
    William A. Rawls, Appellant, vs. Tallahassee Hotel Company, a Corporation, Sarah S. Lewis, George Lewis, Edward Lewis and William C. Lewis Appellees.
    1. Assignments of error must be argued, or they will be deemed abandoned.
    2. The proprietor of lots abutting' on a public street is presumed, in the absence of evidence to the contrary, to own the soil to the center of the sti*eet.
    
      3. Under section 2071 of the Revised ¡Statutes the care and management of a wife’s separate statutory properly is committed to her husband, and a decree perpetually enjoining him from making use of her property or a portion thereof, in a particular manner beneficial to the property necessarily affects the interests of the wife adversely, so as to require that she be made a party to the suit in .which such decree is sought.
    4. A decree rendered in the absence of an indispensable party will be reversed, and an objection of tills -character can be urged for the first time in an appellate court, or be considered by the court of its own motion.
    Appeal from the Circuit Court for-Leon County.
    
      Statement.
    
    On April 1st, 1895, the appellees. The Tallahassee Hotel Company, a corporation, Sarah S. Lewis, George Lewis, Edward Lewis and William C. Lewis, filed their bill of complaint in the Circuit Co-urc of Leon county against the appellant, William A. Rawls, alleging, among other things, that during or about the month of January, 1887, “with the consent of the legal authorities of the city of Tallahassee,” they “constructed and laid a sewer pipe extending from the Leon Hotel (which hotel is situated in said city on McCarty street, between Monroe ánd Adams streets) along said McCarty street easterly crossing said Monroe street, Calhoun- -street and Gadsden street to- the eastern end of said McCarty street,” thence through the private lands of -the said‘George, Edward and William C. :Lewis, -for a distance of about five hundred feet to- the “St. Augustine Branch;” that this sewer pipe was laid by them for the exclusive use of said Leon Hotel and the family residences of ‘Sarah S.,- George and William C. Lewis; that they owned, were in possession of, occupied and used all the city lots, and tracts of land along McCarty street ’between the Leon Hotel and the 'eastern end of said street (which was- the eastern boundary of the city of Tallahassee), thence da'the said! “St. Augustine Branch,” except those city lots, between Monroe and Calhoun streets; that the entire expense of said sewer 'was paid by them, nnd “the said sewer and all the rights and privileges attached 'thereto and its use,” were ‘their private property.
    The bill their alleged that the appellant, William A. Rawls, had | given notice to complainants that he intended to, and'would, notwithstanding their objection, “tap said sewer pipe,” !and connect therewith a sewer pipe for his own use; that they had refused to permit such use of their sewer pipe, and notified Rawls that, he/must not use it, but he persisted in his determination to do so-; that Rawls threatened and 'was'about to “tap” their said sewer pipe, • which'would be ¡an injury'to- them and cause the casting of waste, refuse and other matter upon their premises; and that ‘Rawls threatened to cast and empty and ’to deposit quantities 'of 'rubbish, waste, refuse and other matter upon their premises, ,for which they had no adequate remedy at law.
    An injunction was'prayed for, perpetually enjoining Rawls from “tapping, joining- to or otherwise interfering with the said sewer pipe” and “perpetually enjoining him from dumping said’matter” on complainants’ premises.
    Appellant filed a general .demurrer to the bill for want of'equity, -which was. overruled, and thereupon he answered the'bill. He admitted that there/-was a sewer pipe laid between! the points- and along the route mentioned in the ¡bill, but averred upon information and belief “that there was''no official authorization, or license, by the legal authorities of said city to said complainants for laying said sewer” and he denied that said sewer was laid with the consent of said authorities. He averred that he had no information as to whether said sewer was laid for the exclusive use of complainants, as alleged in the bill, or as to whether the entire expense of said sewer was paid by them, and the sewer and all the rights and privileges attached thereto, and itsf use were the private property of complainants; and further averred upon, information and 'belief that ¡if said allegations were true neither the city of Tallahassee, nor its legal authorities, had any right or power, under the law, to grant to complainants the right to construct and lay said sewer through the public streets of said city, and he prayed the'same benefit of this defence as if it had been raised by demurrer to the bill.
    The answer admitted that 'complainants owned all the lots on the north side of McCarty street, from Adams street to the eastern boundary of .the city, except those lots situate between Monroe and Calhoun streets, and averred that,.two of the lots between; said last named streets were owned at the time said sewer was laid, and ever since, by Mary M. ¡Rawls, appellant’s wifey 'and appellant and his family had their home and residence thereon; that the said lots had a frontage on McCarty street of'one hundred and thirty feet, and that said sewer pipe was laid ¡along the entire frontage of said lots, on the half of McCarty street next thereto, and within a few’ feet, of the sidewalk in front of 'appellant’s /residence; that for such distance the sewer pipe was laid in the soil of the street, the fee of which was vested in appellant’s wife, Mary M. Rawls, and that she had never granted or in (any way given to com: plainants, or any of them, the right or privilege of laying said sewer in ,'the soil in front of her said lots, and the complainants were tresspassers thereon.
    The answer alleged, on information and belief, 'that at the time of institution of suit the sewer pipe did not empty into the “St. Augustine Branch” at any point on the lands of any of the complainants, but upon the lands of the estate of the late James D. Westcott, and-that, since the institútion of'suit; the complainants, or some of them, had the,eastern extremity of the sewer moved to- a point further north than where it formerly debouched, and on to the lands of the complainant, George Lewis.
    The defendant admitted that before the institution of suit he made preparations to connect with said sewer at a point immediately in front of the lots owned ;by his wife, and in the soil of the street the fee of which was in his wife,, for the purpose of domestic or house-drainage, as he had been advised and believed-'and thereupon alleged he had a legal right to do; but in a spirit of abundant caution, friendliness and courtesy, before beginning said work, he sought the complainant, Edward Lewis, who, he was informed'-and believed, was practically the owner and manager of the 'Leon Hotel, and who defendant understood had laid said sewer for the drainage of said .hotel,-and asked his'consent to connect therewith a pipe from defendant’s residence; that complainant, Edward Lewis, gave such consent, and defendant thereafter began to dig a ditch from the lot offfiis wife to the sewer; that, after he had dug down to the sewer and was about to cut into it, the complainant,' George Lewis, came to his office and made objection to his proceeding with/the work and asked him to 'stop it; that after talking the matter over with him and afterwards with him and William C. Lewis together they proposed that if ¡he would stop w.Qrk they would consent to his connecting with said sewer as soon as they could figure Up the cost and determine what proportion thereof he'should pay, for they did not want him to make the connection, and afterwards upon getting the figures claim that the “Lewis boys” had gouged him; that thereupon'defendant discontinued work, which was some time in December, 1894, and after waiting, to the best of his recollection, until the first part of March, 1895, without having received any further communication on the subject from the said George and William C. Lewis, he met the latter and told him that, as they had said nothing further about the sewer in the lineiof their proposition, he would proceed at his convenience to connect therewith, but before taking any other steps in that direction he was served with an injunction.
    The answer further averred upon information and belief that the entire sewage'from the'Leon Hotel, a large public house with accommodation for upwards ¡of one hundred and fifty guests, and from the residences of'William C., Sarah S. and George .'Lewis, all of which were large and'commodious, emptied into the sewer, and was discharged'into the St. Augustine Branch atjthe terminus of the sewer, and carried into a ditch which had been cleaned at public j expense, thence drained through said ditch half way'around the city of Tallahassee; that the additional'drainage from the residence of defendant and his family/would not increase to any perceptible degree the amount of 'sewage so discharged, nor perceptibly add to the “noxiousness” of said drainag'e; and that the injury, if any, caused thereby would be of such slight consequence that a court of equity would not relieve against the same by injunction. Defendant 'further denied that he had' threatened to cast and empty quantities of rubbish, waste, refuse and other matter upon the premises of complainants, or the lands owned and occupied as their premises, to the injury of said complainants.
    A general replication was-filed and testimony taken whereupon a'decree was rendered “that the defendant William A. Rawls, his servants, fagents and attorneys do henceforth’and forever absolutely desist and refrain from tapping, joining other pipe to or otherwise, in any manner interfering with the sewer pipe mentioned in the bill in this cause, 'extending.'from the Leon Hotel along McCarty street 'easterly crossing Monroe, Calhoun and Gadsden streets in the city of Tallahassee, to the eastern end of said McCarty street, thence through the private lands of the complainants of the St. Augustine Branch.”
    From that decree this appeal is prosecuted and error is alleged in 'overruling defendant’s demurrer to the bill, and in rendering a final decree making the injunction perpetual. Í
    The other facts are stated in'the opinion of the court.
   Glen, C.

(after stating the facts.)

The assignment of error that the court erred in overruling the demurrer to thle bill is not so argued 'under the rule on the subject as to demand any consideration on the part 'of the court, and will, therefore, be treated as abandoned. ;

The second and'only other error assigned is that the court erred in making thie injunction perpetual. The appellees alleged in their bill that the sewer pipe in question was constructed and laid along McCarty street in the city of Tallahassee with the consent of the legal authorities of the city. The answer denied this, and further denied the'power- of the city, or its legal authorities,, to grant such a right to appellees. It alleged that Mary M. Rawls, appellant’s wife, was the owner of two lots-having a frontage ipf one hundred and thirty feet on McCarty street, and‘that'the-sewer pipe was laid along the entire frontage of said'lots, on the half of McCarty street next thereto, in the soil of the street the fee of which was vested in the said Mary M. Rawls. In the evidence,there appears a stipulation by the parties that the said Mary M. Rawls “had a (deed in fee to the lots on the northwest comer of Calhoun and McCarty streets, and numbered 117, 120, 121, 122, in the North Addition of Tallahassee, having a frontage on McCarty] street, according to the map of the city 'of Tallahassee, one hundred and thirty feet.” It further appeared, both from the evidence introduced on theipart of the appellant and that introduced on the part of the appellees, that the sewer pipe was laid in the soil of McCarty street, north of the centre of said- street and therefore'on the'side of the street abutting and immediately in 'front 'o-f the lots 'admitted to be the property of Mrs. Rawls. It also further appeared from the testimony that appellant extended a sewer pipe for domestic-purposes from a (residence on the lots owned by his wife to the said pipe laid by appellees and proposed to form a connection therewith, and'that in doing so he asserted no individual right ¡separate from that connected with the ownership of his wife in the soil in .which,the pipe was extended. His action m reference to laying the pipe was consistent with that 'of representative of his wife in providing sewerage for her separate statutory Ireal 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 committed to her husband. Revised Statutes, Sec. 2071; Marye v. Root, 27 Fla. 453, 8 South. Rep. 636; Fairchild v. Knight, 18 Fla. 770, text 784; McGill v. McGill, 19 Fla. 341. The decree ¡rendered required the appellant to henceforth and forever absolutely desist and refrain from tapping, joining 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 adjacent thereto, the sewer pipe of appellees was laid. In the absence of evidence to--the contrary, she (is presumed to have owned the soil of- the street to the centre thereof. Florida So. Ry. Co. v. Brown, 23 Fla. 104, 1 South. Rep. 512; Lovett v. State, 30 Fla. 142, text 166-167, 11 South. Rep. 550; Jacksonville, Tampa and Key West Ry. Co. v. Lockwood, 33 Fla. 573; 15 South. Rep. 327. An abutting proprietor owning to the centre of the (street has the right to use the soil thereunder for all purposes consistent with the foil enjoyment of the public'easement. Allen v. City of Boston, 159 Mass. 324, 34 N. E. Rep. 519; Elliott on Roads & Streets (2nd. ed.) Sec. 690. This right follows as a necessary incident 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 rendered 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 enjoined from.using her property in such a manner’as- to interefere with the. sewer pipe of appellees, and the decree thus, if not otherwise, adjudicated rights affecting Mrs. Rawls, in the enjoyment of her property, although she was not a 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 Fla. 135, 23 South. Rep. 880; Nelson v. Haisley, 39 Fla. 145, 22 South. Rep. 265; Lyon v. Register, 36 Fla. 273, 18 South. Rep. 589; Greeley v. Hendricks, 23 Fla. 366, 2 South. Rep. 620; Wykes v. Ringleberg, 49 Mich. 567, 14 N. W. Rep. 498; Beasley v. Shively, 20 Oregon, 508, 26 Pac. Rep. 846. This defect as to parties renders it improper for this court to consider other questions involved.

The (decree appealed from should be reversed and the cause remanded for further 'proceedings consistent with this opinion.

Hocker, C., and Maxwell, C.,. concur.

Per Curiam.

The foregoing opinion 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.

(Chief Justice Taylor, on account of sickness in his family, did not participate in this decision.)  