City of Dania v. Central and Southern Florida Flood Control Dist., 2149

• Decision Date: 17 May 1961
• Docket Number: No. 2149,2149
• Citation: 134 So.2d 848
• Parties: CITY OF DANIA, a Municipal Corporation, Petitioner, v. CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, a Public Corporation, Respondent.
• Court: Florida District Court of Appeals

Page 848

134 So.2d 848

CITY OF DANIA, a Municipal Corporation, Petitioner, v. CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, a Public Corporation, Respondent.

No. 2149.

District Court of Appeal of Florida, Second District.

May 17, 1961.

On Rehearing Sept. 20, 1961.

Clarke Walden, of Walden & Ryan, Dania, for petitioner.

Robert Grafton, West Ralm Beach, for respondent.

SHANNON, Judge.

The petitioner, City of Dania, a municipal corporation, has filed petition for writ of certiorari to review an order of the court below. Central and Southern Florida Flood Control District, a public corporation, is repondent.

In the cause below, from a study of the record, it appears that the petitioner is seeking a review of an interlocutory order rendered in this eminent domain suit.

It is readily seen that this petition for certiorari is in effect an attempt to appeal an interlocutory order in a law action, contrary to the rules of appellate paractice in Florida. Certain exceptions have been made by the appellate courts to permit certiorari to review interlocutory orders under exceptional circumstances. See Brooks v. Owens, Fla.1957, 97 So.2d 693, 695, where our Supreme Court said:

'* * * Where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, this court will consider granting the writ, as where the lower court acts without and in excess of its jurisdiction or the order does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Kauffman v. King, Fla.1956, 89 So.2d 24; Huie v. State, Fla.1956, 92 So.2d 264. See also 5 Fla.Jur. Certiorari Sec. 12.'

This question of granting or denying certiorari has been reviewed by this court recently in the case of Rich v. Harper Neon Co., Fla.App.1960, 124 So.2d 750.

We are led to take jurisdiction of this case by the opinion of the Supreme Court of Florida in Howard Johnson, Inc., of Florida v. State Road Department of Florida, Fla.1956, 90 So.2d 306, wherein it said:

'This is a condemnation proceeding wherein the petitioner herein was defendant in the circuit court. In its answer Howard Johnson, Inc., attempted to create an issue on the necessity for taking. At the threshold we are impelled to observe that this is a type of common law action in which in all probability we would grant 'special dispensation' and entertain the petition for certiorari if the answer or those portions of it which were stricken were sufficient to establish such an issue.'

In this eminent domain proceedings the Central and Southern Florida Flood Control District had sought to condemn certain real estate which was owned by the City of Dania. Prior to and during the suit the City of Dania had used the real estate in question for a garbage dump. The circuit judge, by order, determined that the circuit court had jurisdiction of the cause, appointed appraisers to view and determine the appraised value of the parcel of land, and had set a time and place for receiving and considering the report of the appraisers and to hear testimony relating thereto. The petitioner filed a motion to dismiss and an answer. The sole question which we have to consider is whether or not the Flood Control District has the right to condemn property already devoted to public use.

The City of Dania is a municipality, with all the powers, including the power of eminent domain, that usually appertain to such corporations. The Flood Control District has been created by the Legislature, and it is to its powers, as contained in the statutes, that we must look.

Section 74.15, Florida Statutes, F.S.A., provides:

'(1) The power of eminent domain is confirmed, invested in and granted unto any lawfully constituted flood control district of this state, any lawfully constituted drainage or subdrainage district of this state and any lawfully constituted housing authority created under the provisions of any laws creating or authorizing the creation of housing authorities within this state, for the public use, and the same are hereby declared, for the purpose of this law, to be bodies corporate. The proceedings herein provided for shall be maintained by and in the name of the authority for whose benefit the proceedings are instructed.'

Section 74.16, Florida Statutes, F.S.A., provides:

'In addition to the proceedure provided in section 74.125 the proceedings provided in section 74.01-74.141 may be instituted by any lawfully constituted flood control district of the state.'

With relation to the creation of flood control districts, it is provided by § 378.16(1), Florida Statutes, F.S.A.:

'In order to carry out the cooperative part of the works for the district, and for effectuating the purposes of this chapter, the governing board is authorized to clean out, straighten, enlarge or change the course of any waterway, natural or articial, within or without the district; to provide such canals, levees, dikes, dams, sluiceways, reservoirs, holding basins, floodways, pumping stations, bridges, highways and other works and facilities which the board may deem necessary; establish, maintain and regulate water levels in all canals, channels and reservoirs owned and maintained by the district; to cross any highway or railway with works of the district and to hold, control and acquire by donation, lease or purchase, or to condemn any land needed for rights-of-way or other purposes, and may remove any building or other obstruction necessary for the construction, maintenance and operation of the works, and to hold and have full control over the works and rights-of-way of the district.'

But, § 378.46, Florida Statutes, F.S.A., provides:

'(1) When it is found to be in the public interest and for the public convenience and welfare, and for the public benefit, and necessary for carrying out the works of improvement of any flood control district referred to in this chapter for the protection of property and the inhabitants in said district against the effects of water, either from its surplus or deficiency, and for assisting said district in acquiring land for the purposes of said district at least public expense, any state agency, any county, any drainage district, any municipality or any governmental agency or public corporation in this state holding title to land, is hereby authorized, in the discretion of the proper officer of officers, the county commissioners of any county, or the governing board of any agency referred to in this section, to convey the title to or to dedicate land, title to which is in such agency, including tax reverted land, or to grant use rights therein to any flood control district created under any law enacted by the legislature at its 1949 session.'

The delegation of pwers to municipalities, among other things, provides, in § 180.06, Florida Statutes, F.S.A.:

'Any municipality or private company organized for the purposes contained in this chapter, is authorized * * * (4) to provide for the collection and disposal of sewage and other liquid wastes; (5) to provide for the collection and disposal of garbage; (6) and incidental to such purposes and to enable the accomplishment of the same, to construct reservoirs, sewerage systems, * * * collection systems, treatment and disposal works; * * *'

Further, § 180.22, Florida Statutes, F.S.A., provides:

'Any municipality or private company or corporation authorized to carry into effect any or all of the purposes defined in this chapter, may exercise the power of eminent domain over * * * drainage districts, bridge district, school districts, and any other public or private lands or property whatsoever necessary to enable the accomplishment of the purposes of this chapter.'

We have set out the acts of the legislature which, in part, deal with the subject of eminent domain.

Flood control districts are clearly creatures of the legislature, having no power or authority other than that conferred upon them by statute. Thus, it is only from the statutes that these districts have the power of eminent domain. The power to condemn real property which is being put to a public use by a municipal corporation is not contained in any such statute, nor can we construe the above quoted statutes as giving this authority. See Orange County v. Fordham, 1948, 160 Fla. 259, 34 So.2d 438; Peavy-Wilson Lumber Co. v. Brevard County, 1947, 159 Fla. 311, 31 So.2d 483, 172 A.L.R. 168; Wilton v. St. Johns County, 1929, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488.

The rule is stated in 18 Am.Jur., Eminent Domain, § 83 as follows:

'In the absence of authority conferred expressly or by necessary implication, an agency of the state cannot take land devoted to a public use by a political or governmental agency * * *.'

In McQuillin on Municipal Corporations, 3d Ed., Vol. 11, § 32.67, the following is found:

'The rule then being that property already devoted to a public use cannot be taken for another public use, at least if such use is an inconsistent one, without legislative authority expressly given or 'necessarily implied,' it becaomes important to determine, if possible, when authority can be considered to be necessarily implied. * * *'

Inasmuch as to Florida cases have been cited us and we have found none bearing directly on the question, we have, of necessity, studied the decisions of other jurisdictions. From these cases it is clear that the rule is as set out above in the quoted textual material. In some cases the 'doctrine of prior use' is explicitly relied upon by the courts. There are some exceptions but these exceptions, in our opinion, do not apply to the instant case.

In New York the rule is well expressed in Central Hudson Gas & Electrict Corp. v. Morgenthau, 1932, 234 App.Div. 530, 256 N.Y.S. 97, 100, wherein the court said:

'The rule is well settled in this state that a general grant of power to...