Opinion
No. 59-528.
September 19, 1960. Rehearing Denied October 5, 1960.
Appeal from the Circuit Court, Dade County, Robert H. Anderson, J.
Sturrup Gautier, Miami, for appellant.
John E. Kirk, Miami, for appellee.
The defendant appeals from an adverse final decree and judgment in an action brought by plaintiff to enjoin the Central Southern Florida Flood Control District from exercising its rights under a certain reservation assigned to it by the Trustees of the Internal Improvement Fund of Florida. The reservation assigned to the District was contained in a deed given by the Trustees to the plaintiff's predecessor in title and granted the right to the Trustees or their successors at any time to enter upon the land and construct canals, cuts, sluice-ways, dikes and other work necessary to carry out drainage or reclamation.
The validity of these grants was discussed and decided by this court in Albury v. Central Southern Florida Flood Control District, Fla.App. 1958, 99 So.2d 248. We adhered to the Albury decision in two prior appearances of this case in this court. In the first appearance the appeal was from a summary final decree in favor of the present appellee. The second appearance was an interlocutory appeal from an order denying the present appellant's motion to dismiss based upon this court's decision and mandate in the first appearance wherein we reversed the summary final decree. Due to the limited scope of review occasioned by the interlocutory appeal in the second appearance, the majority of this court were of the view that an affirmance of the order sought to be reviewed was the limit of this court's jurisdiction of the subject matter. This latter statement is made in the light of the District's contention, with the concurrence of one member of the court, that the complaint or action should have been dismissed.
Central Southern Florida Flood Control District v. Dupuis, Fla.App. 1958, 105 So.2d 36.
Central Southern Florida Flood Control District v. Dupuis, Fla.App. 1959, 109 So.2d 596.
The final decree and judgment now up for review in effect rendered unenforceable, if not invalid, the reservation and the rights of the District thereunder. Such conclusion and effect is in conflict with the prior pronouncements of this court.
Albury v. Central Southern Florida Flood Control District, supra; Central Southern Florida Flood Control District v. Dupuis, supra.
Accordingly, the final decree and judgment appealed are reversed and the cause is dismissed.
PEARSON and CARROLL, CHAS., JJ., concur.