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FOUNTAINEBLEAU
HOTEL CORP., a
No. 59-450.
District Court of
Appeal of
114 So. 2d 357; 1959
COUNSEL: [**1]
Sibley, Grusmark, Barkdull & King,
Anderson & Nadeau,
OPINION: [*358] PER CURIAM.
This is an interlocutory appeal from an order temporarily enjoining the
appellants from continuing with the construction of a fourteen-story addition
to the Fontainebleau Hotel, owned and operated by the appellants. Appellee,
plaintiff below, owns the Eden Roc Hotel, which was constructed in 1955, about
a year after the
In this action, plaintiff-appellee [**2] sought to enjoin the
defendants-appellants from proceeding with the construction of the addition to
the Fontainebleau (it appears to have been roughly eight stories high at the
time suit was filed), alleging that the construction would interfere with the
light and air on the beach in front of the Eden Roc and cast a shadow of such
size as to render the beach wholly unfitted for the use and enjoyment of its
guests, to the irreparable injury of the plaintiff; further, that the
construction of such addition on the north side of defendants' property, rather
than the south side, was actuated by malice and ill will on the part of the
defendants' president toward the plaintiff's president; and that the construction
was in violation of a building ordinance requiring a 100-foot setback from the
ocean. It was also alleged that the construction would interfere with the
easements of light and air enjoyed by plaintiff and its predecessors in title
for more than twenty years and "impliedly granted by virtue of the acts of
the plaintiff's predecessors in title, as well as under the common law and the
express recognition of such rights by virtue of Chapter 9837, Laws of Florida
1923 * * *." Some [**3] attempt was
also made to allege an easement by implication in favor of the plaintiff's
property, as the dominant, and against the defendants' property, as the
servient, tenement.
[*359] The defendants' answer denied the material allegations of
the complaint, pleaded laches and estoppel by judgment.
The chancellor heard considerable testimony on the issues made by the complaint
and the answer and, as noted, entered a temporary injunction restraining the
defendants from continuing with the construction of the addition. His reason
for so doing was stated by him, in a memorandum opinion, as follows:
"In granting the temporary injunction in this case the Court wishes to
make several things very clear. The ruling is not based on any alleged
presumptive title nor prescriptive right of the plaintiff to light and air nor
is it based on any deed restrictions nor recorded plats in the title of the
plaintiff nor of the defendant nor of any plat of record. It is not based on
any zoning ordinance nor on any provision of the building code of the City of
This is indeed a novel application of the maxim sic utere tuo ut alienum non
laedas .
This maxim does not mean that one must never use his own property in such a way
as to do any injury to his neighbor. Beckman v.
No American decision has been cited, and independent research has revealed
none, in which it has been held that - in the absence of some contractual or
statutory obligation - a landowner has a legal right to the free flow of light
and air across the adjoining land of his neighbor. Even at common law, the
landowner had no legal right, in the absence of an easement or uninterrupted
use and enjoyment for a period of 20 years, to unobstructed light and air from
the adjoining land. Blumberg v. Weiss, 1941, 129 N.J.Eq.
34, 17 A.2d 823; 1 Am.Jur., Adjoining Landowners, §
51. And the English doctrine of "ancient lights" has been unanimously
repudiated in this country. 1 Am.Jur., Adjoining
Landowners, § 49, p. 533; Lynch v. Hill, 1939, 24 Del.Ch. 86, 6 A.2d 614,
overruling
There being, then, no legal right to the free flow of light and air from the
adjoining land, it is universally held that where a structure serves a useful
and beneficial purpose, it does not give rise to a cause of action, either for
damages or for an injunction under [**6] the maxim sic utere tuo
ut alienum non laedas, even though it causes injury to another by cutting
off the light and air and interfering with the view that would otherwise be
available over adjoining land in its natural state, regardless of the fact that
the structure may have been erected partly for spite. See the cases collected
in the annotation in 133 A.L.R. at pp. 701 et seq.; 1 Am.Jur., Adjoining
Landowners, § 54, p. 536; Taliaferro v. Salyer, [*360] 1958, 162
Cal.App.2d 685, 328 P.2d 799; Musumeci v. Leonardo, 1950, 77 R.I. 255, 75 A.2d
175; Harrison v. Langlinais, Tex. Civ.App.1958, 312 S.W.2d 286; Granberry v.
Jones, 1949, 188 Tenn. 51, 216 S.W.2d 721; Letts v. Kessler, 1896, 54 Ohio St.
73, 42 N.E. 765; Kublitsky v. Zimnoch, 1950, 196 Md. 504, 77 A.2d 14; Southern
Advertising Co. v. Sherman, Tenn.App.1957, 308 S.W.2d 491.
We see no reason for departing from this universal rule. If, as contended on
behalf of plaintiff, public policy demands that a landowner in the Miami Beach
area refrain from constructing buildings on his premises that will cast a
shadow on the adjoining premises, an amendment of its comprehensive planning
and zoning ordinance, applicable to [**7]
the public as a whole, is the means by which such purpose should be achieved.
(No opinion is expressed here as to the validity of such an ordinance, if one
should be enacted pursuant to the requirements of law. Cf. City of Miami Beach
v. State ex rel. Fontainebleau Hotel Corp., Fla.App.1959, 108 So.2d 614, 619;
certiorari denied, Fla.1959, 111 So.2d 437.) But to change the universal rule -
and the custom followed in this state since its inception - that adjoining
landowners have an equal right under the law to build to the line of their
respective tracts and to such a height as is desired by them (in in absence, of
course, of building restrictions or regulations) amounts, in our opinion, to
judicial legislation. As stated in Musumeci v. Leonardo, supra [77 R.I. 255, 75
A.2d 177], "So use your own as not to injure another's property is, indeed,
a sound and salutary principle for the promotion of justice, but it may not and
should not be applied so as gratuitously to confer upon an adjacent property
owner incorporeal rights incidental to his ownership of land which the law does
not sanction."
We have also considered whether the order here reviewed may be sustained upon
any other [**8] reasoning, conformable to
and consistent with the pleadings, regardless of the erroneous reasoning upon
which the order was actually based. See McGregor v. Provident Trust Co. of
The record affirmatively shows that no statutory basis for the right sought to
be enforced by plaintiff exists. The so-called Shadow Ordinance enacted by the
City of
The only other possible basis - and, in fact, the only one insisted upon by plaintiff [**9] in its brief filed here, other
than its reliance upon the law of private nuisance as expressed in the maxim sic
utere tuo ut alienum non laedas - for the order here reviewed is the
alleged violation by defendants of the setback line prescribed by ordinance.
The plaintiff argues that the ordinance applicable to the Use District in which
plaintiff's and defendants' properties are located, prescribing "a front
yard having a depth of not less than one hundred (100) feet, measured from the
ocean, * * *," should be and has been interpreted by the City's zoning
inspector as requiring a setback of 100 feet from an established ocean bulkhead
line. As noted above, the addition to the
[*361] While the chancellor did not decide the question of whether
the setback ordinance had been violated, it is our view that, even if there was
such a violation, the plaintiff would have no cause of action against the
defendants based on such violation. The application of simple mathematics to
the sun studies filed in evidence by plaintiff [**10] in support of
its claim demonstrates conclusively that to move the existing structure back
some 23 feet from the ocean would make no appreciable difference in the problem
which is the subject of this controversy. Cf. Taliaferro v. Salyer, supra. The
construction of the 14-story addition is proceeding under a permit issued by
the city pursuant to the mandate of this court in City of
Since it affirmatively appears that the plaintiff [**11] has not
established a cause of action against the defendants by reason of the structure
here in question, the order granting a temporary injunction should be and it is
hereby reversed with directions to dismiss the complaint.
Reversed with directions.
HORTON, C.J., and CARROLL, CHAS., J., and CABOT, TED,
Associate Judge concur.