City of Jacksonville v. Shaffer

CourtUnited States State Supreme Court of Florida
Writing for the CourtDAVIS, J.
Citation107 Fla. 367,144 So. 888
Decision Date06 December 1932

144 So. 888

107 Fla. 367


SHAFFER et ux.

Florida Supreme Court, Division B.

December 6, 1932

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Suit by the City of Jacksonville against P. F. Shaffer and wife. To review a judgment of nonsuit, plaintiff brings error.


COUNSEL [144 So. 889]

[107 Fla. 368] Austin Miller and Emmet Safay, both of Jacksonville, for plaintiff in error.

P. H. Odom, of Jacksonville, for defendants in error.



This was a condemnation suit brought by the city of Jacksonville to acquire by eminent domain a nonexclusive easement in the streets and alleys of a subdivision known as North Brookside, lying within the limits of the city.

At the trial of the proceedings the court below ruled that where it appeared that the sole owner of a tract of property had made it into a subdivision, at a time prior to the time that the subdivision was brought into the city limits, and such owner and developer had laid out a system of streets and alleys in such subdivision, with the intention of dedicating the same to the public, as shown by the recorded plat of such subdivision, but the dedicators in making the dedication of the streets and alleys had expressly reserved to themselves the exclusive right to operate and maintain therein water pipes and mains constituting part of a waterworks system in the streets and alleys so dedicated, and had actually thereafter installed, and was at the time of the trial engaged in operating, such waterworks system, that the subsequent inclusion in the city limits of the city of Jacksonville, of the subdivision and waterworks system in question did not authorize the city of Jacksonville to condemn [107 Fla. 369] for its own waterworks system an easement in the dedicated streets and alleys, for the purpose of permitting the city to lay water mains and operate a waterworks service along such streets and alleys in competition with that being operated under the reserved rights of the dedicators, without making full compensation for the loss arising from the city's competition with the preexisting privately owned waterworks system of the defendants in error, even though the city's prayer for condemnation embraced only a nonexclusive easement in such streets and alleys for laying water mains and furnishing water service thereby.

Writ of error was taken from a judgment of nonsuit based upon the foregoing ruling of the trial judge.

The city of Jacksonville takes the position that the only compensation which the defendants were entitled to receive for a nonexclusive easement in the streets and alleys in question was the fair cash market value of a nonexclusive easement in the streets and alleys of North Brookside subdivision, notwithstanding the admitted fact that, so far as this proceeding is concerned, the defendants were to be regarded as the owners of the fee in the streets and alleys, and it was made to appear that upon the plat of the subdivision when it was laid out that there appeared an express reservation to the effect that the right to lay railroad or street railway tracks and all other public utilities, or any of them, was not granted but was expressly reserved in the original owners of the land covered by such plat, and that the general dedication made was only upon the condition thereinbefore expressly set forth.

The defendants in error (defendants below) take the position that since it appeared that they had constructed, and were actually engaged in operating, an existing waterworks [144 So. 890] system in the streets and alleys of North [107 Fla. 370] Brookside subdivision under the reservation expressed on the plat as hereinbefore mentioned, that they were entitled to claim damages from the condemnor not only for the fair cash value of the alleged nonexclusive street easement sought to be appropriated by the city of Jacksonville to be used in competition with their waterworks, but also additional damages for the practical extinguishment of the property value involved in the exclusiveness of the reserved right they claimed to operate their own waterworks system without competition.

In other states it has been uniformly decided that when a waterworks or similar property is itself taken, compensation must be made not only for the physical structures, but general franchise as well. Lewis on Eminent Domain (3d Ed.) § 722.

In the case at bar, however, the city of Jacksonville does not seek to appropriate to its own use the defendants' waterworks system itself, but only prays for the condemnation of an equal easement in the streets and alleys with the owners of the waterworks system now in existence. That the city has the option to proceed to condemn only an equal easement with that of defendants, and cannot be compelled to condemn defendants' whole right to construct and maintain a waterworks system under the streets, alleys, and avenues of North Brookside, has been decided. City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160.

But it has also been held, in line with the general theory requiring just compensation for what is actually appropriated, that in a proceeding by a city to condemn in part only a right of the private owners of a waterworks to construct and maintain same under the streets, alleys, and avenues of an addition to the city, that the persons whose property right is thus partly appropriated are entitled to compensation by way of damages for the [107...

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18 cases
  • Elkins v. Townsend, Civ. A. No. 6380.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • April 7, 1960 the creation of a new right something which did not exist as an independent right before the grant. City of Jacksonville v. Shaffer, 144 So. 888, 890, 107 Fla. "A `reservation' in a deed applies to a thing not in esse at the time of the grant, but newly created, and which is reserved for......
  • Central Hanover Bank & Trust Co. v. Pan American Airways, Inc.
    • United States
    • United States State Supreme Court of Florida
    • May 2, 1939
    ...Monongahela Navigation [137 Fla. 825] Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463.' City of Jacksonville v. Shaffer, 107 Fla. 367, 144 So. 888, 891. See also Hillsborough County v. Kensett, 107 Fla. 237, 138 So. 400, 144 So. 393. The Fifth Amendment to the Constitution of......
  • City of Miami v. St. Joe Paper Co., 51775
    • United States
    • United States State Supreme Court of Florida
    • October 5, 1978
    ...only" was not a reservation or exception, as nothing was severed from that which was granted. See City of Jacksonville v. Shaffer, 107 Fla. 367, 144 So. 888 (1932). This provision is a restriction on the use of the property and does not fall within the category of true easements. See Moore ......
  • Sunset Lake Water Service Dist. v. Remington, CC76-460
    • United States
    • Court of Appeals of Oregon
    • April 21, 1980
    ...Wofford Heights Associates v. County of Kern, 219 Cal.App.2d 34, 32 Cal.Rptr. 870 (1963) (valid); City of Jacksonville v. Shaffer et ux., 107 Fla. 367, 144 So. 888 (1932) (valid); Canda Realty Co. v. Carteret, 136 N.J.Eq. 550, 42 A.2d 859 (1945) (implication that reservation valid); City of......
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