STATE EX REL. JAMES HARRIS, R. C. BAY, I. L. PENN, JOHN D. POLLOCK, J. G. DOUGLAS, EMORY TRASK AND JAMES SHUMAN
v.
THE CITY OF LAKELAND
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The Florida Supreme Court reversed a lower court's decision, holding that the lower court erred in dismissing a public nuisance claim based on the pleadings alone. The appellate court found the allegations, if proven, were sufficient to establish a public nuisance, and the doctrine of comparative negligence was not applicable in this context.
Yes, the lower court erred in dismissing the claim on the pleadings. The allegations, if proven, are sufficient to establish a public nuisance, and the doctrine of comparative negligence is generally not applicable to strictly public nuisance cases.
“The chancellor undertook to adjudicate the merits of the case on the pleadings without taking testimony and in doing so, assumed that facts constituting a public nuisance were not stated. In this, he was in error.”
Establishes the lower court's error in dismissing the case based solely on pleadings without evidence.
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Join FLexlaw to unlock all legal intelligenceAppellants filed a bill of complaint in the Circuit Court to abate a public nuisance, alleging that the City of Lakeland's sewage disposal facilities …
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Appellants filed their bill of complaint in the Circuit Court to abate a public nuisance as provided by Section 5029, Compiled General Laws of 1927. There was an answer to the bill tendering various defenses to which a motion to strike was interposed. The latter motion was overruled and this appeal was prosecuted.
The doctrine of comparative negligence is relied on to defeat the bill. This doctrine has a very important place in private nuisance cases but it has rarely if ever been applied in strictly public nuisance cases. The briefs evidence misunderstanding on the point.
The chancellor undertook to adjudicate the merits of the case on the pleadings without taking testimony and in doing so, assumed that facts constituting a public nuisance were not stated. In this, he was in error. If the allegations of the bill are proven, they are sufficient to support a public nuisance. It will then be time to determine whether the doctrine of comparative negligence has any application. *797If a public nuisance is conclusively proven, the responsibility will be on the City to remove it. This it may do by modernizing its present sewage disposal facilities or by providing additional ones. It cannot plead poverty or inability to remove a nuisance created by it that has become deleterious to the public health.
The judgment appealed from is reversed.
Reversed.
Terrell, C. J., and Buford and Thomas, J. J., concur.
Brown, J., concurs in opinion and judgment.
Justices Whitfield and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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City of Lakeland v. State ex rel. James Harris, 143 Fla. 761 (Fla. 1940)…Buford, J. This is the second appearance of this case here. See State ex rel.. Harris v. City of Lakeland, 141 Fla. 785, 193 So. 826. When the mandate of this Court went down pursuant to our opinion' and judgment, supra, on motion the court entered the following order: “The motion of the plaintiff to strike portions of the defendant’s answer in the foregoing cause coming on aga…
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City OF Miami v. City OF Coral Gables, 233 So. 2d 7 (Fla. 3d DCA 1970)…enience of gigantic proportions to the great number of citizens served by the incinerator * * We find that the court properly followed and applied the principles of law as they were stated in the leading case of the State ex rel. Harris v. Lakeland, 141 Fla. 795, 193 So. 826, wherein the court stated: “If a public nuisance is conclusively proven, the responsibility will be on the city to remove it. This it may do by modernizing its present sewage disposal facilities or by providing additional ones. It cann…
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Penn v. City OF Lakeland, 109 So. 2d 771 (Fla. 2d DCA 1959)…ject matter was identical, In the previous case the defendant was permanently enjoined from casting sewage into the canal and lake. The Harris case was before the Supreme Court twice, but both times prior to the final decree granting the injunction, 141 Fla. 795, 193 So. 826, and 143 Fla. 761, 197 So. 470. Testimony was taken as to the injunc-tive portion of the complaint, and it was shown that a public nuisance did in fact exist in the area, although defendant presented evidence showing that it was presen…
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