
    STATE ex rel. Melvin JACKSON, and the Culmer Neighborhood Committee #3 of the Neighborhood Development Program, an unincorporated association, Appellants, v. The SEABOARD COAST LINE RAILROAD COMPANY, a Virginia corporation, Appellee.
    No. 71-660.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1972.
    
      Alfred Feinberg, Miami, and William Aaron, Legal Intern, for appellants.
    Bolles, Goodwin, Ryskamp & Ware, Miami, for appellee.
    Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
   CARROLL, Judge.

Proceeding in the name of the state, an individual and two unincorporated organizations filed an action under § 60.05 Fla. Stat., F.S.A. to abate a public nuisance. The action was against The Seaboard Coast Line Railroad Company. Thereby the plaintiffs sought a judgment declaring to be a public nuisance the operation of trains by the defendant between certain hours (8:00 P.M. to 4:00 A.M.) on Northwest Eleventh Terrace from Northwest First Avenue to Northwest Seventh Avenue in the city of Miami. The grounds alleged were noise; danger to vehicles, pedestrians and (attracted) children ; improperly maintained track and roadbed; and absence of adequate warning devices at street intersections.

On motion of the plaintiffs, one of them, The Culmer Area Advisory Board, was dropped as a plaintiff in the cause. On motion of defendants an order was entered dismissing the complaint with leave to amend. An amended complaint was filed. It added allegations of fact relating to the matters set out in the original complaint as constituting a public nuisance. The defendants moved to dismiss. The motion was granted, and the amended complaint was dismissed with prejudice. The plaintiffs filed this appeal therefrom.

Upon consideration of the arguments of the appellants, in the light of the record and briefs, we affirm the judgment of dismissal. It would appear that the remedy, if any, for the matters complained of, would be through control of the railroad operation to be exercised by the Florida Public Service Commission under Chapter 350 Fla.Stat., F.S.A. We hold, however, that the dismissal of the complaint should not have been with prejudice.

Accordingly, the judgment of dismissal is modified to be without prejudice, and as so modified is affirmed.  