Florida Audubon Soc. v. Ratner

• Decision Date: 21 October 1986
• Docket Number: Nos. 85-913,85-915,s. 85-913
• Citation: 11 Fla. L. Weekly 2234,497 So.2d 672
• Parties: 11 Fla. L. Weekly 2234 FLORIDA AUDUBON SOCIETY, Tropical Audubon Society, Inc. and South Florida Water Management District, Appellants/Cross-Appellees, v. Nat RATNER, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 672

497 So.2d 672

11 Fla. L. Weekly 2234

FLORIDA AUDUBON SOCIETY, Tropical Audubon Society, Inc. and South Florida Water Management District, Appellants/Cross-Appellees, v. Nat RATNER, Appellee/Cross-Appellant.

Nos. 85-913, 85-915.

District Court of Appeal of Florida Third District.

Oct. 21, 1986.

Rehearing Denied Dec. 9, 1986.

Thomas J. Schwartz and Stanley J. Niego, West Palm Beach, Fleming and Huck and Joseph Z. Fleming, Miami, for appellants/cross-appellees.

Brigham, Moore, Gaylord, Schuster & Sachs and Steven Mishan and Gideon Kanner, Miami, for appellee/cross-appellant.

Before BARKDULL, HENDRY and NESBITT, JJ.

NESBITT, Judge.

The South Florida Water Management District (District) and the Florida Audubon Society (FAS) appeal from the trial court's order calling for the construction of a two-lane bridge across Canal 30 and two one-lane ramps over and across Levees 67A and 67C and adjacent canals in the Everglades. Ratner ¹ cross-appeals from a portion of the same order holding that the District's actions did not constitute a taking of his property in the Everglades and that he may not mine limestone because such use would conflict with the purposes of the District's easement. We affirm in all respects but one; we reverse that portion of the trial court's order directing the District to construct a two lane bridge over Borrow Canal 30 and order the court to modify it in accordance with the views expressed herein.

We need not recite the underlying facts of the case as they were sufficiently set forth in South Florida Water Management District v. Ratner, 357 So.2d 1055 (Fla. 3d DCA), cert. denied, 364 So.2d 891 (Fla.1978) (hereinafter Ratner I ). The case was remanded, with instructions for the trial court to determine "the necessity for action by the District to provide access to all owners when it has been demonstrated to the court that there is a need for that access." Ratner I, 357 So.2d at 1060.

I. Access

Upon remand, the trial court found that Ratner demonstrated the requisite need for access to his property and in its final judgment ordered the District to construct one-way ramps over and across Levees 67A and 67C and adjacent canals and a two-lane bridge over and across Levee 30 and Borrow Canal 30. FAS contends that the trial court erred in ordering the District to construct bridges and ramps, both because the District is not legally obligated to do so and because Ratner failed to demonstrate a need for these. The District urges us to find error in the court's judgment as well, but solely upon the lack of factual support in the record for Ratner's position.

This court previously held that the District must bear the cost of providing Ratner with reasonable access to his property for the exercise of his reserved rights. Ratner I, 357 So.2d at 1059. Therefore, FAS' first argument must fail; the law of the case is clear and we are bound thereby. See Brunner Enterprises v. Department of Revenue, 452 So.2d 550 (Fla.1984); Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976); 3-M Electric Corp. v. Vigoa, 443 So.2d 111 (Fla. 3d DCA 1983) review denied, 447 So.2d 888 (Fla.1984); Department of Transportation v. Florida East Coast Railway Co., 275 So.2d 289 (Fla. 3d DCA 1973).

FAS and the District contend that the trial court's judgment is unsupported by the record. Where a judgment, based upon the trial court's findings, is attacked for insufficiency of evidence, our task is to determine if there is competent substantial evidence supporting it. Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. 3d DCA 1977); cf. Marsh v. Marsh, 419 So.2d 629 (Fla.1982) (trial court's findings entitled to same weight as jury verdict). Ratner presented evidence demonstrating that he is seeking to sell his property to companies that would be interested in the reserved rights listed in the easement and such other rights which would not conflict with the easement. These companies, however, will not discuss a transaction without having access to Ratner's property for exploration of oil, gas and other minerals, and general survey work, this apparently being the accepted business practice as a prerequisite to negotiations. We are satisfied that there is competent substantial evidence supporting the trial court's judgment that one-way ramps should be constructed over and across Levees 67A and 67C and adjacent canals so that trucks and equipment may cross during the dry season for preliminary exploration.

We find, however, that the weight of evidence contradicts the trial court's finding that Ratner and the surrounding landowners are in present need of a two-lane bridge over Borrow Canal 30. No evidence of the immediate needs of surrounding landowners was presented. Additionally, Ratner does not seek to develop the land himself, but rather, he seeks to sell the land to interested parties for a profit. A one-lane bridge would provide sufficient access for the exploration of the land. Since this aspect of the order is against the weight of the evidence, we reverse and instruct the trial court to modify its order to require the District to construct a one-lane bridge ² over and across Levee 30 and Borrow Canal 30. See Holland v. Gross, 89 So.2d 255 (Fla.1956) (where weight of evidence is contrary to trial court's findings, appellate court may set aside findings); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975) (where findings are contrary to weight of the evidence, appellate court has duty to reverse).

II. Inverse Condemnation

Ratner amended his complaint, upon remand after the District's first appeal, to state a cause of action for inverse condemnation and moved to have this issue, along with the related issue of his rights to limestone mining, tried prior to the remaining issues. The motion was granted and after trial the court ruled that Ratner was not entitled to any compensation since the District's actions did not amount to a taking. Also, the trial court held that Ratner was not entitled to mine limestone on his property. The judgment was vacated at Ratner's request, so that he would not have to appeal it prior to a determination of the remaining issues. The trial court subsequently held, however, that the order vacating judgment was merely procedural and incorporated it, verbatim, into the final judgment.

Ratner contends, in his cross-appeal, that the court erred in finding that the District's actions did not amount to a taking. We disagree. A taking occurs only where an owner is deprived of all reasonable and beneficial use of the property involved. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.) cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). In the present case, there was no actual destruction or use of the property by the District. Cf. Northcutt v. State Road Department, 209 So.2d 710, 713 (Fla. 3d DCA 1968) (no action for inverse condemnation will lie absent actual destruction of property or use), cert. discharged, 219 So.2d 687 (Fla.1969). Furthermore, the complained-of taking was caused by the presence of canals for which the District purchased easements. Because there was no substantial violation of any restrictions in the easement, there was no taking. Cf. Kendry v. State Road Department, 213 So.2d 23 (Fla. 4th DCA 1968) (where there is substantial violation of restriction in easement, wronged party may seek compensation for taking), cert. denied, 222 So.2d 752 (Fla.1969). Moreover, "an owner sustains no enforceable claim for damages resulting from the incidental impairment of rights to ingress and egress." Howard Johnson Co. v. Division of Administration, 450 So.2d 328, 329 (Fla. 4th DCA 1984). The evidence demonstrates that alternative means of access were available to Ratner. The damage Ratner suffered, being common to all landowners abutting the District's canal system, is not compensable. See Howard Johnson Co., 450 So.2d at 329; Northcutt, 209 So.2d at 713.

III. Reserved Rights

Ratner contends that the trial court erred in concluding that he was precluded from mining limestone from his lands and in denying his motion for a new trial on this issue. Ratner claims that there is a general reservation of all rights not conveyed incident to the granting of an easement and that the trial court failed to reach this issue at trial. Further, Ratner maintains that the trial court erred in ruling that limestone mining was not specifically reserved by subparagraph (a) of the easement document.

The document states in pertinent part:

It is specifically understood and agreed that the foregoing grant of the uses, rights and privileges aforesaid shall in no wise prohibit or interfere with the right of the parties of the first part (the plaintiff's predecessors in interest), their heirs, administrators, assigns or lessees, to: (a) lease or conduct operations on the premises herein described, for the exploration or drilling for, or the developing, producing, storing, or removing of oil, gas or other minerals in or under the aforesaid premises, (b) remove topsoil, muck, etc., from the surface, (c) make such further use as will not conflict with the purposes for which this grant is given. (emphasis added)

It is clear from subparagraph (c) that the parties contemplated a restriction on the grantor's rights. That subservient fee owner's rights are limited to those which do not conflict with the purposes of an easement is in accordance with the common law. Wilson v. Dunlap, 101 So.2d 801, 804 (Fla.1958) (a subservient fee owner is "estopped of course to exercise any rights in the area which will interfere in any way with the enjoyment of the easement by those entitled thereto"). The record reveals the easement was obtained by the District for the purposes of flood control, reclamation, conservation, and allied purposes, as evinced by the intentions of the parties at the time of agreement as well as by the contemporary usage. Cf. Kotick v. Durrant, 143 Fla. 386, 196 So. 802 (19...