FOUNTAINEBLEAU HOTEL CORP., a Florida corporation, and Charnofree Corporation, a Florida corporation, Appellants, v. FORTY-FIVE TWENTY-FIVE, INC., a Florida corporation, Appellee.

No. 59-450.

District Court of Appeal of Florida, Third District.

114 So. 2d 357; 1959 Fla. App. LEXIS 2744

Aug. 27, 1959; Rehearing Denied Sept. 23, 1959.

OPINION: 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 Fontainebleau, and adjoins the Fontainebleau on the north. Both are luxury hotels, facing the Atlantic Ocean. The proposed addition to the Fontainebleau is being constructed twenty feet from its north property line, 130 feet from the mean high water mark of the Atlantic Ocean, and 76 feet 8 inches from the ocean bulkhead line. The 14-story tower will extend 160 feet above grade in height and is 416 feet long from east to west. During the winter months, from around two o'clock in the afternoon for the remainder of the day, the shadow of the addition will extend over the cabana, swimming pool, and sunbathing areas of the Eden Roc, which are located in the southern portion of its property.

In this action, plaintiff-appellee 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 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.

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 Miami Beach nor on the decision of any court, nisi prius or appellate. It is based solely on the proposition that no one has a right to use his property to the injury of another. In this case it is clear from the evidence that the proposed use by the Fontainebleau will materially damage the Eden Roc. There is evidence indicating that the construction of the proposed annex by the Fontainebleau is malicious or deliberate for the purpose of injuring the Eden Roc, but it is scarcely sufficient, standing alone, to afford a basis for equitable relief."

This is indeed a novel application of the maxim sic utere tuo ut alienum non laedas [use your own so as not to injure another] . 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.... It means only that one must use his property so as not to injure the lawful rights of another.... In Reaver v. Martin Theatres, Fla.1951, 52 So.2d 682, 683, 25 A.L.R.2d 1451, under this maxim, it was stated that "it is well settled that a property owner may put his own property to any reasonable and lawful use, so long as he does not thereby deprive the adjoining landowner of any right of enjoyment of his property which is recognized and protected by law, and so long as his use is not such a one as the law will pronounce a nuisance." [Emphasis supplied.]

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.... And the English doctrine of "ancient lights" has been unanimously repudiated in this country....

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 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....

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 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.) 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 an absence, of course, of building restrictions or regulations) amounts, in our opinion, to judicial legislation. As stated in Musumeci v. Leonardo, [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 reasoning, conformable to and consistent with the pleadings, regardless of the erroneous reasoning upon which the order was actually based.... We have concluded that it cannot.

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 Miami Beach at plaintiff's behest was held invalid in City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., supra. It also affirmatively appears that there is no possible basis for holding that plaintiff has an easement for light and air, either express or implied, across defendants' property, nor any prescriptive right thereto - even if it be assumed, arguendo, that the common-law right of prescription as to "ancient lights" is in effect in this state. And from what we have said heretofore in this opinion, it is perhaps superfluous to add that we have no desire to dissent from the unanimous holding in this country repudiating the English doctrine of ancient lights.

The only other possible basis - and, in fact, the only one insisted upon by plaintiff 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 Fontainebleau is set back only 76 feet 8 inches from the ocean bulkhead line, although it is 130 feet from the ocean measured from the mean high water mark.

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 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.... 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 Miami Beach v. State ex rel. Fontainebleau Hotel Corp., supra, which permit authorizes completion of the 14-story addition according to a plan showing a 76-foot setback from the ocean bulkhead line. Moreover, the plaintiff's objection to the distance of the structure from the ocean appears to have been made for the first time in the instant suit, which was filed almost a year after the beginning of the construction of the addition, at a time when it was roughly eight stories in height, representing the expenditure by defendants of several million dollars. In these circumstances, it is our view that the plaintiff has stated no cause of action for equitable relief based on the violation of the ordinance - assuming, arguendo, that there has been a violation.

Since it affirmatively appears that the plaintiff 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.

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39931433)

Each year, Hussein Jaber, an Arab Israeli, puts a $14,000 down payment for all of Israel's leavened products. Will he be able to scrounge up the remaining $300 million this year?

Nir Gontarz SendSend me email alerts

Mar 28, 2018 5:31 PM

Bread. Not kosher for Passover.

Bread. Not kosher for Passover.Natan Dvir

Hello, Hussein Jaber from Abu Ghosh. Nir Gontarz here, a journalist with Haaretz. How are you?

Thank you. Fine. Good evening.

Tell me, sir, are you going to buy the chametz [the leavened food not permitted by Jewish law during Pesach] of the State of Israel again this year, ahead of Passover?

Hussein Jaber.

Hussein Jaber.

Correct.

Do you have time to talk to me about it for a minute?

Yes, by all means.

How does it work from your point of view? What’s the procedure?

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It’s a full-fledged official contract. On March 29, Passover eve, we will meet at the Chief Rabbinate – [Finance] Minister Moshe Kahlon, I and the chief rabbis. With witnesses, of course. And then the ceremony begins. The finance minister gives the rabbis power of attorney to sell the state to Jaber Hussein – that’s me.

To sell the chametz.

All the chametz in the state.

Yes.

And the leavened products that are on the way to Israel, on planes, on ships – it’s all mine. He grants the rabbis power of attorney, and the rabbis sell it to me, and I have to pay an advance with the intention of completing [payment of] all the money by the end of Passover.

Okay.

And then there are the assessors, who have to estimate the cost of the chametz.

And in practice, you pay something?

A down payment of 50,000 shekels cash [about $14,000]. And then I have to complete the payment by the end of Passover.

What’s the total value of the transaction? How much do you have to come up with?

$300 million.

I see. Do you get the 50,000 back?

I pay it as a down payment.

And when Passover ends, you get it back?

If the transaction is annulled. But in the meantime, my intention is to buy. It’s a full-fledged official transaction. There are terms and everything.

How many years have you been doing this?

Twenty years already.

Did you ever say to yourself, “If this is an official contract, then maybe I will buy everything and not give back the flour”?

For that I have to organize the money. With God’s help, this time I’ll do it.

So this time, you’re really and truly going to buy it all and not give it back?

Yes, I want to organize the money.

This time you’re really going to try to organize it? Where are you going to find $300 million? You’re being serious?

Serious, of course.

Why do you actually cooperate with this unkosher deal of the Jewish rabbis?

If I can help with something – gladly, with pleasure.

It’s just a game. Because the Israeli chametz remains in the Jewish factory. It’s not that you really take it and hold on to it so the Jew won’t touch leavened food, heaven forbid. It’s a game. The rabbis are good at these games, but why do you take part in it?

Why do you see it as a game? It’s really a formal transaction in every sense: terms, contract, signatures.

Funny. For 20 years, the state has signed off on a $300 million transaction with a person it knows will not be able to meet the payment and who will regret it.

Yes, I simply don’t succeed in raising the money, you see? But the transaction itself is perfectly fine. Everything is written down. Signatures, witnesses, all proper.

I understand. But for 20 years, you have failed at raising the money, and every year you try?

I try every year. Certainly.

If a Saudi sheikh were to give you the money, $300 million, so that the Jews would be stuck without food, would you do it?

Every offer on its own merits. We’d examine it.

Alright, I can hear that you’re at least laughing. Don’t you notice that the whole situation is ridiculous?

Why? It’s actually perfectly fine.

You don’t think that once again, “God” is being made fun of?

Making fun of God? Heaven forbid. How?

Because if there were a God, he certainly wouldn’t be dumb. He’d understand that he was being tricked.

Why? In olden times, it was the custom to spill out the chametz, or burn it, or to get rid of it in some way.

Well, exactly.

Today it’s huge quantities. You can’t spill it out or throw it away. So because of that, it’s as if it’s transferred during Passover to someone who is not a Jew.

And that’s alright with “God”?

I don’t know if it is or it isn’t. It’s just done.

What do you do when you’re not trying to raise $300 million?

I’m a hotelier. I’m a manager at the Jerusalem Ramada, and also the deputy head of the Abu Ghosh municipal council.

For a salary?

On a volunteer basis.

Well, maybe this year you’ll succeed in raising the money and decide not to give back the flour.

We’ll see. We’ll check.

Hussein, send me your photograph, please.

No problem. Alright.

Can you take care of that now?

Do you want a photo with Bibi?

No, thanks. Just yours.

He also sold the state a few times, as finance minister.

No need. Why do you they choose you all the time?

Because I’m a good person, reliable.

Or they rely on your not being able to raise the money.

Could be.

Good, sir, thank you very much.

All the best. Thank you.

Bye.

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39931588)

https://www.haaretz.com/israel-news/.premium-each-passover-this-man-tries-and-fails-to-buy-all-of-israel-s-bread-1.5957322

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39931568)

Horseshit.

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39931770)

i stand with breadmo

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39932595)

Most people agree -- and they're right -- that external evidence can be used to determine subjective intent.

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39935555)

Does the Jewish god only care about legal title?

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39931758)

the jews putting on the conference put out $2.3M as a deposit, and the hotel is stiffing them. why arent they entitled to their money back?

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39931504)

did delano cancel their seder?

(http://www.autoadmit.com/thread.php?thread_id=4497421&forum_id=2#39931477)