Clark v. Gulf Power Co., I--229
| Decision Date | 20 April 1967 |
| Docket Number | No. I--229,I--229 |
| Citation | 198 So.2d 368 |
| Parties | William B. CLARK and wife, Grace Carr Clark, Petitioners, v. GULF POWER COMPANY, a corporation, Respondent. |
| Court | Florida District Court of Appeals |
Isler & Welch, Panama City, for petitioners.
Thomas Sale, Jr., and Mercer P. Spear, Panama City, for respondent.
This proceeding in eminent domain was instituted by Gulf Power Company seeking right of way easements for the construction and operation of an electrical transmission line. Gulf Power, concurrently with filing its petition in eminent domain, filed a declaration of taking as authorized by Chapter 74, Florida Statutes, F.S.A. Petitioners Clark, owners of part of the land in Bay County, Florida, involved herein, filed their objections which were overruled by the trial judge in entering his order of taking. We entertain the instant petition for common law certiorari to review said order upon the authority of Crouse v. Canal Authority, Case No. I--332, not yet reported.
Petitioner poses three pertinent points: 1. Is it error to enter an order of taking when the petition in eminent domain does not clearly show that the petitioner is properly exercising its delegated power? 2. May a public utility use the power of eminent domain solely for the purpose of constructing a transmission line to be used for supplying electrical current to users outside the State of Florida? 3. May an order of taking grant to the condemnor the right of ingress and egress not only over public roads but also over existing private roads and 'at such other points or places as may reasonably and conveniently provide access to the right of way' acquired? We combine points 1 and 2.
No person shall be '* * * deprived of life, liberty, or property, without due process of law * * *.' 1 '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 * * *.' 2 Thus, the power of eminent domain vested in the sovereign may, by the provisions of our Constitution, be delegated to a private corporation to exercise For a public use. Here, the critical question which must be answered in a petition by a private corporation seeking to exercise this power of seizing the private property of individuals in a quick proceeding is, Is it clearly alleged that the property sought will be put to a public use? Both parties agree that the use, if any, is stated in Paragraph II of the eminent domain petition which alleges:
'That Petitioner is engaged in, and is organized for the purpose, among other things, of constructing, maintaining, and operating public works, viz., plants and works for the production, generation, transmission and distribution of electric current for light, heat and power, and electric transmission and distribution lines, poles, towers, and wires, and for the selling, furnishing, supplying and distributing of electric current for light, heat and power to the public, and owns such plants and works and is engaged in such business and supplying such current in said County of Bay and elsewhere in the Western portion of the State of Florida, and for this purpose of supplying the public convenient to its distribution systems in the Western portion of Florida with current for light, heat and power, and for the purpose of connecting its power lines and facilities from the Lansing Smith Steam Plant in Bay County, Florida, in a northwesterly and westerly direction to its Shoal River Substation in Okaloosa County, Florida, and for the purpose of connecting its power line facilities from the Lansing Smith Steam Plant in a northeasterly direction to the Georgia State line for connection with facilities of Georgia Power Company continued on to Thomasville, Georgia.'
A close analysis of the quoted allegation reveals that the eminent domain petition alleges the genera purposes for which Gulf Power was organized and operates. There is a total absence of any allegation stating the actual use to be made of the Clark's property, or that the contemplated transmission line will be of any benefit to any citizen of Florida, or that any 'public purpose' will be accomplished by the seizure of the Clark's property. The Clarks contend that the location of their property and the route of the right of way sought is such that if any use is stated in the above quoted allegation that could be applicable to their property, it is, '* * * for the purpose of connecting its power line facilities from the Lansing Smith Steam Plant in a northeasterly direction to the Georgia State line for connection with facilities of Georgia Power Company continued on to Thomasville, Georgia.'
Public utilities have been granted by statute the right of eminent domain. When the exercise of this right is used against an individual to divest him of his property against his will, strict compliance of the law is required. 3 Section 73.021, Florida Statutes, F.S.A., requires that the petition in eminent domain set forth the Use for which the property is to be acquired and that the property is necessary for that use. The constitutional guarantee of due process and prohibition of the taking of private property without full compensation decree that the use for which the property is taken must be a public use 4--that is, one which is fixed and definite, in which the public has an...
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...property in one state cannot be condemned for the sole purpose of serving a public use in another state.Clark v. Gulf Power Co. , 198 So.2d 368, 371 (Fla. Dist. Ct. App. 1967). See also Adams v. Greenwich Water Co. , 138 Conn. 205, 214, 83 A.2d 177, 182 (1951) (observing that "no state is p......
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...another state. Mountain Valley Pipeline, LLC v. McCurdy , 238 W.Va. 200, 793 S.E.2d 850, 862 (2016) (quoting Clark v. Gulf Power Co. , 198 So. 2d 368, 371 (Fla. Dist. Ct. App. 1967) ); accord, e.g. , Adams v. Greenwich Water Co. , 138 Conn. 205, 83 A.2d 177, 182 (1951) (noting "no state is ......
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