The opinion
SIBLEY, Circuit Judge
(dissenting).
The decree about to be affirmed is, I think, grossly inequitable in its distribution of the burden of the bonded debt of $238,000. Its effect is to make persons owning the property east of Biscayne Bay and not within the town pay about two-thirds of this debt although the bond money was expended almost wholly for permanent improvements within the town on the west side of the Bay. It is just that the bondholders, have their money; but not just that the most of it should come from property east of the Bay and from persons who were not active in issuing the bonds or misstating the town limits, because the territory and the inhabitants west of the Bay, constituting the real town, got and retained all the benefits but are to pay relatively little.
The evidence is undisputed that in March, 1926, about 2,500 persons lived in a community west of Biscayne Bay to the north of the city of Miami, while three or four miles across the Bay and between ,it and the ocean lay about two square miles of vacant but valuable land partly plotted into streets and lots but mostly in mangrove swamps, there being thereon but ten dwelling houses, some of them occupied only in winter, and but twelve inhabitants. Under the Florida statute for the self-incorporation of a “hamlet or village,” the west-siders called a meeting attended by about 100 persons, of whom 38 were qualified voters, no east-sider appearing to have been present, and the 38 voted into existence a town which should include both the east and the west side territory. A causeway across the Bay was about to be constructed, apparently as a private enterprise, but a hurricane destroyed its beginnings in 1926 and it was never built, so that one on the east side in order to reach the *982 west side settlement otherwise than by boat must go ten miles. The town officers, always west-siders, in 1927 and 1928 issued the town’s bonds, $69,000 expressly for streets and sidewalks, and $169,000 for general purposes, and spent the whole for streets, sidewalks, a town hall, a sewerage system, waterworks, fire wells and garbage trucks, all on the west side save that $6,000 was spent for mosquito eradication on the east side; the greater part of that, however, being an investment in equipment still owned by the town. The town undertook on the east side some garbage removal, some road repair work and some police protection, but afforded neither water nor fire protection, nor sewerage nor lights. Some taxes were paid from the east side, but most of them were defaulted. Some property owners there made no protests against the town’s activities, but others did. One large landowner, a defendant here, resisted always and by litigation. In August, 1929, that landowner and three others joined the state of Florida, acting, through the Attorney General, in filing a quo warranto against the town. After a decisive opinion from the state Supreme Court, Mahood v. State ex rel. Davis, 101 Fla. 1254 , 133 So. 90 , that the statute of Florida allowing the self-incorporation of a hamlet or village did not authorize the inclusion of land across miles of navigable water, the town authority was ousted from the east side on December 18, 1931. Several of the property owners, defendants here, obtained under another judgment of the Supreme Court, Leatherman v. Alta Cliff Co., 114 Fla. 305 , 153 So. 845 , a cancellation of the tax certificates previously issued by the town against their property. The Supreme Court of Florida many years before had construed the statute and held that it did not authorize the inclusion of any but land contiguous to the village or hamlet. Town of Enterprise v. State, 29 Fla. 128 , 10 So. 740 .
When in 1926 the west-siders undertook what they did both they and the bond-buying public should have known that there was no warrant of law for including the land on the east side of the Bay. Although the bondholder, complainant here, being no party to the above-recited litigations before the Supreme Court of Florida is under no adjudication binding on him, nevertheless the decisions are conclusive in this court on the construction of the Florida statute. In other words, the law in this case is against him.
So are the equities. The bond money produced streets and sidewalks, a town hall, a waterworks, sewerage, and fire protection system wholly on the west side. The mosquito eradication on the east side was probably only a temporary benefit. The lawful town and not the east-siders got the permanent benefit of the whole expenditure. The east-siders may have acquiesced as far as they did because of the general benefit to them of being in the town. The state of Florida by quo warranto excluded them from the town in December, 1931.' Since then they could have no police protection or garbage service or street repairs, nor any hope of waterworks, street and sidewalk construction or other town benefits which would have been due them. All consideration for identifying themselves with the town then failed. They got nothing and can get nothing from it. It is not shown that they have estopped themselves to set up their legal-rights. Estoppel is personal, not territorial. No east-sider, much less one with which any defendant is shown to be in privity, has been proven to have participated in the false delimitation of the town, or in the issuance, validation or sale of the bonds, or to have said or done anything to-mislead the bond buyers. There is indeed no particle of evidence that any bond buyer was ever misled. The bonds have no recital of the town’s boundaries in them. The buyers may not have investigated the-boundaries at all; or they may have known, as indeed they were bound to know, that the Florida statutes did not allow noncontiguous land to be taken into a self-incorporated town.
If we take the view that the bondholders were not bound thus to know the law, and that all the east side property holders-were acquiescent in being in the town and in floating the bonds, nevertheless the state of Florida has.put them out. The de factotown has ceased to be. An unexpected, situation has arisen. The east side having been divorced from the benefits of the bond expenditures and from all benefit of' being in the town, some basis of prorating the indebtedness which takes cognizance of the distribution of the bond: benefits would be equitable. I see no fairness in letting this town’s officers, in whose • selection the east-siders have no voice,. value and assess the property of the east-side just as though the east side had gotten as many water mains, sewers, streets, and-sidewalks, public buildings and vehicles as. *983 the west side has gotten. A practical formula would be to treat the ouster as a separation of two territories, and to value as of that date the permanent bond improvements retained on the west side, and charge that value wholly to the west side; the balance of the bond debt being left as the joint burden of both sides. If on a fair proration taxes would be high on the west-siders, they have no one but themselves to blame. The complaining bondholder should not have the decree he has gotten.
On Petition for Rehearing.
PER CURIAM.
As neither of the judges who concurred in the judgment of the court in the above numbered and entitled cause is of opinion that the petition for rehearing should be granted, it is ordered that the said petition be, and the Same hereby is, denied.