City of Miami v. Florida East Coast Ry. Co.

• Decision Date: 27 November 1973
• Docket Number: No. 73--210,73--210
• Citation: 286 So.2d 247
• Parties: CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 247

286 So.2d 247

CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, et al., Appellees.

No. 73--210.

District Court of Appeal of Florida, Third District.

Nov. 27, 1973.

Rehearing Denied Dec. 19, 1973.

John S. Lloyd, City Atty., and R. Harris Turner, Asst. City Atty., Howard Hadley, Winter Park, Podhurst, Orseck & Parks, Miami, for appellant.

Shutts & Bowen and William P. Simmons, Jr., Miami, for appellees.

Before PEARSON, CARROLL and HENDRY, JJ.

PER CURIAM.

The City of Miami brought to the circuit court a petition in eminent domain. It sought to condemn property of the Florida East Coast Railway Company. The land involved is approximately thirty-two acres located on Biscayne Bay in downtown Miami, the western boundary being Biscayne Boulevard, lying between N.E. 6th and N.E. 9th streets and extending eastward to the harbor line of the Bay. The City wants to condemn the land for park purposes. The Railway Company uses all of the land except the bay bottom in connection with its business, and some of the land in connection with transferring freight to marine carriers. The City urges that the Railway ought to use the newer Dodge Island seaport which is operated by the county. The Railway Company urges that it has a right to continue to use the land for its business purposes. ¹

An issue concerning the right of the City to acquire the property by eminent domain was raised by an affirmative defense in the answer of the Railway Company. The answer stated that the City is not authorized to condemn the property because it is being devoted to a public use. The issue came on to be heard upon the Railway Company's motion for summary judgment. The trial judge considered the issue of the City's right to condemn as a 'disputed matter' to be settled 'in limine' at a pretrial hearing pursuant to Fla.Stat. § 73.061(1), F.S.A. After taking testimony, the judge entered an order entitled 'Order on Defendant's Motion for Summary Judgment'. The order found that a part of the land was being used by the Railway Company for private business purposes, and the court held that such land could be acquired by the City by eminent domain. The order further found that a part of the land was being used by a lessee of the Railway Company, but that it was used by the lessee for a public purpose and that this portion of the land could not be acquired by the City. The order further found that the remainder of the property was also being used by the Railway Company for a public purpose and therefore could not be acquired by the City.

This appeal is by the City of Miami from the order on pretrial hearing. There is no cross assignment of error offered by the Railway Company, and therefore no issue upon the trial judge's finding that a portion of the property is properly subject to the City's suit. In his order, the trial judge has provided a clear statement of what occurred in the proceedings before him:

'The evidence presented by the petitioner consisted of the testimony of two expert witnesses, the director of the City's Planning Department and one of his assistants, who testified that the property sought to be condemned was needed for public recreational park uses. The petitioner did not offer any evidence directly bearing on the extent of the present uses of the property by the railroad or its prior uses.

'The defendant railroad presented extensive evidence (sic) as to the present and prior uses of the property. It appears that for several years most of the property fronting on Biscayne Boulevard has been leased for various commercial uses not directly connected with the operation of the railroad. There are four such parcels under lease as shown on Exhibit 'C' of the defendant railroad: Parcel #1 in the southwest corner of the property leased to Standard Oil Co.; Parcel #3 in the center of the property leased to Holiday Inns of America, Inc.; Parcel #4, near the north end of the property leased to American Oil Co.; and a parcel in the northwest corner of the property designated on the exhibit as Parcels 5 and 6, fronting 125 along Biscayne Boulevard and extending eastward 100 .

'Another portion of the property designated as Parcel #2 on Exhibit 'C' has been under lease since January 1, 1966 to TMT Trailer Ferry, Inc., and used for marine terminal purposes in its operations as a common carrier of freight traffic on barges between Miami and Puerto Rico.

'The remainder of the property has been used and occupied for many years by the railroad as a port facility. Two rail lines of the railroad, designated as team tracks, serve this part of the property and parallel the bulkhead where vessels dock so that property can be conveniently transferred between ships and railroad cars.

'The evidence presented by the railroad showed extensive use of these port facilities in recent years for the dockage of vessels and the transfer of cargo moving in interstate and foreign commerce between ships and barges on the one hand and, on the other hand, the railroad and common carrier trucklines that move the cargo to and from the port. The port facilities operated by the railroad and by TMT Trailer Ferry, Inc., are public facilities, so designated in various tariffs governing their use. The railroad makes continuous use of these public port facilities through its rail lines serving them and also through its wholly owned common carrier truck line subsidiary, the Florida East Coast Highway Dispatch Company. The use of the port facilities by the railroad and its subsidiary is an integral part of the operation of the railroad.'

The City has presented a point on appeal urging that the trial court committed error in the procedure employed. Furthermore, it claims that a summary judgment should not have been entered because there are genuine issues of material fact. The point does ot present reversible error, although the terminology used in the order appealed may have been inappropriate. The trial judge properly proceeded to determine the issue of the City's right to eminent domain at a pretrial hearing. The issue was one to be determined by the court without the aid of a jury. See 27 Am.Jur.2d Eminent Domain § 401. Cf. Demeter Land Co. v. Florida Public Service Co., 99 Fla. 954, 128 So. 402 (1930); Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527 (1929); 1.67 Acres of Land v. State ex rel. Allen, 225 A.2d 763 (Del.1967). The City did not object to the procedure used, and was afforded a full opportunity to present any and all evidence that it could have offered at trial.

The City attacks the court's holding in two ways. First, the City claims that because public necessity is involved, its proposed use of the property is superior in rank to the Railway Company's use. Second, the City urges that all of the subject property is used by the Railroad Company for private purposes.

The City contends that it has a superior right of eminent domain to the property sought to be condemned because of the great and urgent need of cities for park and recreational areas. See City of Dania v. Central and Southern Florida Flood Control District, Fla.App.1961, 134 So.2d 848. Conversely, the Railway has claimed a superior right to the property because of certain statutes giving it condemnation rights. See Fla. Stat. §§ 360.01(4), 360.02, and 361.01, F.S.A. We know of no present statute or court decision which gives to either of the parties a higher right of eminent domain. We respectfully decline the temptation to hold that because of changed circumstances a new rule is required. We leave that decision, if and when necessary, to the legislature or a higher court.

The City's second argument recognizes the prior use doctrine, i.e., the proposition that property already devoted to a public use may not be taken for another public use in the absence of express legislative authority. See City of Dania v. Central and Southern Florida Flood Control District, supra. The trial judge applied the doctrine as follows:

'The defendant railroad, as a poublic service corporation, has certain special powers under the Florida Statutes including those enumerated in Chapter 360. Among these special powers is that of eminent domain and the specific power under Section 360.02, Florida Statutes, to condemn propoerty for marine terminal facilities and public uses in connection therewith such as those to which the major portions of the property involved herein are being used.

'The petitioner herein, City of Miami, has only general powers of eminent domain and its such powers are not superior to those of the defendant railroad.

'The petitioner is not authorized or permitted by law to condemn those portions of the property involved which are being used for the public purposes stated above. The record shows that there is no genuine issue as to any material fact with respect to the issue involving the right of the petitioner to condemn such property, and the defendant railroad is entitled, as a matter of law, to a judgment dismissing such property from this suit.'

The Railway has relied heavily on Dania, supra, to support its argument that the application of the prior use doctrine requires a holding that its 'public use' of the property bars the City from exercising its power of eminent domain. Therefore, the Railway contends that any use of the property which has a public aspect, such as a fellow common carrier using the property for freight shipping, bars the City from exercising its power of eminent domain. Initially, the argument is not acceptable because the Dania case involved an application of the prior use doctrine between two ...