Florida Power Corp. v. Scudder

• Decision Date: 16 September 1977
• Docket Number: Nos. 76-1005 and 76-1036,s. 76-1005 and 76-1036
• Parties: FLORIDA POWER CORPORATION, Appellant, v. Gilbert D. SCUDDER, L. M. Folsom and Pauline Folsom, his wife, Appellees. L. M. FOLSOM and Pauline Folsom, his wife, Appellants, v. Gilbert D. SCUDDER, et al., Appellees.
• Court: Florida District Court of Appeals

Page 106

350 So.2d 106

FLORIDA POWER CORPORATION, Appellant, v. Gilbert D. SCUDDER, L. M. Folsom and Pauline Folsom, his wife, Appellees.

L. M. FOLSOM and Pauline Folsom, his wife, Appellants, v. Gilbert D. SCUDDER, et al., Appellees.

Nos. 76-1005 and 76-1036.

District Court of Appeal of Florida, Second District.

Sept. 16, 1977.

Rehearing Denied Oct. 21, 1977.

C. Brent McCaghren of Winderweedle, Haines, Ward & Woodman, Winter Park, for Florida Power Corp.

Jack B. Nichols and R. Wayne Evans of Nichols & Tatich, Orlando, for Gilbert D. Scudder.

John H. Rhodes, Jr., Winter Garden, for L. M. Folsom and Pauline Folsom.

SCHEB, Judge.

The principal issue in these consolidated appeals is whether the trial court erred in awarding compensatory and punitive damages against a utility company, Florida Power Corporation (FPC) for placing its electric poles and lines across privately owned lands without permission of the owners. Additionally, we address challenges to the compensation awarded the servient owners for a statutory way of necessity, as well as the court's rejection of claims to a common law easement or prescriptive right by the landowners served by the utility lines.

The essential facts are these: In April 1973 L. M. and Pauline Folsom acquired an eighty-acre tract of land in Lake County. Since the tract was landlocked, the Folsoms proceeded to construct a clay road from their property across land owned by Gilbert D. and Irene J. Scudder to an existing county road. While building the road the Folsoms requested FPC to install electric services to their new premises. A customer service representative of FPC, familiar with the area, visited the Folsoms who were in the process of having a road graded across the Scudders' property. Piles of clay were along the road and Mr. Folsom told FPC's representative that he was putting in the road and that it was his clay, and even mentioned how much it was all costing him. Based on these facts, the FPC representative mistakenly assumed the Folsoms owned or at least had legal right to use the property. Mr. Folsom never told the FPC representative that he did not own the property, nor did he disclose that he had no legal right to place the roadway across it. Acting upon Folsom's request and representations, and without making any independent determination of the ownership of the lands, FPC's employees erected poles and distribution lines to serve the Folsoms' needs. No surveys were made, permits obtained, or land records checked by FPC before its installation was accomplished.

Upon learning the Folsoms were building the road, in October 1973 the Scudders (who lived in New York) contacted the Folsoms advising them the road was in violation of their property rights. The Scudders also had a fence erected and signs posted to protect their property. Nevertheless, the Folsoms disregarded these warnings and in November 1973 permitted FPC to install their lines.

The Scudders sued FPC in one action and the Folsoms in another. In the former action they charged that FPC wrongfully placed its utility poles and distribution lines on their lands; in the latter they contended the Folsoms trespassed by constructing and using a road on their lands. In the latter suit the Scudders alternatively prayed that should the Folsoms be entitled to a statutory way of necessity, that the court establish the same and award them reasonable compensation and attorney's fees. Scudders sought compensatory and punitive damages in both actions.

FPC and the Folsoms answered and counterclaimed, asserting a right-of-way over the Scudders' property on theories of: (1) prescriptive right; (2) implied common law right-of-way; or (3) statutory way of necessity. Prior to trial, FPC filed a cross-claim against the Folsoms, demanding indemnity for any damages that it might be required to pay to the Scudders.

As the causes proceeded to trial they were consolidated. Unfortunately Mrs. Scudder died in the interim, but Mr. Scudder continued the actions.

The trial court first heard evidence on the Folsoms' affirmative claims. After rejecting their claims of prescriptive right and implied common law right-of-way, the court concluded the Folsoms were entitled to a statutory way of necessity thirty feet in width across Scudders' lands as "reasonably necessary for ingress and egress by persons, vehicles, stock and electricity and telephone services thereon."

Thereafter, by agreement of the parties the court in a nonjury trial considered the remaining issues and awarded the Scudders $7,400 compensation for the statutory way of necessity. FPC was held liable to them for $500 compensatory and $25,000 punitive damages for its trespass. The court determined that two of the utility poles were placed nine and twelve feet, respectively, outside the area designated by the court. FPC was ordered to relocate the poles and lines within the confines of the way of necessity. The trial court denied FPC's cross-claim for indemnity against the Folsoms.

The trial court correctly determined Folsoms did not acquire any common law easement. There was no evidence that any common source of title between the dominant and servient estates had caused the Folsoms' property to be landlocked. See Hanna v. Means, 319 So.2d 61 (Fla.2d DCA 1975); Stein v. Darby, 126 So.2d 313 (Fla. 1st DCA 1961).

Moreover, the trial court did not err in its ruling that the Folsoms failed to establish a prescriptive right. To do so a claimant must show an identifiable parcel of land has been used openly, notoriously, continuously, and uninterruptedly for a period of twenty years. Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (1925). The Folsoms had only recently commenced their use and the trial judge properly concluded that...