ERLEN L. HUNT ET UX., APPELLANTS,
v.
GEORGE A. SMITH ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Plaintiffs sought a declaratory judgment determining whether defendants have or will have a right of way of necessity across their land. The trial court dismissed the action as premature, finding no current demand for such a way and holding it lacked power to determine future rights. The appellate court affirmed, holding that a declaratory judgment was not appropriate because the factual predicate for a statutory way of necessity—actual or intended use of land for dwelling, agricultural, timber, or stockraising purposes—was not presently ascertainable.
A declaratory judgment regarding a future statutory way of necessity is premature and not justiciable because it does not deal with a presently ascertainable state of facts. A statutory way of necessity exists only when land is being used or desired to be used for specific enumerated purposes, and whether defendants may desire such use in the future is not a matter that can be presently determined.
“One of the prerequisites to invoking the jurisdiction of the courts for a declaratory decree is that the declaration should deal with a present, ascertained or ascertainable state of facts”
Establishes the fundamental requirement for declaratory relief that there must be a presently determinable factual situation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiffs brought an action seeking a judicial determination regarding defendants' potential right to a way of necessity across plaintiffs' property.…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Implied Grant Of Way Of Necessity cases and more on FLexlaw
The Appellants, as plaintiffs, brought this action praying that the court determine whether or not the defendants, the appel-lees here, have or will have a right to a way of necessity across plaintiffs’ lands. In its decree, the court found that the defendants had not made any demand for a way of necessity across plaintiffs’ property and that the court did not have the power to determine whether or not the defendants will in the future have a right to a way of necessity across the property of the plaintiffs and that the action was premature.
The appellees have not filed a brief in this cause. We again point out the fact that it is the duty and responsibility of an attorney representing an appellee to submit to this court, in the form of a brief, the facts and the law of the case. Failure to do so may result in this court’s reversal through oversight of a point, and it places a burden on this court, which should be carried by counsel for the parties.
Section 704.01(1) of the Florida Statutes, F.S.A. recognizes, adopts, and clarifies the common law rule o-f an implied grant of a way of necessity. However, this way exists only where there formerly existed a unity of title from a common source other than the original grant from the state or Federal government. The complaint here alleges that there was never any common source of title of the two parcels of property, so the complaint shows on its face that there was no justiciable issue with respect to that type of way.
Section 704.01(2) of the Florida Statutes, F.S.A. is a grant of a statutory way of necessity exclusive of any common law way. This section declares that a way of necessity exists when any lands outside any municipality which is being used or desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes is shut off so that no practicable route is available to the nearest practicable road. Under such circumstances, the owner may use an easement for the purposes enumerated over the lands intervening between his lands and such road. Thus, it may be seen from the language of the statute that the statutory way of necessity exists only when the lands are being used or desired to be used for the *234purposes specified in the statute. One of the prerequisites to invoking the jurisdiction of the courts for a declaratory decree is that the declaration should deal with a present, ascertained or ascertainable state of facts, May v. Holley, Fla.1952, 59 So.2d 636. Whether or not the defendants, or their subsequent title holders, may desire to use their lands for the purposes enumerated in the statute and to thereby bring into operation the statute dealing with the statutory way of necessity is not a presently ascertainable matter.
Finding no error, the decree is affirmed.
SHANNON, C. J., and ALLEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Blanton v. City OF Pinellas Park, 887 So. 2d 1224 (Fla. 2004)…to a “claim” to a statutory way of necessity for the purposes of applying MRTA. This is illustrated by two Second District decisions that reached different conclusions regarding when a claim to a statutory way of necessity arises. In Hunt v. Smith, 137 So. 2d 232, 233-34 (Fla. 2d DCA 1962), the Second District noted that “the statutory way of necessity exists only when the lands are being used or desired to be used for the purposes specified in the statute.” However, in Sapp, the Second District indicated th…
-
ROY v. Euro-Holland Vastgoed, 404 So. 2d 410 (Fla. 4th DCA 1981)…rty (that is another way of saying that one seeking the grant of a way of necessity must show unity of ownership or common source of title). Guess v. Azar, 57 So. 2d 443 (Fla. 1952); Kirma v. Norton, 102 So. 2d 653 (Fla. 2d DCA 1958); Hunt v. Smith, 137 So. 2d 232 (Fla. 2d DCA 1962); Joyner v. Andrews, 137 So. 2d 870 (Fla. 2d DCA 1962); Hanna v. Means, 319 So. 2d 61 (Fla. 2d DCA 1975); Procacci v. Zacco, 324 So. 2d 180 (Fla. 4th DCA 1975); Thompson on Real Property, §§ 363-364. In addition, the common source…
-
Point E. ONE Condo. Corp., Inc. v. Point E. Developers, Inc., 348 So. 2d 32 (Fla. 3d DCA 1977)…on at the time of the purchase of the condominium. See Platt v. Platt, 50 Fla. 594, 39 So. 536 (1905). The complaint gives no facts which would entitle any of the plaintiffs to a declaration of their possible rights in the future. See Hunt v. Smith, 137 So. 2d 232 (Fla. 2d DCA 1962), and Perry v. Genung, 163 So. 2d 54 (Fla. 2d DCA 1964). Nevertheless, in ac [*37] cordance with the holding of the Supreme Court of Florida in Avila, South (supra), we direct that plaintiffs be given leaye to amend this count on r…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence