Eaton v. Madsen

District Court of Appeal of Florida

Eaton v. Madsen

388 So. 2d 1275, 1980 Fla. App. LEXIS 17259

CourtDistrict Court of Appeal of Florida

DecidedSeptember 24, 1980

DocketNo. 79-155

StatusPublished

Cited by1 cases

This text of 388 So. 2d 1275 (Eaton v. Madsen) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eaton v. Madsen, 388 So. 2d 1275, 1980 Fla. App. LEXIS 17259 (Fla. Ct. App. 1980).

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Opinion

PER CURIAM.

This litigation, involving the creation of an easement, turns upon the interpretation of the term “abutting property owners.” Our research has failed to disclose any Florida cases which define “abut” when it is used in a deed or other instrument creating an easement. Moreover, there seems to be no unanimity of opinion in other jurisdictions on whether “abut,” when used in a deed creating an easement, includes property at the end of, in addition to the side of, a roadway, alley or street. See the cases collected in Words and Phrases, Vol. I, p. 364, et seq. We therefore conclude that the deed conveying the easement in the instant case is ambiguous and that the proof submitted by the parties is in conflict as to whom the easement should benefit. That being the case, we conclude it was error for the issue to be resolved by summary judgment. Westchester Fire Insurance Company v. In-Sink-Erator, 252 So.2d 856 (Fla. 4th DCA 1971); Commercial Trading Company v. Zero Food Storage, Inc., 199 So.2d 109 (Fla. 3d DCA 1967).

Accordingly, the cause is reversed and remanded for further proceedings consistent with this opinion.

ANSTEAD and HURLEY, JJ., concur. RIVKIND, LEONARD, Associate Judge, dissents without opinion.

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PER CURIAM.

This litigation, involving the creation of an easement, turns upon the interpretation of the term “abutting property owners.” Our research has failed to disclose any Florida cases which define “abut” when it is used in a deed or other instrument creating an easement. Moreover, there seems to be no unanimity of opinion in other jurisdictions on whether “abut,” when used in a deed creating an easement, includes property at the end of, in addition to the side of, a roadway, alley or street. See the cases collected in Words and Phrases, Vol. I, p. 364, et seq. We therefore conclude that the deed conveying the easement in the instant case is ambiguous and that the proof submitted by the parties is in conflict as to whom the easement should benefit. That being the case, we conclude it was error for the issue to be resolved by summary judgment. Westchester Fire Insurance Company v. In-Sink-Erator, 252 So.2d 856 (Fla. 4th DCA 1971); Commercial Trading Company v. Zero Food Storage, Inc., 199 So.2d 109 (Fla. 3d DCA 1967).

Accordingly, the cause is reversed and remanded for further proceedings consistent with this opinion.

ANSTEAD and HURLEY, JJ., concur. RIVKIND, LEONARD, Associate Judge, dissents without opinion.

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Bluebook (online)

388 So. 2d 1275, 1980 Fla. App. LEXIS 17259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eaton-v-madsen-fladistctapp-1980.

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