Florida East Coast Ry. Co. v. City of Miami

• Decision Date: 12 June 1979
• Docket Number: No. 78-655,78-655
• Parties: FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, Appellant, v. CITY OF MIAMI, a Municipal Corporation of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 152

372 So.2d 152

FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, Appellant, v. CITY OF MIAMI, a Municipal Corporation of the State of Florida, Appellee.

No. 78-655.

District Court of Appeal of Florida, Third District.

June 12, 1979.

Rehearing Denied July 13, 1979.

Shutts & Bowen and Phillip Newcomm, Miami, for appellant.

Frates, Floyd, Pearson, Stewart, Richman & Greer and Wm. Snow Frates, Miami, for appellee.

Before HAVERFIELD, C. J., and HUBBART and SCHWARTZ, JJ.

HUBBART, Judge.

This is an eminent domain proceeding in which the trial court after a full hearing entered an order of taking (incorporating a prior order of necessity) which authorizes the City of Miami to take certain railroad property located within its municipal limits in order to establish a public park. The railroad appeals therefrom and the City of Miami cross-appeals. We have jurisdiction to review this non-final order. Fla.R.App.P. 9.130(a)(3)(C)(ii).

The central issues presented for review by this appeal are: (1) whether a municipality, and in particular the City of Miami, has the eminent domain right to condemn railroad property located within its municipal limits for the purpose of establishing a public park; and (2) whether the railroad may set up as an affirmative defense to resist such condemnation that the subject property is necessary for the successful operation of the railroad, and, if so, whether such defense was established in this case as a matter of law.

We hold that a municipality, and in particular the City of Miami, has the eminent domain right to condemn railroad property located within its municipal limits for the purpose of establishing a public park under Section 166.411(4), Florida Statutes (1977), and Ch. 24708, Laws of Fla. (1947). We further hold that the railroad may not set up as an affirmative defense to resist the above condemnation in a proceeding brought under the above statutes that the subject property is necessary for the successful operation of the railroad. Even if such a defense was available, we hold that such defense was not established in this case as a matter of law. We finally find no merit in the remaining contentions raised by the railroad upon this appeal. We accordingly affirm on the main appeal and reverse on the cross-appeal.

I

This eminent domain action enjoys a rather protracted history of litigation. It involves a parcel of approximately thirty-two acres of land located on Biscayne Bay in downtown Miami, Florida. The subject property belongs to the Florida East Coast Railway Co. and the City of Miami wants to condemn such property to establish a public park. Past unsuccessful efforts by the City of Miami to condemn this property brought in other proceedings which have been subsequently dismissed are set forth at City of Miami v. Florida East Coast Railway Co., 286 So.2d 247 (Fla. 3d DCA 1973); Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545 (Fla.1975); Florida East Coast Railway Co. v. City of Miami, 346 So.2d 621 (Fla. 3d DCA 1977).

In the instant case, the City of Miami filed a new petition in eminent domain seeking to condemn the subject property for public park purposes before the Circuit Court for the Eleventh Judicial Circuit of Florida. Substantially unlike any of the prior proceedings brought and subsequently dismissed in this cause, the petition herein was brought Inter alia under the authority of Sections 166.401, 166.411(4), Florida Statutes (1977), and Ch. 24708, Laws of Fla. (1947). ¹ The Florida East Coast Railway Co. filed an answer setting up six affirmative defenses including the defense of prior public use, namely, that the property sought to be condemned was necessary for the successful operation of the railroad.

The trial court thereafter held an extensive eight day hearing under Section 74.051, Florida Statutes (1977), on the propriety of the taking herein at which testimony and argument of the parties were received. At the conclusion of this hearing, the trial court entered an order of necessity concluding that the City of Miami had the statutory authority to condemn the railroad property to establish a public park, that the City of Miami had shown a necessity for this taking, and that the railroad had failed to establish its affirmative defenses. The trial court also entered an order of taking which incorporated the prior order of necessity as well as a stipulation between the parties as to other remaining issues.

The railroad appeals the order of taking. The City of Miami cross-appeals solely as to the trial court's ruling in the order of necessity that Ch. 24708, Laws of Fla. (1947), and Section 360.02, Florida Statutes (1977), have no application to this case.

II

We have no difficulty in determining that the City of Miami has the statutory authority to condemn railroad property within its municipal limits upon a proper showing of necessity for the purpose of establishing a public park. The railroad, it should be noted, does not contest the trial court's finding that a necessity existed for a public park to be established on the subject railroad property.

The trial court concluded in its order of necessity, and we agree, that the City of Miami has the authority to condemn the subject railroad property for public park purposes under Section 166.411(4), Florida Statutes (1977). That statute provides as follows:

"Municipalities are authorized to exercise the power of eminent domain for the following uses or purposes: . . . (4) For public parks, squares, and grounds . . ."

The above statute means exactly what it says. A municipality may exercise the power of eminent domain for the purpose of establishing a public park. The statute by its terms contains no limitation as to the types of property whereon a public park may be established within the municipality. For that reason the statute is applicable to all property within the municipality including property owned by a railroad. ²

We are not persuaded by the railroad's contention that Section 166.411(2), Florida Statutes (1977), ³ of the same statute exclusively limits the purposes for which railroad property can be condemned. This statute by its express terms contains no such limiting language, and, in the absence thereof, we must interpret this section of the statute as expanding, rather than limiting the purposes for which railroad property can be condemned. Any other result would require us to rewrite the statute with the requisite limiting language as urged by the railroad. We are not authorized to amend statutes duly passed by the legislature and are required to enforce them according to their plain terms. Tropical Coach Line, Inc. v. Carter, 121 So.2d 779 (Fla.1960); Winter v. Playa del Sol, Inc., 353 So.2d 598 (Fla. 4th DCA 1977); Art Berman Concrete, Inc. v. Sey Construction Corp., 247 So.2d 791 (Fla. 3d DCA 1971).

Moreover, we agree with the City of Miami on its cross-appeal that Ch. 24708, Laws of Fla. (1947), also authorizes the City of Miami to condemn the subject railroad property for public park purposes. This special act provides as follows:

"Section 1. The City of Miami may enter upon, seize, appropriate and condemn the right-of-way or other lands, including any and all buildings or other structures of any kind or any part of any buildings or structures, of any railroad company, firm or corporation operating within the City of Miami For street, alley or other public purpose, whether such lands be occupied and used by said railroad company or not. Any condemnation action brought by the City of Miami in the exercise of this specific right and power of eminent domain herein granted shall be maintained, and compensation paid, in accordance with the general laws of the State of Florida.

Section 2. The specific power of eminent domain herein granted is an addition to, and an extension of, all powers of eminent domain heretofore granted to the City of Miami. " (Emphasis added)

By its express terms, this act authorizes the City of Miami to condemn railroad property by eminent domain "for street, alley or other public purpose." In our view, the establishment of a public park constitutes a "public purpose" within the meaning of this act which the City's power of eminent domain can be exercised to accomplish. Indeed, the railroad makes no contention to the contrary.

Finally, we see nothing in the Municipal Home Rule Powers Act (Ch. 166, Fla.Stat. (1977)) which repeals or supersedes the above special act. Indeed, Section 166.021(4), Florida Statutes (1977), expressly continues such special acts by providing in pertinent part as follows:

"However, nothing in this act shall be construed to permit any changes in a special law . . . which affect an area which includes lands within and without a municipality . . . ." § 166.021(4), Fla.Stat. (1977).

The above statute applies to, and thus continues the special act herein as such special act clearly affects land within a municipality. We decline to rewrite the statute, as urged by the railroad, to restrict it to special acts affecting land lying partially within and partially without a municipality. The statute by its express terms does not so provide.

III

We now turn to the issue of whether the railroad may set up as an affirmative defense to resist the condemnation of its property that the subject property is necessary for the successful operation of the railroad. We conclude that in this proceeding such a defense was not available to the railroad. Even if it was, we further conclude that such defense was not established in the trial court as a matter of law.

A

The law is well-settled that property devoted to a public use cannot be taken and appropriated to another or different public use by a condemnor to whom the power of eminent domain has been delegated ⁴ unless the legislative intent to so take has been manifested in express terms or by necessary implication. This is known as the doctrine of prior public...