State Ex Rel. Landis v. City of Coral Gables , 120 Fla. 492 ( 1935 )

This is an original proceeding to test the validity of the inclusion of co-relator's lots within the City of Coral Gables under legislative Charter Acts of 1925 and 1929. The gravamen of the information is that these Acts violated the organic rights of the co-relator. Answer has been filed, and the case is now before us on motion for judgment of ouster, the answer notwithstanding. It appears from the answer that the co-relator and his predecessors in title have acquiesced for so long a time in the action taken by the Legislature in establishing the boundaries of the City, that it is now estopped to question the validity of such action. Nor does it appear from the information that the State at large, as represented by the Attorney General, has any interest in now attacking a boundary status which has so long existed under legislative enactment, it not being made to appear that any public rights are adversely affected. See State v. City of Sarasota, 92 Fla. 563,109 So. 473; State v. City of Clearwater, 106 Fla. 761, 139 So.2d 377; State v. Eau Gallie, 99 Fla. 579, 126 So.2d 124.

In the case of State v. City of Stuart, 97 Fla. 69,120 So. 339, it was expressly stated that: "there is in this case no question of estoppel by acquiescence for any considerable period. See McQuillin, Section 306." And in Abell v. Town of Boynton, 95 Fla. 984, 117 So.2d 507, it was held that even fundamental constitutional rights, provided for the protection of the property owner, may be waived by failure to assert them within the proper time.

Even though it be conceded that the Legislature in 1925 extended the boundaries too far, and should not have taken in relator's lots, that was six or eight years or more ago, and much water has passed over the mill in that time. Large sums of money were loaned to the City and many municipal improvements constructed on the faith of the validity of the legislative Acts and the boundaries therein fixed, which are now attacked. But aside from this, under the principles laid down in the above cited cases, the co-relator and his predecessors in title have acquiesced in the action of the Legislature in the matter of establishing the boundaries of the municipality for too long a time to now be heard to complain.

The facts of this case distinguish it from the case of State v. Town of Lake Placid, 109 Fla. 419, 147 So.2d 468.

The motion for judgment of ouster, notwithstanding the answer, is denied, and the case dismissed.

WHITFIELD, C. J., and TERRELL and BROWN, J. J., concur.

ELLIS and BUFORD, J. J., dissent.

DAVIS, J., not participating.