Seaboard Air Line Railway Co. v. D. A. Dorsey, 111 Fla. 22

Terrell, J. August 6th, 1926, defendant in error executed to plaintiff in error the following instrument: Proposition or Tender. In consideration of the S. A. L. Ry. building and maintaining a passenger station and operating regular trains to and from such station, on Blocks 1 and 2 of Bohemia Park, City of Miami, Fla., I hereby agree to dedicate a strip of land 35 feet in width immediately adjoining the north boundary line of said Blocks 1 and 2 of Bohemia Park, and extending from the .west line of N. W. 7th Avenue to the east line of N. W. 8th Avenue, the said S. A. L. Ry.

Co. to use said strip for the purpose of receiving and discharging pass'engers to and from the proposed passenger station; and in the event said strip is not used continuously for the aforesaid purposes then it shall revert to D. A. Dorsey, his heirs or assigns. It is further agreed that said passenger station will cost not less than $75,000. It is also understood and agreed that work on said station shall begin,' not later than September 15th, 1926. S. A. L. Ry. to pay for abstract, attorney’s fees', also street improvement liens in front of said strip. I Respectfully, D. A. Dorsey. Witnesses: C. H. Reeder, K.

K. Clark. Accepted for the Seaboard Air Line Ry. W. L. Seddon, August 11th, 1926. Vice-Pres. S. A. L. Ry. August 11th, 1926, plaintiff in error advised defendant in error by mail that his “proposition or tender” was accepted and on September 13th, 1926, it took charge of the locus in quo and commenced the construction of its1 passenger station as contemplated which was in due course completed at a cost in excess of $281,000.00. The thirty-five foot strip described in the “proposition or tender” was also paved at a cost of $443.50 to the plaintiff in error.

Defendant in error testified that he never received the notice of acceptance of his “proposition or tender,” but under the facts of this case that becomes immaterial. When the plaintiff in error took charge of the lands and made the improvements in the presence of the defendant and without his objection,. every purpose of the notice of acceptance was served.

In July, 1930, defendant in error as plaintiff below instituted this action in ejectment to recover possession of his lands described in the “proposition or tender.” Subsequent to the institution of .the ejectment suit defendant below, plaintiff in error here was placed in the hands of a receiver appointed by the United States District Court for the Southern District of Florida. The receiver under his order of appointment took charge of all the physical ass'ets of the defendant, including the lands involved in this litigation.

Defendant then moved to stay the action in ejectment pending the disposition of the receivership. This motion was denied and the cause came on for trial in January, 1932, resulting in a directed verdict for the plaintiff, on the question of pos'session and the question of mesne profits was sub-; mitted to the jury which returned a verdict of $2,500 therefor. Motion for new trial was denied, final judgment was entered and this writ of error was taken thereto.

It is contended that the final judgment in ejectment was erroneous because the res was in the actual possession of the Federal Court rather than the defendant, that such a judgment should not be entered against one not in possession, and that Dorsey, the plaintiff, was estopped from asserting his right of possession in and to the lands described in the declaration. The rule is well settled that the appointment of a receiver for the defendant does' not abate an action against it nor will it bar the prosecution to judgment of such action.

If the interests represented by the receiver render it necessary he may at his request be substituted by order of the Court as a party defendant and allowed to defend, but until this is' done he is a stranger to the cause. It is not the duty of the plaintiff to bring him in. Alabama Terminal R. Co. v. Benns, 189 Ala. 590, 66 So. 589, St. Louis C. G. & Ft. S. Ry. Co., et al., v. Holliday, 131 Mo. 440, 33 S. W. 49, Mercantile Trust Co. v. Pittsburgh & W. R. Co., 29 Fed. 732, Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814, 11 L. R. A. 480, Peck v. Jennes, 7 How. (U. S.) 612, 12 L. Ed. 841, Venner v.

Denver Union Water Co., 40 Col. 90, Pac. 623, 122 A. S. R. 1036, R. C. L. 48, 53 C. J. 124, 349. But plaintiff-in error contends that this question does not involve the usual proposition incident to conflict of jurisdiction in actions' in personam where'jurisdiction is retained bv' the Court where suit is first brought, but that the pith of the controversy in this case is one of actual possession ■and-not one of jurisdiction. Wabash R. Co. v. Adelbert College of the Western Reserve University, 208 U. S. 38, 28 Sup. Ct. Rep. 182, 52 L. Ed. 379, and similar cases are relied on to support this contention.

The facts in the last named case were materially different from those of the case at bar. In that case the res was taken in hand by the Federal Court to protect its decree of sale. When the State Court attempted to exercise jurisdiction over it in another action, the sale under decree of the Federal Court had effected a change in the vestiture of title. The custody of the Federal Court was for the sole purpos'e of protecting the rights of creditors.

The receivership in the instant case had no such purpose and is therefore not ruled by the line of cases relied on by plaintiff in error." The question of whether or not Dorsey, the plaintiff, is estopped from ass'erting his-right of possession in and to the lands brought in question, we think must be answered in the affirmative.

The “proposition or tender” quoted elsewhere in this opinion, on being accepted, unquestionably gave to the plaintiff in error the right to take possession of and use the lands described therein continuously “for the purpose of receiving and discharging passengers to and from the proposed passenger station.” A great deal is said in the briefs about whether this “proposition' or tender” amounted to a dedication, a donation, an easement or a license, bút this discussion is all beside the main question.

No stock words or phrases are required to constitute any oí-these'instruments, it is only neces'sary that such words be employed as will show the grantor’s intent. ... A license is a mere permit to use the property of another. An easement implies an interest in ■ the property used.

A license may generally be revoked at the pleasure of the grantor, no matter how long continued, but the rule as' to revocation does not apply when permission is granted to use property for a particular purpose, or in a certain manner and in the execution of that use, the permittee has expended large sums or incurred heavy obligations for its permanent improvement. This rule applies' whether the permit be express or parole. Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98, Shaw v. Proffitt, 57 Ore. 192, 109 Pac. 384, 110 Pac. 1092, Rariton Water Power Co. v. Veghte, 21 N. J. Eq. 463, text 475, Boswreth v.

Nelson, 170 Ga. 279, 152 S. E. 575, Frederic v. Mayers 89 Miss., 127, 43 So. 577, Nowlin v. Whipple, 120 Ind. 596, 22 N. E. 669. The record discloses that plaintiff in error promptly took charge of the lands and commenced the.construction of the pas'senger station referred to in the “proposition or .tender,” that the said passenger station was, in due course completed at a much larger sum than that named by the defendant in error, that it has been continuously used .for the purposes and in the manner contemplated.

That in addition to constructing s'aid passenger station a considerable sum, to-wit: $443.50 was expended by plaintiff in error paving said lands to make them suitable for the purpose for which they were to be used, that the defendant in error sat by observing, but made no seasonable objection to any of these improve-meats, and waited for more than three years' after they were completed before he brought this action. •Under such circumstances the doctrine of equitable estoppel is peculiarly applicable and was properly invoked in the court below. • The plea raising this defense was sustained by the proof.

If- the plaintiff in error is not using the lands as it was given permission to do, defendant in error has' right of action for damages in a court of law or for other appropriate relief. The judgment below is accordingly reversed. Reversed. Buford, C. J., and Whitfield, Brown and Davis, J . J., concur. Ellis, J., dissents.