Division of Admin., State Dept. of Transp. v. Jirik

• Decision Date: 14 May 1985
• Docket Number: No. 84-358,84-358
• Citation: 10 Fla. L. Weekly 1246,471 So.2d 549
• Parties: 10 Fla. L. Weekly 1246 DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Clara E. JIRIK, Appellee.
• Court: Florida District Court of Appeals

Page 549

471 So.2d 549

10 Fla. L. Weekly 1246

DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Clara E. JIRIK, Appellee.

No. 84-358.

District Court of Appeal of Florida Third District.

May 14, 1985.

Rehearing Denied June 17, 1985.

Ella Jane P. Davis and A.J. Spalla, Tallahassee, for appellant.

Jeff D. Gautier and Paul E. Watson, Tavernier, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

JORGENSON, Judge.

The Division of Administration, State of Florida, Department of Transportation (DOT) appeals from a final order which determined that a taking had occurred in an inverse condemnation action.

In 1955, Jirik's parents filed a plat of Boatman's Colony, a subdivision located in Plantation Key, Monroe County, Florida, and in 1958, transferred lots 1 through 5 of block 1 to Jirik by a single warranty deed. ¹ Jirik sold lot 5 approximately 18 to 20 years ago. In 1968, Jirik entered into an agreement for deed as to lot 4.

Jirik's remaining three lots form a compact body of land which is bounded on the west by lot 4, on the south by Darmy Canal, on the east by Tavernier Creek, and on the north by Freelan Road. ² , ³ The lots are presently vacant, undeveloped, and zoned for business purposes. The lots are subject to setback, maximum lot coverage, and parking restrictions pursuant to county ordinance.

In 1978, the DOT completed construction of a new bridge over Tavernier Creek and, in so doing, built a retaining wall on the right-of-way of Freelan Road. The retaining wall does not invade Jirik's lots but lies immediately to the north, running along lot 1 and part of lot 2. Access to lot 1 is now possible only by way of lot 2.

In the order under review, the trial court made the following findings and conclusions:

1. The Court cannot consider the plaintiff's three lots as one unit for inverse condemnation, as argued by the defendant, Division of Administration, Florida Department of Transportation.

2. The Court finds no diminution of access to Lots Two (2) and Three (3), of Block One (1), Boatman's Colony, Plat Book 3, page 90, of the Public Records of Monroe County, Florida.

3. The plaintiff, in the past, has considered and may continue to consider the lots involved as separate units.

4. As an incident to ownership of plaintiff's Lot One (1) abutting the public roadway, the plaintiff possesses rights not possessed by the public in general in that she has the right to egress and ingress to said Lot One (1).

5. The construction of the retaining wall, caused to be constructed by the defendant, is a substantial diminution of access to the said Lot One (1), which constitutes taking since the only access by land would be over a portion of Lot Two (2), which reduces the quality of the access to said Lot One (1).

On this appeal, the DOT contends that the trial court erred in finding that Jirik's lots constituted separate units. We disagree and affirm. ⁴

The determination of what constitutes a single unit/tract for condemnation purposes involves the consideration of three factors: unity of ownership, unity of use, and physical contiguity. See Mulkey v. Division of Administration, State of Florida, Department of Transportation, 448 So.2d 1062, 1065 (Fla. 2d DCA 1984); County of Volusia v. Niles, 445 So.2d 1043, 1047 (Fla. 5th DCA 1984); Di Virgilio v. State Road Department, 205 So.2d 317, 319-20 (Fla. 4th DCA 1967), cert. dismissed, 211 So.2d 556 (Fla.1968). As between the last two factors, unity of use generally is given the greater emphasis in such determination. See Mulkey; Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 384, 109 S.E.2d 219, 225 (1959); see also Baetjer v. United States, 143 F.2d 391, 395 (1st Cir.), cert. denied, 323 U.S. 772, 65 S.Ct. 131, 89 L.Ed. 618 (1944); Wilcox v. St. Paul & N.P.Ry.Co., 35 Minn. 439, 440, 29 N.W. 148, 149 (1886). Thus, "tracts physically separated from one another may constitute a 'single' tract if put to an integrated use...." Baetjer, 143 F.2d at 395; see Niles; 29A C.J.S. Eminent Domain § 140 (1965 & Supp.1984) and cases cited in n. 25. Similarly, contiguous tracts may be considered "separate" if used separately. Mulkey; see also Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211 (1903); United States v. Easements Upon 104.09 Acres of Land, 442 F.Supp. 926 (E.D.Wash.1977); City of Menlo Park v. Artino, 151 Cal.App.2d 261, 311 P.2d 135 (Cal.Dist.Ct.App.1957). With regard to the relationship between contiguity and use, some cases suggest that " 'unity of use', or integrated use and not physical contiguity is the test but that physical contiguity often has great bearing on the question of unity of use." Calvert v. City of Denton, 375 S.W.2d 522, 527 (Tex.Civ.App.1964); see also Baetjer, 143 F.2d at 395; Di Virgilio, 205 So.2d at 320; City of Lake Forest v. First National Bank of Lake Forest, 52 Ill.App.3d 893, 895, 368 N.E.2d 156, 158 (1977).

In Di Virgilio, the court was presented with the issue of whether the enhancement accruing to the defendants' property on the south side of a highway could be offset against the severance damage accruing to the defendants' property on the north side. To decide that issue, the court had to determine if physically separated lands could be considered "adjoining property" within the meaning of section 73.10(3), Florida Statutes (1963) (now section 73.071(4), Florida Statutes (1983)). ⁵ Based on its review of the record--the fact that the two tracts were separated only by a highway over which there was unlimited access and the fact that the tracts shared a highest and best use--the court concluded that the trial court did not err in permitting the jury to consider the tracts as a single unit. The court developed standards for the determination of what constitutes a single tract and stated that "[p]hysical contiguity ... [has] great evidentiary value in determining whether there exists a unity of use," 205 So.2d at 320, and, further, that contiguous lands which are nominally divided are prima facie one unit ("adjoining property") and will be treated as such "unless actually devoted to such divergent uses that they take on the character of separate properties." Id. at 320.

Unlike Di Virgilio, Mulkey involved contiguous parcels of property. The northern parcel was leased to a company which constructed a convenience store on the property. The southern parcel remained vacant and unimproved except for a billboard. Patrons of the store had parked on the southern parcel but there was no indication that it was intended to be used as a parking lot. A strip of land was taken from both parcels. The taking eliminated five of the convenience store's eight parking spaces and the remaining three spaces were rendered unusable. The jury was allowed to consider the testimony of a witness who calculated severance damages based on the cost of relocating the convenience store's parking onto the vacant southern parcel. The owners of the parcels objected to this testimony because that method of calculating damages treated the leased parcel and the vacant parcel as one unit. The court applied the "three factors" test and concluded, as a matter of law, that the two parcels were not a single unit for the purposes of an award of severance damages because no unity of use existed.

In making its determination that the parcels were to be treated as separate units, the Mulkey court did not address the relationship between the contiguous nature of the parcels and unity of use. Apparently, the court considered the establishment of unity of use to be a necessary prerequisite to treating the parcels as one unit. See Mulkey, 448 So.2d at 1065 ("[the] three factors must be established to treat adjoining properties as a single tract ..." (emphasis supplied)); see also City of Menlo Park, 311 P.2d at 141; Gaines v. City of Calhoun, 42 Ga.App. 89, 93, 155 S.E. 214, 216 (1930) ("mere contiguity ... does not in itself render the lots in the aggregate an entire tract"); State v. Milanovich, 142 Mont. 410, 416, 384 P.2d 752, 756 (1963); Board of Transportation v. Martin, 296 N.C. 20, 249 S.E.2d 390 (1978). We think that, where it is established that the parcels in question are physically contiguous, a presumption arises that the parcels are one unit. However, this presumption can be rebutted by evidence that the parcels are otherwise "separate."

Legal divisions, such as those created by platting, are relevant to the determination of "separateness." See Easements Upon 104.09 Acres of Land, 442 F.Supp. at 927; State, Department of Highways v. Mouledous, 200 So.2d 384, 392 (La.Ct.App.), rev. denied, 251 La. 36, 202 So.2d 653 (1967). The courts do not agree on the proper weight to be given the existence of such divisions, at least with respect to city property. One line of cases follows Wilcox v. St. Paul & N.P. Ry. Co., in which the court stated:

"But in respect to city property, in fact unoccupied, but which appears to have been platted or divided into blocks and lots, nothing more being shown, the property should be treated as lots or blocks, intended for use as such, and not as one entire tract. Prima facie that character has been given to it by the proprietor. Presumably the division or platting was with a view to the use of the property, or to its disposal and ultimate use, in such subdivisions as has been made; and if any facts exist which might be considered sufficient to rebut this presumption, they should be disclosed."

29 N.W. at 150 (emphasis supplied). See Gaines; Pittsburgh, C., C. & St. L. Ry. Co. v. Crockett, 182 Ind. 490, 106 N.E. 875 (1914); Louisiana Ry. & Nav. Co. v. Xavier Realty, 115 La. 328, 39 So. 1 (1905); Koerper v. St. Paul & N.P.Ry.Co., 42 Minn. 340, 44 N.W. 195 (1890); New York Municipal Ry. Corp. v. Weber, 179 App.Div. 245, 166 N.Y.S. 542 (1917), modified on other grounds, 226 N.Y. 70, 123 N.E. 68 (1919); In re Queen Anne Boulevard, 77 Wash. 91...