Department of Transp. v. Burnette

• Decision Date: 11 June 1980
• Docket Number: No. NN-91,NN-91
• Parties: DEPARTMENT OF TRANSPORTATION, Appellant, v. William B. BURNETTE et al., Appellees.
• Court: Florida District Court of Appeals

Page 916

384 So.2d 916

DEPARTMENT OF TRANSPORTATION, Appellant, v. William B. BURNETTE et al., Appellees.

No. NN-91.

District Court of Appeal of Florida, First District.

June 11, 1980.

H. Reynolds Sampson, Gen. Counsel, and Margaret-Ray Kemper, Tallahassee, for appellant.

Cary A. Hardee, of Davis, Browning & Hardee, Madison, for appellees.

ROBERT P. SMITH, Jr., Judge.

The Department appeals from a circuit court judgment enjoining it within 90 days either to condemn appellee Burnette's Madison County tract of 100 acres, held unconstitutionally taken without compensation, ¹ or to end the water drainage which effected the taking. The trial court found the Department took Burnette's land by draining water down upon it from a point on State Road 10, north of the property, where for years previously pipes and culverts carried drainage in the opposite direction. We find that Burnette failed to prove that the undoubted damage to this land amounts to a taking of it, for which the whole must be condemned and paid for; but we affirm judgment insofar as it enjoins the Department's continued burdening of Burnette's property.

On conflicting evidence the trial court found that the natural drainage path for land immediately surrounding State Road 10 (U.S. Highway 90), within a half-mile west of Madison, ² was and is northward under the highway and across property now occupied by North Florida Junior College. Years ago drainage was carried under the highway by a clay pipe culvert, which was replaced in 1923 by a larger concrete culvert. In 1956 that section of the highway was rebuilt slightly to the south, and two pipes were placed under the new highway segment to continue draining water from south of the highway northward through the old culvert in the old pattern. Sometime between 1956 and 1969, those northward drainage courses were plugged with concrete, apparently to permit the building of North Florida Junior College, where drainage previously flowed. That action stopped the northward drainage and caused ponding immediately south of the highway. Then, in 1969, the Department completed and systematized the 180o reversal of drainage by ditching an easement from the highway 500 feet south toward the northern boundary of the subject property. During the same project the Department added more drainage to this system through a 416-foot long 54-inch concrete culvert along the south side of State Road 10, which carries the runoff from 103 acres of improved land in municipal Madison.

Appellee Burnette couched his complaint against the Department in terms of a constitutional "taking." ³ The final judgment of the circuit court likewise is predicated on a finding that the diversion of drainage in such substantial quantities "constitutes a permanent taking . . . without full compensation." ⁴ The characteristics of such a "taking" are variously stated by the authorities as "a permanent invasion of land amounting to an appropriation," different in degree or character from "damage to property," and substantially depriving the owner of the land's beneficial use, as contrasted with "merely impair(ing) its use." See Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663, 669 (Fla.1979); Arundel Corp. v. Griffin, 89 Fla. 128, 103 So. 422 (1925); Kendry v. State Road Department, 213 So.2d 23, 27 (Fla. 4th DCA 1968), cert. den., 222 So.2d 752 (Fla.1969); Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); Thompson v. Nassau County, 343 So.2d 965 (Fla. 1st DCA 1977); Poe v. State Road Department, 127 So.2d 898 (Fla. 1st DCA 1961); City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. 1st DCA 1964), cert. den., 172 So.2d 597 (Fla.1965).

There is no doubt that the Department's reversal of the drainage flow from north to south imposes a substantial burden on the subject property. As the trial court said in part, supra fn. 4, the drainage "has interfered with the intended use or uses of the premises." But the question is not whether these 100 acres are damaged or reduced in potential usage, but whether they have been permanently taken. On that issue, the evidence is that half of Burnette's 100 acres are low and relatively more susceptible to collecting water after a heavy rain; half the acreage is high. This evidence is significant because Burnette assembled these 100 acres in order to build "a multi-family type townhouse development" called Country Club Villas, consisting of 376 townhouse units, some with a good view of the Madison Country Club and Golf Course to the west. Burnette wished to build 47 structures, each containing 8 townhouse units and producing a developed density of .29 acres per unit. But, he said, the potential flooding of half his acreage prevents development of Country Club Villas because development standards require construction above the reach of surface water which will rise once every 25 years, on the average, as the result of a "25-year six-hour storm". In such a storm, Burnette's engineer testified, an estimated 14 million gallons of water from the City of Madison will be introduced into the drainage system now including Burnette's land. In such conditions, the 50 low acres will be flooded and access to the 50 acres of high land will be limited. Thus, said Burnette, "I have been advised by my engineer to go no further with the project in any way whatsoever with that 50 acres gone."

Burnette's claim that his 100 acres is unconstitutionally "taken," entitling him to full compensation in the light of the highest and best use of his property, is rendered problematic by the stark fact that Burnette did not own any of this property when, years ago, the drainage system carried surface water across lands to the north now occupied by North Florida Junior College; nor when the old pipes and culverts were plugged, before 1969, and the Department failed to relieve the blockage; nor in 1969, when the Department completed the drainage turnabout, extended it southward, and increased its volume. Burnette did not assemble this potential Country Club Villas until 1977. In May 1972 he bought 25 of these acres from Albert Coody, who previously fished and farmed his property; and in September 1977 Burnette took the remaining 75 acres from Fish and Game Improvement, Inc., a private corporation, in satisfaction of a money judgment which apparently was unrelated to this property.

Appellee Burnette thus assembled the Country Club Villas tract eight years after the Department began the construction which Burnette says effected a taking, and some five years after that construction was completed. Burnette made no investigation of drainage patterns before buying the Coody tract or before accepting title to the Fish and Game Improvement, Inc. tract in satisfaction of a judgment. Burnette's assembly of this 100-acre tract in the face of the circumstances of which he now complains has these countervailing effects upon his claim that, by constitutional standards, his 100 acre tract has been "taken" and he should be wholly compensated for its aggregate value:

First, it appears that this land was permanently "taken," if at all, some years before Burnette assembled it in September 1977. Burnette does not here claim that the 25 acres previously owned by Coody can no longer be used for fishing and farming, as Coody used them, nor that the 75 acre tract cannot now be used for similar purposes, or for whatever purposes (not shown) they were put to all those years, or indeed for low-density residential purposes. The premise for Burnette's claim of a "taking" is that he is unable to develop his 100 acres, conceived of by him as economically indivisible ("I have been advised by my engineer to go no further with the project in any way whatsoever with that 50 acres gone") as a relatively high density "multi-family type townhouse development." Having failed to show that the property is permanently deprived of beneficial uses to which it was put at the time of the acts constituting the taking, Burnette renders inapplicable such decisions as State Road Dept. v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941), in which the Supreme Court liberalized the "taking" test as necessary to protect the owner's entitlement to undiminished use of, or full compensation for, a water mill which had been in use for more than 70 years when Department construction increased the water in the millrace, reducing the mill's capacity by 50 percent. See also Kendry v. State Road Dept., supra, in which the court sustained an inverse condemnation action to protect or to secure full compensation for the taking of land rendered useless for existing residential purposes. Those and other like decisions do not stand for the proposition that governmental action which damages private property by eliminating one of many potential uses, but no existing use, constitutes a permanent taking of that property.

Second, Burnette's premise of an indivisible 100-acre development, the frustration of which constitutes the "taking," is faulty because the two components a 25-acre parcel and a 75-acre parcel were separate, not assembled, when the acts constituting the taking occurred and had the permanent effect Burnette contends they had. See Petroleum Products Corp. v. Clark, 248 So.2d 196 (Fla. 4th DCA 1971). To regard those parcels as hypothetically assembled when separately "taken," so enriching every acre of the whole with the potential of its use in a larger, unified tract, violates the familiar principle that it is improper in eminent domain proceedings to speculate on what might be done to make land more valuable, but was not done at the time of taking, and then attribute that greater value to the land so hypothetically improved. Yoder v. Sarasota County, 81 So.2d 219 (Fla.1955); Coral-Glade Co. v. Board of Pub. Instr. of Dade County, 122 So.2d 587 (Fla. 3d DCA 1960). These lands having been taken, if at all, when they were separate tracts, they cannot be considered as unified for...