Judges: CAMPBELL, Circuit Judge (after stating the facts).
Attorneys: R. F. Burdine, for Appellants;
Price, Price, Neeley Kehoe and A. B. Small, for Appellees.
Filed: Jul. 27, 1926
Latest Update: Mar. 02, 2020
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 377 STATEMENT. Prior to June 23, 1899, Fort Dallas Land Company, a corporation, was the owner of Lots numbered One (1) and Two (2) of Block One Hundred Twenty-two (122) North, in the City of Miami. These lots had a frontage to the North on Twelfth Street. Lot One, being a corner lot, had also a frontage on Avenue C to the East. *Page 378 According to the offi
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 377 STATEMENT. Prior to June 23, 1899, Fort Dallas Land Company, a corporation, was the owner of Lots numbered One (1) and Two (2) of Block One Hundred Twenty-two (122) North, in the City of Miami. These lots had a frontage to the North on Twelfth Street. Lot One, being a corner lot, had also a frontage on Avenue C to the East. *Page 378 According to the offic..
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This case was previously before this Court on appeal from an order of the chancellor sustaining a demurrer and dismissing the bill of complaint. Sewell v. Burdine, 80 Fla. 718;87 South. Rep. 144. In construing, at that time, the agreement here in controversy, this Court said: "We regard the agreement as one creating an easement over Lots 1 and 2, each lot is burdened by the agreement with an easement over it for the benefit of the owner, or occupant of the owner, one which may be extinguished of course by abandonment or mutual agreement."
The present opinion, after discussing the same agreement at length, concludes: "After considering the entire record in this case, we think, and we so hold, that the agreement
between the Fort Dallas Land Company, a corporation, and John Sewell, did not burden the respective lots with the permanent easement appurtenant, but that it gave to the respective parties a personal license or privilege of limited duration, to use the alley provided for, and that it was subject to be revoked by either party at any time." In both appeals the principal question has been whether the mooted agreement created an easement or merely a revocable personal license or privilege. It seems to me that the conclusion reached in the instant appeal is inconsistent with the construction placed by this Court upon the agreement in the former appeal. Until overruled, the opinion upon the former appeal settles the law of the case, and since the present opinion does not purport to overrule the former opinion, but merely reaches a different conclusion in construing the same instrument, I dissent, without expressing any opinion on the merits. See First Nat'l. Bank v. Ulmer, 66 Fla. 68; 67 Sou. Rep. 918 Christopher v. Mengen, 66 Fla. 467 (478); 63 Sou. Rep. 923; Fairlie v. Scott, 102 Sou. Rep. 247.
ELLIS, J., concurs.
