EDWARD J. LUTTERLOH, APPELLANT,
v.
THE MAYOR AND COUNCIL OF THE TOWN OF CEDAR KEYS, RESPONDENTS
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A Florida property owner sought an injunction to prevent the town of Cedar Keys from erecting a market-house, public pound, and jail in the middle of a street directly in front of his commercial and residential property. The Supreme Court reversed the lower court's denial of the injunction, holding that property owners have protectable rights against nuisances created by municipal authorities in public streets.
The court held that property owners have protectable rights in adjacent streets beyond mere access rights, and when a municipal corporation threatens to create a nuisance through permanent obstruction or nuisance-causing structures in a street, courts of equity should grant injunctive relief to protect private property rights.
“The corporation of the town has no more right to erect such an obstruction in the highway than has any private citizen.”
Establishes that municipal corporations have no special privilege to create obstructions in public streets beyond what private citizens possess.
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Join FLexlaw to unlock all legal intelligencePlaintiff owned a building used as stores and sleeping apartments located on a 60-foot-wide street in Cedar Keys. The town's corporate authorities pro…
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delivered the opinion of the court.
Plaintiff filed his complaint for an injunction against the corporate authorities of the town of Cedar Keys to restrain them from erecting a market-house, public pound and jail, in the centre of a street sixty feet wide, in the immediate front of a building of the plaintiff, occupied as stores and sleeping apartments, and suitable for a dwelling house — the. proposed edifice to be twenty by thirty feet. The market place is designed to be used for the sale of meat, vegetables, fish, &c.; the pound for the shutting up of hogs and other .animals, and the jail for the confinement of disorderly people and criminals. The complaint alleges that on account of the location, and the character of the purposes designed in the erection of the house, it will be a nuisance, and will seriously and injuriously affect the value of his property and render access to it from one direction inconvenient, and that it will obstruct travel.
After service of process and notice of an application for an injunction, the judge refused the injunction. There was no answer or counter .affidavit.
The plaintiff appeals from this refusal. There can be no question that the facts stated in the complaint show an intention on the part of the corporate authorities to erect a public as well as a private nuisance.
*308In addition to the alleged offensiveness of such an institution immediately in front and so near the habitations of families and places of business, the obstruction of the public street in this manner is unwarranted. The corporation of the town has no more right to erect such an obstruction in the highway than has any private citizen. The right of occupancy of the street by the public is a mere easement or right of passage. The rights of owners of adjacent lots fronting on the street 'are greater than this ; they have also-a private right and interest. The purchasers of town lots-have generally located their houses and invested their money with reference to the streets, and their property is necessarily affected by the permanent closing or partial closing of these avenues; and upon various considerations, if special ■ injury be threatened, they may demand that their property be protected against injury by such permanent obstructions and nuisances. The reported cases show no instance in which, upon such circumstances as are here stated, the courts of equity have failed to protect private rights by an injunction or other necessary process to.-prevent or abate the nuisance.
The order of the judge- is reversed, and this cause remanded with directions that an injunction be allowed. The appellant will recover, costs of the appeal and- proceedings in this court.
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Pompano Horse Club, Inc. v. State ex rel. John M. Bryan, 93 Fla. 415 (Fla. 1927)…not' amounting to a trespass. 29 Cyc. 1152. A public nuisance does not furnish grounds for an action either at law or equity by an individual who merely suffers an injury which is common to the general pubic. 29 Cyc. 1208; Lutterloh v. Ceder Keys, 15 Fla. 306. Where an adequate remedy may be had by resorting to a criminal prosecution an injunction will not be granted. Sparhawk v. Union Passenger Railway Co., 54 Pa. St. 401. When the matter complained of is not clearly a nuisance against which the compl…
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Sullivan v. Moreno, 19 Fla. 200 (Fla. 1882)
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Robbins v. Sallie A. White, 52 Fla. 613 (Fla. 1906)…al cannot enjoin the obstruction of a public street unless some special damage to his property or injury to him differing not only in degree but in kind from the daanage sustained by the community at large is threatened. See Lutterloh v. Mayor, &c., 15 Fla. 306; Garnett v. Jacksonville, St. A. & H. R. Ry. Co., 20 Fla. 889, text 902; Jacksonville, T. & K. W. Ry. Co. v. Thompson, 34 Fla. 346, 16 South. Rep. 282. See also, Strickland v. Knight, 47 Fla. 327, 36 South. Rep. 363; Thomas v. Wade, 48 Fla. 311, 37…
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