Board of Public Instruction of Dade County v. Town of Bay Harbor Islands

Citation81 So.2d 637
PartiesTHE BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Florida, a body corporate and politic under the laws of the State of Florida, Appellant, v. TOWN OF BAY HARBOR ISLANDS, Florida, a municipal corporation, Appellee.
Decision Date29 April 1955
CourtUnited States State Supreme Court of Florida

Boardman & Bolles, Miami, for appellant.

Lewis Horwitz, Miami Beach, for appellee.

DREW, Justice.

This is an appeal from a final decree of the Circuit Court of Dade County requiring the Board of Public Instruction of Dade County, Florida, hereafter called the Board, forthwith to perform the terms and conditions of a contract of sale of certain lands located within the corporate limits of the appellee Town of Bay Harbor Islands, hereafter called the Town, from William G. Mechanic and his wife and, at the same time, permanently enjoining and restraining the Board from locating, erecting or operating a public school building or any building for school purposes on such property. 1

This litigation arose out of the opposition of the Appellee Town to the construction of a public school within its corporate limits. It was the contention of the Town that the limited area of the municipality, located as it was entirely upon two islands in Biscayne Bay, rendered it impractical and burdensome on the Town and its inhabitants to construct a public school within its limits. Many collateral issues were involved in the litigation and much of the very large record in this Court consists of testimony on these subjects. 2 In the final analysis, however, the only justiciable issue involved in the litigation was thus stated by the master in his very long and exhaustive report: 'The question that is brought sharply into focus and the master feels that it is the only real issue involved in the cause is whether or not the restrictive covenant prohibiting the use of the property for school purposes is applicable to the school board in its attempt to use the same for such school purposes.'

Concerning this question the master concluded that the use of the subject property and other adjacent property, title to which it had theretofore acquired, for a public school purpose was a violation of the restrictive covenants pertaining to said lands. He recommended the entry of the decree appealed from.

The power of the Board to acquire these lands or the proper and regular exercise of that power is not involved in the instant appeal. 3

Two questions are involved in this appeal. The first is whether the restrictions, infra, which were placed upon the subject lands at the time and which formed a part of a general plan of subdivision of lands composing the municipality, are broad enough to prohibit the use of said lands for school purposes and, if so, whether they may be enforced against the Board. The second is whether such restrictions constitute property in those in whose favor such restrictions exist for which compensation must be made in the event said lands are acquired for public purposes. A negative answer to the second question would obviate the necessity of answering the first question hence we proceed to a discussion of the latter proposition.

The restrictions are:

'Except for Lots 1 and 2 in Block 1; Lots 36 and 37 in Block 4; all of Blocks 11, 12, 20 and 21; and Tracts A, B, C, D, E and F of the East Island, no building shall be erected or constructed or maintained on any lot in the East Island other than residences, duplexes, apartments, apartment hotels, hotels or club hotels; no business building may be erected on said lands or any part of said lands, and no business may be conducted thereon except such business as is directly concerned with and incidental to each individual apartment house, apartment hotel, hotel or club hotel, as the case may be. If any such incidental business is conducted in any building on said land, then no shop or store or concession for any such business shall have any outside entrance or outside store-front or outside signs or displays, lighting or advertising; access thereto being exclusively limited to and through the inside of the building.'

At the threshold we emphasize that the restrictions quoted above and with which we are concerned in this case do not fall within the category of true easements, such as the right of passage, use, or rights of light, air and view. See 18 Am.Jur., Eminent Domain, p. 786, Sections 156-158, especially Section 158. Easements such as these fall into a separate category from easements such as those we are dealing with in this case. These latter easements have been defined, and we think correctly, as negative easements or equitable servitudes. Such so-called easements are basically not easements in the strict sense of the word but are more properly classified as rights arising out of contract. It may well be that the failure of some of the courts to recognize this real difference had led to the confusion and the 'irreconcilable conflict' in the decisions. 4

The courts are not in agreement as to whether such easements or restrictions are binding upon the acquiring authority when such lands are acquired for a public use. The author states in Note, 1939, 122 A.L.R. 1464, that 'in determining whether the right thus created is one of property for which compensation must be made when land subject to such right is taken by eminent domain or is voluntarily deeded to be used for public purposes, the courts remain in irreconcilable conflict.' In 18 Am.Jur. 788, Section 157, it is said that 'building restrictions are a property right, and where, through the exercise of the power of eminent domain, there is a taking or damage of such property rights, then owners of property for whose benefit the restrictions are imposed are entitled to compensation for the loss of the easements created by such restrictions, although there are a few cases to the contrary.' (Emphasis supplied.)

The whole subject is discussed at length in Nichols on Eminent Domain, (3rd ed. 1950) Volume 2, Section 5.73, as follows: 5

'5.73 Restrictive covenants.

'A rather perplexing situation arises out of the existence of what are commonly called 'building restrictions.' A large tract of land is often cut up into lots and sold for residential purposes, and each lot is sold subject to restrictions against use for various purposes, the restriction upon each lot being for the benefit of all the others. So far as such restrictions are reasonable in their character, they are enforced by courts of equity in favor of the original owner, so long as he continues to own any part of the tract for the benefit of which the restrictions were created, as well as in favor of the owner of any one of the lots into which the tract was divided, and against the owner of any of the lots who attempts to discregard the restrictions.

'A conflict of opinion has arisen in the disposition of the question whether a person in whose favor such a restriction exists has a compensable interest in a condemnation proceeding which prevents compliance with such restriction.

'(1) Majority view.

'The majority view holds that such a restriction, often characterized as an equitable servitude, constitutes property in the constitutional sense and must be compensated for if taken. Such restrictions constitute equitable easements in the land restricted, and when such land is taken for a public use and will violate the restrictions, there is a taking of the property of the owners of the land for the benefit of which the restrictions were imposed. The owners of such property cannot maintain proceedings for damages against the original owner or enforce the restrictions against the condemnor, but they are entitled to an award of compensation for the destruction of their easements.

'If the existence of the easement diminished the value of the land subject thereto, as is ordinarily the case when the easement is of such a character as a right of way, the compensation of the holder of the easement might well be deducted from the sum awarded to the owner of the servient tenement. In the case of mutual building restrictions, however, the existence of the restrictions often enhances rather than decreases the value of the land, and the owner of the land taken might consequently well object to receiving in any event less than the fair market value of his property as a piece of real estate.

'(2) Minority view.

'On the other hand, objection, has been raised to paying more than such value for all the interests in the property taken and by reason thereof negative easements belonging to other owners have been taken without payment of compensation.

'It has been argued that such restrictions were not intended to apply as against public improvements;-that, since all property is held subject to the power of eminent domain, the rights of the condemnor are impliedly excepted from the operation of the restrictive covenant.

'It has further been held that such restrictions could not possibly inhibit the action of the sovereign because any such attempt would be void as against public policy since they constitute an attempt to prohibit the exercise of the sovereign power of eminent domain. Since the state has the power to condemn the fee prior to the imposition of a restrictive covenant, the placing of the additional burden upon the land does not create a new compensable interest.

'Denial of compensation has also been justified upon the ground that such restrictions do not constitute property at all, but are merely contract rights which need not be compensated for in eminent domain. Such contract rights, it has been reasoned, are enforceable as against individuals but not as against the state.

'The final argument in support of a denial of compensation in a specific case is predicated upon a construction of the particular restrictive covenant in such manner that the prospective use does not constitute a violation thereof.'

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