City of Jacksonville v. Shaffer
| Decision Date | 06 December 1932 |
| Parties | CITY OF JACKSONVILLE v. SHAFFER et ux. |
| Court | Florida Supreme Court |
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.
Affirmed.
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 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 system in the streets and alleys of North 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 appropriation, not only for the value of the physical part of their easement actually taken as specified in the eminent domain proceedings, but for the additional damages resulting to them as an inevitable consequence of the taking. See, also, Vicksburg v. Vicksburg Waterworks Co., 202 U.S. 453, 26 S.Ct. 660, 50 L.Ed. 1102, 6 Ann. Cas. 253; City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 19 S.Ct. 77, 43 L.Ed. 341. [1]
The record shows that North Brookside subdivision was platted August 11, 1914, by the then owners of the title to the land covered thereby, namely, P. F. Shaffer, Mary E. Shaffer, G. C. Pickard, and Margaret B. Long.
The plat as recorded on August 15, 1914, contained the following written conditions appearing on the face thereof, duly signed by the owners filing the plat:
"The fee in the streets and alleys shown upon this plat * * * are hereby reserved to P. F. Shaffer, Mary E. Shaffer, his wife, G. E. Pickard and Margaret B. Long and their assigns and only an easement for the benefit of the public and purchasers by reference to this plat is hereby granted, and the right to lay railroad or street railway tracks, and all other public utilities, or any of them, is not granted but is expressly reserved and this shall not be deemed a public dedication except upon the condition herein imposed."
There is a clear distinction between reservations and exceptions in conveyances of lands.
A 'reservation' is the creation in behalf of the grantors of a new right issuing out of the thing granted, something which did not exist as an independent right before the grant, while an 'exception' operates to withdraw some part of the thing granted which would otherwise have passed to the grantee under the general description of the thing granted, being a part of the thing granted and something in esse, at the time of the grant. The legal effect of words of exception is merely to sever from that which is granted, that which is excepted, so that the latter does not pass by the grant. Notes, 2 L. R. A. 87, 13 L. R. A. 289; Irons v. Webb, 41 N. J. Law, 203, 32 Am. Rep. 193.
In this country it is commonly held that an easement may be the subject of a reservation. But adhering to strict rules, an easement cannot ordinarily be created by way of exception because it is a new right not before existing. Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34, 100 N.E. 434, Ann. Cas. 1914B, 1287; Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569, 58 Am. Rep. 623; Note, 20 L. R. A. 632; Kister v. Reeser, 98 Pa. 1, 42 Am. Rep. 608.
It is obvious, therefore, that the written statement appearing on the face of the plat of North Brookside subdivision as recorded by the owners should, under the rules we have just referred to, be construed as a reservation by such owners of the exclusive right or easement on their part to lay railroad or street railway tracks, and all other public utilities, or any of...
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