Diamond K Corp. v. Leon County, 95-2452
| Decision Date | 25 July 1996 |
| Docket Number | No. 95-2452,95-2452 |
| Citation | 677 So.2d 90 |
| Court | Florida District Court of Appeals |
| Parties | 21 Fla. L. Weekly D1689 DIAMOND K CORPORATION, a Florida corporation, d/b/a D & K Nurseries and Landscaping, Appellant, v. LEON COUNTY, a political division of the State of Florida, and State of Florida, Department of Transportation, Appellees. |
Will J. Richardson, Tallahassee, for Appellant.
Herbert W.A. Thiele, County Attorney; Celeste F. Adorno, Assistant County Attorney, Tallahassee, for Appellee Leon County, Florida.
Thornton J. Williams, General Counsel; Marianne A. Trussell, Assistant General Counsel, Tallahassee, for Appellee Department of Transportation.
Diamond K Corporation challenges final judgments entered in favor of appellees, Leon County and the Florida Department of Transportation, the defendants in the appellant's inverse condemnation suit. Because the record contains no evidence that the appellees' activities permanently deprived Diamond K of the beneficial use of its property so as to constitute a taking, we affirm.
Diamond K operates a business on approximately 10 acres of property located on the south side of an east-west thoroughfare, State Road 10 (Tennessee Street), in Leon County. A corner of the property is traversed by the north branch of Gum Creek, which is utilized as a part of the stormwater management system of Leon County. Sometime in the late 1970's, Leon County dredged a channel in the creek to a width of eight feet for mosquito control purposes. In addition, since the property was purchased in 1972, extensive development has occurred north of Diamond K's property, with approval of the county, which has created additional surface water flow into the creek. In 1984, the Florida Department of Transportation (DOT), at the request of Leon County, added a 72 inch culvert to the two culverts already existing under State Road 10 to allow for the increased flow of Gum Creek. Diamond K claims that these activities have cumulatively caused Gum Creek to widen and that during rainstorms the creek so swells with surface water runoff that the Diamond K property does not properly drain. As a result, appellant filed an action for a declaration of taking without compensation.
After a bench trial, the lower court entered a final judgment in favor of each appellee. With respect to Leon County, the lower court found that Diamond K had failed to prove that any activity on the part of the county constituted a "continuing physical...
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...of the land, amounting to an appropriation of and not merely an injury, to the property.” See, e.g. , Diamond K Corp. v. Leon County , 677 So.2d 90 (Fla. 1st DCA 1996); South Florida Water Management Dist. v. Steadman Stahl, P.A., Pension Fund , 558 So.2d 1087 (Fla. 4th DCA 1990), rev. deni......