TRIANGLE IRON WORKS, INC., A FLORIDA CORPORATION, L.C. SMITH, L.E. SELPH, JR., AG WATER SUPPLY CO., INC., A DISSOLVED CORPORATION, CARL HANCOCK, JOHN LEONARD, GREAT FRUIT CO., SEBRING LAND CO., A DISSOLVED FLORIDA CORPORATION, APPELLANTS,
v.
FRANCHISE REALTY INTERSTATE CORP., AN ILLINOIS CORPORATION, SCHUCHMAN'S OF SEBRING, INC., A FLORIDA CORPORATION, DONALD R. SCHUCHMAN AND RUBY D. SCHUCHMAN, APPELLEES
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Triangle Iron Works and other appellants challenged the trial court's denial of a motion to dismiss for lack of prosecution and appealed a final judgment enjoining defendants from erecting a fence across an easement. The appellate court affirmed both rulings, holding that the plaintiffs' notice for trial on count III and pending motion for guidance constituted sufficient activity to preclude dismissal for lack of prosecution, and that the easement language established a non-exclusive right shared by both parties.
The court affirmed the trial court's denial of the motion to dismiss for lack of prosecution, finding that the notice for trial on count III and the motion for guidance constituted sufficient activity to preclude dismissal. The court also affirmed the judgment enjoining defendants from erecting the fence, holding that the easement language established a non-exclusive easement to be jointly shared by the grantor and grantee and their successors and assigns.
[1] A notice for trial on a specific count of a complaint, filed while a motion to dismiss remaining counts is pending and under advisement by the trial judge, may constitute…
[2] An easement must be construed as creating a nonexclusive easement unless the instrument clearly shows an intention that the easement is to be exclusive.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[A]n easement must be [*1146] construed as creating a nonexclusive easement unless the instrument clearly shows an intention that the easement is to be exclusive.”
Establishes the legal principle for interpreting easement language and the presumption against exclusive easements absent clear intent.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe case involved a dispute over an easement between plaintiffs (Triangle Iron Works, L.C. Smith, L.E. Selph Jr., AG Water Supply Co., Carl Hancock, J…
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LEHAN, Judge.
We affirm the trial court’s denial of defendants’ motion to dismiss for lack of prosecution. See Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984); Fox v. Playa Del Sol Assoc., 446 So. 2d 126 (Fla. 4th DCA 1983). We do not conclude that this case having been at issue only on count III of the complaint at the time the notice for trial on that count was filed (which was the count requesting the injunctive relief now being appealed from) means that the notice for trial was insufficient under General Guaranty Insurance Co. v. Bolivar, 460 So. 2d 1011 (Fla. 2d DCA 1984), to constitute activity which precludes dismissal for lack of prosecution. At the time of the filing of the notice for trial plaintiffs had also filed with the trial court a motion for guidance asking for a ruling on defendants’ then pending motion to dismiss the remaining counts, which the trial judge had taken under advisement.
We also affirm the final judgment enjoining defendants’ erection of a fence across an easement. Contrary to defendants’ argument, the language of the document creating the easement establishes that the easement was to exclude third parties, was to be jointly shared by its grantor and grantee and their respective successors and assigns, and was not to be exclusive to any of them vis-a-vis any others of them. Plaintiffs and defendants are those successors and assignees. See Stephens v. Dobbins, 511 So. 2d 652, 653 (Fla. 2d DCA 1987) (“[A]n easement must be construed as creating a nonexclusive easement unless the instrument clearly shows an intention that the easement is to be exclusive.”).
Affirmed.
SCHOONOVER, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Mikos v. Sarasota Cattle Co. & Charles E. Early, 453 So. 2d 402 (Fla. 1984)
- T.M.R. v. State, 446 So. 2d 126 (Fla. 2d DCA 1983)
- Stephens v. Dobbins, 511 So. 2d 652 (Fla. 2d DCA 1987)
- Gen. Guar. Ins. Co. v. Bolivar, 460 So. 2d 1011 (Fla. 2d DCA 1984)