MARTIN GRIFFIN, SR., APPELLANT,
v.
JACKSONVILLE, TAMPA & KEY WEST RAILWAY COMPANY, APPELLEE
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The Florida Supreme Court affirmed a jury verdict for a railway company in an ejectment action, holding that the property owner's prior suit for trespass implied consent to the railway's use of the street.
Yes, the prior suit in trespass, seeking damages for the construction of the railroad on the street, to the extent of being inconsistent with the right to maintain a possessory action, operates as consent to the use of the street in operating the railroad.
“There is testimony tending to show that the occupation of the street by the defendant with its railroad was by consent of the plaintiff, and it is of such a character as to preclude any disturbance of the verdict, although there is evidence of a contrary import”
Establishes the factual basis for the court's decision regarding consent.
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Join FLexlaw to unlock all legal intelligenceThe appellant, Martin Griffin, Sr., sued the Jacksonville, Tampa & Key West Railway Company in ejectment to recover possession of a portion of Rose St…
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Raney, C. J.:
This is an action of ejectment instituted by the appellant January 19th, 1891, against the appellee to recover possession of that part of Rose street in the city of Palatka lying between the center of the street .and Blocks numbered 212, 213, 214 and 215, according to John Dick’s map of that city, such blocks abutting on the west side of that street. There was trial by jury .resulting in a verdict for the defendant and judgment thereon.
There is testimony tending to show that the occupation of the street by the defendant with its railroad was by consent of the plaintiff, and it is of such a character as to preclude any disturbance of the verdict, although there is evidence of a contrary import (P. & A. R. R. Co. vs. Jackson, 21 Fla., 146; Garnett vs. J., St. A. & H. R. R. Co., 20 Fla., 889; J., T. & K. W. Ry. Co. vs. Adams, 27 Fla., 443, 9 South. Rep., 29; 28 Fla., 631, 10 South. Rep., 465; moreover it is clearly shown by the record that the appellant had sued appellee in trespass to recover damages for constructing its road on said street. Such a suit in trespass has, to-the extent of being inconsistent with the right to maintain a possessory action against the company, the effect to operate as a consent to the use of the street in operating the railroad in a proper manner or with due care. J., T. & K. W. Ry. Co. vs. Lockwood, ante, and authorities supra.
For the reasons stated the judgment will be affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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The Fla. S. R.R. Co. v. Hill, 40 Fla. 1 (Fla. 1898)…such possession by electing to treat it as valid in order to enforce a lien for compensation, even if they are not (under the decisions in Pensacola & Atlantic R. R. Co. v. Jackson, 21 Fla. 146, and Griffin v. Jacksonville, Tampa & Key West Ry. Co., 33 Fla. 606, 15 South. Rep. 338,) estopped by acquiescence from using their legal title to dispossess the defendant. In cases of this character we think the landowner holds the legal title as security for the payment of the money due him for com [*13] pensation…
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Wilson v. Maddox, 97 Fla. 489 (Fla. 1929)…mproperly influenced by considerations outside the evidence. See Nickel v. Mooring, 16 Fla. 76; Huling v. Florida Savings Bank, 19 Fla. 695; Moses v. Gilchrist, 14 Fla. 325; Netro v. Foss 21 Fla. 145; Griffin v. Jacksonville Tampa and K. W. Ry. Co., 33 Fla. 606, 15 So. R. 338; Bishop v. Taylor, 41 Fla. 77, 25 So. R. 287; Sims v. Hodges, 34 Fla. 498, 16 So. R. 317. There was no error in the charges given by the court sufficiently serious in view of the evidence to warrant a reversal of the judgment. The j…
Authorities Cited
- Reuben B. Garnett et ux. v. The Jacksonville, 20 Fla. 889 (Fla. 1884)
- Pensacola & Atl. R. R. Co. v. Jackson, 21 Fla. 146 (Fla. 1884)
- Jacksonville v. Chas. S. Adams, 28 Fla. 631 (Fla. 1891)
- Jacksonville v. Charles S. Adams de bonis non cum testamento annexo of John S. Adams, 27 Fla. 443 (Fla. 1891)