Opinion
May 9, 1950.
Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.
Sibley Davis, Miami Beach, for appellant.
Ben Shepard, Miami, and A.H. Saperstein, Miami Beach, for appellees.
This appeal is from a final judgment quashing an alternative writ of mandamus issued herein upon petition of the appellant, which petition was predicated upon the appellees' refusal to issue a building permit to appellant.
The appellant's petition alleged that he was the owner of a 10-foot strip of land in the City of Miami Beach which had originally been dedicated to be used as an alley way, with the express provision, however, that the property should revert to the subdivider in the event such public use ceased; that long prior to the time petitioner acquired title to the property the public had abandoned any right, easement or use into or over the property; that petitioner had applied to the Chief Building Inspector of the City of Miami Beach for a building permit, but that such had been denied for the reason that "said alley way has been dedicated to public use and that the City has not vacated or abandoned the public use of said alley way."
Mandamus is not the proper method of trying collateral questions which require a legal controversy for their settlement. Myers v. State ex rel. Thompson, 81 Fla. 32, 87 So. 80. The writ does not lie if the title is inchoate, nor if the legal right has not been ascertained; it does not lie to establish a right, but is used to enforce a right after its establishment. Merrill on Mandamus, Section 56, page 64; 34 Am. Jur., Mandamus, Section 55, page 847.
It is our opinion that the legal right of the petitioner to the writ has not clearly been made to appear, and that there was, therefore, no error in quashing the alternative writ. This is, of course, without prejudice to the right of petitioner to have the question of the abandonment of the alley way adjudicated in an appropriate proceeding for that purpose.
For the reasons stated, the final judgment should be and it is hereby
Affirmed.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.