Hampton's Estate v. Fairchild-Florida Const. Co., FAIRCHILD-FLORIDA
| Decision Date | 12 November 1976 |
| Docket Number | No. 48755,FAIRCHILD-FLORIDA,48755 |
| Citation | 341 So.2d 759 |
| Parties | ESTATE of Eunice G. HAMPTON, Deceased, Appellant, v.CONSTRUCTION COMPANY, a Florida Corporation, Appellee. |
| Court | Florida Supreme Court |
Thomas F. Woods, of Woods & Johnston, Tallahassee, for appellant.
Helen C. Ellis and Michael L. Granger, of Keen, O'Kelley & Spitz, Tallahassee, for appellee.
The executor of the estate of Eunice G. Hampton brought suit against Fairchild-Florida Construction Co., appellee here, in connection with a parcel of real estate that had belonged to Eunice G. Hampton, and that adjoins real estate owned by the appellee. The executor sought to establish a statutory way of necessity, pursuant to Section 704.01(2), Florida Statutes (1975), 1 to allow ingress and egress over appellee's land. The trial court entered judgment for appellee, because the proof failed to establish that the real property belonging to the estate was 'being used or (was) desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes.' Section 704.01(2), Supra. No question as to the judgment on the merits has been raised here. The dispute centers on the trial court's award of an attorney's fee to appellee, the successful defendant below. In setting forth reasons for the award, the learned trial judge construed provisions of the Florida Constitution. 2 Accordingly we have jurisdiction of the appeal. Article V, Section 3(b)(1), Florida Constitution.
In general, attorney's fees are not recoverable unless a statute or a contract specifically authorizes their recovery, or unless equity allows attorneys' fees from a fund or estate which has been benefitted by the rendering of legal services. Selby v. Bullock, 287 So.2d 18 (Fla.1973) (reh. den. 1974); Rivera v. Deauville Hotel, 277 So.2d 265 (Fla.1973); Stone v. Jeffres, 208 So.2d 827 (Fla.1968). In the words of Mr. Justice Drew:
It is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property. Kittel v. Kittel, 210 So.2d 1, 3 (Fla.1967) (on rehearing 1968) (citation omitted)
There is no contract here nor any equitable fund or estate, but appellee argues that Section 73.091, Florida Statutes (1975), authorizes the award of attorneys' fees in proceedings to establish statutory ways of necessity. Section 73.091 directs the award of a reasonable attorney's fee in eminent domain cases brought under the provisions of Chapter 73, Florida Statutes, but does not purport to authorize the award of attorneys' fees in litigation brought under statutes in other chapters. The action in the present case was brought pursuant to Section 704.01, Florida Statutes (1975), which is silent as to attorneys' fees.
Appellee argues that proceedings under Section 704.01 are in reality eminent domain proceedings, 3 relying on dicta in Stein v. Darby, 126 So.2d 313 (Fla.1st DCA 1961), cert. den. 134 So.2d 232 (Fla.1961) to the effect that Chapter 704, Florida Statutes, was enacted 'to (com)plement the common law rule with a statutory proceeding in eminent domain.' 126 So.2d at 317. With the question squarely posed, we conclude that proceedings to establish a statutory way of necessity do not stand on the same footing as condemnation actions by the State of Florida in its sovereign capacity. We now reject the view that a statute regulating rights as between the private owners of adjacent land implicates the sovereign power of eminent domain in the same way as the taking of land by the State. 4 The mere fact that statutes alter rights and remedies known at common law obviously affords no basis for the award of attorneys' fees in actions brought under them.
Accordingly, the judgment below is reversed insofar as it awards an attorney's fee to appellee, Fairchild-Florida Construction Co. In every other respect, the judgment is affirmed.
1 Subsection 2 provides:
Statutory way of necessity exclusive of common law right.--Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common law right exists when any land or portion thereof outside any municipality which is being used or desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, and electricity and telephone service over and upon the lands which lie between the said shut-off or hemmed-inlands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided, that such easement shall be used only in an orderly and proper manner.
2 In pertinent part, the order reads:
Defendant has requested attorney fees. The 1968 Constitution of the State of Florida Article X, Section 6, (a) and (b) provides:
'(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner
'(b) Provision may be made by law for the taking of easements, by like proceedings, for the drainage of land of one person over or through the land of another.'
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