The Weekly Tallahasseean., 1902-03-07

the said Mary NJ. Rawls "had a deed in
zee 10 the lots on the northwest corner
OF Calhoun and McCarty streets. and
numbered III, 12O, 121, 122, in the North
addition Of Tallahassee, having 'front.'
age on McCarty street, according to the
map of the city of Tallahassee, one hun
dred and thirty feet" If further ap-
peared, both from the evidence intro
oued on the part of the appellant and
tnat introduced on the part of the ap-
pellees, that the sewer pipe was laid in
the soil OF McCarty street, north of the
center OF said street, and therefore on
the side of the street abutting and i'm
med1ately in front of the lots admitted
to be the property Of Mrs. Rawls. It
also further appeared from the testi-
mony that appellant extended a sewer
pipe for domestic purposes from a resi-
dence on the lots owned by his wife to
the said pipe laid by appellees, and pro-
posed, to form connection Herewith.
and that in doing so he asserted no in
dlVldual right separate from that con-
neeted with the ownership of his wife
IN the soil in which the pipe was ex-
tended. His action in reference to Law
ing the pipe was consistent with that of
representatives Of his wife, in prOVid-
ing sewerage for her separate statutory
real property, and it appears that he
acted solely in that character. Under
our statute the care and management
OF the wife's separate property is COM
mitted to her husband. Rev. st. s 2071;
Marye V. Root, q Fla. 453, South. 636;
Fairchild, V. Knight, IS Fla. 40 (text,
784); McGill V. McGill, 19 Fla. 341. The
decree rendered required the appellant
to "hencefOrtn and forever absolutely
desist and refrain from tapping, join
ing other pipe to, or otherwise in any
manner interfering with, the sewer pipe
mentioned in the bill" Mrs. Rawls was
conceded to be the proprietor of the lots
abutting on McCarty street, in front of
which, and on the side of the street ad-
jacent thereto, the sewer pipe of appel
lees was laid. In the absence of eVi-
dence to the contrary, she is presumed
to have owned the soil of the street to
the center thereof Railway Co. v.
Brown, % Fla. 104, South. 512; Lovett
V. State, 80 Fla. 142 (text, 166, 167), II
South. $50; Railway Co. V. Lockwood
80 Fla. 573, Is South. 327. An abutting
proprietor, owning to the center of the
street, has the right to use the soil
hereunder for all purposes consistent
with the full enjoyment of the public
easement. Allen V. City of Boston, 159
Mass. 324, 81 N. K. 519, SO Am. st. Rep.
423; Elliott, Roads & S. I'D Ed.) S $50.
This right follows as a necessary incl
dent of the ownership, and extends to
any lawful use, so long as such use is
consistent with the rights or necessities
Of the public Under the decree rem
dered by the court, the appellant, as the
statutory custodian of what must be
presumed to be the property of Mrs.
RawlS, was, in effect, perpetually. en-
Joined from using her property in such
n manenr as to interfere with the sQwel
pipe of appellees; and the decree thns.
if not otherwise, adjudicated rights af-
fecting Mrs. Rawls in the enjoymeEt of
her property, although she was NOT
party to the suit. For the reason that
Mrs. Mary M. Rawls was a necessary,
indispensable party, the decree should be
reversed. Craver V. Spencer, 40 Ella.
135, % South. $50; Nelson V. Haisley, SO
Fla. AS, % South. 265; Lyon V. Regis
ter, 36 Fla. 273, l8 South $50; Greeley
v. Hendricks, % Fla. 366, 2 South. $40;
Wykes v. Ringleberg, 40 Mich. 567, IA
N. w. 498; Beasley V. Shively, 20 Or.
sos, 26 Pac. 846. This defect as to
parties renders it improper ror this
court to consider other questions in
vOlved.
The decree appealed from should be
reversed, and the cause remanded for
further proceedings consistent with this
opinion.
HOOKER and MAXWELL, &C., con-
cur.
PER CURTAIN. The foregoing Opin-
ion has been examined by the court,
and is hereby approved and adopted;
and ordered to be filed as the opinion of
the court in said cause.