William A. Rawls, Appellant, vs. Tallahassee Hotel Company, a Corporation, Sarah S. Lewis, George Lewis, Edward Lewis and William C. Lewis Appellees, 43 Fla. 288

Glen, C. (after stating the facts.) The assignment of error that the court erred in overruling the demurrer to thle bill is not so argued 'under the rule on the subject as to demand any consideration on the part 'of the court, and will, therefore, be treated as abandoned. ; The second and'only other error assigned is that the court erred in making thie injunction perpetual. The appellees alleged in their bill that the sewer pipe in question was constructed and laid along McCarty street in the city of Tallahassee with the consent of the legal authorities of the city.

The answer denied this, and further denied the'power- of the city, or its legal authorities,, to grant such a right to appellees. It alleged that Mary M. Rawls, appellant’s wife, was the owner of two lots-having a frontage ipf one hundred and thirty feet on McCarty street, and‘that'the-sewer pipe was laid along the entire frontage of said'lots, on the half of McCarty street next thereto, in the soil of the street the fee of which was vested in the said Mary M. Rawls. In the evidence,there appears a stipulation by the parties that the said Mary M.

Rawls “had a (deed in fee to the lots on the northwest comer of Calhoun and McCarty streets, and numbered 117, 120, 121, 122, in the North Addition of Tallahassee, having a frontage on McCarty] street, according to the map of the city 'of Tallahassee, one hundred and thirty feet.” It further appeared, both from the evidence introduced on theipart of the appellant and that introduced on the part of the appellees, that the sewer pipe was laid in the soil of McCarty street, north of the centre of said- street and therefore'on the'side of the street abutting and immediately in 'front 'o-f the lots 'admitted to be the property of Mrs.

Rawls. It also further appeared from the testimony that appellant extended a sewer pipe for domestic-purposes from a (residence on the lots owned by his wife to the said pipe laid by appellees and proposed to form a connection therewith, and'that in doing so he asserted no individual right ¡separate from that connected with the ownership of his wife in the soil in .which,the pipe was extended. His action m reference to laying the pipe was consistent with that 'of representative of his wife in providing sewerage for her separate statutory Ireal property and' it appears that he acted solely in that character.

Under our statute the care and "management of the wife’s separate property is committed to her husband. Revised Statutes, Sec. 2071; Marye v. Root, 27 Fla. 453, 8 South. Rep. 636; Fairchild v. Knight, 18 Fla. 770, text 784; McGill v. McGill, 19 Fla. 341. The decree ¡rendered required the appellant to henceforth and forever absolutely desist and refrain from tapping, joining other pipe to or (Otherwise in any manner interfering with the sewer pipe mentioned in the bill.” Mrs.

Rawls was conceded to be the proprietor of the lots abutting on McCarty street, in front of which, and on'the-side of .the street adjacent thereto, the sewer pipe of appellees was laid. In the absence of evidence to--the contrary, she (is presumed to have owned the soil of- the street to the centre thereof. Florida So. Ry. Co. v. Brown, 23 Fla. 104, 1 South. Rep. 512; Lovett v. State, 30 Fla. 142, text 166-167, 11 South. Rep. 550; Jacksonville, Tampa and Key West Ry. Co. v. Lockwood, 33 Fla. 573; 15 South. Rep. 327.

An abutting proprietor owning to the centre of the (street has the right to use the soil thereunder for all purposes consistent with the foil enjoyment of the public'easement. Allen v. City of Boston, 159 Mass. 324, 34 N. E. Rep. 519; Elliott on Roads & Streets (2nd. ed.) Sec. 690. This right follows as a necessary incident of the ownership, and extends to any lawful use, so long as such use is consistent with the rights or necessities 'of the public. Under the decree rendered by the court the appellant, as'the statutory custodian of what must be presumed to be the property of Mrs.

Rawls, was, in effect, perpetually enjoined from.using her property in such a manner’as- to interefere with the. sewer pipe of appellees, and the decree thus, if not otherwise, adjudicated rights affecting Mrs. Rawls, in the enjoyment of her property, although she was not a party to the suit. For the reason that Mrs. Mary M. Rawls was a necessary indispensable party the decree should be reversed. Craver v. Spencer, 40 Fla. 135, 23 South. Rep. 880; Nelson v. Haisley, 39 Fla. 145, 22 South. Rep. 265; Lyon v. Register, 36 Fla. 273, 18 South. Rep. 589; Greeley v. Hendricks, 23 Fla. 366, 2 South. Rep. 620; Wykes v.

Ringleberg, 49 Mich. 567, 14 N. W. Rep. 498; Beasley v. Shively, 20 Oregon, 508, 26 Pac. Rep. 846. This defect as to parties renders it improper for this court to consider other questions involved. The (decree appealed from should be reversed and the cause remanded for further 'proceedings consistent with this opinion. Hocker, C., and Maxwell, C.,. concur. Per Curiam.

The foregoing opinion has been examined by the court ,and is hereby approved and adopted and ordered to be filed as the opinion of the court in said cause. (Chief Justice Taylor, on account of sickness in his family, did not participate in this decision.)