Demeter Land Co. v. Florida Public Service Co.

• Decision Date: 03 May 1930
• Citation: 128 So. 402,99 Fla. 954
• Parties: DEMETER LAND CO. v. FLORIDA PUBLIC SERVICE CO.
• Court: Florida Supreme Court

128 So. 402

99 Fla. 954

DEMETER LAND CO. v. FLORIDA PUBLIC SERVICE CO.

Florida Supreme Court

May 3, 1930

Commissioners' Decision.

Error to Circuit Court, Hardee County; W. J. Barker, Judge.

Condemnation proceeding by the Florida Public Service Company against the Demeter Land Company. Judgment for petitioner, and defendant brings error.

Affirmed.

COUNSEL

Patterson & Wilson, of Ft. Meade, for plaintiff in error.

E. W. &amp R. C. Davis, of Orlando, for defendant in error.

OPINION

DAVIS C.

The defendant in error filed its petition in the circuit court in and for Hardee county, alleging therein that it is a corporation organized and existing for the purpose of generating, selling, and transmitting electricity for public use and for lighting and furnishing electric power and for operating and transmitting electricity over certain lines already constructed for like uses; that certain land particularly described in the petition, is necessary for the use of the corporation for the purpose of transmitting electricity for public purposes, and that such land is to be used as a right of way for the construction, maintenance, and operation of the electric power lines for public uses and purposes; that it has located its line and intends in good faith to construct the same over the property; that it was unable to agree with the Demeter Land Company, the fee-simple owner, as to the matter of compensation therefor; that said land was sought for the purpose of being used as a right of way for the construction, maintenance, and operation of its electric power line for public uses and purposes; and that the same is necessary for such said purpose.

The petition contains a prayer that upon the payment of the compensation allowed by a jury petitioner may take the land and use it for the purposes aforesaid for the use of the public.

The Demeter Land Company, the alleged owner of the fee, answered the petition, denying that the purpose for which petitioner seeks to condemn said property is a public use or purpose, and further:

'That while the plaintiff, Florida Public Service Company, is incorporated under the laws of Florida, and its charter has condemnation privileges inserted therein, this defendant denies that said plaintiff has any right under the laws of the State of Florida, to condemn lands for the purpose of rights of way over the lands of this defendant.

'That the Plaintiff is not a corporation entitled to the rights of Eminent Domain, under the provision of the law, to condemn property for public works; or for public use;

'That the construction and maintaining of power lines by said plaintiff does not come under the purport and intent of the law, authorizing condemnation proceedings for public works;

'This defendant, denies that the construction and maintaining of power lines of said plaintiff, are, under the terms of the provision of the law, public works; and

'That the defendant believes, and now charges, that the plaintiff is without power, under the laws of the State of Florida, to the right of Eminent Domain, over the property of this defendant.'

The petitioner demurred to that part of the answer which we have quoted, and on the same day filed a motion to strike the same from the answer, and also on the same day filed exceptions to the same.

The court, after due notice and hearing, made an order that the 'exceptions to the answer, demurrer and motion to strike' be sustained. With leave of court, the said Demeter Land Company filed an amended answer.

A trial of the cause resulted in a judgment that the property in question 'be appropriated to the petitioner as an easement' upon the payment or deposit with the clerk of the amount of compensation for said land which had been assessed by the jury.

The plaintiff in error has assigned a number of errors, the first three being predicated upon the ruling of the court sustaining the said motion to strike, the said exceptions, and the said demurrer. These three assignments of error are the only ones that have been argued here. As to the others, the plaintiff in error in its brief merely submits them without argument or citation.

It is a rule of this court that consideration by it of a case here on writ of error or appeal will be confined to the errors assigned and argued (Dell v. Marvin, 41 Fla. 221, 26 So. 188, 45 L. R. A. 201, 79 Am. St. Rep. 171), except where a jurisdictional or other fundamental error of law is apparent on the face of the record, in which event such error may be considered by the appellate court, though it is not assigned. Parker v. Dekle, 46 Fla. 452, 35 So. 4; Bynum v. State, 76 Fla. 618, 80 So. 572; Gunn v. State, 78 Fla. 599, 83 So. 511.

Section 5089, Compiled General Laws of Florida 1927, says:

'If no cause be shown to the contrary the judge of the circuit court shall cause a jury of twelve men to be empaneled to try what compensation shall be made to the defendants irrespective of any benefit from any improvement irrespective of any benefit from any improvement proposed by the petitioner, which issue shall be tried in the same manner as the other issues of fact are tried in the said circuit court. The jury shall in all cases view the property, unless the parties interested in the issue consent to dispense with the viewing.

'Whenever it shall be made to appear to the judge of the court in which said cause is pending that said cause is at issue or stands on default duly and properly entered or that said cause is at issue as to one or more of the defendants and stands on default duly entered as to the others, in accordance with section 5067, it shall thereupon become and be the duty of the judge of said court to try said cause at once whether it be in vacation or in term time (so long as said trial shall not interfere with the holding of any regular term of court within his judicial circuit) and to this end the judge may make all necessary orders for procuring the jury or in reference to the cause. If the jury can not agree, then the said judge shall forthwith empanel another jury and proceed with the trial of said cause: Provided, however, that if any jury is summoned out of term time, that the entire cost thereof including the compensation of such jurors shall be taxed as costs against the petitioner in said cause.'

This carries with it the implication that the jury is to try only 'what compensation shall be made to the defendants for the property sought to be appropriated,' and as stated by Mr. Justice Brown, in Wilton v. St. Johns County (Fla.) 123 So. 527, 532, 'This indicates that the court shall first determine the question whether any cause be shown why the property should not be taken before submitting the question of compensation to the jury.'

Now it does not appear that that part of the answer which we have quoted relates to any of the allegations of the petition that are essential to the exercise of the power of eminent domain (section 5084, Compiled General Laws of Florida 1927), except the allegation which sets forth the authority under which the petitioner claims the right to take the properly for public use. As we see it, these allegations of the answer raise a question of law, which well might have been raised by a demurrer to the petition. 2 Lewis on Eminent Domain (3d Ed.) § 590. The statute does not set out in detail the procedure that may be followed, and it says nothing about the right of the defendant in condemnation proceedings to demur, but when such statutes are silent as to how questions may be raised, the courts in which the proceedings are instituted may adopt the usual modes of determining such questions. 2 Lewis Eminent Domain (3d Ed.) § 589; Wilton v. St. Johns County, supra.

When the petitioner demurred to and moved to strike that part of the answer which challenged its authority to condemn the land for its right of way purposes, the question of law involved was just as effectually raised as though the defendant had demurred to the petition.

Both sides have argued here the right of the defendant in error to have the property in question condemned for the purpose of providing a right of way for its lines to be used in transmitting current for light, power, and heat. This involves the consideration of a fundamental question--the taking of private property from one and delivering it to another--and if we were of the opinion (we are not) that the assignments of error argued here do not raise the question, we would nevertheless be disposed to settle it.

The Fifth Amendment of the Constitution of the United States prohibits the taking of private property for a 'public use' without just compensation. It is necessarily implied from the language there used that private property cannot be taken for any other purpose without the consent of the owner. However, this amendment was not intended to limit the powers of the state governments, but to operate on the national government alone. Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672; Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369; Withers v. Buckley, 20 How. 90, 15 L.Ed. 816; In re Spies, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Thorington v. Montgomery, 147 U.S. 490, 13 S.Ct. 394, 37 L.Ed. 525; Kinkaid v. Jackson, 66 Fla. 378, 63 So. 706; Pittman v. State, 51 Fla. 94, 41 So. 385, 8 L. R. A. (N. S.) 509. The Constitutions of many of the states contain a provision like the one referred to in the federal Constitution.

Section 12 of the Declaration of Rights, Constitution of Florida provides that no person shall be deprived of his property without due process of law, and that private property shall not be taken without just compensation, and section...