Florida Power Corp. v. Lynn, 91-01827

• Decision Date: 24 January 1992
• Docket Number: No. 91-01827,91-01827
• Parties: 17 Fla. L. Weekly D327 FLORIDA POWER CORPORATION, a Florida corporation, Appellant, v. Andrew J. LYNN and Richard M. Haber, as Co-Trustees of the Christine Priest Trust, and Andrew J. Lynn, individually, as Tenants in Common, and Andrew J. Lynn, Lillian E. Lynn and Richard M. Haber, as Co-Trustees of the Andrew A. Lynn Trust; Citizens Bank of Clearwater, a Florida banking association; Hillsborough County, a political subdivision of the State of Florida; Joanne Hixon Shell f/k/a Joanne Hixon Mills and Julia Elaine Hixon Johnson; Lila Y. Hixon; E.E. Chaires, Jr.; Tait S. Scott and Dorothy Louise Scott; Federal Land Bank of Columbia, South Carolina, a corporation organized, chartered and existing under the laws of the United States of America; Ada M. Manning and Walter W. Manning; Jean W. Smolek and Alfred W. Wilson, as Trustees of the Edward J. Smolek Family Trust, and Alfred W. Wilson, individually; and Gary Edens and Jack J. Craparo, Appellees.
• Court: Florida District Court of Appeals

Page 789

594 So.2d 789

17 Fla. L. Weekly D327

FLORIDA POWER CORPORATION, a Florida corporation, Appellant, v. Andrew J. LYNN and Richard M. Haber, as Co-Trustees of the

Christine Priest Trust, and Andrew J. Lynn, individually, as

Tenants in Common, and Andrew J. Lynn, Lillian E. Lynn and

Richard M. Haber, as Co-Trustees of the Andrew A. Lynn

Trust; Citizens Bank of Clearwater, a Florida banking

association; Hillsborough County, a political subdivision

of the State of Florida; Joanne Hixon Shell f/k/a Joanne

Hixon Mills and Julia Elaine Hixon Johnson; Lila Y. Hixon;

E.E. Chaires, Jr.; Tait S. Scott and Dorothy Louise Scott;

Federal Land Bank of Columbia, South Carolina, a corporation

organized, chartered and existing under the laws of the

United States of America; Ada M. Manning and Walter W.

Manning; Jean W. Smolek and Alfred W. Wilson, as Trustees

of the Edward J. Smolek Family Trust, and Alfred W. Wilson,

individually; and Gary Edens and Jack J. Craparo, Appellees.

No. 91-01827.

District Court of Appeal of Florida,

Second District.

Jan. 24, 1992.

Albert H. Stephens, Harry A. Evertz, III, Christopher R. Fitzpatrick, and Pamela I. Smith of Florida Power Corporation, St. Petersburg; Bruce C. Crawford of Owen, Crawford and Owen, St. Petersburg; and Sylvia H. Walbolt, Gary L. Sasso and D. Matthew Allen of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant Florida Power Corp.

Steven L. Brannock, Ellen Neil Kalmbacher and Roy E. Dean of Holland & Knight, Tampa, for appellees Shell and Johnson.

Louise B. Bothwell, Tampa, amicus curiae brief for Hillsborough County.

Paul A. Straske of Straske, Farfante & Trupp, P.A., Tampa, for appellee Chaires.

David H. Galloway, Plant City, for appellees Manning.

CAMPBELL, Judge.

Appellant, Florida Power Corporation (F.P.C.), appeals the final order denying a taking of three parcels of land which were the subject of F.P.C.'s condemnation action in the trial court. Appellees are the owners of the parcels at issue. Hillsborough County has appeared as amicus curiae and, in that capacity, has adopted appellees' answer brief. We reverse.

F.P.C. began its condemnation action under section 74.031, Florida Statutes (1983), to acquire the property necessary to construct a 500 kilovolt (500 KV) transmission line through Pinellas, Hillsborough and Pasco Counties. The line was designated the Lake Tarpon-Kathleen transmission line and had been authorized to be constructed along the proposed corridor by the Florida Public Service Commission and the governor and cabinet sitting as the Florida Siting Board. F.P.C. sought to effect a quick taking of ninety-foot easements across the three parcels. The approved corridor for F.P.C.'s proposed transmission line contemplates combining the ninety-foot easements sought across appellees' parcels with abutting 100-foot easements F.P.C. had acquired in 1951 for a previous transmission line (the Higgins-Ft. Meade 115 KV line), so as to form the 190-foot easement needed for the new Lake Tarpon-Kathleen line.

F.P.C. has also initiated proceedings to obtain the necessary easements across numerous other parcels that are not the subject of this appeal. Those proceedings cannot be pursued until instant proceedings are resolved.

In the final order, the trial court denied F.P.C.'s request for a taking of the ninety-foot easements across appellees' lands on the basis that F.P.C. had lost its rights in and under the terms of the preexisting 100-foot easements because of F.P.C.'s nonuse of those easements for their intended purposes. It is significant that appellees concede and the trial judge found that the elements of a legal abandonment by F.P.C. of the previous 100-foot easements are not present in this case. The effect of the trial judge's ruling is that F.P.C. must acquire from and pay appellees for all of the 190 feet it needs for the construction of the Lake Tarpon-Kathleen line. The important and applicable parts of the preexisting 100-foot easements upon which the trial judge based his findings of nonuse are as follows:

That the undersigned, in consideration of the sum of One Dollar and other valuable consideration, the receipt of which is hereby acknowledged, grant and convey to FLORIDA POWER CORPORATION, its successors and assignees, the right, privilege and easement to construct, operate and maintain for such period of time as it may use the same or until the use thereof is abandoned, a tower line for the transmission and distribution of electricity, including necessary communications and other wires, anchors, ground connections, attachments, fixtures, equipment and accessories desirable in connection therewith over, upon and across the following described land.... Together with the right to patrol, inspect, alter, improve, repair, rebuild or remove such lines, equipment and accessories, including the right to increase or decrease the number of wires and voltage, together with all rights and privileges reasonably necessary or convenient for the enjoyment or use thereof for the purposes above described, including the right to trim, cut and keep clear such trees, limbs and undergrowth along said lines, and all trees adjacent thereto that may endanger the proper operation of the same, and including the reasonable right to enter upon adjoining lands of the grantors for the purpose of exercising the rights herein granted.

The issue before this court, therefore, is simply whether the trial judge was correct in ruling that F.P.C. had lost its previously existing rights in the 100-foot easements it had acquired and used for the Higgins-Ft. Meade 115 KV line because it had discontinued use of its tower line for the transmission and distribution of electricity. Inasmuch as the facts...