Florida Power Corp. v. Wenzel

• Decision Date: 10 July 1959
• Docket Number: No. 515,515
• Citation: 113 So.2d 747
• Parties: FLORIDA POWER CORPORATION, Appellant, v. Otto WENZEL et al., Appellees.
• Court: Florida District Court of Appeals

Page 747

113 So.2d 747

FLORIDA POWER CORPORATION, Appellant, v. Otto WENZEL et al., Appellees.

No. 515.

District Court of Appeal of Florida, Second District.

July 10, 1959.

Rehearing Denied Aug. 5, 1959.

S. E. Simmons, St. Petersburg, for appellant.

David A. Davis, Bushnell, for appellees.

KNOTT, JAMES R., Associate Judge.

This case arose out of a condemnation proceeding instituted by appellant, hereinafter referred to as petitioner, seeking to condemn an easement for a right-of-way 100 feet in width through certain land owned by the appellees, hereinafter referred to as defendants, near Bushnell, Florida, for the purpose of constructing electric power transmission lines thereon. Included in the petition seeking condemnation was the following paragraph:

'3. Outside the boundaries of the property last above described but closely adjacent to the north boundary thereof presently stand twenty trees, the exact type, size and location of which are reflected by map annexed hereto as Exhibit B. Because of their proximity these trees if felled would collide with or approach so nearly the wires, towers and associated facilities of the transmission line to be constructed as to endanger human life and delay the commencement of the use of such line as a part of Petitioner's service to its consumers. For this reason it is essential as an incident of the public use described in paragraph one hereof that these trees, commonly referred to as 'danger trees', be removed in advance of commencement of construction so as to eliminate all peril therefrom in building the line and to insure thereafter safe, prudent and uninterrupted operation and maintenance.'

The petition prayed for leave to enter and remove the trees outside of and adjacent to the requested 100-foot right-of-way. The location and size of the trees were shown on a map or diagram attached to the petition; however, the land area in which the petitioner sought to exercise the right of cutting and removing trees was not otherwise specifically described.

The trial court granted a motion filed by defendants to strike the paragraph quoted above, grounded on the contention that the petitioner power company would have to condemn the land occupied by the danger trees in order to be entitled to remove the trees. The petitioner thereupon sought a writ of certiorari in the Supreme Court to review the order of the trial court granting the motion to strike. Certiorari was denied without prejudice to raise the question on a subsequent appeal, Fla., 101 So.2d 153. Thereafter the cause proceeded to trial on the issue of compensation to the owner for the 100-foot easement, and the jury returned a verdict of $2,800 for the same, together with $800 attorneys' fees for the defendants.

The first question presented for our consideration relates to whether, as an incident to the appropriation of a right-of-way for a transmission line, a public utility corporation, upon payment of just compensation, may also condemn the privilege of severing and removing trees located adjacent to the right-of-way and in such close proximity thereto as to constitute a menace to the safe and efficient construction and maintenance of the transmission line, without also condemning the land upon which the trees stand. The point presented for decision appears to be one of first impression in Florida, although there are a number of decisions in other jurisdictions interpreting eminent domain statutes analogous to our own.

It may be observed at the outset that officers and directors of a public service corporation endowed with the power of eminent domain have a wide discretion in the determination of what property, and how much, it is necessary to condemn for public use. Robertson v. Brooksville & I. Ry. Co., 100 Fla. 195, 129 So. 582. In the exercise of the power, they are at liberty to select a program that will combine the greatest benefit to the public with the least inconvenience and expense to the condemning authority. Central Hanover Bank & Trust Co. v. Pan American Airways, 137 Fla. 808, 188 So. 820, 824. They cannot be compelled to take more than is needed, City of Jacksonville v. Shaffer, 107 Fla. 367, 144 So. 888, but should never appropriate in excess of what is reasonably necessary to answer the public purpose in view. Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488; 18 AmJur. 736, 737; 68 A.L.R. 837, annotation. Counsel for petitioner argues, and we think aptly, that the latter proposition is particularly applicable where, as here, the cost of the property enters into the utility's rate base, Section 366.06(2), Florida Statutes, F.S.A., with the attendant obligation upon the company to make only honest and prudent investments to the end that rates charged to the consumers are fair and reasonable. See Section 366.05(1), Florida Statutes, F.S.A.

In the present case the petitioner, once the danger trees are removed, has no use for the land upon which the stand. It could not justify any retention of an easement, possession or other indicia of ownership by claim of public need or necessity. It does not desire, nor has it any right, to deprive the owner of the beneficial use of the land, except only as such use may interfere with the petitioner's right and duty safely and efficiently to utilize the right-of-way, a right attaching to every owner of an easement.

Three chapters of the Florida Statutes control the power of eminent domain being Chapters 73, 74 and 361, F.S.A. In addition to the power to condemn land provided in F.S. Chapters 73 and 74, F.S.A., a public works corporation is granted authority to enter upon adjacent lands and take therefrom material necessary for the construction and repair of its works and improvements, upon making due compensation according to law, under the following provisions of F.S. § 361.01, F.S.A.:

'The president and directors of any corporation organized for the purpose of constructing, maintaining or operating public works, or their properly authorized agents, may enter upon any land, public or private, necessary to the business contemplated in the charter, and may appropriate...