Di Virgilio v. State Road Dept.
| Decision Date | 28 November 1967 |
| Docket Number | No. 1041,1041 |
| Citation | 205 So.2d 317 |
| Parties | Philip DI VIRGILIO and Minnie Di Virgilio, his wife, Appellants, v. STATE ROAD DEPARTMENT of Florida, an agency of the State of Florida, et al., Appellees. |
| Court | Florida District Court of Appeals |
R. Stephen Miles, Jr., of Thacker & Thacker, Kissimmee, for appellants.
P. A. Pacyna, Tallahassee, for appellee State Road Department.
This is an appeal by the defendants, Philip and Minnie Di Virgilio, from a final judgment in a condemnation proceeding brought by the State Road Department and Osceola County, as petitioners.
Defendants own land in Osceola County on both sides of U.S. Highway 441, an access highway, which runs through their property on a northwest-southeast orientation. The smaller tract of defendants' land lies north of the highway and is of triangular shape lying in the acute intersection of Highway 441 and State Road 523, which runs east and west. The larger tract lies across Highway 441 from the smaller one, also bordering the intersection of the two highways. The petitioners decided to widen Highway 441 and instituted condemnation proceedings to obtain the required right-of-way by taking a portion from each of these tracts.
The effect of the taking on defendants' two tracts was dramatically different. Approximately 65% Of the smaller triangular tract was taken, thereby rendering it virtually useless, i.e., for a billboard site on the remaining 3300 square feet. The value of the larger tract, on the other hand, actually was enhanced because its highway frontage was increased from 320 feet to 480 feet.
The major question in this appeal is whether the enhancement accruing to the defendants' larger property on the south side of Highway 441 can be offset against the severance damage accruing to the defendants' remaining property on the north side thereof.
The applicable statute is F.S.A. § 73.10(3), 1963, now F.S.A. § 73.071(4), which reads as follows:
'When the action is by the state road department, county, municipality, board district or other public body for the condemnation of a road, canal, levee or water control facility right of way, the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason of the construction or improvement made or contemplated by the petitioner, shall be offset against the damage, if any, resulting to such remaining adjoining property of the defendant property owner by reason of the construction or improvement, but such enhancement in the value shall not be offset against the value of the property appropriated, and if such enhancement in value shall exceed the damage, if any, to the remaining adjoining property there shall be no recovery over agianst such property owner for such excess.'
Defendant's lands were condemned as one parcel, to which there was no objection. To the contrary, the defendants' answer treated the lands as one and affirmatively pleaded severance damages to the parcel The testimony by the owner showed he purchased the land about 1935 and has owned it since. Testimony by the petitioners' appraiser, who arrived at 1,795.00 as full and just compensation, reveals the highest and best use of the lands on both sides of Highway 441 at its intersection with State Road 523 to be potentially commercial, tapering off on the larger tract to potentially residential, with the remainder of the parcel suited for cattle pasture. He further testified without objection that in arriving at a compensation figure he used the ehnancement to the larger tract to reduce the severance damage to the smaller one. Testimony by the defendants' appraiser showed severance damage to the smaller tract but no severance damage to the larger tract, with a sum of $11,000.00 representing just compensation for the entire parcel. No attempt was made to distinguish consideration of the tracts through requested instructions. A verdict was returned by the jury of $2,500.00 for the parcel as a whole.
Not until their motion for a new trial did the defendants object to these lands being treated as one parcel or suggest that the tracts be afforded separate consideration. For aught appears in the record, the entire question of whether or not the two tracts should be treated as adjoining for purposes of determining enhancement and severance damages was not considered by the trial court. The defendants failed to object and cannot now be heard to complain. Assuming the two tracts were presumptively discrete, this cannot be said to have been so fundamental and prejudicial to the defendants as to necessitate a reversal notwithstanding defendants' failure to object. Daniels v. State Road Department, Fla.1964, 170 So.2d 846; Marinelli v. Weaver, Fla.App.1966, 187 So.2d 690; Clark v. Osceola Clay & Top Soil Company, Fla.1957, 99 So.2d 869; Quick v. Leatherman, Fla.1957, 96 So.2d 136.
Albeit, we find the record otherwise sufficient to support the verdict and final judgment.
Defendants contend that by adjoining land the statute means land that is contiguous to that condemned, i.e., land that is physically connected. Because the two tracts of land were separated by Highway 441 defendants argue that each must be considered independent of the other, with benefit to the larger portion only being used to reduce severance damage to that same tract. Consequently, they reason that it was error for the petitioners' appraiser to use the benefit to the larger tract to reduce the consequential damage to the smaller in arriving at his estimate of just compensation.
Undoubtedly, if defendants were correct and physical contiguity were the only test we would reverse for fundamental error. But the general rule is otherwise. In determining what is adjoining property for the purpose of balancing severance damage and benefits in a condemnation suit, three facts are important:...
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