under the rule of stare decisis, Parking Facilities, Inc., v. City of Miami Beach is controlling here on that question. The foundation of the equity suit having been destroyed by the holding of this Court in Parking Facilities, Inc., v. City of Miami Beach, it naturally follows that the trial court in this case was not in error when he refused to grant the continuance.

Moreover, the motion for continuance was wholly inadequate and we think the learned trial judge in the companion equity case now being considered by us was altogether correct in his disposition of the motion for temporary injunction made in that case on the ground of lack of diligence alone.

There is another and very fundamental reason why we cannot agree with the contention of the appellants in this case concerning the matter of continuance. In 1953 the late Justice Mathews was the author of an opinion which, to use the vernacular, fits this case like a glove. City of Miami Beach v. Hogan, Fla.1953, 63 So.2d 493, 495. By changing a few words the language in that opinion could be used in this. The Court there said:

“After the city had decided to acquire the property by the exercise of the power of eminent domain the landowner goes into a court of equity in an attempt to have the property rezoned, not because it wishes to erect a hotel, but because if it is rezoned for hotel use, the value will be greatly increased and the city will be compelled to pay the increased value brought about by rezoning in order to obtain the property for a public purpose.
“From 1930 until the institution of this suit the City of Miami Beach had grown from a population of about 6,-000 to a population of 45,541. The landowner now seeks to reap the benefit of an unearned increment when the very growth and the development of the City of Miami Beach is due in large measure to the zoning ordinance which the landowner now seeks to change for her own benefit.
“The allegations of fraud are wholly insufficient and the question of necessity in the absence of bad faith or fraud rests wholly in the discretion of the city officials.
“The condemnation suit was instituted prior to the suit in equity and no reason appears why the landowner cannot litigate the questions of good faith and necessity in the condemnation suit, as provided by the law relating to eminent domain.
“If the Courts adopt the policy of substituting their judgments for that of city officials, simply because of their refusal to rezone the property in accordance with the wishes of the landowner to increase the value of the land, they will eventually become the zoning boards for every county and municipality in the State.”

We now turn to the second question. It can be disposed of with the observation that the conclusions reached by the lower court concerning the necessity of taking and the good faith of the City is established by the basic contentions of the appellants here. It was agreed at the hearing before the City Council and all along the line that the area in which this property was located was one of great traffic congestion. Obviously that was the basic reason prompting the desire of the appellants to construct a multiple level parking garage. It is no answer to contend that there was no necessity for taking because the owners were willing and had planned to provide better and even greater parking facilities. The owner could change his mind both as to whether he would build or what he would use the property for after he had built it. It could become a private enterprise subject to private control and used for private purposes. The finding of the City Council on the question of necessity is one which may not be easily or casually overthrown by the courts. It requires strong and convincing evidence of the most conclusive character to upset the findings of the elected officials charged with the responsibility of operating the city government in matters of this kind. There was_ no showing nor even allegations of fraud. Justice Mathews in City of Miami Beach v. Hogan, supra, very appropriately observed that “* * * in the absence of bad faith or fraud [the necessity of taking] rests wholly in the discretion of the city officials.”

It is not necessary to labor the third point. Our careful scrutiny of the record in this case leaves no room to doubt that this case was thoroughly and correctly tried. The charges of the court were fair in all respects to both parties and the alleged error suggested by the third question, if in fact it was error, was inconsequential and harmless. Section 54.23, Florida Statutes 1955, F.S.A.

Affirmed.

TERRELL, C. J., and HOBSON, ROBERTS and THORNAL, JJ., and ROWE, Associate Justice, concur.

THOMAS, J., not participating.

      . In denying the application for the temporary restraining order the trial court very appropriately observed: “ * * * said condemnation proceeding having been instituted in October, 1955 and the trial thereof having been set for July 5, 1956, and it further appearing that this cause was instituted on March 21, 1956, and the court being of'the opinion that due diligence in the prosecution of this cause would have enabled the court to have tried and adjudicated the issues involved herein prior to the trial of said condemnation proceedings it is therefore Ordered, Adjudged and Decreed that plaintiff’s application for injunction herein be and the same is hereby denied.”

      . The motion for continuance related the filing of the eminent domain proceeding; the later filing of the chancery action; that the chancery action is at issue and set for trial on August 17, 1956 “seeking a change in zoning to a classification that would permit the erection of the type improvement desired by defendants herein.” (quoted language is taken directly from the motion for continuance) It is then alleged in the motion that if the Rotts are successful in the, chancery action the value of the property would increase at least $2000 per foot.

      .In this order the court denied the continuance and set the case for hearing on July 5, 1956 prior to the empanelling of a jury for the purpose of determining the issue of the necessity of taking. The order provided that if that issue were determined contrary to the contention of the Rotts “the trial will proceed at the time previously set for whatever issues are to be tried.”

      . The award was for $285,000 for the land and $14,250 attorneys’ fees.

      . After the condemnation suit was completed and the money paid into the registry of the court the City of Miami Beach amended its answer alleging such facts, attached supporting affidavits and moved for the entry of a summary final decree on the ground basically that having acquired the legal title to the land, the equity suit was terminated. (This order of the lower court was also appealed to this Oourt and is now pending and has been disposed of by an opinion of this date.)


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF MIAMI BEACH, a municipality created and existing under the laws of the State of Florida, Petitioner, v. David ROTT and Harry Rott, Respondents.
    Supreme Court of Florida, En Banc.
    March 13, 1957.
    Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for petitioner.
    Sibley & Davis, Marion E. Sibley, Miami Beach, and Weinkle & Kessler, Miami, for respondents.
   DREW, Justice.

This petition for certiorari is to review an order of the trial court of August 20, 1956 denying a motion of the City of Miami Beach for a summary judgment. For a full discussion of the factual background of this litigation, see the opinion this day filed in Rott v. City of Miami Beach, Fla., 94 So.2d 168.

The lower court was not in error in en-' tering the order on the date it considered the matter. He may desire, however, to reconsider the same motion or entertain a similar motion in the light of the opinion rendered in Rott v. City of Miami Beach this day filed.

Certiorari is denied and the cause remanded for further, proceedings.

TERRELL, C. J., and HOBSON, ROBERTS, THORNAL, O’CONNELL, and BUFORD, JJ., concur.


author: O’CONNELL, Justice.

text:
    J. Gerald LEWIS, Petitioner, v. GRAMIL CORP., Defendant, Gerald Shingledecker, George Eadie Orr and Boardman & Bolles, Respondent.
    Supreme Court of Florida, Division B.
    April 3, 1957.

      Herbert E. Kaufman, Miami, for petitioner.
    Boardman & Bolles, Miami, for respondents.
   O’CONNELL, Justice.

This is a petition for certiorari wherein the petitioner J. Gerald Lewis seeks review of an order granting fees and expenses to a receiver and fees to the attorneys for the receiver.

The petitioner was the plaintiff below in a suit to foreclose a third mortgage on a hotel in Miami Beach. The receiver was appointed on motion of the petitioner. The validity of his appointment is therefore not an issue. Petitioner purchased the hotel at the foreclosure sale, taking the property subject to the two prior mortgages. The foreclosure sale resulted in a deficiency of more .than $12,000, hence petitioner’s interest in the fees and costs in question.

From the record and briefs before us it appears that the receiver was in control of the hotel in question for approximately 90 days. He surrendered possession to the petitioner on January 7, 1957 and thereafter filed his “Petition for Approval of Account and Allowance of Fees.” To this petition the receiver attached his report of receipts, disbursements and funds on hand.^ He asked for approval of said report, for fees for himself, reimbursement of expenses and fees for his attorneys.

The receiver alleged in his petition, which was sworn to, that he had expended a total of 343 hours in performing various duties in managing the hotel, promoting its business; and protecting the property He alleged he believed the hotel to be worth $350,000.

The report of receipts and disbursements attached to the receiver’s petition shows that he received from rents a total of $10,256.46, of which sum $1,148.76 was for advance rents which would be earned after the receiver had surrendered possession. The net balance'remaining in the receiver’s hands was only $234.56.

The receiver alleged that because of the complex nature of the receivership it was necessary that he seek the advice of attorneys to assist him in negotiating with creditors of the corporation (which corporation is not alleged) and in handling the other legal matters in the receivership.

He alleged that he had expended the sum of $192.65, “which expenditure covers automobile mileage, parking and bridge toll.”

The receiver did not ask for a specific sum either for his services or those of his attorneys.

The petitioner here, plaintiff below, filed a sworn answer to the receiver’s petition for approval of accounts and for fees in which he: (1) denied that the property was worth the sums alleged by the receiver; (2) objected to allowance of attorney’s fees on'the'grounds that the receiver had not been authorized by the court to employ an attorney and that there was no necessity for the receiver to employ an attorney; and (3) objected to payment of the expenses of $192.65 claimed by the receiver on the ground that said expenses were neither substantiated nor allowable. Petitioner further alfeged that the average number of guests in the hotel, during the receivership, was only 15 to 20 out of an available 61 rooms.

The receiver’s petition was set for hearing before the chanceller, who after hearing arguments of counsel entered an order wherein he granted the receiver a fee of $2,500, costs in amount of $192.65 and attorney’s fees in amount of $650. The record before us indicates that no evidence was taken on the petition and that the chancellor entered his order based solely upon the receiver’s petition, the answer of petitioner, and argument of counsel. The briefs of the parties indicate this to be true.

The petitioner in essence contends that the chancellor abused his discretion in awarding the fees and expenses allowed in this case.

That the allowance of fees and expenses to a receiver is within the sound discretion of the chancellor is clear, but as in all other matters such discretion is not an unbridled one. The allowance of such fees and expenses is discretionary only in the sense that there are of necessity no fixed rules, no schedule of fees, no mechanical means by which to determine what is a proper allowance thereof. Such allowance is not discretionary in the sense that the chancellor is at liberty to award anything more or less than fair and reasonable compensation for the services rendered or monies expended in each individual case.

While, as we have said above, there are no fixed rules or schedules by which fees may be determined we have prescribed considerations affecting allowance of fees to guide chancellors in determining such matters. Hazen v. Stevens, 1910, 60 Fla. 460, 53 So. 716 and W. & W. Corp. v. Feit, 1931, 101 Fla. 1091, 134 So. 57. Also see 75 C.J.S., Receivers, § 389(b), p. 1064 et seq.

We are loath to interfere with the exercise of discretion by the chancellor in any matter wherein he is authorized to exercise it. Nevertheless, when review is sought by an aggrieved party it is our ultimate responsibility to determine whether such discretion was reasonably and lawfully exercised. Where the record fails to establish to our satisfaction a reasonable basis for the exercise of an enlightened and sound judicial discretion we must return the cause to the chancellor with directions to take and receive such testimony and evidence as is necessary to enable the chancellor to properly exercise his discretion, and which will afford a basis on which the appellate court may intelligently review it, if review be sought.

There is in the record before us only the petition and answer, the essentials of which we have recited above. These pleadings do not constitute sufficient proof, in our opinion, to enable the chancellor to properly exercise his judicial discretion nor do they afford an adequate basis on which we can intelligently review his order.

Allowance of fees and expenses to a receiver is a judicial question to be judicially determined in judicial proceedings. As in other judicial proceedings the burden is on the moving party, the receiver in this case, to show by appropriate proof, through testimony, depositions, affidavits or otherwise, the services and benefits which he has rendered the receivership estate and the amount of compensation to which he is reasonably entitled as well as the propriety and correctness of the expenditures for which he claims reimbursement or approval,.

The very nature of these allowances, constituting, as they do, enforceable costs in a court of justice, command and should receive the closest scrutiny of the courts and should never be awarded in a perfunctory proceeding.

The chancellor should see to it that there is offered and that the record contains sufficient proof to show the nature and extent of the services rendered by the receiver, the responsibility assumed by him, the character and extent of the property committed to his care, the beneficial results of his management, the complexity of his task, the opinions of persons of experience as to the value of the services rendered by the receiver, and proof of any other material factors. And of course, interested parties should be afforded the opportunity to rebut the proof offered by the receiver.

We feel too that a receiver and attorneys who seek and receive compensation for services rendered as officers of the court in receivership proceedings, as well as others, should be gravely concerned with seeing that the record in such cause reflects adequate proof that they have earned the sums awarded, so as to protect themselves and the court which they serve from accusations that they have benefitted unjustly from such proceedings.

In determining such allowances the chancellor, of course, must draw upon his o*wn experience and knowledge in such matters and upon the record of the cause as it exists before him, but he should not in any case rely solely upon those sources.

Petitioner contends that the services of the attorneys were not needed by the receiver, that he did not get approval of the court to hire them and that the fees allowed were excessive.

The chancellor obviously determined that the receiver had need of legal services, else- he would have allowed no fees. It does appear from the record' that the receiver had some need for’ legal services in quálifying as receiver and in filing his petition for approval of accounts and for allowance of fees and expenses.

The better practice, both for the receiver and the attorneys, would be for the receiver to obtain approval of the court prior to the engaging of counsel and rendition of services by them. Nevertheless if legal services are required, a receiver may be allowed a reasonable sum for legal fees even when he did not obtain prior court approval for retaining such services. 75 C.J.S., Receivers, § 383.

As in the matter of the receiver’s fees we find no adequate proof upon which the chancellor could have determined the extent of the need for legal services by the receiver, the amount of legal services rendered, or the reasonable value thereof, and what we have said above concerning the awarding of receiver’s fees is equally appropriate to attorney’s fees for a receiver.

As to the sum awarded the receiver for expenses, the allegation in the receiver’s petition that he had expended said sum and that it “ * * * covers automobile mileage, parking and bridge toll” is the only evidence on the matter in the record before us. It may well be that the receiver can show, as he should be required to do, that such expenditures were necessary to the performance of his duties and he may be able to substantiate them, but he has not done so in the record before us.

We feel constrained to say that while sufficient fees should be allowed to induce competent persons to serve as receiver, as attorney for receiver, or to render other essential services, receiver-ships should be administered as economically as reasonably possible, and therefore allowances for services performed by court officers must be just but should be moderate rather than generous. 75 C.J.S., Receivers, § 389(a), p. 1064.

It is our conclusion that the receiver is entitled to a fee both for himself and his attorneys. However, we are unable to determine from the record before us whether the sums awarded were reasonable or excessive, nor are we able to determine whether the expenses allowed were either allowable or reasonable. Further, as we have said above, we do not believe that the chancellor had before him adequate proof to properly exercise his discretion in determining those questions.

In accordance with what we have written above, certiorari is granted, the order sought to be reviewed is quashed, and the cause is remanded with directions that the chancellor take such further proceedings as are consistent with this opinion.

TERRELL, C. J., and HOBSON and DREW, JJ., concur.


author: THOMAS, Justice. DREW, Chief Justice PER CURIAM.

text:
    Earl LA PAN, Appellant, v. CASCADE ENTERPRISES, Inc., Milton F. Steinhardt and Esther Steinhardt, as guardians of Joan and Raphael Steinhardt, Minors, and Edward Don & Co., Appellees.
    Supreme Court of Florida. En Banc.
    Jan. 4, 1957.
    On Rehearing March 27, 1957.
    James J. McVeigh, Miami, for appellant.
    Courshon & Courshon, Miami Beach, for appellees Milton F. Steinhardt and Esther Steinhardt as guardians of Joan and Raphael Steinhardt.
    Arthur D. Frishman, Miami Beach, for appellee Edward Don & Co.
   THOMAS, Justice.

The appellant prayed for the foreclosure of a lien tor services he performed and materials he furnished in decorating certain property with murals and sculpture. He was employed by a lessee and in his suit he joined as defendants, with the lessee, the guardians of the lessors, and the assignees of a collateral assignment of the lease.

Before the suit was brought the lessee had ceased business and had forfeited all its rights under the lease because of failure to fulfill its obligations, and the appellant considered that there was no interest of the lessee to which his lien could attach. He failed to fasten a lien on the title of the lessors, so the chancellor ruled when he entered summary decree following his opinion that there “[was] a clear absence of any actual agency, or any lease requirement for the improvements such as are necessary to subject the fee to the lien.”

The appellant represents that his right to a lien or lack of it, depends on the question whether or not the lessors in effect established the lessee as their agent with authority to subject the property to liens for labor done and material furnished in improvements which the lessee was bound by the lease to furnish. The appellant relied on Sec. 84.03(2), Florida Statutes 1953, and F.S.A., which contains the provision: “When an improvement is made by a lessee, in accordance with a contract between such lessee and his lessor, liens shall extend also to the interest of such lessor.”

We turn now to the lease to learn its' terms with reference to improvements that were to be made by the lessee. To meet the requirements of the instrument, the lessee, as soon as it was executed, placed in escrow $50,000 to be used to “furnish and equip” the premises and all bills for those purposes were to be paid from the escrow fund when approved by both lessor and lessee. If the sum in escrow proved insufficient to pay for the “furniture, furnishings and improvements,” required by the lease then the lessee was privileged “to purchase additional furniture, furnishings, and fixtures” on stated terms. It was stipulated that the lessee should buy “furniture, furnishings, fixtures and equipment” in an amount not less than $50,000.

The lessor was obligated to “complete the improvements and buildings * * * in the course of construction” at the time the lease was executed.

It was specified in the lease that the property was to be used as a cocktail lounge, restaurant, store for the sale of beer, wine and liquor in packages, and for allied purposes.

The lessee pledged to the lessor as security for the rent all furniture and fixtures put upon the premises by it and agreed that all the fixtures, furniture and furnishings should become the property of the lessor and be surrendered with the premises upon expiration of the lease for any cause.

From the parts of the lease pertinent to this controversy we gather that in-completed buildings were being leased to the lessee and that the lessor was bound to finish them while the lessee was obligated to provide furniture, furnishings and fixtures. The combined efforts of the parties would result in the whole property being put in such condition that it would be attractive to customers and produce income.

Considering the nature of the agreement as well as the use to which the property was restricted, it is apparent that decoration was contemplated by the parties.

Within two months after the execution of the lease the appellant and the lessee-contracted for the design and direction by-the former of interior and exterior decorative work, and materials required for the sum of $6000. One of the lessors actually participated in negotiating the contract between the appellant and the lessee, and' after the work was begun, observed the-appellant performing it. Moreover it is. shown in the record that the contract price-was reduced to the amount now claimed: by payments from the escrow fund.

Inasmuch as we construe the lease to. have required the lessee to furnish the decorations which the lessee employed the-appellant to provide, we hold that the appellant was protected by the statute we-have quoted.

The lessor had an immediate advantage-because the security for his rent was enhanced, and he had an ultimate interest-because he was to get all improvements,, furnishings, and so forth, provided by the-lessee.

After considering the lease as a whole,, we come to the conclusion that the work, appellant was employed by the lessee to. perform amounted to “an improvement * * * made by [the] lessee, in accordance with [the] contract between such lessee and his lessor,” and that consequently the lien of appellant extended also “to the interest of such lessor.” (Italics supplied.) Robert L. Weed, Architect, Inc., v. Horning, 159 Fla. 847, 33 So.2d 648.

We decide that the chancellor erred when he held that a summary decree should be entered in favor of the lessors.

The summary decree is reversed with directions to proceed in accordance with the views we have expressed.

TERRELL and THORNAL, JJ., and PATTERSON, Associate Justice, concur.

DREW, C. J., and HOBSON, J., concur in part and dissent in part.

ROBERTS, J., dissents.

DREW, Chief Justice

(concurring in part and dissenting in part).

I concur in the judgment of reversal but not because of the reasons stated in the main opinion. I do not find in the record any basis for the conclusion of the trial court that there was “a clear absence of any actual agency or any lease requirement for the improvements such as are necessary to subject the fee to the lien.” On this subject the record is bare. Even were I to agree with the view expressed in the opinion of Justice THOMAS that the record did establish agency sufficient to bring it within the provisions of Section 84.03(2), F.S.A., there is nothing in the record to establish that the balance due on the contract was for labor or materials which could afford the basis for a mechanic’s lien on real estate. The contract dated August 25, 1953 described the work to be done as:

“Design and direct all interior and exterior decorative work, which includes Dining Room, two Lounges and Patio.

Murals and/or sculpture or both to be executed by the Party of the Second Part, who will also apply canvas to the walls where murals are used, in Dining Room and both Lounges.

“The Party of the Second Part will present sketches for the above mentioned work to be approved by the Party of the First Part, Sketches will also be provided for match covers, stationery and Menu.”

The claim of lien duly recorded in the public records of Dade County and made an exhibit to the complaint states that the lienor claims the lien for labor and services performed and materials furnished “as per contract of August 25th, 1953, in the designing, painting and sculpturing, and the furnishing of all materials therefor, of the following decorative objects, to-wit:

“2 8 feet X 28 feet murals.

1 7 feet X 25 feet mural.

2 7 feet X 18 feet murals.

1 12 feet X 25 feet murals.

2 4' X 6' Shadow Box.

1 Black Orchid, 4' in diameter.

1 Negro Mask, 1$ X life size.

to the value of Six Thousand ($6,000.00) . Dollars on the following described real property.

"1601 79th Street Causeway in the town of North Bay Village, Dade County, Florida.”

The answer of the defendant specifically denied that the work above set forth for which the lien was claimed would afford a basis for such a lien. There is nothing in the record which sheds the slightest bit of light on this basic point.

The majority opinion holds that the amount due for the above described objects may be made the basis of a mechanic’s lien on real estate. I think this is a clearly erroneous conclusion. Tables and stools, television, paintings, curtains and other things are an essential part of a bar but surely the purchase price thereof cannot be the basis of a mechanic’s lien on the realty. It could be that the murals are attached to and form a part of the realty but we have no right ■to assume that as a matter of law. A “mural” could be painted on canvas (as was ■contemplated by the contract) and hung on the walls the same as a portrait or other painting. I think the “shadow box”, the “black orchid” and the “negro mask” are obviously personal property, but I don’t have the right to assume this as a matter of law. The record is simply devoid of evidence on which either this or the lower court could properly decide the issues.

I conclude that the decree appealed from should be vacated but with directions to proceed to take testimony on the question of agency as well as the question of whether the work performed by the contractor was of the nature which would afford a basis for a mechanic’s lien.

HOBSON and ROBERTS, JJ., concur.

On Rehearing Granted

PER CURIAM.

On rehearing granted and upon further consideration of the issues involved in this cause, the judgment of the Court in the majority opinion filed herein January 4, 1957 is hereby vacated.

It is further ordered on rehearing granted that the decree appealed from is hereby vacated and set aside with directions to the trial court to take testimony on the issues presented by the complaint and answer in said cause including, but not limited to, the question of agency and the question of whether the work performed by the contractor was of the nature which would afford a basis for a mechanic’s lien.

Reversed and remanded.

H'OBSO'N, ROBERTS, DREW and THORNAL, JJ., and PATTERSON, Associate Justice, coucur.

TERRELL, C. J., and THOMAS, J., dissent.


text:
    STATE of Florida, on the relation of Harry FLINK, Appellant, v. F. Allan CANOVA, S. E. Simmons, A. William Morrison, W. H. Blackwell and Dewey H. Johnson, as The Florida Board of Pharmacy, Appellees.
    Supreme Court of Florida, En Banc.
    Feb. 20, 1957.
    Rehearing Denied April 24, 1957.

      Robert H. Givens, Jr., Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and George E. Owen, Asst. Atty. Gen., for ap-pellees.
   O’CONNELL, Justice.

Harry Flink, appellant, was relator below and F. Allan Canova, et al., as the Florida Board of Pharmacy, appellees, were respondents. They will be referred to here as they stood in the court below.

Harry Flink, appellant, sought a peremptory writ of mandamus requiring the Florida Board of Pharmacy to permit him to take an examination to be given by the. board to determine his qualifications to prac-. tice pharmacy in this state. The circuit court quashed the alternative writ of mandamus which had been issued theretofore and Flink, the relator, appealed to this Court for review of such order.

In the lower court, the relator recited that he was qualified to take the examination for registration as a pharmacist under the provisions of Ch. 25238, Acts of Fla. 1949, F.S.A. §§ 465.02, 465.07, but that he was not so qualified under the provisions of Ch. 28150, Acts of Fla.1953. The last mentioned chapter is now Ch. 465, F.S.1955, F.S.A. Relator contended that said Ch. 28150 was invalid in that it embraced two or more separate and distinct subjects in violation of Florida Constitution, art. Ill, Sec. 16, F.S.A. He reasons that if Ch. 28150 is invalid, Ch. 25238 was not repealed thereby and that, consequently, he was entitled to take the examination under the provisions of Ch. 25238.

The respondents contended that Ch. 28150 did not offend Florida Constitution art. Ill, Sec. 16, and that, even if it did, the inclusion of the same subject matter in a revision of the statute adopted in Ch. 29615, Acts of Fla.1955 (a general revision of the laws of the State of Florida) cured any defect in the original enactment.

In its order quashing the writ, the circuit court did not dwell on the question of whether the law in question embraced two or more separate and distinct subjects, other than as follows:

“The Court is of the opinion that, based upon precedent and logic the enactment of the Florida Statutes, 1955, had the effect of making the contents of those statutes the law of the state, regardless of any defects in the original enactment of any statute brought forward in this revision * * *. It is argued by Relator that all of the decisions announcing this rule relate to cases involving deficiencies in the title to the acts involved rather than the inclusion of more than one subject in both the title and the body of the act. The arguments in favor of the rule apply more strongly to situations of the kind last mentioned. There is greater danger to the public in the enactment of laws not disclosed by the title to the bill of which they are a part and the later inclusion of those laws in a general revision of the statutes thus curing any defects in their original enactment than there is in the enactment of two incongruous statutes in one act but both described in the title and thus called to the attention of the Legislator and the public, and the curing of any invalidity by the later inclusion of both in a general revision of the statutes.”

The balance of the court’s order consisted of an able elaboration and defense of the rule. It did further comment, however, that:

“It must be borne in mind that the constitutional provisions regulating the mechanics of the legislative processes are designed to set up a system by which statutes are enacted and published in such a way as to prevent fraud and surprise in the enactment of statutes (each act having a title expressing its subject), [and] to prevent ‘log-rolling’ (each act relating to but one subject) * * *.”

The provision of the Constitution, Sec. 16 of art. Ill, under consideration reads as follows:

“Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case, the act, as revised, or section, as amended, shall be re-enacted and published at length.”

This provision appeared in the State of Florida’s Constitution of 1868, but not in any earlier constitution.

A treatise which appears to have been recognized at about that time throws some light on the purpose of the addition to this state’s constitution. In Cooley, A Treatise on the Constitutional Limitations (3rd ed. 1874), at pp. 141-146, it is remarked that formerly the title of an act was not considered a part of it and, anciently, acts had no title prefixed at all but that, recently, titles had come to possess very great importance by reason of constitutional provisions. Cooley emphasized that in considering these provisions, it was important to regard the evils designed to be remedied. After reviewing the provisions of several states, Cooley then said the purpose of those provisions was (1) to prevent hodge podge or “log rolling” legislation, i. e., putting two unrelated matters in one act; (2) to prevent surprise or fraud by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3)to fairly apprise the people of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon. He commented that the general disposition of the courts was to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.

A review of the cases in this jurisdiction shows an accord between the thinking of our courts and the observations of Cooley, referred to above. As indicated by the order of the lower court now under review, there seems to have been some concern in our courts to prevent the evil of matters being inserted in a body of an act whose title does not properly put the people on notice of such content. The evil of “log rolling” is of course lesser, in that it is easier to detect, for the title is notice, per se, of the evil involved.

It is perfectly clear, from reviewing prior decisions of this Court, that if a matter is germane to or reasonably connected with the expressed title of the act, it may be incorporated within the act without being in violation of Sec. 16 of art. Ill of our constitution. Provisions which are necessary incidents to, or tend to make effective or promote the object and purpose of the legislation included in the subject expressed in the title of the act may be regarded as matters properly connected with the subject thereof. Smith v. Chase, 1926, 91 Fla. 1044, 109 So. 94. Numerous supporting cases may be found by reference to 25 F.S.A. art. 3, § 16, Notes of Decisions, pt. 11. In determining if matters are properly connected with the subject, the test is whether such provisions are fairly and naturally germane to the subject of the act, or are such as are necessary incidents to or tend to make effective or promote the objects and purposes of legislation included in the subject. City of Ocoee v. Bowness, Fla.1953, 65 So.2d 7.

Also, if a matter properly connected with the subject is also named in the title to the act, no material harm has been done. A title merely mentioning matters germane to one subject is not invalid as relating to more than one subj ect; amplification of the title does not vitiate it. State ex rel. Davis v. Rose, 1929, 97 Fla. 710, 122 So. 225. State ex rel. Moodie v. Bryan, 1905, 50 Fla. 293, 39 So. 929 (this case contains a good review of earlier cases on this matter). Smith v. Chase, supra. Lewis v. Leon County, 1926, 91 Fla. 118, 107 So. 146. Fine v. Morgan, 1917, 74 Fla. 417, 77 So. 533.

The subject of an act is the matter to which it relates and the object is its general purpose. Spencer v. Hunt, 1933, 109 Fla. 248, 147 So. 282. It is of course- not necessary that the ob j ects be included in the title of the act. Only the subject and not matters properly connected therewith is required by the constitution to be expressed in the title to the act. State ex rel. Grodin v. Barns, 1935, 119 Fla. 405, 161 So. 568. Hayes v. Walker, 1907, 54 Fla. 163, 44 So. 747.

Should any doubt exist that an act is in violation of art. Ill, Sec. 16 of the Constitution, or of any constitutional provision, the presumption is in favor of constitutionality. To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law. Therefore, the act must be construed, if fairly possible, as to avoid unconstitutionality and ito remove grave doubts on that score. Spencer v. Hunt, supra. With these concepts in mind, we will now examine the statute under question.

Ch. 28150, Acts of Fla.1953, Senate Bill No. 597, is entitled:

“An Act Relating to Pharmacy and Revising Chapter 465, Florida Statutes, 1951, so as to Create and Establish a Florida Board of Pharmacy, to Provide for the Appointment, Meeting, Duties, and Compensation of the Members of the Board; to Prescribe the Standards of Admission to the Practice of Pharmacy and Require the Registration of Pharmacists and Retail Drug Establishments; to Allow for the Registration of Pharmacists From Other States on a Reciprocating Basis; to Provide for the Inspection and Regulation of the Practices of Pharmacists and the Activities of Retail Drug Establishments; to Define the Term Retail Drug Establishment; to Provide for the Collection of Examination and Registration Fees and for the Appropriation of Funds to Carry Out the Purposes of the Act; to Define Certain Violations and Prescribe Penalties Therefor; to Provide a Method of Appeal from Decisions of the Board; and to Provide That This Act Be Known as the ‘Florida Pharmacy Act.’ ”

The short title of the act is the “Florida Pharmacy Act”.

Flink, the Relator, claims that this title indicates that two subject matters are involved and that hence the act violates the Constitution. One subject, he says, is Pharmacy, and the other, Drug Stores. It is his contention these two are two different subjects, not adequately related to prevent the violation. He points out, in support of his argument, that two distinct subjects are involved, that formerly the Legislature itself treated them as such. Ch. 10201, Acts of Florida 1925,- F.S.A. § 465:02, dealt with examination by the Board of Pharmacy and qualifications of applicants. Ch. 11859, Acts of Florida 1927, F.S.A. § 465.09 et seq., concerned the Board of Pharmacy .and retail drag stores. It is our opinion that even if the Legislature at that time treated the matters as two distinct subjects such would not preclude it from now treating them, in the act complained of, as being one subject if in fact they are so related as to come under one general subject. That they are related, at least to some extent, cannot be denied.

The Relator relies on Ex parte Sarros, 1934, 116 Fla. 86, 156 So. 396. This Court there said the title of the act under consideration there was misleading because while the subject matter of the act, when taken alone, was the regulation of sales of drugs and medicines, the title declared it to be an act relating to the practice of pharmacy. The Court did make that statement, but nevertheless upheld the act on other grounds. But there is a great difference between the provisions of the act in the Sarros case and the act now before us. In the Sarros case, the act prohibited sale, by any one other than a registered pharmacist, of any medicines, whether compounded by a pharmacist or of the patent type, whereas, in the act we are concerned with, the subj ect matter thereof deals only with preparations prepared and dispensed by pharmacists, which preparations are undeniably related directly to the practice of pharmacy.

Had Ch. 28150 attempted to regulate sale of any medicines not prepared by pharmacists in retail drug stores, we believe the title and act may well have been violative of the Constitution because of duplicity. But the act does not purport “to prohibit the sale by merchants of home remedies, or of those preparations commonly known as patents or proprietary preparations where such are sold only in original or unbroken packages.” Sec. 465.021, F.S.1955, F.S.A.

In our opinion, the regulation of the sales of medicines prepared by pharmacists is a subject closely related to the broad, inclusive subject of “Pharmacy”. Provisions-concerning places in which such sales are made are provisions necessarily incident to, or tend to make effective or to promote the object and purpose of the legislation included in the subject expressed in the title of the act. In fact we do not see how the practice of pharmacy could be adequately regulated without regulation of the sales of the work product of pharmacists and regulation of the places where such work is performed and the work product sold. Such provisions may be regarded as matters properly connected with the expressed subject: “An Act Relating to Pharmacy.” Smith v. Chase, supra. Such provisions are fairly and naturally germane to the subject of the act. City of Ocoee v. Bowness, supra. No material harm has been done by also naming in the title a matter properly connected with the subject. State ex rel. Rose, supra.

We believe the above construction is entirely reasonable and hence we are required to uphold the constitutionality of Ch. 281 SO, Acts of Fla.1953. Relator had the burden of convincing us of the unconstitutionality of the legislative act and has not sustained his burden. Therefore, we overrule the implication in the order of the circuit court under review that the title to the chapter was defective. In view of our conclusion, we need not consider the argument that any defect was cured by the revision of the statute adopted in Ch. 29615, Acts of Fla.1955.

The respondents on appeal raise the question of the right of Relator to proceed by way of mandamus, contending that Ch. 28150 provides that an appeal to the circuit court within sixty days of entry of the order complained of is the exclusive method by which a person aggrieved by such order may seek relief. Sec. 465.20, F.S.1955, F.S.A. This question was not raised in the court below and we will not consider, it here.

The order appealed from is affirmed.

TERRELL, C. J., and HOBSON, ROBERTS, DREW and THORNAL, JJ., concur.

THOMAS, J., not participating.


author: THOMAS, Justice.

text:
    Hugh A. WATERMAN and Frank J. Sharp, Appellants, v. Walter E. SMITH and Margaret M. Smith, Husband and Wife, as an Estate by the Entireties with Right of Survivorship, Appellees.
    No. 28222.
    Supreme Court of Florida, Special Division B.
    March 13, 1957.
    Rehearing Denied April 24, 1957.

      Donald Walker, Orlando, for appellants.
    Walter E. Smith, Orlando, for appellees.
   THOMAS, Justice.

This litigation involves an alley 15 feet in width extending west from the east line of a subdivision, Rogers and McCall’s addition to Orlando, a distance of 127.84 feet. The east and west termini of the alley are dead ends, but an alley ten feet in width, forming a right angle with the 15-foot alley extends south to Pine Street. The alleys as they appear on the plat of the subdivision, filed in 1886, are, therefore, in the shape of an inverted “L”. The western part of the 15-foot alley has been obstructed since 1920. The appellants instituted a suit seeking a removal of the obstructions, and lost.

The chancellor concluded that there was no evidence of acceptance of the offer to dedicate the alleys prior to the year 1929 when the city paved the ten-foot alley and any presumption that this constituted an acceptance of the 15-foot alley also was “negatived by repeated disclaimers” such as the action of the city council in 1932 declining to take any steps to open the alley “since the alley [was] a dead-end alley,” and in declaring, the same year that “it did not care to go into any lawsuit to have the alley opened up.” On the latter occasion an attorney representing an interested party had appeared before the council in an effort to have the city cause the alley to be freed of the obstructions and had represented to the council that all property owners “thereabout,” to quote from the minutes of the council, but one, had petitioned to have the alley opened. This attorney was advised “there would be no objection to [his] bringing proceedings to this effect in the name of the City, but that the City would not be a party to any litigation involved thereby.” How the suit could be brought in the name of the city without the city’s becoming a party is rather obscure but we need not make any excursion on this tangent because we are now analyzing the minutes of the city council, shown in Defendant’s Exhibit No. 2, which, according to the decree, influenced the chancellor in deciding that by accepting the dedication of one alley, no presumption arose that the city accepted the dedication .of the connecting alley.

Thirteen years seem to have passed before another request was made that the alley be opened and the request was referred to the engineering, and legal departments for investigation. Two weeks later the engineer reported that the alley had been closed for more than 50 years and that the city had no authority to open it. Following this report by the engineer, which appears to have been a mixed one of fact and legal opinion, it was unanimously decided to advise the then petitioner that it appeared from the city records that the alley had never been accepted and that same had been closed since 1886. It will be remembered that this is the year the dedication was made. During the same month the city attorney, evidently in response to the reference that had been made to him as well as the engineer, submitted an opinion regarding the matter but we are not advised of its contents. In the minutes, immediately following the recital of the receipt of this opinion, there appears the notation that the opinion was ordered filed inasmuch as the last petitioner had been “notified that the City [had] no authority to open [the alley].”

We have difficulty attributing much significance to the minutes we have analyzed so far as abandonment and lack of acceptance are concerned. It is plain that the city refused to take any steps toward opening the alley but it is not at all clear, because of the ambiguities in the minutes, that there had never been an alley over which the city had control.

To summarize, the first reason for failure to act was the nature of the east-west alley, that is, that it had a dead end. Next the city council expressed an unwillingness to get into a law suit but a willingness to permit a law suit in the city’s name. We have already commented on this position. Then came the report of the engineer that the alley had been closed for SO years and that the city had no authority to open it, and a direction from the council that the clerk notify the person who had last requested the city to open the alley, both that it had never been accepted and that it had been closed since 1886, the year it came into existence.

From what we have learned from ¿hese minutes, we get neither the conviction that the alley in dispute was never accepted nor the conviction that once accepted it was legally abandoned.

The chancellor thought that the dedication of neither alley had been accepted prior to the year 1929 when the city paved the ten-foot alley from its juncture with the 15-foot alley to Pine Street, and, as we have observed, he thought this action had no effect on the 15-foot alley which he expressly stated had never been accepted. And he concluded that the “private right of easement” implied from the conveyance to the appellants of lots according to the plat could be barred by adverse possession. We interpolate here that there was testimony that the alleys were used for pedestrian traffic as early as 1912 and for many years afterward.

According to the chancellor’s findings of fact, the appellees’ predecessors from 1919 to 1925 occupied continuously the lots adjoining the 15-foot alley on the north and the alley was not open at the time they acquired the title, but on the contrary a fence separated the two alleys and soon afterward these owners erected a fence about 30 feet east of the one then in existence which extended north six feet, east about 20 feet, thence north nine feet to the north boundary of the alley. So since the year 1920 the western portion of the alley has been enclosed by the fences and the wall of a building. One owner of the lots on the north used the enclosed part of the alley for many years as a flower garden claiming, decided the chancellor, “adversely and exclusively of all other persons whomsoever” before he conveyed to appellees.

In the decree the chancellor declared that an irregular parcel of a maximum width of 15 feet located in the west half of the 15-foot alley was owned by the appellants in “fee simple title absolute by reason of adverse possession * * (Italics supplied.)

We think we must review the history of these alleys from the time of their origin until the present to determine whether or not (1) they were dedicated, (2) the offer of dedication was accepted, and (3) after acceptance they were abandoned.

The plat on which the alleys were designated was filed and recorded 7 October 1886, and we find nothing on the plat to warrant any discrimination between them. So far as we are advised there was never a withdrawal of such offer of dedication as was made, and although any definite action of the city evidencing an express acceptance was tardy, it does appear that the north-south alley or part of it was paved about twenty years before this suit was started. It was this act which the chancellor considered an acceptance but only of the north-south alley. In our opinion it affected both. Moreover, there was evidence of actual user, at least of the east-west alley. The offer and acceptance related to both alleys; nothing has been shown us that in these aspects there was occasion to place them in different categories. Indian Rocks Beach South Shore, Inc., v. Ewell, Fla., 59 So.2d 647, 32 A.L.R. 940. The present case is a good illustration of the practicality of such a ruling. If the two alleys were to be considered independent, an abandonment of the north-south alley would leave the east-west alley without an outlet to the street, and, as the decision now stands, the adjudication that fee simple title of an irregularly shaped tract, 15 feet wide at the widest place, leaves the larger, eastern, part of the east-west alley without entrance from any street.

The appellees concede that the owners of abutting property own the underlying title to the center of the street. Under the present decree the property in the alley they are declared to own has east and west boundaries coinciding with the east and west boundaries of their lots as extended, but for a distance of 29.46 feet it reaches clear across the alley, for a considerable distance it has a width of nine feet, or a foot and a half beyond the center line, and at another place for a distance of ten feet, a width of 12.6 feet or 5.1 feet beyond the center line.

The basis for the holding that the appellees had the fee simple title to the property not only to the center of the alley but beyond was the adverse possession they are supposed to have exercised, else upon failure of acceptance of the offer of dedication or upon abandonment they would have owned only to the center. Concluding that the alleys were dedicated and accepted as a unit, we approach a solution of the final problem, that is, whether or not the appellees could have obtained fee simple title to a part of the east-west alley by adverse possession. We reach the decision that under the circumstances we have related the appellees could not have become vested with title in fee simple to the property involved; that adverse possession of property held by a city for the use of the public cannot ripen into a prescriptive title. Norrell v. Augusta Ry. & Electric Co., 116 Ga. 313, 42 S.E. 466, 59 L.R.A. 101. According to this authority the obstruction of a street is a public nuisance. Not only is this the nature of an undertaking to acquire a street for private use, but even the failure of the city cannot operate to " ‘invest an intruder with title’ to a street. House-Wives League, Inc., v. City of Indianapolis, 204 Ind. 685, 185 N.E. 511. Cf. City of Gainesville v. Thomas, 61 Fla. 538, 54 So. 780.

Our understanding of the authorities is that title by adverse possession cannot grow out of the use of a street which amounts to an obstruction, and that this cannot be accomplished so far as the land to the center is concerned much less to the land beyond the center. The citations of cases on the general subject are listed in 2 C.J.S., Adverse Possession, § 14.

Whether the dedication of both alleys was accepted by user in 1912, or, the dedication of the north-south alley was accepted by the act of paving in 1929, which the chancellor thought aiteeted only that alley and we think affected both, if it is taken as an act of acceptance, still we cannot agree that a user beginning in 1920 for other than street purposes could have become the basis of title by adverse possession, no evidence of withdrawal of the offer having been presented. And before we close we reiterate the view that the expressions in the minutes, considered as a whole, do not deserve any construction but the one that the city was merely indifferent- to causing the removal of the obstructions.

We disagree, though reluctantly, with the veteran chancellor so the' decree is—

• Reversed with directions that the cause proceed in a manner consistent with these views.

TERRELL, C. J., and ROBERTS, J., and KNOTT, Associate Justice, concur.


author: HAWTHORNE, Justice.

text:
    232 La. 229
    Earl A. LEONARD v. HOLMES & BARNES, Limited, and Great American Indemnity Company. In re Earl A. LEONARD and Coal Operators Casualty Company, Intervenor, Applying for Certiorari, or Writ of Review.
    No. 42779.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.
    Harvey Peltier, Thibodaux, Benton & Moseley, Baton Rouge, Gravel, Humphries, Sheffield & Mansour, Alexandria, for plaintiff and for intervenor.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendants-appellants-respondents.
   HAWTHORNE, Justice.

This case is before us under our supervisory jurisdiction to review a judgment of the Court of Appeal, First Circuit, which reversed a judgment of the district court in favor of the plaintiff, Earl A. Leonard, and the intervenor, Coal Operators Casualty Company, and dismissed plaintiff’s suit. See 84 So.2d 109.

This is a tort action in which plaintiff is seeking to recover damages growing out of a collision between a 1936 Ford coach which he was driving and a truck being driven by Alex Tillman, an employee of Holmes & Barnes, Ltd. The defendants are Holmes & Barnes, Ltd., and its insurer, Great American Indemnity Company. Coal Operators Casualty Company intervened in the suit to recover workmen’s compensation and medical expenses paid to the plaintiff as a result of injuries which he sustained in the accident.

The defendants denied any negligence on the part of Tillman, the operator of the truck, and alleged that the accident was caused solely by the negligence of Leonard. In the alternative defendants pleaded contributory negligence.

The accident occurred in the corporate limits of Port Allen, Louisiana, at about 1:30 in the afternoon on a clear, dry day in January, 1951. Tillman, the operator of the truck, was’ proceeding in a westerly direction on Highway 168, which is an east and west highway running through the Town of Port Allen. His destination was a store on the south side of the highway known as Mims Grocery. As he approached a small gravel driveway leading to this grocery, according to his testimony he slowed his truck to a speed of about IS miles an hour preparatory to making a left-hand turn across the highway to enter the gravel driveway to the grocery. When the front of his truck had entered the gravel road leading to the store and the rear wheels of the trailer attached to the truck were approximately on the black center line of the highway, the right rear corner of the trailer was, struck by the left front and side of the Ford automobile driven by the plaintiff.

The Court of Appeal found the driver of the truck, Tillman, to be negligent in that he failed to look to his rear just before attempting the lefthand turn, under the well settled law of this state that a person who attempts to make a left turn on a public highway must be sure before doing so that the turn can be made in safety. R.S. 32:235, 236; Dunnington v. Richard, La.App. 1 Cir., 81 So.2d 33; Tyler v. Marquette Casualty Co., La.App. 2 Cir., 79 So. 2d 376; Fornea v. Crain, La.App. 1 Cir., 79 So.2d 95; Michelli v. Rheem Mfg. Co., La.App.Orl., 34 So.2d 264.

We fully agree with the Court of Appeal’s conclusion. Moreover, pictures of the truck involved in this accident, which were introduced in evidence, show it to be a large 10-wheel truck and trailer, the trailer having an enclosed body much wider than the cab of the truck. The truck driver testified that he held out his hand to indicate his intention to turn left. The pictures disclose, however, that this truck and •trailer was so constructed that an arm signal would not be visible from the rear even if one had been given, and was not equipped with any mechanical or electrical device by which the driver could signal his intention to turn. Failure to equip the vehicle with such a device was a violation of R.S. 32:236 (B) and constituted negligence on the part of defendants.

The question then presented is whether plaintiff was guilty of contributory negligence so as to bar recovery.

Leonard in his sworn testimony taken by consent of counsel before the trial stated that he was going west behind the truck at a speed of about 35 miles per hour; that in order to pass the truck he increased his speed and pulled over into the south lane; that just as his front wheels had passed the rear wheels of the truck and trailer, the truck suddenly without warning made a sharp turn to the left; that he then veered to the right back into the north lane, applying his brakes, but was unable to avoid striking the right rear corner of the trailer with the left side of his car. Leonard also testified at the trial of the case that he was proceeding at a speed of 35 miles per hour, and that he picked up to 45 miles per hour to pass the truck. On this occasion, however, he stated that he had moved into the south lane, or his left lane, and was some seven to 10 feet behind the truck when it suddenly turned left.

The physical facts, which speak more clearly than any witness, do not support the plaintiff’s version of the accident. The highway at the point of the collision was 18 feet wide with level shoulders 10 feet wide on both sides. The scene of the accident was a residential area within the corporate limits of the Town of Port Allen, where the speed limit was fixed by town ordinance at 25 miles per hour, and there was a sign showing this speed limit just east of a railroad track which was a short distance west of the scene of the collision. Skid marks from Leonard’s car began 30 feet to 36 feet from the point of impact with the truck, were in the north lane of traffic, or his right lane, and were fairly straight. As a result of the collision Leonard’s car was completely demolished. It struck the righthand rear corner of the trailer, which was on or just over the center line of the highway, with such force that it knocked the back of the trailer sideways in a semicircle a distance of 18 feet, as shown by the skid marks left on the pavement by the four dual wheels on the rear of the trailer, in spite of the fact that the all-steel truck and trailer weighed when loaded approximately 18,000 pounds. After striking the trailer, Leonard’s car was carried by its momentum an additional distance of 114 feet, and finally stopped against a bank on the north side of the highway.

The physical facts as we have outlined them conclusively show that Leonard was not in the act of passing the truck on its left at the time of the collision and was not even in the south lane preparatory to passing, but do show that he had never left his right, or the north, lane. However, there is one thing these facts clearly show, and that is that Leonard at the time of the accident was driving at a high rate of speed, far in excess of the speed limit, and that he was negligent in operating his vehicle at a high rate of speed much in excess of the speed limit.

It is relators’ contention that even though Leonard was driving at an improper or high rate of speed at the time of the collision, such speed would not prevent his recovering if the accident would have happened if his speed had been proper, or that his excessive speed was not one of the causes of the accident.

“That an automobile was going at an unlawful or excessive speed, in violation of either common law rules or a statute or ordinance, at the time of the collision does not * * * bar recovery for injuries sustained in the collision, if such violation was not a proximate cause of the accident.
“So the act of a motorist in driving at an improper rate of speed at the time of a collision will not prevent his recovering for injuries from such collision, if the accident would have happened if his seed had been proper.” Blashfield, 4 Cyclopedia of Automobile Law and Practice, Part 2, sec. 2611, p. 106 ff. (Perm.ed.1946).

This same rule of law was stated by this court in White v. State Farm Mutual Auto Ins. Co., 222 La. 994, 64 So.2d 245, 249, 42 A.L.R.2d 338, as follows:

“Contributory negligence is, as the phrase signifies, negligence which contributes to the accident, that is, negligence having causal connection with it and but for which the accident would not have occurred.”

However, the facts of this case show that the accident would not have happened if Leonard’s speed had been proper and within the speed limit of the Town of Port Allen. If Leonard had been following the truck at a lawful rate of speed and had been paying attention to what was happening ahead of him, he would have noticed the truck slowing down even if he had been unable to see any signals warning of a left turn, and would have been able to avoid the accident by slowing down, stopping, or turning slightly to his right and passing to the rear of the truck.

R.S. 32:234(A) provides that “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and' condition of the highway”. As we have said, the physical facts do not support Leonard in his statement that he was in the act of passing the truck on his left. Instead they show that he was following the truck in the north lane and was negligent because he approached too closely to the truck at too great a speed to be able to avoid running into the vehicle in front of him.

In view of the conclusion we have reached in this case it is not necessary for us to consider the intervention of Coal Operators Casualty Company.

For the reasons assigned the judgment of the Court of Appeal is affirmed at plaintiff’s costs.

FOURNET, J., absent.

      . Tfie evidence shows that at the time of the collision the truck was only half loaded.