City of Tampa v. Texas Co.

Decision Date13 June 1958
Docket NumberNo. 298,298
Citation107 So.2d 216
PartiesCITY OF TAMPA, a municipal corporation of the State of Florida, Appellant, v. The TEXAS COMPANY, a New York corporation, et al., Appellees.
CourtFlorida District Court of Appeals

Ralph A. Marsicano, Neil C. McMullen, William R. McCown and H. Vincent Thornton, Tampa, for appellant.

Macfarlane, Ferguson, Allison & Kelly, John M. Allison, Tampa, for appellees.

ALLEN, Judge.

This is an appeal taken by the City of Tampa from a judgment entered in condemnation proceedings in which the city took a corner of a lot upon which was located a filling station. There is a lot owned by each of the defendants. The parties will be referred to as the city and the defendants.

The answer of each defendant alleged that the land taken was a part of a larger contiguous tract of land on which there was a filling station. The answers then claimed damages for injury to the adjoining land and station and for loss of business during construction of the highway and requested attorney's fees and costs.

The property taken in each case was a small parcel of about 190 square feet on which was erected a sign. The admitted value of each parcel was $1,000.00.

The two main questions involved in this appeal have apparently not been passed upon by the Supreme Court of this State. One question is whether or not a person, part of whose land is condemned for a public purpose, may recover consequential damages to the remainder of his land resulting solely from the use to which the public authority puts other land already owned by such authority, such use being for the same public purpose, keeping in mind that such consequential damage would definitely not be recoverable in absence of a taking.

The second question is whether or not an oil company, which owns but does not operate a filling station, having leased the station to an individual to operate, and which wholesales its products to its lessee, may recover for loss of profits during the time the filling station is not doing business by reason of the paving of a street upon which the filling station abuts.

The city states the above questions involved as follows:

I. 'In condemnation of a part of property, the court improperly directed the jury to assess damages admittedly resulting solely from change in grade on existing highway right-or-way; and improperly refused to limit the damages to the taking and the consequences of the taking.'

II. 'The court improperly ruled damages are recoverable by a lessor-wholesaler for loss of profits due to temporary interference with access to the lessees' business occasioned by progress of work on a street improvement.'

It appears that the approaches of the parking apron of each station had been built across a part of the road right-of-way up to the edge of the street pavement. In the construction program giving rise to the taking of the corners of the filling station properties of the two defendants, the street was widened to the edge of the right-of-way, and the grade of the road was lowered, resulting in a lowered curb line. This necessitated extensive repaving and rearranging of the defendants' approaches and facilities. The small parcels of land taken at the corners did not involve any of the approaches from the street to the filling stations of the defendants.

The lower court instructed the jury that they might find no less than certain minimum amounts established by the evidence for: (1) the taking of the corners of the land, (2) the damages to the approaches, and (3) the loss of business; but that they could find greater damages.

The city admits the obligation to pay fair value for the corners taken plus damages to the remaining property as a result of the taking, but argues that there was no liability for damages for the change of grade as that did not result from the taking.

Admittedly, had not the two small corners been taken by the city, no compensation would be allowed the defendants even though the lowering of the grade of the street would cause extensive damage to them. The Florida courts have held uniformly that although an abutting land owner may suffer consequental damage for the use of public lands by public authority, such is damnum absque injuria and therefore not recoverable by the land owner in absence of an actual, physical taking by such public authority. Such use includes widening a street or changing the grade of a street. See Selden v. City of Jacksonville, 1891, 28 Fla. 558, 10 So. 457, 14 L.R.A. 370; Bowden v. City of Jacksonville, 1906, 52 Fla. 216, 42 So. 394; Weir v. Palm Beach County, Fla.1956, 85 So.2d 865; Lewis v. State Road Department of Florida, Fla.1957, 95 So.2d 248; 12 Fla.Jur., Eminent Domain, Section 88.

We approach the principal question involved in this case which has never been decided by our Supreme Court. That is whether or not, where a condemning authority takes a small part of a parcel of land and where such taking did not in itself cause any damage to the remainder of the parcel, the owner thereof should receive compensation because the public work involved, in the instant case the widening of a street and the lowering of the pavement, necessitated extensive repair on a filling station located on the street.

One of the witness who made an appraisal of the property (A 6) gave the following answers with reference to the property taken:

'Q. This area of the taking as it now stands, is there any of that being used for filling station purposes other than the signs you mentioned?

'A. You mean the 190 square feet?

'Q. Yes.

'A. No sir, it is at the edge of the property and is only used at the moment for signs. The sidewalk crosses part of it.'

The appraiser, Richard E. Knight, who had been used by the city to show the value of the real estate taken, was made a witness by the defendants and gave the following evidence:

'Q. This incline you are talking about, that is occasioned by digging a gutter and not the taking, is that correct?

'A. Yes.

'Q. The digging is done on the road right-of-way?

'A. That's right.

'Q. They are not going over the right-of-way?

'A. Not according to our plans. (A 5)'

Section 12 of the Declaration of Rights of the Constitution of Florida, F.S.A., provides:

'Nor shall private property be taken without just compensation.'

Article XVI, § 29, of the Constitution provides:

'No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of 12 men in a court of competent jurisdiction as shall be prescribed by law.'

In condemnation proceedings, the jury is authorized to award damages for depreciation of value of land not taken. State Road Department of Florida v. Zetrouer, 1932, 105 Fla. 650, 142 So. 217; Worth v. City of West Palm Beach, 1931, 101 Fla. 868, 132 So. 689; Doty v. City of Jacksonville, 1932, 106 Fla. 1, 142 So. 599.

In Orgel, Valuation under Eminent Domain, Vol. 1, page 253 (2d ed. 1953), the following appears:

'Section 54. Distinction between Damages Due and Damages Not Due to the Taking of the Owner's Property.

'The courts have all recognized that the depreciation in market value of the remainder caused by the physical separation or severance of the part taken is due to the taking and they have held that compensation for this type of injury must be included in damages to the remainder. But they have distinguished these severance damages from the 'consequental' damages arising by reason of the use to which the condemner intends to put the part taken. It is with reference to these so-called consequental damages that the problem of differentiating between damage that is due and damage that is not due to the taking chiefly arises.

'The attempt of the courts to draw this distinction is due to the fact that, with certain exceptions, an owner of property is not entitled to recover for any diminution in value which it may suffer by virtue of the construction and operation of adjacent public works where no part of his property is deemed to have been 'taken'. It would seem, therefore, to be unfair discrimination to reimburse a property owner for all similar damages done to his property simply because a portion of it, however small, may have been condemned. Bearing this point in mind, the courts have attempted, some of them more vigorously than others, to distinguish between damages which a particular owner has suffered because a part of his property has been taken, and damages which this same owner may have suffered along with adjacent property owners because public works, detrimental to the remainder of his property, have been located in the neighborhood. Needless to say, there are great difficulties, both practical and theoretical, in making a distinction between these two types of damages, and courts have differed not only in the manner, but also in the zeal, with which they have attempted to draw it.

'In so far as the attempt to distinguish these types to 'consequential' damages has been made at all, two different bases of distinction may be noted. The first rule, which is perhaps peculiar to Massachusetts, may be called the 'Increased-Proximity' rule. The second rule, which has been applied to some extent by the United States Supreme Court and by a few state courts, may be called 'the rule delimiting the damage to that resulting from the harmful use of the owner's former property.' The distinction between these two rules, however, is by no means clear-cut, and, so far as we are aware, has not been expressly stated in judicial opinions or in the text books on eminent domain.'

Orgel, Valuation under Eminent Domain, Vol. 1, page 257, Section 56 (2d ed. 1953), further states:

'Outside...

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