Anhoco Corp. v. Dade County

• Citation: 144 So.2d 793
• Decision Date: 07 March 1962
• Docket Number: No. 31355,31355
• Parties: ANHOCO CORPORATION, and Florida corporation, and Antwin Theaters, Inc., a Florida corporation, Petitioners, v. DADE COUNTY, a political subdivision of the State of Florida, Respondent.
• Court: Florida Supreme Court

Page 793

144 So.2d 793

ANHOCO CORPORATION, and Florida corporation, and Antwin Theaters, Inc., a Florida corporation, Petitioners, v. DADE COUNTY, a political subdivision of the State of Florida, Respondent.

No. 31355.

Supreme Court of Florida.

March 7, 1962.

Rehearing Denied Oct. 17, 1962.

Ward & Ward, Garland M. Budd and Simmonite, Budd & Walsh, Miami, for petitioners.

Darrey A. Davis and Thomas C. Britton, Miami, for respondent.

THORNAL, Justice.

By petition for a writ of certiorari we have for review a decision of the District Court of Appeal, Third District, allegedly in conflict with a prior decision of this Court and a decision of the Second District. Art. V, Sec. 4, Florida Constitution, F.S.A.

The decision submitted for review is Anhoco Corp. et al. v. Dade County, Fla.App., 1961, 127 So.2d 464. Petitioners claim it to be in conflict with the prior decision of this Court in Florida State Turnpike Authority, et al., v. Anhoco Corp. et al., Fla.1959, 116 So.2d 8, and the decision of the District Court of Appeal, Second District, in Broward County v. Bouldin, Fla.App., 114 So.2d 737. An earlier appearance of this case in the District Court of Appeal, Third District, was Florida State Turnpike Authority, et al. v. Anhoco, et al., Fla.App., 107 So.2d 51. We shall refer to both petitioners as Anhoco because the two corporations are owned and controlled by the same stockholders.

Following our decision in 116 So.2d 8, the cause was remanded to the circuit court. Reference to our last decision will reveal that we sustained an injunction against Dade County, Florida Turnpike Authority and Florida State Road Board, prohibiting those agencies from continued interference with Anhoco's pre-existing right of access to a land service road known as Palmetto Road, SR 826, until such time as those agencies condemned the fee in the road right-of-way, together with Anhoco's right of access. The instant case arises out of an eminent domain proceeding by Dade County alone to condemn the fee in the right-of-way, as well as the right of access pursuant to our previous decision. Neither the Road Department nor the Turnpike Authority was a party to the instant condemnation suit. The prior decisions reveal that the three agencies of government had entered into a contractual arrangement to convert the land service road into a limited access facility which would accommodate traffic demands between the south end of the Florida Turnpike and west side of Dade County in the vicinity of Kendall. This was done pursuant to statute.

In order to accomplish the construction of the limited access facility Dade County entered into a contract with the Road Department to acquire the necessary right-of-way. The former land service road, SR 826, was to be converted into the limited access highway. This agreement was an essential incident to the construction of the limited access facility through the cooperative effort of the State Road Department and the Turnpike Authority. The comprehensive arrangement was in the nature of a three-way obligation whereby the Road Department and Turnpike Authority would build the road upon the right of way acquired by Dade County. The new facility is known as Golden Glades Drive.

Reference to earlier decisions will reveal that the petitioners here, Anhoco et al., owned a large parcel of land on the north side of the previously existing land service highway. On this land they had constructed two large outdoor theatres designated as a Western Theater and an Eastern Theater. It is claimed by the petitioners that in August 1957, the Road Department in carrying out the project plan, dug a ditch across an exit road theretofore existing between the Eastern Theater and the former land service road, SR 826. It being impossible for patrons to drive out of this theater, it remained closed until October 1958, when the Road Department apparently completed a service road from N.W. 32nd Ave. westwardly and dead ending at Anhoco's east property line. It also completed a similar service road from N. W. 37th Ave. eastwardly, dead ending at Anhoco's west property line. However, during the same month the State Road Department dug a ditch across the road which had previously provided direct access to both theaters from former SR 826. At this point Anhoco reopened its Eastern Theater but was compelled to close the Western Theater because no motor vehicle could enter or leave the property.

Dade County filed the instant condemnation suit to take the fee in the right-of-way of former SR 826, as well as Anhoco's right of access to that road. This petition was filed December 24, 1959. It was accompanied panied by a declaration of taking pursuant to Chapter 74, Florida Statutes, F.S.A. Our present problem arises out of that litigation. The trial judge held that the value of Anhoco's property, primarily the right of access, should be determined as of February 8, 1960, the date of the order of taking in the current suit. Anhoco claims that its property should be valued as of July or August 1957, when the Road Department initially destroyed its right of access. When the instant condemnation was filed the Road Department had eliminated the previously mentioned service roads and had constructed across the entire front of the petitioner's property a socalled 'frontage road' paralleling the new limited access highway and lying between that highway and the south boundary of Anhoco's property. This frontage road extended the full distance between 32nd and 37th Avenues, connecting with the New Golden Glades Drive at those points. This new frontage road appears to have furnished to Anhoco a direct access road connected with the new highway and so far as this record reveals, apparently remedied the condition resulting from the destruction of its previous access to SR 826. By limiting Anhoco to damages as of the date of the current order of taking, the circuit judge obviously held that the petitioner could not present evidence on the matter of damages suffered as the result of the destruction of its right of access which he had previously enjoined. When the current condemnation proceeding was filed it was shown that the property was serviced by the new frontage road, hence the jury found nominal damages to Anhoco for the acquisition of the fee underlying old SR 826, and no damages for the destruction of its access. This ruling of the circuit judge was affirmed by the District Court of Appeal, Third District, 127 So.2d 464. It is this decision which we now review. By our decision in Florida State Turnpike Authority et al. v. Anhoco et al., Fla.1959, 116 So.2d 8, we held:

1. The State Road Department by virtue of a conveyance from Dade County owned merely an easement for public road purposes in former SR 826, the original land service road.

2. Anhoco owned the basic fee in SR 826, with an easement of ingress and egress to and from its theaters which abutted the land service highway.

3. Section 338.04, Florida Statutes, F.S.A., a part of the limited access facilities statute, requires a condemning authority to acquire the fee simple title to a right-of-way when it seeks to obtain land upon which it contemplates constructing a limited access road. In the acquisition process the condemning authority must likewise acquire the 'rights of access' of abutting owners adjoining an existing land service road which is being converted into limited access.

4. In the chancery action then under review, the same being in the nature of an 'inverse condemnation' proceeding, the chancellor could not as an incident to the injunction undertake to fix damages in the action. When condemnation should be instituted then 'any damages' suffered by the property owner 'may be adjudicated.' There was no authority to fix and collect damages in such chancery action independently of the condemnation action.

5. All parties were enjoined from continuing with the conversion of SR 826 into a limited access facility and from further interfering with Anhoco's right of access until they obtained the property and property rights in fee simple as required by the Legislature. In the course of any such condemnation proceeding the property owner was expressly granted the opportunity 'to present evidence of the value to them of the property and property rights, including the right of access which will be acquired for limited access facilities.'

6. The requirement that the State Road Department and Dade County condemn the fee and incidental right of access was substituted for the chancellor's decision, approved by the Court of Appeal, to the effect that the fee had already been acquired. The chancellor was correct in holding that compensation would have to be paid for damages resulting from the destroyed right of access. The District Court erred in holding to the contrary. The facts revealed a destruction of the right of access and not the mere regulation thereof under the police power.

The holdings which we have above announced constituted the substance of our last decision appearing at 116 So.2d 8.

As mentioned in the forepart of this opinion, when the cause was remanded Dade County alone instituted the current condemnation action which produced the decision under review. The chancellor with the approval of the District Court of Appeal in the instant case held:

1. The value of Anhoco's property should be fixed, as to Dade County as of the time of the order for the declaration of taking in the instant suit. By that time Anhoco's original right of access was nonexistent because it had been destroyed by the State Road Department as revealed in the original litigation. The completed new 'frontage road' had by then been constructed.

2. Damages for the precipitous destruction of Anhoco's right of access could not be recovered against Dade County because the State Road Department, not Dade County, had destroyed the access.

3. There could be no recovery of costs of the prior...