Dudley v. Orange County

• Decision Date: 16 February 1962
• Docket Number: No. 2352,2352
• Citation: 137 So.2d 859
• Parties: Allen DUDLEY et al., Appellants, v. ORANGE COUNTY, Florida, a Political Subdivision, Appellee.
• Court: Florida District Court of Appeals

Page 859

137 So.2d 859

Allen DUDLEY et al., Appellants, v. ORANGE COUNTY, Florida, a Political Subdivision, Appellee.

No. 2352.

District Court of Appeal of Florida, Second District.

Feb. 16, 1962.

Fla.App. 1962

Hornsby & Newman, Orlando, and Johnie A. McLeod, Apopka, for appellants.

David W. Hedrick of Giles, Hedrick & Robinson, Orlando, for appellee.

SMITH, Judge.

The appellants as plaintiffs filed their complaint against the defendant-appellee, alleging that the defendant had built a dam on the west end of Long Lake and two dams on the east end of Long Lake and raised the grade of a public road, constructed without facilities for passage of water, which caused the water level in Long Lake to rise to the extent that the water level within the area of the dams was from five to nine feet higher than the adjacent lands which constitute the natural drain area for Long Lake, thereby causing the plaintiffs' lands, houses and businesses to be flooded and unusable, causing irreparable damage to the plaintiffs' property. The complaint prayed for injunctive relief. The County answered admitting much of the substance of the complaint, but alleging in great detail the existence of a natural disaster in the area during the time in question and also alleged that during this time, the area was designated a disaster area by the Governor of the State of Florida, the Federal Civil Defense Authorities, and the Board of County Commissioners of Orange County. They contend that even without the damming of the Lake, the level of the waters of the Lake would have been higher than normal; that the damming only increased the degree of flooding; that in the course of the emergency, the County took these temporary measures to protect the health, convenience and welfare of the greatest number of its citizens; that it was proceeding as rapidly as possible to effect a permanent solution and to remove the temporary dams to which the plaintiffs objected; and that without such temporary measures, the homes of approximately seventy-five families valued in millions of dollars and the County roads within the area would have been damaged. The court then entered the following Final Decree:

'This cause coming on for final hearing on the plaintiff's complaint and defendant's Answer, and the Court having heard all the evidence presented by both parties and argument of counsel for plaintiffs and defendant having been heard and the Court on November 15, 1960, having entered the following opinion on the facts and law of the case, towit:

"Counsel for the respective parties have argued before the Court and submitted citations of authorities which they have found to be most applicable to the case.

"The Court is of the opinion that the action of the Defendant in erecting and maintaining the dikes in question was authorized both under the Civil Defense Act as well as under the police power. Although such action was lawful, not constituting a tort, yet if as a consequence of such action the lands of the Plaintiffs were flooded to the extent that it amounted to a taking from them, then under the decisions of our Appellate Courts they would be entitled to compensation which might be determined by this Cour(t) or by condemnation proceedings.

"After carefully studying the authorities furnished by counsel, I have reached the conclusion that the flooded condition is not permanent invasion of Plaintiff's property but is only temporary which has resulted in damage to them but which is not recoverable at law. In order to constitute a taking for which the owners are entitled to compensation it must not only be actualy, but permanent, which this is not.

"Defendant asserted in its answer that all it had done was temporary and to protect the public health and welfare until a permanent drainage system could be built and it offered evidence to show that diligence was being exercised toward the establishment of such drainage system.

"The Court is naturally sympathetic toward the Plaintiffs on account of the damage they have suffered but upon a determination that the condition created by defendant in its efforts to protect the County road and many property owners from disaster, same is temporary as opposed to being permanent and that the law does not allow a recovery for such damage, I am obliged to rule against contention that the Court award them damages.'

'And the Court being fully advised, it is thereupon.

'ORDERED, ADJUDGED AND DECREED:

'(1) That the Court has jurisdiction over the subject matter in this case and the parties to this litigation.

'(2) That the Answer of Defendant states a defense to the Complaint herein and Defendant has proved the material allegations of such Answer.

'(3) That the relief prayed for by Plaintiffs is hereby denied.

'(4) That the Defendant, Orange County, shall with all due diligence, lower the water level of Long Lake to the level where said lake would be in the absence of the dams at each end of the lake.

'(5) That this Court shall retain jurisdiction of this cause to make such other and further Orders as may be necessary to prevent any more damage to plaintiff's property than is absolutely unavoidable under the circumstances of this case.'

The Florida Civil Defense Act, Chapter 252, Florida Statutes, F.S.A., expresses therein the purpose of the act. These purposes are to authorize certain acts in those emergencies resulting from disasters caused first: by enemy attack, sabotage, or other hostile action, or, second: by natural causes, and in either event to provide for the common defense and to protect the public peace, health and safety, and to preserve the lives and property of the people of the state. Under the Act, the term 'Civil Defense' means the preparation for and the carrying out of all emergency functions, to prevent, minimize, and repair injury and damage resulting from disasters caused by a flood or other causes, and authorizes all activities necessary or incidental to the preparation for and carrying out of the functions. One of the political subdivisions of the state granted these powers is any county. Although the Act specifies in detail and vests specific emergency powers to the political subdivisions named, most all of the specific delegated emergency powers are prefaced by the statement, 'in the event of actual enemy attack against the United States or if a state of emergency contemplating imminent attack, is declared to exist', so these specific additional emergency powers are...