In July, 1930, D. A. Dorsey began his action of ejectment in the Circuit Court for Dade County against the Seaboard Air Line Railway Company to try the title to a strip of land thirty-five feet in width immediately adjoining the north boundary line of Blocks One and Two of Bohemia Park, and extending from the west line of Northwest Seventh Avenue to the east line of Northwest Eighth Avenue in the city of Miami, Florida.

A declaration was duly filed and the Railroad Company appeared by counsel and interposed two pleas. The first was the general issue of not guilty; the second was a plea entitled, a "defense on equitable grounds." That plea averred that on August 6, 1926, it was a railroad corporation operating its railway for public use in Florida; that at that time there was under construction a line of railway from West Palm Beach to Miami, Florida, over which the defendant had a lease; that to safely and conveniently handle passengers conveyed over the line to Miami and to render *Page 29 efficient service to the public, the defendant found it necessary to construct a passenger station commensurate with the size of the city and it was necessary to make arrangements for the convenient handling of passengers to and from the station when constructed; that a site for the erection of the station was selected and that the plaintiff, Dorsey, was the owner of a large tract of land "adjacent and near" to the site of the proposed station; that in lieu of condemning a piece of land for the aforesaid purpose of handling its passenger business, it began, negotiations with the plaintiff, D. A. Dorsey, who, it was learned by this defendant, was especially desirous of having the passenger station located adjacent to and in the vicinity of his real estate, to secure control and possession of a strip of land abutting and adjoining said proposed station site sufficient for the aforesaid purposes; after some little negotiation, the said plaintiff agreed to dedicate a strip of land abutting and adjoining the proposed station site for the purpose of allowing said strip of land to be used by this defendant over which to receive and discharge passengers to and from the proposed passenger station, and inpursuance of said understanding, plaintiff and defendant entered into an agreement, in writing, in the words and figures following." (Italics mine.)

The plea then sets out in haec verba the alleged agreement in writing, in the language set out in the majority opinion, with the exception that in the plea the date of the instrument was given and the persons to whom it was addressed which was as follows:

"August 6, 1926, Crow-Reeder-Curtis Co., 441 N.E. First Ave., Miami, Florida. Gentlemen." The plea also showed the acceptance by the defendant in slightly different form from the manner in which it appears in the opinion. The *Page 30 plea shows acceptance in the following language: "Accepted for the Seaboard Air Line Ry. Aug. 11th, 1926. W. L. Seddon, Vice-Pres. S. A. L. Ry."

The plea then avers that the defendant, by virtue of the "agreement and relying thereon," took possession of the land in good faith and has "continuously and uninterruptedly remained in possession of the same and the same has been, since the erection of said passenger station, continuously, uninterruptedly and constantly used by this defendant and the public as a way of ingress and egress into and out of said passenger station."

The plea then avers the erection by the defendant of a passenger station costing approximately two hundred eighty-one thousand eight hundred and eighty-five dollars; that the defendant has continuously operated passenger trains to and from the station since January 8, 1927; that it secured an "abstract covering said strip of land" and paid for it the sum of forty-three dollars; that it has paid all attorney's fees "connected with said transaction"; "that it expended large sums of money in paving and putting said strip of land in a safe condition for the purpose of receiving and discharging passengers to and from said passenger station, to-wit: the sum of approximately Four Hundred Fifty Dollars ($450.00); thereby not only benefitting this Defendant but also benefitting the plaintiff's property abutting said strip of land."

The plea also avers that during all the time the defendant was expending the money the plaintiff had actual knowledge and notice of the same and "stood by, remained silent and acquiesced in the acts and doings of this defendant and for all these years has not objected to the use of said strip of land by this defendant"; that since the defendant took possession of the land it has never used it "for any other *Page 31 purpose than that for which it was agreed to be dedicated"; that the land is essential for the safe, convenient and proper handling of the defendant's passenger business into and out of Miami; that the title to the land is in the plaintiff; that the defendant has made a demand on the plaintiff for a "deed of dedication" to the land "in accordance with the terms, conditions, and stipulations of the aforesaid agreement entered into by and between the plaintiff and this defendant, and the said plaintiff refused to execute said deed."

The plea avers that by reason of the facts set out in the plea the defendant is entitled to "specific performance of the aforesaid agreement and a perpetual injunction against the plaintiff, so long as it performs its contract, as it is now doing, enjoining and restraining him from impeding, hindering, obstructing, and interfering with it in the handling of its and the public's business, which it is in duty bound to do, in a safe, convenient and efficient manner, and its possession of said strip of land." It is also averred that the defendant in carrying out its promises "and in the expenditure of the sums of money, as aforesaid" was "induced to do so by reason of said agreement and that it did so in good faith and in reliance upon said agreement made and entered into by the plaintiff"; that the plaintiff is therefore estopped from asserting any claim or right to the possession of the said strip of land agreed to be "dedicated."

A full statement of the averments of the plea is given in order that if it possesses any imperfections as an equitable defense they may be readily seen.

The plea of not guilty put in issue the title to the land, or, in case of an adverse claimant, the adverse claim of the defendant, Sec. 5044 C. G. L. But an inchoate or equitable right which might be available in equity cannot avail the *Page 32 defendant as against the legal title. See Petty v. Mays,19 Fla. 652.

Section 4301 C. G. L. 1927 modified the rule at common law in ejectment and authorizes an equitable plea. See Osceola Fertilizer Co. v. Beville, 86 Fla. 479, 98 So.2d Rep. 354. Such plea, however, must contain averments of fact which if alleged in a bill in equity would entitle the defendant to relief against a judgment if obtained at law. Osceola Fertilizer Co. v. Beville, supra, Sec. 4301 C. G. L. 1927; Bacon v. Green, 36 Fla. 325, 18 So.2d Rep. 870.

The purpose of the statute authorizing pleadings on equitable grounds is to facilitate the administration of justice in courts that can deal with such equitable pleadings. See Hobbs v. Chamberlain, 55 Fla. 661, 45 So.2d Rep. 988.

But equitable estoppel may be proved under the general issue. Kelsey v. Lake Childs Co., 93 Fla. 743, 112 So.2d Rep. 887; Blackiston v. Smith, 73 Fla. 25, 73 South Rep. 839.

If the purpose of the second plea was merely to set up an equitable estoppel it was not good as an equitable plea because defenses available under the general issue may not be set up by equitable pleas. Robeson v. First Nat. Bank, 42 Fla. 504, 29 So.2d Rep. 325; Marshall v. Bumby, 25 Fla. 619, 6 So.2d Rep. 480; Pensacola Lumber Co. v. Sutherland, 50 Fla. 244, 39 South. Rep. 789; Spratt v. Price, 18 Fla. 289.

An equitable plea is purely defensive and it is never admissible when it raises issues with which the common law side of the court is competent to deal. Pensacola Lumber Co. v. Sutherland, supra.

I do not regard the second plea therefore as attempting to set up an equitable estoppel, nor indeed do its averments set tip such a defense. *Page 33

Mr. Justice WESTCOTT, in Neal v. Gregory, 19 Fla. 356, speaking for the court, said "no estoppel can spring from silence or acquiescence unless there are some special circumstances which make it a duty to speak, and the maxim of the law that illustrates the doctrine is 'that he who is silent when conscience requires him to speak shall be debarred from speaking when conscience requires him to be silent.' Among the requirements to give effective operation to an equitable estoppel of this character is acquaintance with his title upon the part of the party sought to be estopped, and that for the reason that it would be the grossest injustice to construe ignorance or misapprehension of the true nature or existence of a right into a forfeiture of the power to enforce it. Again, it should also be shown that the conduct of the party sought to be estopped did in fact affect the action of the purchaser; that it was to some extent the motive and inducement for his action. * * * It is also true that when the actual state of the title can be readily ascertained by reference to the record, and the purchaser neglects to avail himself of the information which a simple examination of the record affords, silence unaccompanied by fraud will not operate as peremptory estoppel."

It cannot be asserted with certainty that the plea sets up a right in the defendant Company to a purchase of the strip of land, or any estate in it, or an easement of ingress and egress or a dedication to the public through the Corporation as a public utility. As a dedication to the public the plea is clearly ineffective because there is no averment that it was ever accepted by the public or that its use makes it a matter of public consequence and affects the community at large, or that it was dedicated as a public street or, highway. *Page 34 Raymond v. Whitcomb, 66 Fla. 19, 62 So.2d Rep. 832.

In which case a distinction was made between a dedication of a strip of land as a street to the public use and a private easement of egress and ingress over the strip. Kirkland v. City of Tampa, 75 Fla. 271, 78 So.2d Rep. 17. The plea in this case affirmatively shows that Dorsey did not intend to dedicate the strip to the use of the public as a street or highway because in the instrument called a "proposition or tender" and incorporated in the plea the condition was imposed that the Company would pay for the "street improvement liens in front of said strip." (Italics mine.) There could be no liens upon the strip for a street improvement in front of it if the strip itself was a public street or highway or dedicated by the owner and accepted as such by the public.

The instrument shows no present purpose to dedicate the strip as a public street. It was in its most liberal and favorable aspect to the Company a mere proposition to a third person, Crow-Reeder-Curtis Company, to dedicate the strip to use for the "purpose of receiving and discharging passengers to and from the proposed passenger station" and that on condition that the Corporation defendant would comply with certain conditions with all of which the plea fails to aver that the Company complied.

The plea cannot be considered as tendering an equitable defense based upon the right to a specific performance of a contract between the Railroad Corporation and Dorsey to convey to the former an easement of ingress or egress over the strip of land because the plea avers none of the elements of a contract between the two parties. It does not aver that Crow-Reeder-Curtis Company was the defendant's agent acting for it in this behalf. It does aver that the *Page 35 plaintiff Dorsey and the defendant entered into the agreement in writing set out in the plea. Even if that language is construed to mean that Dorsey's proposition was made to the Company, or to Crow-Reeder-Curtis Company as its agent and by that Company delivered with Dorsey's authority to the Railroad Company defendant and by the latter accepted, it fails to aver compliance with all the conditions imposed; nor is the proposition definite as to the length of time the private easement to the railroad was to continue, nor that the Company was to purchase it. The plea merely avers that it is entitled to a permanent easement upon performance of all conditions named in the proposition, but fails to aver full performance.

It is incredible that a railroad corporation, constructing its lines of road into a great city like Miami and having upon it the duty of erecting a passenger station commensurate with the size of the city for the public safety and service and to that end having selected and acquired a site for the station, would not have erected the station had it not been for the plaintiff's proposition. It cannot be credibly asserted that the Company was misled to its injury in that particular by the plaintiff's proposition. Taking possession of the strip was to its own advantage, while paving it for more convenient use was not required by a proposition and was for its own advantage as likewise were the payments for the "abstract" and attorney's fees by which before taking possession of the property and improving it by paving it the Company became advised as to its ownership and by that act avoided the greater expense of condemnation proceedings under the provisions of the statute, if indeed the strip of land in question may be considered under the averments of the plea as "required facilities" *Page 36 for its station or for the reception, retention, transfer and forwarding of commerce. Sec. 6317 C. G. L. 1927.

The plea affirmatively shows that the Company itself was in default under the terms of the alleged agreement and therefore not entitled to specific performance. See Pensacola Gas Co. v. Provisional Municipality of Pensacola, 33 Fla. 322, 14 South. Rep. 826.

The plea shows no price agreed upon between the parties and no detriment to the defendant. The claim for specific performance seems to rest upon the proposition that because the Company erected a station upon a site previously selected and acquired by it, which, as the plea avers, it was its duty to the public to do, and that the plaintiff's property adjacent thereto would be materially benefitted thereby, it is entitled to a conveyance to it of an easement over the strip of land owned by the plaintiff because the Company had taken possession of that strip, paved it and used it for its own convenience and obtained and paid for an abstract of title relating to it. As specific performance cannot be demanded of right but is granted of grace and rests in discretion, I am of the opinion that the trial court was not in error in holding that the plea presented no equitable defense upon the basis of a right to specific performance of the alleged agreement to convey to the defendant a permanent easement of ingress and egress over the strip of land in question. See Pensacola Gas Co. v. Provisional Municipality of Pensacola, supra; Knox v. Spratt, 23 Fla. 64, 6 South Rep. 924; Nobles v. L'Engle, 61 Fla. 696, 55 So.2d Rep. 839; Gaskins v. Byrd, 66 Fla. 452, 63 So.2d Rep. 824; Murphy v. Hohne, 73 Fla. 803, 74 So.2d Rep. 973; Dixie Naval Stores Co. v. German-American Lumber Co., 76 Fla. 339, 79 So.2d Rep. 836.

The only question, in my opinion, which the plea presents *Page 37 is whether the action of the plaintiff in offering to dedicate the strip of land, a proposition made to a private corporation, Crow-Reeder-Curtis Company, upon condition that the defendant Railroad Company would do certain things and which proposition the Railroad Company accepted and took possession of the strip of land and paved it for its own convenience but did not comply with all the conditions imposed by the plaintiff, operates as an equitable estoppel against the plaintiff from resisting the assertion by the railroad as a public agency that the strip of land has been dedicated by the plaintiff as a way of ingress and egress for the convenience of the public to and from the Railroad Company's passenger station at Miami.

The proposition, considered as an offer to the Railroad Company to give a private easement of ingress and egress over the strip of land, is not supported by the plea as it is not averred that the Company complied with the conditions imposed; considered as an offer to the public as a street, park or passageway, the plea is insufficient to show acceptance by the public either officially or by public user. It has already been shown that the proposition cannot be considered as such an offer to sell or give an easement to the Company as under the averments of the plea would support specific performance of the contract.

Then in what light may the averments of the plea be considered as setting up an equitable estoppel to the owner from asserting his right to the possession of the strip of land as against the Company's use of it as a public service corporation for ingress and egress to its station? I am unable to perceive that in the circumstances of the transaction, as averred in the plea or shown by the evidence to support an equitable estoppel, that any of the elements of such an estoppel exist. If the Railroad Company could *Page 38 accept a dedication of the strip of land it must be because it had the right to acquire it by exercise of the power of eminent domain because the two rights are inseparable and inevitable concomitants of each other. If the property is taken at all in the circumstances it must be for a public use and not a private one. To be able to take it for a public use it must appear that the Company could have exercised the right to acquire it for that purpose by eminent domain. See Venable v. The Wabash Western R. Co., 112 Mo. 103, 20 S.W. Rep. 493, 18 L. R. A 68.

Neither the averments of the plea nor the evidence submitted tend to show that such right may have been exercised by the Company to acquire a facility required for the reception, transfer and forwarding of commerce. Sec. 6317 C. G. L.,supra.

If the Company could have exercised the right of eminent domain the owner would have been entitled to reasonable. compensation for his property and thus consent of the owner, which by condemnation of the land is compelled, would be obtained. The consent of the owner in this case, however, is asserted by his proposition to dedicate the strip for the use to which the Company may have condemned it by eminent domain, but that consent by dedication is not shown, only a proposition to do so upon the fulfillment by the Company of certain conditions which neither the averments of the plea nor the evidence show were met by the Company.

The rule is universally recognized that a railroad corporation may not acquire title to or easement in land by common law dedication. See Lake Erie W. R. Co. v. Whitman,155 Ill. 514, 40 N.E. Rep. 1014.

I do not find any analogy between the cases cited in the *Page 39 majority opinion and the instant case insofar as the question of estoppel by equity is involved.

One may be estopped from asserting his title to land where he, the owner, has permitted another to enter upon it and use it and who "has expended large sums or incurred heavy obligations for its permanent improvement," but no such condition exists in this case. Permission was granted for its use by the Company on conditions which were not observed. The defendant insists upon a "dedication" to public use which it as a railroad could accept, or that it has an equitable right to specific performance of a contract which did not exist, nor with the proposed terms contained in the proposition was there full compliance.

The evidence submitted as to an equitable estoppel was weaker than the averments of the plea.

I am therefore of the opinion that the judgment should be affirmed.