
    CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, State Road Department, and George Hunter, Julian Hudson, Mack Jones, Fred Huber, and Herman Hastings, as County Commissioners of Lee County, Florida, Appellants, v. Ann L. SCOTT et al., Appellees.
    No. 4249.
    District Court of Appeal of Florida. Second District.
    Dec. 4, 1964.
    
      Thomas J. Schwartz, West Palm Beach, for appellant, Central and Southern Florida Flood Control District.
    Frank A. Pavese, of Pavese & Waldorf, Fort Myers, for appellant, Lee County.
    P. A. Pacyna, Tallahassee, for appellant, State Road Dept
    Robert J. Boylston, of Goodrich, Hampton & Boylston, Bradenton, for appellees.
   SMITH, Chief Judge.

The appellants, defendants in the trial court, take this interlocutory appeal from an order entered in chancery denying their motions to dismiss the plaintiff-appellees’ third amended complaint. The question on appeal is: Does the complaint state a cause of action? We answer the question in the negative and reverse.

Plaintiffs’ third amended complaint alleges that the plaintiffs and the class they represent constitute all of the residents of the unincorporated town of Olga which is located on both sides of the Caloosahatchee River in Lee County; that until its recent removal the two parts of the town were connected by a public bridge which had been in existence for many years; that the defendants, Central and Southern Florida Flood Control District and the County Commissioners of Lee County, entered into an agreement whereby the Flood Control District agreed to pay a sum of money toward the cost of a new bridge at a different location in exchange for which the County Commissioners purported to release the Flood Control District from ,its obligation to replace the bridge at Olga, which it was necessary for the Flood Control District to remove in connection with its project of widening the river; that the agreement and release were of no effect because the bridge formed a part of the state highway system over which the County Commissioners had no authority; that the Flood Control District is under a duty to replace the bridge; and that the agreement amounts to an acknowledgment by it of that duty.

The complaint further alleges that the removal of the bridge amounted to an attempted vacation of a public highway by the Flood Control District, which is without authority to vacate any public road, or, in the alternative, that the agreement constituted- an acceptance by the County Commissioners of the Olga bridge road as a county road after relocation of the state road and that the County Commissioners did not validly vacate the county road because no public notice was given and no public hearings were held.

The complaint then alleges that the highway of which the Olga bridge formed a part was a state road; that the state road was relocated over the new bridge by the State Road Department when it knew that the Olga bridge would have to be replaced; that the relocation of this state road amounted to a gross abuse of discretion on the part of the State Road Department because the new bridge is located five miles west of the former Olga bridge in an area much more sparsely populated than the Olga area; that no legitimate public purpose could have been served by the relocation; that the relocation deprived the residents of Olga of any practical ingress and egress across the river without any correlative benefit to the public at large; and that the State Road Department did not give notice or hold any public hearings in connection with the relocation.

The complaint continues by alleging that the State Road Department did not abandon the Olga road after the relocation; that it remained under a duty to maintain the Olga road; and that it failed to perform its duty to provide a practical alternate route following the removal of the bridge; that the State Road Department had knowledge of and acquiesced in the agreement between the County Commissioners and the Flood Control District; that the removal of the bridge necessitates the residents of one part of Olga traveling a minimum of ten miles to get to the other part; and that the road now necessary for them to travel is in bad condition.

The complaint concludes by alleging the decrease in value of property in Olga, the loss of business and the adverse economic effects of the removal of the bridge without replacement, all of which allegedly amounts to a deprivation of the property of the plaintiffs without due process of law and results in irreparable damage to the plaintiffs. The complaint prays for an order requiring the defendants to replace the Olga bridge.

The relief sought by the plaintiffs is the court’s mandatory injunction. In such a complaint every necessary fact should be clearly, definitely and unequivocally alleged and there must be something more than the conclusions and opinions of the plaintiffs to authorize interposition of the court by mandatory injunction. 17 Fla. Jur., Injunctions, § 76. The subject matter of the suit is in the nature of abating a nuisance and the rules of pleading applicable to suits for injunction generally apply in suits to enjoin a nuisance. 23 Fla.Jur., Nuisances, § 85. In the main the allegations of the complaint are conclusory and consist of opinions. The plaintiffs do not allege that they have been deprived of ingress and egress; they allege only the conclusion that they are deprived of practical ingress and egress across the river. Compare: Daugherty v. Latham, 1937, 128 Fla. 271, 174 So. 417, where the highway sought to be closed constituted the plaintiff’s only means of ingress and egress. See, Daugherty v. Latham, 1939, 139 Fla. 477, 190 So. 742. We see nothing more in the complaint than an expression by the plaintiffs of their dissatisfaction with actions of governmental bodies and an attempt by them to compel these authorities to replace a bridge at a site which will preserve their former convenience and economic advantage.

To grant relief on the plaintiffs’ allegations would require the court to substitute its judgment for that of the duly constituted authorities who are vested by law with the authority to locate and relocate highways and bridges in the state. This no court should do even though the facts alleged depict an area inconvenienced and hurt financially through such relocation. The relocation of any public highway involves to varying extents and degrees some inconvenience and financial detriment to those left on the former location and we see no special injury differing not only in degree but in kind from that which any community suffers by such relocation.

The duty and responsibility of weighing the injury thus occasioned against the public convenience in travel is vested in the State Road Department as to the state highway system and the Board of County Commissioners as to county roads, and their exercise of these governmental functions is limited only by the lawful exercise of their discretion. If the actions of governmental agencies do not exceed their lawful authority, the courts should not substitute their judgment for that of the governmental agencies. State v. Florida State Improvement Commission, Fla.1954, 75 So.2d 1; Webb v. Hill, Fla.1954, 75 So.2d 596; Pirman v. Florida State Improvement Commission, Fla.1955, 78 So.2d 718 (cert. den. 349 U.S. 956, 75 S.Ct. 885, 99 L.Ed. 1279); Lewis v. State Road Department of Florida, Fla.1957, 95 So.2d 248 (cert. den. 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261).

Ordinarily, no person has a vested right in the maintenance of a public highway in any particular place; the state owes no duty to any person to send public traffic past his door. Jahoda v. State Road Department, Fla.App. 1958, 106 So.2d 870. In matters concerning the abandonment of roads, the law accords a wide latitude of discretion to the State Road Department as to state roads and to the Board of County Commissioners as to county roads and such discretion will not be disturbed in the absence of a clear abuse thereof or the invasion of property rights. Wedner v. Escambia Chemical Corporation, Fla.App. 1958, 102 So.2d 631; Miller v. Martin County, Fla.App.1963, 151 So.2d 290.

The complaint contains no statement of facts and the plaintiffs have cited no rules of law to support their various conclusions that the actions of the defendants were illegal or unauthorized. For example, no facts or rules of law are pleaded or cited indicating that the alleged agreement amounted to an acceptance by the county of the bridge as a part of the county road system or that the notice and hearing provisions of § 336.10, Fla.Stats., F.S.A., are applicable to the action of county commissioners in executing agreements of the kind alleged here. Likewise, no facts or rules are pleaded or cited indicating that the State Road Department is required to give notice or hold hearings before it relocates or abandons a state road or a bridge which formerly formed a part of a relocated state road or that the department is required to replace a bridge such as this by the detour provisions of § 335.15(1), Fla.Stats., F.S.A. The same objection applies to the plaintiffs’ conclusions that the Flood Control District was under a duty to replace the bridge, that the purported release was ineffectual because the County Commissioners have no authority over a state road, and that the removal of the bridge without replacement amounted to an attempted vacation of a public highway by the Flood Control District. Even if it were assumed that the Flood Control District was under some duty or that it incurred some obligation with respect to the bridge, these latter allegations fail to take into account the fact, also alleged, that the State Road Department had knowledge of and acquiesced in the alleged agreement between the County Commissioners and the Flood Control District. Finally, even if it could be said that the removal of the bridge without replacement was unlawful or unauthorized, the consequent interference with' the plaintiffs’ right of passage constitutes an injury common with the public loss of a right of passage over the bridge, and the plaintiffs, having failed to allege facts showing that they suffer special injury differing not only in degree but in kind from those suffered by the public, have no private right of action. Brown v. Florida Chautauqua Ass’n, 1910, 59 Fla. 447, 52 So. 802; Bozeman v. City of St. Petersburg, 1917, 74 Fla. 336, 76 So. 894; Henry L. Doherty & Co. v. Joachim, 1941, 146 Fla. 50, 200 So. 238; Wedner v. Escambia Chemical Corporation, supra.

The appealed order is reversed with directions to grant the defendants’ motions to dismiss for failure to state a cause of action.

KANNER, (Ret.), J., concurs.

WHITE, J., dissents with opinion.

WHITE, Judge

(dissenting).

As noted in the majority opinion the plaintiffs allegedly are residents and real property owners of the unincorporated town of Olga suing in their own behalf, and for numerous others similarly situated, to obtain rectification of an alleged public nuisance created by the defendants through removal of a bridge; and the plaintiffs allege facts purporting to show special inconvenience and damage to themselves.

Specifically the suit was brought to restrain the defendants from vacating the “Olga Bridge,” which structure actually has been removed, and to require replacement of the span as part of a subsisting public way. It is alleged in substance that the defendants by deliberate concert of action caused the town of Olga, located on both sides of the Caloosahatchee River, to be severed by destroying the bridge which was the only bridge cmd sole practical means of cross-river travel and commerce between the two segments of the community; that in widening the river Flood Control had found it “necessary” to remove the bridge which constituted a part of former State Road 31 at Olga; that in order to obtain assurance against any obligation which Flood Control might have consequent upon the disruption of cross-river access at Olga, Flood Control had previously entered into secret agreements with the County and with Road Department whereby Flood Control would contribute $225,000.00 toward construction of a new “Wilson-Rigott Bridge” on a new relocated “State Road 31” approximately five miles west of Olga; that thereupon Road Department began building the new “Wilson-Pigott Bridge” while Flood Control began removing the “Olga Bridge.”

The plaintiffs, asserting gross abuse of discretionary power on the part of defendants, allege that former State Road 31 is still being maintained but without the bridge; that plaintiffs and other Olga residents on one or the other side of the river must now travel a minimum of ten miles to cross the river and reach the other portion of the town, and that this lengthy route is in gross disrepair and highly dangerous; and plaintiffs allege general and special reduction of value of their properties due to the removal of the bridge without any replacement. With respect to the latter allegation the defendants submit, and the plaintiffs agree, that ordinarily no one has a vested right to the maintenance of a public highway in a particular place and that reduction of property values merely as a result of traffic diversion does not of itself denote compensable damages or unlawful infringement of rights. See e.g. Jahoda v. State Road Department, Fla.App.1958, 106 So.2d 870.

The defendants submit citations soundly, underlining the rule that public authority has broad discretionary power to change and redesignate public roads. The plaintiffs retort that this generally correct rule implies its limitations and does not foreclose the right here asserted to a re-establishment of cross-river access on the road which is still maintained as a public way but without the bridge which was a vital connecting link. In other words, the plaintiffs submit inter alia that in relating the general rule to the particular situation it does not follow that the defendants, or any of them, had the right to annihilate the bridge on the subsist ing public road at Olga even though the previous designation as “State Road 31” has been lawfully applied to another road some five miles away.

Notwithstanding defendants’ contrary contention, this is properly denominated a class suit on behalf of plaintiffs and numerous others similarly situated. The questions are of common interest to the members of the class, and special or distinctive injury .and inconvenience is adequately pleaded. See 24 Fla.Jur. Parties §§ 16 et seq.; 67 C.J.S. Parties, §§ 13-14, cf. Brooks-Garrison Hotel Corp. v. Sara Inv. Co., Fla.1953, 61 So.2d 913, 916. Plaintiffs of the severed Town adequately allege special damages differing in kind from those sustained by the public at large. Compare O’Dell v. Walsh, Fla.1955, 81 So.2d 554, a suit to remove an obstruction on a certain public road.

There is, of course, no doubt that administrative boards created by the State legislature and authorized to contract, borrow money and undertake projects and obligations in the business world, may be sued in appropriate actions as legal entities. See e.g. Board of Public Instruction, etc. v. Knight & Wall Co., 1931, 100 Fla. 1649, 132 So. 644. Although not specifically denominated as such, the instant suit is in the nature of an inverse condemnation proceeding. Such actions are generally pursued against governmental agencies for the redemption of property rights taken in fact by the governmental defendants without formal exercise of eminent domain procedures. Injunc-tive relief is usually sought in such instances, and our courts have upheld inverse condemnation proceedings as legally recognizable causes of action. See e.g. City of Jacksonville v. Schumann, Fla.App. 1964, 167 So.2d 95, First District Court of Appeal, opinion filed 18 August 1964.

A necessary question concerns whether the authority to condemn for public use carries with it the right to destroy a portion of an allegedly vital and presently used right of way without legal redress. It is recognized that the law does not guarantee a property owner the most convenient route from his door and that private interests must often yield where the good of the community is at stake. Here, however, proper parties plaintiff allege wilful destruction of a vital link of a public right of way otherwise maintained which effectively severs the economic unit, Town of Olga, without notice or hearing and without proceeding under the law relating to abandonment or vacation of roads and bridges. As noted, the remaining right of way is still maintained — but without the bridge. Adjoining landowners must have some protection against possible arbitrary and unreasonable destruction of routes of travel, and necessary remedies are available in equity especially where the severance might indirectly result in the constructive vacation of connecting rights of way.

It should be emphasized that this appeal is confined to the question of pleading; viz., whether or not the complaint as amended is sufficient to withstand the motions to dismiss. The complaint was amended three times, which is indicative of the chancellor’s recognition of the very broad discretionary powers vested in the defendant public bodies. It is also evident that the chancellor, in refusing to dismiss the thrice amended complaint, recognized that these discretionary powers are not impervious to challenge on the ground of palpable abuse. It was apparently for these reasons, and on the premise that the establishment of plaintiffs’ allegations could impel an affirmative adjudication of right with potential relief for the plaintiffs, that the chancellor denied the motions to dismiss.

Plaintiffs allege a legal wrong. It is possible that the defendants may have funds available for legal redress. Perhaps the replacement of the span had been duly contemplated following the corrective measures engineered by Flood Control with funds specifically reserved. The court is without knowledge as to such matters and such eventuality should not be summarily treated one way or the other — at least not before the filing of responsive pleadings; nor should affirmative defenses be asserted as grounds for dismissing the complaint even though the availability of the defenses in bar to the action may appear on the face of the complaint. Fletcher v. Williams, Fla.App.1963, 153 So.2d 759, 762; Carson v. City of Fort Lauderdale, Fla.App.1963, 155 So.2d 620, 623.

The purpose of a complaint is to plead a cause of action, not to prove one, and suspected weakness in the issues or forseeable difficulty of proving certain allegations may not rightly be used as grounds for granting a motion to dismiss; and incorporation of some incompetent matter does not justify final dismissal of a complaint otherwise justiciable. Under the liberality of modern rules of pleading the well-pleaded facts of the instant complaint, as finally amended, appear to contain sufficient allegations inviting further inquiry and calling for responsive answers. The chancellor considered the complaint not without equity, andj. in agreement, I would affirm. 
      
      . These defensive points may be raised more appropriately by motion to strike than by motion to dismiss, unless the complaint otherwise wholly fails to state a justiciable cause.
     
      
      . “It is impossible to see how the appellee can prevail on the face of the established law. He was not a citizen of the county; he owned no property on the road; another road toas equally accessible. In these circumstances he patently had no standing as a litigant seeking either a preventive or coercive writ.” (emphasis added) [O’Dell v. Walsh, supra]
     
      
      . § 29 of Article XVI, Florida Constitution, F.S.A. states in part: “No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money * * (emphasis supplied)
     
      
      .§ 4, Declaration of Rights, Florida Constitution, which provides: “All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.”
     
      
      . Compare Morrison v. Farnell, 1936, 126 Fla. 385, 171 So. 528, 532, where the Supreme Court found no abuse of discretion on the part of the road department in locating a proposed route. The court observed that under some conditions property owners may have the right in continued traffic on certain streets. However, the court there found:
      “ * * * There is no threat to destroy Duval street as a thoroughfare suitable for traffic. There is no threat' to physically injure any property on that street. The only threat is to turn, a part of the traffic on to a safer,, wider, and less dangerous way. * * * ” (emphasis supplied)
      See also 16 Fla.Jur., Highways, etc., 78 et seq. ''
     