u.s. prostitutes & pimps - eminent domain statutes, ch. 73, florida stat

8/9/2019 U.S. Prostitutes & Pimps - Eminent Domain Statutes, Ch. 73, Florida Stat.

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Select Year: 2009 Go

The 2009 Florida Statutes

Title VI

CIVIL PRACTICE AND PROCEDURE

Chapter 73

EMINENT DOMAIN

View Entire Chapter

73.013 Conveyance of property taken by eminent domain; preservation of government entity

communications services eminent domain limitation; exception to restrictions on power of eminent

domain.--

(1) Notwithstanding any other provision of law, including any charter provision, ordinance, statute, or special

law, if the state, any political subdivision as defined in s. 1.01(8), or any other entity to which the power of

eminent domain is delegated files a petition of condemnation on or after the effective date of this section

regarding a parcel of real property in this state, ownership or control of property acquired pursuant to such

petition may not be conveyed by the condemning authority or any other entity to a natural person or private

entity, by lease or otherwise, except that ownership or control of property acquired pursuant to such petition

may be conveyed, by lease or otherwise, to a natural person or private entity:

(a) For use in providing common carrier services or systems;

(b)1. For use as a road or other right-of-way or means that is open to the public for transportation, whether

at no charge or by toll;

2. For use in the provision of transportation-related services, business opportunities, and products pursuant

to s. 338.234, on a toll road;

(c) That is a public or private utility for use in providing electricity services or systems, natural or

manufactured gas services or systems, water and wastewater services or systems, stormwater or runoff

services or systems, sewer services or systems, pipeline facilities, telephone services or systems, or similar

services or systems;

(d) For use in providing public infrastructure;

(e) That occupies, pursuant to a lease, an incidental part of a public property or a public facility for thepurpose of providing goods or services to the public;

(f) Without restriction, after public notice and competitive bidding unless otherwise provided by general law,

if less than 10 years have elapsed since the condemning authority acquired title to the property and the

following conditions are met:

1. The condemning authority or governmental entity holding title to the property documents that the property

is no longer needed for the use or purpose for which it was acquired by the condemning authority or for which

it was transferred to the current titleholder; and

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2. The owner from whom the property was taken by eminent domain is given the opportunity to repurchase

the property at the price that he or she received from the condemning authority;

(g) After public notice and competitive bidding unless otherwise provided by general law, if the property was

owned and controlled by the condemning authority or a governmental entity for at least 10 years after the

condemning authority acquired title to the property; or

(h) In accordance with subsection (2).

(2)(a) If ownership of property is conveyed to a natural person or private entity pursuant to paragraph (1)(a),

paragraph (1)(b), paragraph (1)(c), paragraph (1)(d), or paragraph (1)(e), and at least 10 years have elapsed

since the condemning authority acquired title to the property, the property may subsequently be transferred,

after public notice and competitive bidding unless otherwise provided by general law, to another natural

person or private entity without restriction.

(b) If ownership of property is conveyed to a natural person or private entity pursuant to paragraph (1)(a),

paragraph (1)(b), paragraph (1)(c), paragraph (1)(d), or paragraph (1)(e), and less than 10 years have elapsed

since the condemning authority acquired title to the property, the property may be transferred, after public

notice and competitive bidding unless otherwise provided by general law, to another natural person or privateentity without restriction, if the following conditions are met:

1. The current titleholder documents that the property is no longer needed for the use or purpose for which

the property was transferred to the current titleholder; and

2. The owner from whom the property was taken by eminent domain is given the opportunity to repurchase

the property at the price that he or she received from the condemning authority.

(3) This section does not affect the limitation on a government entity's powers of eminent domain contained

in s. 350.81(2)(j).

(4) The power of eminent domain shall be restricted as provided in this chapter and chapters 127, 163, and

166, except when the owner of a property relinquishes the property and concedes to the taking of the property

in order to retain the ability to reinvest the proceeds of the sale of the property in replacement property under

s. 1033 of the Internal Revenue Code.

History.--s. 1, ch. 2006-11.

Copyright 1995-2010 The Florida Legislature Privacy Statement Contact Us

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CRIMES OF CORINIS

FLORIDA ATTORNEY GENERAL LEGAL OPINION, AGO 78-125,

IN SUPPORT OF CRIMES BY FEDERAL DEFENDANTS AND THEIRLAWYER JENNIFER WHORE CORINIS

SCANDAL OF GOVERNMENTAL SCAM O.R. 569/875:

NAZI STYLE TACTICS OF CRIMINAL CLAIMSThe determination and adjudication of property rights is a judicialfunction which may not be exercised by the legislative branches of

government Here, Lee County was not any judicial branch ofgovernment and had absolutely no authority to claim land.

Here, the law prohibited Lee County, FL, and/or its governing body toadjudicate any property rights. Here, the law did not recognize the hoax ofa land claim by Lee County.

Here vexatiously, the Federal Defendants deceived and perpetratedfraud upon the Court.

ISCAM O.R. 569/875 WAS AN NVALID INVASION OF THE JUDICIARY

It is a fundamental principal in this state that the determination andadjudication of property rights is a judicial function which cannot be

performed by the Legislature. Hillsborough County v. Kensatt, 144 So. 393(Fla. 1932); State Plant Board v. Smith, 110 So.2d 401 (Fla. 1959); Danielsv. State Road Dept., 170 So.2d 846 (Fla. 1964). Legislation whichconstitutes an invasion of the province of the judiciary is invalid. Thursbyv. Stewart, 138 So. 742 (Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla.1948).


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right, title, or interest and all right of reversion shall be

barred and unenforceable.

With regard to the instant inquiry, therefore, it is apparent

that the Frostproof City Council does not 'own' streets which

have been dedicated to public use. Cf. AGO 078-118 in which this

office concluded that a county was not authorized to convey or

transfer ownership and control of dedicated streets to a'homeowners association' since the county possessed no legal

title in the property which it could convey or transfer. Under

such circumstances, there would appear to be no legal basis upon

which the city could require abutting fee owners to pay to secure

property interests which they already possess. See McQuillin

Municipal Corporations s. 30.189, at 123 (3rd rev. ed. 1977),

stating: 'A municipality is not entitled to compensation for loss

of a public easement in streets in which it does not own the

fee.' Accord: Lockwood & Strickland Co. v. City of Chicago, 117

N.E. 81, 82 (Ill. 1917), in which the court held, among other

things:

[I]t would be beyond the power of the city to grant or convey to

a private person or corporation the ground embraced in a vacated

street or alley. Whether a city owns the fee in an alley or

merely an easement, when it is vacated because no longer needed

for public use, the law disposes of the reversionary interest,

and the reversionary rights cannot be granted or conveyed by the

city. . . . Whether the alley was no longer needed for public

use, and whether the public interest would be subserved by its

vacation, could not be made to depend on how much the city could

get for its action. The legislative powers of a city must beexercised for the public benefit, but that does not authorize a

municipality to sell or bargain legislation as a means of

obtaining revenue.

The State Constitution provides that all natural persons shall have

the inalienable right 'to acquire, possess and protect property . .

..' Section 2, Art. I, State Const. Additionally, s. 9, Art. I, State

Const., provides that no person 'shall be deprived of . . . property

without due process of law . . ..' Section 6, Art. X, State Const.,

states that '[n]o private property shall be taken except for a public

purpose and with full compensation therefor . . ..' Thus, the

acquisition, possession, enjoyment, use, and alienation of property

and property rights are controlled by constitutional law and the

common law. Moreover, the term 'property' for purposes of the above-

cited constitutional provisions includes more than the abutting

landowner's fee simple title. As stated in Seldon v. City of

Jacksonville, 10 So. 457, 459 (Fla. 1891):

There is incident to abutting property, or its ownership, even

Page 5 of 6Advisory Legal Opinion - Municipalities, vacation of streets and roads

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Florida Attorney GeneralAdvisory Legal Opinion

Number: AGO 78-125Date: October 24, 1978Subject: Municipalities, vacation of streets and roads

David B. HigginbottomCity AttorneyFrostproof

QUESTION:

Is a municipality authorized by law to require abutting landowners

who request vacation of a public street to prove a revesionary

interest in the property and pay for the proportionate costs of an

appraisal and for the proportionate appraised value of such property

interest as conditions to the vacation?

SUMMARY:

A municipality possesses no authority under the Municipal Home Rule

Powers Act to require property owners whose land abuts a dedicated

public street to 'prove a reversionary interest' or any other

property interest or property right in the streetbed prior to and as

a condition to the vacation of such street. The determination and

adjudication of property rights is a judicial function which may not

be exercised by the legislative branches of government; hence any

such exercise by a municipality does not constitute a lawful exercise

of a municipal governmental power for a municipal purpose. In

addition, while the vacation of streets in the public interest or

when the streets are no longer required for public use is a

legislative function which may be performed by a municipality, a

municipality possesses neither statutory nor constitutional authority

to exact payment for or otherwise interfere with the property rights

of landowners whose property abuts a public street as conditions to

or in exchange for the exercise of its power to vacate streets no

longer required for public use.




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Your letter advises that the Frostproof City Council has adopted a

'motion' which reads as follows:

[I]n the future a qualified appraiser [shall] be used by the city

to set the value of a street (to become property) when requested

for closure. The person or persons making the request would have

to bear the expense of the appraisal and proof of a reversionary

clause. They would be notified and bills [sic] for the appraisedproperty value before actual closing of the street could take

place. Payment to be made on date of actual closing.

Section 2(b), Art. VIII, State Const., provides in pertinent part:

Municipalities shall have governmental, corporate and proprietary

powers to enable them to conduct municipal government, perform

municipal functions and render municipal services, and may

exercise any power for municipal purposes except as otherwise

provided by law. (Emphasis supplied.)

Statutory implementation of the broad grant of home rule is provided

by Ch. 166, F. S., the Municipal Home Rule Powers Act. Section

166.051(1), F. S., of that act states in relevant part that

'municipalities . . . may exercise may power for municipal purposes,

except when expressly prohibited by law.' (Emphasis supplied.) Thus,

it is clear that the only limitation upon the exercise of power by a

municipality is that it must be exercised for a municipal purpose.

State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla. 1977).

Although the phrase 'municipal purposes' is not defined by the

constitution, it is defined by s. 166.021(2), F. S., as 'any activity

or power which may be exercised by the state or its political

subdivisions.' But see City of Miami Beach v. Forte Towers, Inc., 305

So.2d 764, 765-769 (Fla. 1974) (Dekle, J., concurring), in which

Justice Dekle observed:

It is not the definition of municipal purposes found in . . . s.

166.021(2) that grants power to the municipality . . . but rather

the provision of . . . s. 166.021(1) which expressly empowers

municipalities to 'exercise any power for municipal purposes,except when expressly prohibited by law.'

It is a fundamental principal in this state that the determination

and adjudication of property rights is a judicial function which

cannot be performed by the Legislature. Hillsborough County v.

Kensatt, 144 So. 393 (Fla. 1932); State Plant Board v. Smith, 110

So.2d 401 (Fla. 1959); Daniels v. State Road Dept., 170 So.2d 846

(Fla. 1964). Legislation which constitutes an invasion of the




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province of the judiciary is invalid. Thursby v. Stewart, 138 So. 742

(Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla. 1948). Thus, while

the vacation of streets is a legislative function which may be

validly delegated to municipalities (see Sun Oil Company v. Gerstein,

206 So.2d 439, 440 (3 D.C.A. Fla., 1968), AGO 075-171), no

legislative body (whether state, county, or municipal) is authorized

to invade private property rights or require abutting property owners

to prove a reversionary or any other interest in real property as acondition to the vacation of a public street. Accordingly, the action

taken by the Frostproof City Council does not constitute a municipal

purpose; and, therefore, it is outside the scope of municipal home

rule powers possessed by the municipality.

oreover, under the general rule, the interest acquired in land by a

municipal corporation for street purposes is held in trust for the

benefit of all the public, regardless of whether the corporation owns

the fee or has merely an interest therein. Sun Oil Company v.

Gerstein, supra; 30 Am. Jur.2dHighways Streets and Bridges s. 159. A

municipality is empowered to vacate streets only when the vacation isin the public interest or when the street is no longer required for

public use and convenience. 64 C.J.S. Municipal Corporations s. 1668.

Consequently, in AGO 078-118, I noted, as a caveat, with respect to

the vacation of county roads:

[I]f the general public is using the roads and streets in

question (including public service vehicles such as garbage

trucks, police, fire or emergency vehicles), then the county

should not close or vacate the roads or streets in question as

such vacation would be injurious to the public welfare or violate

individual property rights.

Applying these principles to your inquiry, it is clear that the

city council should not undertake to vacate any streets in the

absence of a determination that the general public would benefit

from the vacation or that such streets are no longer required for

the public use and convenience.

As to whether a municipality is authorized to exact charges or

payments from abutting landowners as a condition to or in

exchange for the vacation of a public street, it is necessary to

analyze the property interests possessed by the public and the

abutting or adjoining landowners in public streets.

Recently, in AGO's 078-63, 078-88, and 078-118, I examined the

elements and effect of the dedication of property for public use.

There are two basic requirements to the existence of a valid

dedication to the public. First, there must be a clearly

manifested intention by the owner of the property to dedicate it

to public use. Second, the public, through its authorized agents,

must clearly show its intent to accept the dedication. City of




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Miami v. Florida East Coast Railway Co., 84 So. 726 (Fla. 1920);

Roe v. Kendrick, 200 So. 394 (Fla. 1941). An offer of dedication

to the public may be accomplished by making and recording a plat

and selling lots with reference thereto. See, e.g., Florida East

Coast Railway Co. v. Worley, 38 So. 618 (Fla. 1905); Miami Beach

v. Undercliff Realty and Investment Co., 21 So.2d 783 (Fla.

1945); and see, s. 177.081, F. S.

However the dedication to the public is accomplished, it is clear

that such dedication does not have the effect of transferring

legal title from the grantor to the public. To the contrary, the

fee remains in the grantor (or his grantees) while the public

acquires only a right of easement in trust, so long as the

dedicated land is used for the intended purpose of the

dedication. Attorney General Opinion 078-118. Unless otherwise

specifically provided in the conveyance, the legal title of the

grantor in the dedicated property passes to the grantees of those

lots sold with reference to a plat, which lots abut the dedicated

streets. Their title extends to the center of the street subjectto the public easement. Walker v. Pollack, 74 So.2d 886 (Fla.

1954); Smith v. Horn, 70 So. 435 (Fla. 1915); New Fort Pierce

Hotel Co. v. Phoenix Tax Title Corp., 171 So. 525 (Fla. 1936);

United States v. 16.33 Acres of Land in County of Dade, 342 So.2d

476, 480 (Fla. 1977); cf. Emerald Equities v. Hutton, 357 So.2d

1071 (2 D.C.A. Fla., 1978). Therefore, a street in which the

public has only an easement when properly vacated ceases to be a

street; the abutting landowners continue to hold fee simple title

to the center of the vacated roadbed unencumbered by the

easement. Smith v. Horn, supra; Robbins v. White, 42 So. 841,

843-844 (Fla. 1907); AGO 078-118.

See alsos. 177.081(1), F. S., providing that every plat of a

subdivision filed for record must contain a dedication by the

developer; s. 177.081(2), F. S., providing that all streets,

rights-of-way, and public areas shown on plats approved by the

affected local governments shall be deemed dedicated to the

public for the uses and purposes stated in such plat, unless

otherwise stated therein by the dedicator; s. 177.085(1), F. S.,

providing that when any landowner subdivides his land and

dedicates streets or roadways on the plat but reserves unto the

dedicator the reversionary interests in the dedicated streets or

roadways, and thereafter conveys abutting lots, such conveyance

carries with it the reversionary interest in the abutting street

to the center line, unless the landowner clearly provides

otherwise in the conveyance; and s. 177.085(2), F. S., providing

that prior holders of any interest in the reversionary rights in

the streets and roads in recorded plats of subdivided lots, other

than the owners of abutting lots, 'shall have 1 year from July 1,

1972, to institute suit . . . to establish or enforce the right,'

and that, if no such action is instituted within that time, any




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right, title, or interest and all right of reversion shall be

barred and unenforceable.

With regard to the instant inquiry, therefore, it is apparent

that the Frostproof City Council does not 'own' streets which

have been dedicated to public use. Cf. AGO 078-118 in which this

office concluded that a county was not authorized to convey or

transfer ownership and control of dedicated streets to a'homeowners association' since the county possessed no legal

title in the property which it could convey or transfer. Under

such circumstances, there would appear to be no legal basis upon

which the city could require abutting fee owners to pay to secure

property interests which they already possess. See McQuillin

Municipal Corporations s. 30.189, at 123 (3rd rev. ed. 1977),

stating: 'A municipality is not entitled to compensation for loss

of a public easement in streets in which it does not own the

fee.' Accord: Lockwood & Strickland Co. v. City of Chicago, 117

N.E. 81, 82 (Ill. 1917), in which the court held, among other

things:

[I]t would be beyond the power of the city to grant or convey to

a private person or corporation the ground embraced in a vacated

street or alley. Whether a city owns the fee in an alley or

merely an easement, when it is vacated because no longer needed

for public use, the law disposes of the reversionary interest,

and the reversionary rights cannot be granted or conveyed by the

city. . . . Whether the alley was no longer needed for public

use, and whether the public interest would be subserved by its

vacation, could not be made to depend on how much the city could

get for its action. The legislative powers of a city must beexercised for the public benefit, but that does not authorize a

municipality to sell or bargain legislation as a means of

obtaining revenue.

The State Constitution provides that all natural persons shall have

the inalienable right 'to acquire, possess and protect property . .

..' Section 2, Art. I, State Const. Additionally, s. 9, Art. I, State

Const., provides that no person 'shall be deprived of . . . property

without due process of law . . ..' Section 6, Art. X, State Const.,

states that '[n]o private property shall be taken except for a public

purpose and with full compensation therefor . . ..' Thus, the

acquisition, possession, enjoyment, use, and alienation of property

and property rights are controlled by constitutional law and the

common law. Moreover, the term 'property' for purposes of the above-

cited constitutional provisions includes more than the abutting

landowner's fee simple title. As stated in Seldon v. City of

Jacksonville, 10 So. 457, 459 (Fla. 1891):

There is incident to abutting property, or its ownership, even




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where the abutter's fee or title does not extend to the middle of

the street, but only to its boundary, certain property rights

which the public generally do not possess. They are the right of

egress and ingress from and to the lot by the way of the street,

and the right of light and air which the street affords. Viewing

property to be not the mere corporal subject of ownership, but as

being all the rights legally incidental to the ownership of such

subject, which rights are generally said to be those of user,exclusion, and disposition, or the right to use, possess, and

dispose of, . . . we are satisfied that the rights just mentioned

are within the meaning of the word 'property,' as it is used in

this constitutional provision. [10 So. 457, 459 (1891)

(construing s. 12, Declar. Rts., State Const. 1885, in part a

predecessor of s. 6, Art. X, State Const.).]

See alsoLutterloh v. Mayor and Council of Town of Cedar Keys, 15

Fla. 306, 308 (1875); City of Miami v. East Coast Ry. Co. , 84 So.

726, 729 (Fla. 1920); McCorquodale v. Keyton, 63 So.2d 906 (Fla.1956); Monell v. Golfview Road Association, 359 So.2d 2 (4 D.C.A.

Fla., 1978).

Accordingly, it has been held that the rights of abutting or adjacent

purchasers depend on principles of law applicable to private property

rather than public dedication since these rights depend upon a

'private easement implied from sale with reference to a plat showing

streets [etc.]' rather than upon any dedication to the public

generally. Burnham v. Davis Islands, Inc., 87 So.2d 97, 100 (Fla.

1956). An abutting landowner may be entitled to compensation from a

public body when it vacates a public street for consequent loss ofaccess to such landowner's property on the theory that a property

right has been taken without compensation. See Pinellas County v.

Austin, 323 So.2d 6, 8 (2 D.C.A. Fla., 1975). If follows, then, that

the several property interests of abutting landowners are subject to

constitutional protection. Clearly the attempt by a municipality to

usurp private property rights or property interests or to barter or

sell such property rights as conditions to or in exchange for the

exercise of its legislative power to vacate streets no longer

required for public use, does not constitute a municipal purpose and

is outside the scope of municipal home rule powers.

Prepared by:

Patricia R. GleasonAssistant Attorney General




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STATE PLANT BOARD v. WALTER A. SMITH AND WIFE (03/25/59)

SUPREME COURT OF FLORIDA.

Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com

March 25, 1959

STATE PLANT BOARD, A BODY CORPORATE UNDER THE LAWS OF THE STATE OF FLORIDA; W. G. COWPERTHWAITE, AS

PLANT COMMISSIONER; AND CHARLES POUCHER, INDIVIDUALLY, AND AS AGENT OF SAID BOARD, APPELLANTS,

v.

WALTER A. SMITH AND WIFE, MILDRED C. SMITH, APPELLEES.

Richard W. Ervin, Atty. Gen., Ralph E. Odum, Asst. Atty. Gen., Joseph O. Macbeth, Sebring, and M. H. Edwards, Bartow , for

appellants.

H. C. Crittenden, Winter Haven, G. B. Fishback, Orlando, Robert L. Staufer, Winter Haven, Harry Lee, Sebring, and Edward J. Hanlon,

Jr., Winter Garden, for appe llees .

Author: Roberts

ROBERTS, Just ice.

This is an interlocutory appea l from an order of the lower court holding unconstitutional all of 2 of Ch. 57-365, Laws of 1957 [

581.17(2), Fla.Stat.1957, F.S.A.], except the first paragraph thereof, and declining to d ismiss the plaintiff-appe llees ' suit for

injunctive relief aga inst the appellant, the State P lant Board, upon its motion.

The Act in question was adopted by the Legislature following the decision of this court in Cornea l v. State Plant Board, Fla.1957, 95

So.2d 1, 4, and with direct reference thereto in the Preamble to the Act. In the Corneal case this court held that the so-called "pull

and treat" program adopted by the State Plant Board ("the Board" hereafter) under general legislative authority for the

containment and eradication of a citrus disease known as spreading decline, caused by a burrowing nematode, could not be carried

out on a compulsory basis without compensating the grower for "at least, the loss of profits sustained by the owner w hose healthy

trees are destroyed under the compulsory program of 'pull and treat' * * *." The nature of the disease and the Board's program for

its control and eradication are discussed at some length in that opinion, and this discussion will not be repeated here. It suffices to

say that the burrowing nematodes infest and attack the lower root system of a citrus tree and, eventually, cause the tree to

"decline" and to become commercially unprofitable; and the Board's program calls for the destruction, according to a set formula, of

both infested and noninfested trees and the fumigation of the soil in the cleared area.

Section 1 of the 1957 Act, supra, provides that "[the] citrus disease known as spreading decline, caused by the burrowing

nematode is hereby declared to be a dangerous public nuisance"; and in the first paragraph of 2 of the Act the Board is directed

to carry out a compulsory program of conta inment and eradication of the disease, including the destruction of infested tree s and

fumigation of the so il, in accordance w ith the rules and regu lations of the Board. (These po rtions of the Act were not disturbed by

the Chancellor in the order here reviewed.) The remaining provisions of 2 - held unconstitutional by the Chancellor - provided for

the payment of "reasonable compensation not to exceed $1,000.00 per acre" for the destruction of uninfested trees, set out a

formula for the guidance of the Board or its agents in determining "just and fair compensation" to be paid to the grower for the

destruction of such trees, provided for a hearing before the Board as to the adequacy of such compensation, and for judicial review

of the Board's administrative determination in this respect. The Act specifically provided that no compensation should be paid for the

destruction of infested trees.

While not expressly so provided , it is the clear implication of the Act - and the Board has so interpreted it - that the compulsory

program of "pull and treat" may be carried out summarily in any citrus grove in which the burrowing nematodes are found by the

Board's agents, and that the grove ow ner is entitled to an administrative and judicial hearing on the sole question of the adequacy

of the compensation to be paid to him - and this only after the trees, infested and non-infested, have actually been destroyed.

In their complaint the plaintiffs-appellees a ttacked the s tatute on the grounds, inter alia, that it authorized the taking of their

property without due process of law and without just compensation, contrary to the Florida and federal constitutions [ 12,

4/24/2010 FindACase | STATE PLANT BOARD v

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Declaration of Rights, Fla.Const., F.S.A; 14th Amend., U.S.Const.], and that it also violated 29, Art. 16 of the Florida constitution,

F.S.A. prohibiting the taking of property for public use unless full compensation the refor "sha ll be first made to the owner, or first

secured to h im by deposit of money." The Board based its motion to dismiss principally on the decision of this court in Cornea l v.

State Plant Board, supra, 95 So.2d 1, urging that the statute "tracked" in every respect the mandate of this court in that case and

that the only question for judicial determination was the reasonableness of the compensation to be awarded plaintiffs for the

destruction of their non-infested trees.

In his order here reviewed the Chancellor held that, insofar as the statute authorized the summary destruction of infested trees, it

met the constitutional requirements of due process; but that "[the] attempt of the Legislature * * * to empower the State Plant

Board to destroy healthy trees before compensation shall be paid or secured to the owner, and the further attempt by said act to

place a ceiling of $1,000 per acre as compensation for healthy trees so destroyed and providing that said payment should be made

only after such des truction, violates the provisions o f Section 12 o f the Bill of Rights, Florida Constitution, and a lso Section 29, Article

16 of the Florida Constitution." He interpreted the opinion of this court in the Corneal case as requiring "full compensation" to be

made to the grove owner and opined that "any attempt by the Legislature to place a ceiling on compensation that is less than the

fair market value of the property destroyed or that attempts to destroy Plaintiffs' healthy trees before compensation shall be paid or

secured to Plaintiffs is clearly unconstitutional."

We will first dispose of the question of whether the destruction of citrus trees in this situation is an appropriation of private property

for public use within the intendment of 29 of Art. 16 of the Florida constitution. We think the conclusion in inescapable that it is

not.

There is a very clear distinction between an appropriation of private property to a public use in the exercise of the power of eminent

domain, and the regulation o f the use o f property - and its destruction, if necessary - in the exe rcise of the police power. "Under the

power of eminent domain the sovereign may make a compulsory purchase of the property of the citizen when such property is to be

appropriated to a public purpose or use, but such compulsory purchase, or taking as it is called, cannot be made even by the

sovereign 'without jus t compensation'". Moody v. Jacksonville, T. & K.W.R. Co., 1884, 20 Fla. 597, 606. Or, stated differently, in the

exercise of the power of eminent domain the sovereign "compels the dedication of the property, or some interest therein, to a

public use, or, if already dedicated to one public use, then to another." State ex rel. Lamar v. Jacksonville Terminal Co., 1900, 41 Fla.

377, 27 So. 225, 237. See also Adams v. Housing Authority of City of Daytona Beach, Fla.1952, 60 So.2d 663.

On the other hand, the police power is exercised by the sovereign to promote the health, morals and safety of the community,

Adams v. Housing Authority, supra; it rests "upon the fundamental principle that every one shall so use his own as not to wrong or

injure another." Mugler v. State of Kansas, 123 U.S. 623, 661, 667, 8 S. Ct. 273, 300, 31 L. Ed. 205, quoted in Pensacola & A.R. Co.

v. State, 1889, 25 Fla. 310, 5 So. 833, 3 L.R.A. 661. "'To destroy property because it is a public nuisance is not to appropriate it to

public use, but to p revent any use o f it by the owner, and to put an end to its existence, because it could not be used consistently

with the maxim, sic utere tuo ut alienum non laedas.'" Bowman v. Virginia State Entomologist, 1920, 128 Va. 351, 105 S.E. 141, 145,

12 A.L.R. 1121, quoting 1 Lewis on Eminent Domain, 3d ed., 247.

It is abundantly clear, then, that the Act in question was enacted in the exercise of the police power of the sovereign state and not

in the exercise of the pow er of eminent domain. Accordingly, it must be held that the able Chancellor erred in testing the va lidity of

the Act by the o rganic requirements contained in 29 o f Art. 16.

But the Chancellor also s tated in the order here reviewed that the Act "violates the provisions of Section 12 of the Bill of Rights,

Florida Constitution". While the language of the order appears to be referable only to a violation of 29 of Art. 16, the issue as to a

violation of 12 of the Declaration of Rights was made by the pleadings; this being so, this court's decision, on appeal, "must be

made, not on the basis of whether the trial court or chancellor traveled the proper route, used proper reasoning, or laid his

conclusion on proper grounds, but rather on w hether his conclusion is correct or incorrect." Chase v. Cowart, Fla.1958, 102 So.2d

147, 150.

So the fact that 29 of Art, 16 is not applicable to the Act does not dispose of the case. There still remains the question of the

impact of the provisions of 12 of the Declaration of Rights, Fla.Const. of 1885, prohibiting the taking of private property without

due process of law and without just compensation. And it might be noted that the provisions of our constitution guaranteeing these

sacred and bas ic rights ante-date by a lmost fifty years the organic limitations imposed by 29 of Art. 16. These provisions have

been incorporated in all of our state constitutions, from that of 1838 up to and including our present constitution of 1885. Section 29

of Art. 16, which was new in the constitution of 1885, merely specified additional organic limitations upon the exercise of the power

of eminent domain by "any corporation or individual" over and above those already imposed on the exercise of this power by the

"due process" and "just compensation" provisions referred to above, now appearing in 12, supra. See State ex rel. Moody v.

Baker, 1884, 20 Fla. 616, 655; Spafford v. Brevard County, 1926, 92 Fla. 617, 110 So. 451, reh'g denied, 92 Fla. 623, 110 So. 454,

457.

It has long been settled in this jurisdiction, however, that the prohibition against the taking of private property "without just

compensation" conta ined in 12, supra, is not limited to the taking of property under the right of eminent domain. State ex rel.

Davis v. City of Stuart, 1929, 97 Fla. 69, 120 So. 335, 348, 64 A.L.R. 1307. Thus, this provision ha s been applied to hold invalid an

order of the railroad commission reducing the rates of a railroad company to such an extent that the railroad company could not pay

the expenses of operation, Pensacola & A.R. Co. v. State, 1889, 25 Fla. 310, 5 So. 833, 3 L.R.A. 661; to hold invalid a municipal

ordinance fixing water rates at a level that reduced the company's gross receipts below its reasonable costs and operating

expenses, Village of Virginia Gardens v. Haven W ater Co ., Fla.1956, 91 So.2d 181; to ho ld invalid a Special Act extending municipal

boundaries to include rural lands, State ex rel. Davis v. City of Stuart, supra, 120 So. 335; to require a city to compensate the owner

of oyster beds for damage to such beds caused by the City's dumping sewage into the river, Gibson v. City of Tampa, 1938, 135 Fla.

637, 185 So. 319; to hold invalid zoning o rdinances in their application to a particular prope rty, Dowling v. State, Fla.1955, 82 So.2d

519; Ex parte Wise , 141 Fla. 222, 192 So. 872, and to hold invalid an ordinance forbidding bathing in a privately owned lake from

which the city water is drawn, Pounds v. Darling, 75 Fla. 125, 77 So. 666, L.R.A. 1918E, 949. And while not expressly so sta ted, it is




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clearly implied in our opinion in Corneal v. State Plant Board, supra, 95 So.2d 1, that the Board's compulsory program of pull and

treat, as therein discussed, was also violative of the mandate of 12, supra, prohibiting the taking of private property without just

compensation.

In considering whether the act in question violates the concept of just compensation commanded by 12, supra, it should be noted

that the Legislature made specific provision for the payment of "reasonable compensation not to exceed one thousand dollars per

acre" for the destruction of uninfested trees and required the Board to consider the several factors specified in the Act, "and other

reasonable factors having a bearing on just and fair compensation," in determining the amount of compensation to be paid the

individual grower. It might also be noted , parenthetically, that the Act provided tha t no compensation should be made for the

destruction of infested trees, as distinguished from trees that, although infested with burrowing nematodes, have not yet begun to

"decline" and thus are, presumably, still commercially profitable. This provision was a lso attacked in the plaintiffs' complaint, coupled

with an allegation that, of the 41 trees found by the Board's agents to be infested with burrowing nematodes, only three showed

any signs of decline. The Chancellor did not rule on this issue except by indirection. His order struck dow n all these provisions, in

toto, on the theory that grove owners were entitled to "full compensation", represented by the "fair market value" of the "healthy"

trees destroyed, alleged in the complaint (and admitted, for the purpose of the motion, by the Board's motion to d ismiss) to be $40

each, and for which the Board proposed to pay the plaintiffs a total of $206.54 as compensation for the destruction of 165

uninfested trees.

But we a re not here concerned with the adequacy of the compensation proposed to be pa id to plaintiffs, since this issue has not yet

been ruled upon by the Chancellor. On this interlocutory appeal from the orde r denying the Board's motion to dismiss, we are

concerned only with the validity of the Act in its application to all citrus growers and, at this point, with the ques tion of whether the

Act complies w ith the requirement of 12, supra, that "just compensa tion" be paid to citrus growers such as plaintiffs. The Act

requires the Board to pay "just and fair" compensation to such citrus growers, and we do not see how the Legislature could have

done more. "Just compensation" for the destruction of a citrus tree in a grove infested with burrowing nematodes is not the

equivalent, as it cannot be , of the "fair market value" of a citrus grove in which no infestation has been found. And insofar as the

order here reviewed held that the grove owner is entitled to "full compensation" equal to the "fair market value" of each healthy

tree destroyed, it must be held to be in error.

We agree w ith the Chancellor, however, that the Legislature w as not justified in fixing the maximum amount of compensation that

could be paid. When, in the exercise o f the police power, the State through its agents destroys diseased cattle, unwholesome

meats, decayed fruit or fish, infected clothing, obscene books or pictures, or buildings in the path of a conflagration, it is clear that

the constitutional requirement of "just compensation" does not compel the State to reimburse the owner whose property is

destroyed. Such property is incapable of any lawful use, it is of no value, and it is a source of public danger. A legislative provision

for compensation in such cases is a mere bounty that may, of course, be fixed at wha tever level the Legislature desires. Cf.

Campoamor v. State Live Stock Sanitary Board, 1938, 136 Fla. 451, 182 So. 277.

But where, as here, a provision for "just compensation" is a clear requisite to the act of destruction, then we find no authority for

the Legislature's specification of the maximum compensation to be pa id.

Art. 2 of our constitution provides for the distribution of pow ers among the legislative, executive and jud icial branches of our

government and states that "no person properly belonging to one o f the departments shall exercise any powers appertaining to

either of the others, except in cases expressly provided for by this Constitution." It is settled in this state that "the determination of

what is just compensation for private prope rty that is taken for public use is a judicial function that cannot be performed by the

Legislature e ither directly or by any method of indirection." Spafford v. Brevard County, supra, 110 So. 451, 454. While this was a

case involving the taking of property unde r the power of eminent domain, it is equally applicable to the legislative encroachment

upon the powers of the judiciary attempted here in the taking of property under the police power.

We next consider the question of whether the Chancellor erred in holding the Act invalid insofar as it authorized the destruction of a

grove owner's healthy trees "before compensation shall be paid or secured to" the owner. Here, again, the Chancellor is using the

language of 29 of Art. 16, prohibiting the taking of property by eminent domain proceedings "until full compensation there for shall

be first made to the owner, or first secured to him by deposit of money; * * *" But the analogous question under the due process

clause of 12, supra, is whether the owner should have been given the opportunity to have an administrative determination by the

Board, and a judicial review of such administrative dete rmination, of the amount of compensation he should receive, prior to the

destruction of his healthy trees. In other words, does a summary destruction of an owner's trees followed by an administrative and

judicial hearing on the question of the amount of compensation to be paid to him, comport with "due process"? An allied question,

contended for in the lower court and here argued by the plaintiffs-appellees, is whether summary destruction of his trees without

giving him an opportunity to be heard either administratively or judicially on the question of the propriety or reasonableness of the

action by the Board's agents, is a denial of due process.

Due process of law is no t an exact concept. Generally speaking, it "implies conformity with the natural and inherent principles of

justice for the protection of individual rights, forbids the taking of one's property without compensa tion, and requires that no one be

condemned in person or property without opportunity to be hea rd." Louis K. Liggett Co . v. Amos, 1932, 104 Fla. 609, 141 So. 153,

156. The opportunity to be heard "must be full and fair, not merely colorable o r illusive." Ryan's Furniture Exchange , Inc. v. McNair,

1935, 120 Fla. 109, 162 So. 483, 487. Accord: Redman v. Kyle, 1919, 76 Fla. 79, 80 So. 300.

It is well settled, however, that the concept of due process does not necessarily require the granting of a hearing prior to the taking

of official action in the exercise of the police power. Where a compelling public interest justifies the action, the Legislature may

authorize summary action subject to later judicial review of the validity thereof. See Yakus v. United States, 1944, 321 U.S. 414, 64

S. Ct. 660, 88 L. Ed. 834, often cited in cases involving "due process ." Thus, it has long been estab lished that in the exercise of its

police power the state may summarily seize or destroy diseased cattle, contaminated food, obscene publications, illicit intoxicants,

narcotics, prohibited weapons, gambling devices and paraphernalia, and other property that menaces the public health, safety or

morals. The seizure of such goods is justified because the danger exists that the property deemed malefic will be distributed to the




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public to its injury, or used for an illegal purpose, absent a seizure and pending a proceeding to determine the propriety of the

seizure. Cf. Metallic Flowers v. City of New York, 1957, 4 A.D.2d 292, 164 N.Y.S.2d 227.

It is obvious that no such danger exists in the situation here. The citrus disease here involved - spreading decline caused by a

burrowing nematode - is not carried by the wind or by insects from grove to grove; "the burrowing nematode causing the disease

travels underground from one tree to another a t an a verage rate throughout the s tate of 1.6 trees, or 36 feet, per year." Corneal v.

State Plant Board, supra, 95 So.2d 1, 2. The fruit borne by the hea lthy trees, even though the tree may have some infestation, is no

different from that on the uninfested trees. The only possible reason for the summary destruction of the healthy trees would be the

imminent danger of the spread of the disease from an infested to a non-infested grove. Since the facts developed in the Corneal

case, and alleged in the complaint in the instant case, show that there is no such danger, we cannot find a "compelling public

interest" su fficient to justify making an exception to the basic and fundamental rule of due process , requiring notice and a hearing

before depriving a person of a substantial right. This is particularly true in view o f the fact that we can find no justification for the

legislative declaration that "No compensation shall be made by the board for the destruction of trees which are infested by the

burrowing nematode at the time of their destruction." As noted above, the question of what is "just compensation" must be finally

determined by the judiciary, unless the grove owner is satisfied by the amount offered by the Board's agent. And, as previously

stated, an infested tree may be healthy, in the sense that it has not yet begun to decline, and s till commercially profitable. A court

might w ish to consider the profits expected from such productive, although infected, tree in determining "just compensation." And it

is apparent that an X-mark on a map, showing an infested tree destroyed under the Board's pull and treat program, and the

testimony of the parties as to the condition of the tree, would not be the best evidence of the condition of the tree. Thus, in

addition to the fact that the sta tutory provision quoted immediately above is an invasion of the province of the judiciary, it might

also deny to the grow er a hearing that is " full and fair, not merely colorable or illusive." Ryan's Furniture Exchange, Inc. v. McNair,

supra, 162 So. 483.

In summary, the Chancellor was correct in holding invalid those portions of the Act and the Rules o f the Board p lacing a ceiling of

$1,000 on the compensation to be paid to the grove owner and authorizing summary destruction of the owner's citrus trees prior to

a hearing on the adequacy of compensation proposed to be paid to him. The ow ner is also entitled to an opportunity to be heard on

the propriety or "reasonableness" of the administrative action of the Board's agents insofar as the program of pull and treat

proposed for his grove is concerned, prior to the destruction of his citrus trees under such program. See Bailey v. Van Pe lt, 1919, 78

Fla. 337, 353, 82 So. 789. We also agree with the Chancellor's indirect holding that the provision denying compensation for infested

trees, without regard to whether they are still productive and not yet "declined", is unlawful. We do not agree with his conclusion

that "full compensation" measured by the fair market value of the trees must be paid to the owner.

It follows, therefore, that the Board's compulsory program of pull and treat cannot be summarily carried out in any grove, either as

to infested or uninfested trees, without giving the grove owner an opportunity to be heard on the questions of the p ropriety of the

action of the Board's agents and the adequacy of the compensation proposed by such agents to be pa id to him. This is so because,

even if the infested trees were subject to summary destruction as a legislatively declared nuisance, they could not be destroyed

except as a part of the Board's over-all program of pull and treat, involving the destruction of infested and non-infested trees and

fumigation of the cleared area, since destruction of the infested trees alone would be ineffective to control the disease, see Corneal

v. State Plant Board, supra, 95 So.2d 1, and thus would not serve a public purpose.

It would seem that the invalid provisions of the statute could be deleted without doing violence to the primary legislative intention

to provide for a compulsory program for the containment and eradication of spreading decline. The Act itself declared its intent that

"if any section, subsection, sentence, clause or provision of this act be held invalid the remainder of the act shall not be a ffected."

6, Ch. 57-365, Laws of 1957.

Accordingly, we hold that the phrase "not to e xceed $1,000.00 per acre" in the third paragraph of 2 of the Act, and the sixth

paragraph of 2, prohibiting the payment of compensation for infested trees, are invalid and of no effect; and that, insofar as the

Act may be interpreted as authorizing the summary destruction of citrus trees w ithout an opportunity to be heard prior to such

destruction, it is invalid, as a re the Board's Rules so interpreting it. The remainder of the Act is valid and effective.

The order here reviewed is affirmed in part and reversed in part and the cause remanded for further proceedings consistent

herewith.

TERRELL, C.J., and THOMAS, DREW and THORNAL, JJ., concur.

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HAROLD K. DANIELS AND RUTH K. DANIELS v. STATE ROAD DEPARTMENT FLORIDA (09/30/64)

SUPREME COURT OF FLORIDA.

Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com

September 30, 1964

HAROLD K. DANIELS AND RUTH K. DANIELS, HUSBAND AND WIFE, APPELLANTS,

v.

STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, AND SARASOTA COUNTY, A POLITICAL

SUBDIVISION OF THE STATE OF FLORIDA, APPELLEES.

Clyde H. Wilson, Sarasota , for appellants.

Bryan W. Henry and P. A. Pacyna, Tallahassee , for State Road Dept. of Florida; Wm. S. Boylston, Sarasota, for Sarasota County,

appellees.

Author: Roberts

ROBERTS, Just ice.

In this direct appea l from a judgment ente red in eminent domain proceedings, the questions of (1) the applicability of Section 29 of

Article XVI, Florida Constitution, F.S.A., to condemnation proceedings instituted by a s tate agency or political subdivision to acquire

property for a purely public purpose, and (2) the validity of Section 73.10(3), Florida Statute s, F.S.A., are squarely presented.

Accordingly, we have jurisdiction of the appea l under Section 4, Article 5 of our Constitution.

Section 29 of Article XVI reads as follows:

"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; which compensation, irrespe ctive of any

benefit from any improvement proposed by such corporation or individual, shall be ascerta ined by a jury of twe lve men in a court of

competent jurisdiction, as sha ll be prescribed by law."

And the statute the validity of which was upheld in the lower court, Section 73.10(3), supra, provides that

"When the suit is by the state road depa rtment, county, municipality, board, district or other public body for the condemnation of a

road right-of-way, the enhancement, if any, in value of the remaining adjoining property of the defendant prope rty owner by reason

of the construction or improvement made or contemplated by the pe titioner, shall be offset aga inst the damage, if any, resulting to

such remaining adjoining property of the defendant owner by reason of the construction or improvement, but such enhancement in

value shall not be offset against the value of the property appropriated, and if such enhancement in value shall exceed the damage,

if any, to the remaining adjoining property there sha ll be no recovery over aga inst such property owner for such excess."

It is contended he re by appe llants, who are the owners-condemnees o f the subject prope rty, that Section 29 of Article XVI, supra, is

applicable to the condemnation proceedings instituted by the appellees, who are the State Road Department of Florida and the

County of Sarasota, to acquire appellants' prope rty; that such constitutional provision "permits the landowner to receive remainder

damages without diminution from the benefit of any improvement proposed;" that Section 73.10(3), supra, authorizing the seto ff of

"enhancement in value" against remainder damages is repugnant to such constitutional provision; and that it was, therefore,

reversible error on the part of the trial judge to admit evidence of the increase in the value o f the remainder of appellants' tract of

land resulting from the construction of the highway through such tract.

The appellees concede that statements in some of the opinions of this court appear to support appellants' contention as to the

applicability of Section 29 of Article XVI, supra, to eminent domain proceedings instituted by agencies or political subd ivisions of the

state, as well as to those instituted by private corporations or individuals. They point out, however, that this question has never

been squarely presented to this court, so that the statements relied upon are obiter dicta; and they strongly urge that an

examination of the Journal Convention of 1885 a t which Section 29 of Article XVI was first adopted , reveals clearly that it was

4/24/2010 FindACase | HAROLD K. DANIELS A



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intended to apply only to private corporations and individuals and not the State , its agencies and political subdivisions. We agree

for the reasons stated hereafter.

It should first be remembered tha t the superior dominion - the "eminent domain" - which the State holds over a ll the soil within its

bounds is, like the police pow er, an inherent attribute of sovereignty to be exercised in case of public exigency or for the public

good. It may be limited by the Constitution, but it is not created by the organic law of the State. "It is an attribute o f sovereignty

which the state would have even [though] there were no constitutional grant of the power." Spafford v. Brevard County (1926), 92

Fla. 617, 110 So. 451, 458. It could, apparently, be exercised without the payment of any compensation whatsoever to the owner

of the land taken, in the absence of a constitutional inhibition, see Smith v. City of Greenville (1956), 229 S.C. 252, 92 S.E.2d 639;

and, indeed, it seems that in the early days in some states it was common practice to lay out highways without compensation to

the owner of the land - either by virtue of rights reserved in the grant o f public lands or by a long-established practice based on the

slight value of the land and the general need for roads. See the comment by the annota tor in 68 A.L.R. at page 784.

It was , however, so much a matter of natural justice that private property should not be taken for public use without compensation

that in almost all of the states a provision specifically forbidding the taking of private prope rty for public use without just

compensation was included as a part of their organic law. Such a provision is, of course, a part of the so-called Bill of Rights of the

federal constitution, having been included a s a part of the Fifth Amendment thereto; and it has been a part of Florida's organic law

since 1838. It was included in all of the Constitutions of this State and w as incorporated - apparently as a matter of course - as

Section 12 of the Declaration of Rights o f the Constitution of 1885, F.S.A., which, with amendments, is our present constitution.

Having provided in the traditional manner, in Section 12, that private prope rty shall not be taken "without just compensation," it

seems clear that in adopting an add itional section relating to the exercise o f the right of eminent domain the framers of the

Constitution of 1885 intended to specify additional organic limitations upon the exercise o f this sovereign right by "any corporation

or individual." We so s tated in State P lant Board v. Smith, Fla.1959, 110 So.2d 401, 405.

This brings us, then, to the first question presented he re: Did the framers of the Cons titution of 1885 intend tha t a state agency or

political subdivision of the sta te should be subject to the additional limitations prescribed by Section 29 of Article XVI? Many state

agencies, although purely public bodies, are or have been in the past designated as a "body corporate" by statute and given many

of the attributes of a private corporation, such as the right to sue and to be sued. The State Road Department, one of the appellees

here, was formerly such a statutory corporate entity. Yet it cannot be doubted that such a state agency retains its essential

character as an a rm of the state ; and we think it is equally clear that the members of the Const itutional Convention of 1885 had in

mind private corporations only, and not a public body, in adopting Section 29 of Article XVI.

We reach this conclusion, first, from an examination of the Journal of the Cons titutional Convention of 1885. It there appears that

the constitutional provision in ques tion came out of the Committee on Private Corporations as a minority report (see pp. 296-298 of

the Journal) in form almost identical to that in which it was finally adopted (with only the words "or individual" omitted) and was

tabled. It was then o ffered by the Committee on Miscellaneous Provisions, with the words "or individual" now included (see pp. 488-

489 of the Journal), and was adopted. It was p laced by the Committee on Style and Arrangement of the Cons titution of 1885 with

other constitutional provisions relating specifically to private corporations and individuals. See Sections 28, 30 and 31 of Article XVI.

Thus, the background aga inst which it was adopted indicates , almost conclusively, that it was intended to apply only to private

corporations (and individuals) to whom the Legislature might de legate the power of eminent domain in a prope r case.

We need not rely entirely upon this, however. The language of the provision itself is indicative of the true intent o f its adopters. It

reads: "No private property, nor right of way sha ll be appropriated to the use of any corporation or individual until full compensa tion

therefor shall be first made to the owner, * * *" (Emphas is added.) As pointed out by the late and revered Justice Armistead Brown

in Spafford v. Brevard County, supra, 110 So. at page 457:

"* * * in the exercise of eminent domain for the acquisition of lands for state roads, neither [the State Road Department nor

Brevard County] is acquiring anything for itself in its corporate capacity, but only for the sta te, and all that either may acquire under

the act here in question will be 'appropriated to the use of' the state. * * The status of railroad and other private corporations,

although they are permitted to condemn property only for public purposes, is quite different. * * * the title thereto, and the use,

management, and operation thereo f, is private, and the profits made go to the private owners. So, in a very real sense, the

property acquired by the exercise of the delegated power of eminent domain by such corporations is 'appropriated to the use of'

the corporations, and this section of the Constitution applies."

Relevant here also is the fact that, prior to the Constitutional Convention of 1885, the Florida Legislature had delegated to public

utility corporations (Ch. 1639, Acts of 1868) and to railroad and canal companies (Ch. 1987, Acts of 1874) the right to condemn

rights of way and prope rty for their use in providing their respective public services; and, presumably, by the year 1885 these

private corporations were beginning to expand their activities in this state. It is also noteworthy that, prior to 1885, it had been

held by federa l and sta te courts that special benefits accruing from road or other improvements could be deducted not only from the

amount awarded for severance damage but also from the amount awarded for the land itself in determining "just compensation."

See McIntire v. State (Ind.1840) 5 Blackf. 384; Weir v. St. Paul, S. & T.F.R. Co. (Minn. 1871) 18 Minn. 155; cases collected in the

annotation in 68 A.L.R. beginning at page 784. (This is and has always been the interpretation of the "just compensation" clause of

the Fifth Amendment to the federal constitution. See Bauman v. Ross, 1897, 167 U.S. 548, 17 S. Ct. 966, 42 L. Ed. 270; U.S. v. 1,000

Acres of Land (D.C.La.1958) 162 F. Supp. 219.) The argument usua lly given in support of this interpretation o f "just compensation"

is that the property owner who receives direct, special and peculiar benefits to his remaining property as a result of the

improvement has received something which the general public has not received and for which he should account. "Otherwise, he is

favored above the rest, and instead of simply being made whole, he profits by the appropriation, and the taxes of the others must

be increased for his special advantage ." Pottawatomie County v. O'Sullivan, 17 Kan. 58. (Emphas is added.)

The taxing power of the s tate or a po litical subdivision thereo f is not, of course, involved in a taking of prope rty by a railroad or

canal company or other private corporation for their use in providing a public service; and in requiring tha t full compensation shall be

made for private property appropriated to the use of a corporation or individual "irrespective of any bene fit from any improvement




19/59

proposed by such corporation or individual", the framers of the Constitution of 1885 must have intended to make sure that the

landowner would receive, at least, the value of the land actually taken by the private corporation for a right-of-way or terminal

facilities w ithout regard to the bene fits that could or would accrue to the remainder of his property at some future date when the

improvement was finally completed and w hich, in the late 1800's, would probably have been, in most cases, highly speculative at

the time of the taking. See in this connection Orgel's Valuation Under Eminent Domain, 2d ed. 1953, Vol. 1, Sec. 7, p. 46, in which he

says, inter alia, that "The development of the various doctrines restricting consideration of bene fits was probably the result of the

extensive railway acquisitions during the nineteenth century." It is also noteworthy that the section in question contains another

limitation in that it specifically provides for the payment or deposit in advance of the amount of the compensation due to the

landowner for the property appropriated to the use of the corporation. This is clearly for the purpose of protecting the owner from

an improvident or insolvent private corporation or individual.

It is our considered opinion, then, that the framers of the Constitution of 1885 intended to spell out, in Section 29 of Article XVI,

what would be "just compensation" for property taken by a private corporation or individual for their use in performing a public

service, and, in addition, the method of dete rmining such compensation and the time of payment thereof; and that, by leaving

Section 12 of the Declaration of Rights intact, they intended for the sta te and its agencies and political subdivisions to be subject to

the more general provisions thereof - "nor shall private property be taken without just compensa tion".

The more general limitation contained in Section 12 of the Declaration of Rights - that private property shall not be taken "without

just compensation" - is almost universally held to require that compensation be made for the taking, and that such compensation

should include not only the value of the land actually appropriated by the condemnor but also the so-called se verance damages, if

any, caused by the taking when only part o f a tract is condemned. See 18 Am.Jur., Eminent Domain, Sec. 265, p. 905. This was early

established as the legislative policy of this state (Ch. 3712, Acts of 1887) and judicially approved by this court. See Orange Belt

Railway Co. v. Craver (1893) 32 Fla. 28, 13 So. 444. The more general provision of Section 12 app lies to a ll condemnors alike -

whether public or private bodies - so that severance damage may be claimed, as "just compensation", regardless of whether the

taking is by the sta te or by a private corporation or individual.

This disposes of the constitutional questions presented here; but in order completely to dispose of the case on appeal, as we are

authorized to do, two more points need some clarification. One, appearing on the face of the record, we shall discuss by way of

caveat; Cf. Great Northern Railroad Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360, 85 A.L.R. 254. See

also special concurring opinion of Thornal, J. in State v. County of Palm Beach, Fla., 89 So.2d 607. The othe r has been presented

here by the appellants but does not appear to have been properly presented to the lower court. Since we think that both are of

importance to the Bench and the Bar of this state , as we ll as to the litigants in this case , we will discuss them briefly.

The first point which we need discuss concerns the authority of the Legislature of this state to enact Section 73.10(3), supra. This

statute purports to say what compensation shall be paid to a landowner for property appropriated by the state or other public body

for a road right-of-way, by declaring that

"* * * the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason o f the

construction or improvement made or contemplated by the petitioner, shall be offset against the damage, if any, resulting to such

remaining adjoining property of the defendant owner by reason of the construction or improvement * * *."

It has been said that "[the] preservation of the inherent powers of the three branches of government - legislative, executive, and

judicial - free from encroachment or infringement by one upon the other, is essential to the safekeeping of the American system of

constitutional rule." Simmons v. State, 1948, 160 Fla. 626, 36 So.2d 207. And if the legislation hampers judicial action or interferes

with the discharge of judicial functions, it cannot be g iven effect. 11 Am.Jur., p. 908, cited in Simmons v. State, supra.

It is well settled that the determination of what is just compensation for the taking of private property for public use "is a judicial

function that cannot be performed by the Legislature either d irectly or by any method of indirection." Spafford v. Brevard, supra, 110

So. at page 455, quoted in State Plant Board v. Smith, Fla.1959, 110 So.2d 401. See a lso Monongahela Navigation Co. v. U.S.

(1892) 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463; United States v. New River Collieries, 262 U.S. 341, 43 S. Ct. 565, 67 L. Ed. 1014;

Baltimore & Ohio R. Co. v. U.S., 1935, 298 U.S. 349, 56 S. Ct. 797, 80 L. Ed. 1209.

As stated in Baltimore & Ohio R. Co. v. U.S., supra, 298 U.S. 349, 56 S. Ct. 797, 80 L. Ed. at p. 1224:

"The just compensation clause may not be evaded or impaired by any form of legislation. Against the oppos ition of the owner of

private property taken for public use, the Congress may not directly or through any legislative agency finally determine the amount

that is safeguarded to him by that clause. If as to the value o f his property the owner accepts legislative or administrative

determinations * * * no constitutional question arises. But, when he appropriately invokes the just compensation clause, he is

entitled to a judicial dete rmination of the amount."

And in Monongahe la Navigation Co. v. U.S., supra, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463, in which the Supreme Court struck

down an Act of Congress purporting to exclude an element of value (the franchise to collect tolls) in the purchase o f the lock and

dam of the Navigation Company, the court said that just compensation means that "a full and perfect equivalent for the property

taken" must be returned to the owner, and that

"By this legislation congress seems to have assumed the right to determine what shall be the measure of compensation. But this is

a judicial, and not a leg islative, question. * * * It does not rest with the public, taking the property, through congress or the

legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The

Constitution has declared that just compensation sha ll be paid, and the ascertainment of that is a judicial inquiry." (Emphasis

added.)

It cannot be doubted, therefore, that the question of whether "enhancement in value" of the property as a result of the




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improvement, when only part of a tract is taken, should be o ffset against damages to the remainder in determining "just

compensation" for such remainder damage, is a purely judicial question. Similarly, the question of wha t is a public use is a judicial

one. But, as sta ted by Mr. Justice Brown, in Spafford v. Brevard County, supra, 110 So. at page 458:

"While the question of whether the use for which private prope rty is taken is a public use is ultimately a judicial question, where the

Legislature declares a particular use to be a public use, the presumption is in favor of its declaration, and the courts will not

interfere therewith unless the use is clearly and manifestly of a private character."

And, as in the case of a legislative declaration of "public use", a legislative declaration of "just compensation" which is in accord with

the judicial view of the matter should not be disturbed. As stated in Chesapeake & Ohio Canal Co. v. Key (1829) 3 Cranch, C.C. 599,

Fed. Cas. No. 2,649, which involved a Virginia Statute containing a provision similar to Section. 73.10(3):

"If the jury had not been required by the charter to consider the benefit as well as the damage, they would still have been at liberty

to do so, for the constitution does not require that the value should be paid, but that just compensation should be given. * * * The

insertion, therefore, of that provision in the charter which requires the jury to do what they would be competent to do without such

a provision, and which, in order to ascertain a compensation which should be just towards the public, as well as just towards the

individual, they ought to do, cannot be considered as repugnant to the constitution."

Our conclusion in this respect is, then, that the Legislature may declare its policy with respect to the compensa tion that should be

made in taking private prope rty for public use; and tha t these declarations, while not conclusive or binding, are persuasive and will

be upheld unless clearly contrary to the judicial view of the matter.

It might be noted that the State, speaking through its Legislature, may of course impose upon itself, and upon those to w hom it

delega tes the right of eminent domain, an obligation to pay more than what the courts might consider a "just compensation." See

Lewis, Eminent Domain, 3d ed ., Vol. 2, Sec. 696, in which the author notes that this has frequently been done "by excluding the

consideration of benefits." And the comment of the annotator in 145 A.L.R. at page 17 on this point is interesting. He says:

"In this field of uncertainty as to the meaning of the requirement of just compensation, there seems to be only one point as to

which the courts are in agreement. No matter how much they disagree on the question as to whether and to what extent the

constitutional requirement prevents the legislature from decreas ing the compensation of an owner or condemnee by allowing the

deduction of benefits therefrom, there seems to be substantial agreement that this requirement does not prevent the legislature

from providing as against the condemning parties, what shall be deemed just compensation, and that the legislature, although it

cannot direct that anything less than just compensation be made , may require more liberal compensation than tha t which would

satisfy the constitutional requirement."

This brings us to the point argued in the ir Reply Brief by the appe llants - and that is, that "enhancement in value" means tha t

resulting from benefits which are special and pe culiar to the remainder of the tract, a portion of which is taken, and not an

enhancement in value which inures to the community in general or to the public in common; and that the re was no evidence

whatsoever that the increase in the market value of the remainder of appe llants' tract was spe cial or peculiar to it or any different

from that accruing to the appe llants in common with the public.

There is merit to their contention in this respect, but we cannot find that the appe llants objected on this ground to the testimony of

the appellees' witnesses as to increased market value of the remainder of appellants' tract of land. The position that they took

throughout the trial, and in their original brief, was that no evidence wha tsoever of "enhancement in value" was admissible, since

the sta tute, Section 73.10(3), was unconstitutional.

Since there does no t appear to have been any judicial statement by this court or any other court of this state concerning this

matter, we direct the a ttention of the Bench and the Bar to the s tatement in 29 C.J.S. Eminent Domain 183, p. 1064, as follows:

"By the weight of authority, the bene fits which may be se t off against the value o f the property taken or the damage to tha t injured

in making an improvement, are those which are special or local or which result directly and peculiarly to the particular tract [or

parcel] of which a part is taken, and general benefits resulting to the owner in common with the public cannot be set off."

See also 18 Am.Jur., Eminent Domain, Sec. 298, page 942, sta ting that "Even where benefits may be deducted from the damages

claimed, it is therefore the rule that only special benefits may be considered."

An annotation in 145 A.L.R., beginning at page 7, on the subject "Deduction of bene fits in determining compensation or damages in

eminent domain", deals exhaustively with the subject, including the many and diverse views o f the courts in this country as to the

distinction between general and special benefits. As to this distinction, it has been sa id that more rules, different from and

inconsistent with each other, have been laid down on this point than upon any other point in the law o f eminent domain. See

Territory of Hawaii v. Mendonca (Hawaii), 375 P.2d 6. In this case the court defined special benefit in highway condemnation cases

as be ing "the special and direct bene fit arising from its own position upon the way itself" as distinguished from those benefits "'not

arising from location on the way, but from the facilities and advantages occasioned by the way' which affects all estates in the

neighborhood equa lly * * *."

Thus, insofar as "enhancement in value" is concerned, evidence thereo f would not be admissible without proof that the increase in

value resulted directly and peculiarly to the landowner's remaining land as a result of the improvement, over and above that

enjoyed by neighboring property which might or might not be on the highway. "The question in each case is whether or not the

special facilities afforded by the improvement have advanced the market value of the property beyond the mere general

appreciation of property in the neighborhood." Pittsburgh B & B Ry. Co. v. McCloskey, 110 Pa. 436, 1 A. 555, 556.

See a lso Shirley v. Russell (1927), 149 Va. 658, 140 S.E. 816, in which it was held by a majority of the court tha t the question of




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whether an increase in market value resulting from the construction of a public highway does or does not constitute a peculiar

benefit which may be offset aga inst remainder damage, must depend upon the facts and circumstances of each particular case; and

the following cases , which deal extensively with the subject: State by and through State Highway Commission v. Bailey (1957), 212

Or. 261, 319 P .2d 906; Lineburg v. Sandven (1946), 74 N.D. 364 21 N.W.2d 808; State v. Smith (1957), 237 Ind. 72, 143 N.E.2d 666.

It might be noted, also, that the construction of a street or highway may result only in damage to the remaining property and not

necessarily work a benefit thereto . See Worth v. City of West Pa lm Beach, 1931, 101 Fla. 868, 132 So. 689; Boxberger v. State

Highway Commission, 126 Co lo. 526, 251 P.2d 920.

Since, as noted, the appellants did not ra ise in the court the objection made, apparently as an after-thought, in their Reply Brief,

concerning the question of whether the enhancement in value of their property constituted a general or a special benefit, we

cannot hold the lower court in error in admitting evidence thereo f for the consideration of the jury and in charging the jury thereon.

We have, however, examined the evidence and do not find that the evidence of severance damage, against which the evidence of

increased value may have been offset, was sufficient to warrant the jury in awarding an amount therefor. As the Second District

Court of Appeal pointed out in City of Tampa v. Texas Co., 107 So.2d 216, the burden of show ing damage to the remainder of a

landowner's property by reason of the taking is upon the landowner. Upon the record made in the court below, the verdict and

judgment must be affirmed.

It is so ordered.

THORNAL, O'CONNELL, CALDWELL and HOBSON (Ret.), JJ., concur.

THOMAS, Acting C.J., dissents.

19640930

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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JENNIFER FRANKLIN PRESCOTT,

DR. JORGE BUSSE,

Plaintiffs,

v. Case No. 2:09-cv-791-FtM-36SPC

ROGER ALEJO; KENNETH M. WILKINSON; JACK N. PETERSON; ROGERDESJARLAIS; LEE COUNTY, FLORIDA; LEE COUNTY VALUEADJUSTMENT BOARD; LORI L. RUTLAND; STATE OF FLORIDA, BOARDOF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND; STATE

OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; CHADLACH; CHARLES -BARRY- STEVENS; REAGAN KATHLEEN RUSSELL;KAREN B. HAWES; ROGER DESJARLAIS; CHARLIE GREEN; BOB JANES;BRIAN BIGELOW; RAY JUDAH; TAMMY HALL; FRANK MANN; UNITEDSTATES ATTORNEY(S); SEAN P. FLYNN; E. KENNETH STEGEBY; DAVID P.RHODES; A. BRIAN ALBRITTON; CYNTHIA A. PIVACEK; JOHNSONENGINEERING, NC.; STEVEN CARTA; MIKE SCOTT; HUGH D. HAYES;GERALD D. SIEBENS; STATE OF FLORIDA ATTORNEY GENERALWILLIAM M. MARTIN; PETERSON BERNARD; SKIP QUILLEN; TOMGILBERTSON,

__________________________________/

FEDERAL DEFENDANTS OPPOSITION TOPLAINTIFFS MOTION FOR SUMMARY JUDGMENT

The United States of Am

u.s. prostitutes & pimps - eminent domain statutes, ch. 73, florida stat

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