Hillsborough County v. Gutierrez, 82-1947

• Decision Date: 06 July 1983
• Docket Number: No. 82-1947,82-1947
• Citation: 433 So.2d 1337
• Parties: HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Appellant, v. Onelia GUTIERREZ and Angel Gutierrez, Appellees.
• Court: Florida District Court of Appeals

Page 1337

433 So.2d 1337

HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Appellant, v. Onelia GUTIERREZ and Angel Gutierrez, Appellees.

No. 82-1947.

District Court of Appeal of Florida Second District.

July 6, 1983.

R. Elliott Dunn, Jr., Tampa, for appellant.

Elinor P. Smith of Shea & Smith, P.A., Tampa, for appellees.

DANAHY, Acting Chief Judge.

The appellees, plaintiffs below in an inverse condemnation suit, were granted a partial final judgment against the appellant, Hillsborough County (the County). We affirm in part and reverse in part.

In 1970 construction began in phases on a subdivision in the County that bordered on the east, south and west of land owned by the appellees on which they had been living for several years. During the construction of the various phases of the subdivision, the County had the responsibility to the general public to assure that the developer's drainage plan would work effectively for the disposal of all surface drainage water. The drainage system was not constructed according to the plan, and fill dirt placed adjacent to the south and west borders of the appellees' property impeded the natural flow of surface water from rainfall. As a result, a "flooding" condition of the appellees' property occurred where, prior to construction, water in small amounts would stand for a few days. The trial judge specifically found that:

This "filling" of the property adjacent to and abutting the Plaintiffs' property constituted an artificial addition to the natural topography and acted, in effect, as a dam for the natural flow of surface drainage waters. The Court finds that such flooding by blocking the natural flow of surface drainage waters is permanent, in that it permanently deprives the Plaintiffs of the beneficial use of the westerly and southwesterly portion of their property and is not merely an impairment of the use of their property. Flooding from the diversion of the natural flow of rain waters by an artificial construction is permanent in the sense that rain is a condition reasonably expected to continually re-occur [sic].

6. Plaintiffs' evidence showed, without refutation, that the flow of surface drainage water across the Plaintiffs' property occurred to such an extent that it actually invaded a portion of the Plaintiffs' home, thereby damaging a portion of said home and certain personal property therein. That such damage to the Plaintiffs' home and personal property together with the "ponding" conditions in the southwest portion of Plaintiffs' property constitute a "taking" of the Plaintiffs' property without just compensation.

7. The Court is convinced, after examining all of the evidence and a personal view of the physical area surrounding the Plaintiffs' property, that the drainage ditches proposed for the east and west sides of 58th Street adjacent to Plaintiffs' property and designed in the master drainage plan for the Palm River Subdivision could have prevented the flooding of Plaintiffs' property if they had been constructed in accordance with the drainage system proposed for the development, which enforcement of such construction was the responsibility of the Defendant, Hillsborough County. Additionally, the Defendant, Hillsborough County, through its review procedures of the planned drainage system for Palm River Subdivision should have determined that any natural flow of surface drainage water from the northeast to the southwest would have been impeded by the addition of "fill" material in the subdivision abutting the southwest corner of Plaintiffs' property and upon such review should had [sic] required additions to the drainage system which would have prevented the "ponding" which now occurs on the southwest portion of Plaintiffs' property.

8. .... The "taking" of the Plaintiffs' property by the repetitious flooding during the rainy season is of a permanent nature and has deprived the Plaintiffs of the beneficial use of the westerly and southerly portion of the Plaintiffs' property. Additionally, the repetitious flooding has caused the Plaintiffs to suffer the loss of certain personal property, including damage to the Plaintiffs' home and adjacent buildings.

To an extent, we find merit in the County's assertion that the trial judge erred in ruling that the County had inversely condemned the real and personal property of the appellees.

In Poe v. State Road Department, 127 So.2d 898, 900 (Fla. 1st DCA 1961), the court defined a taking as follows:

It seems to be the accepted principle of law that a "taking under the power of eminent domain may be defined as entering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof."

The County disputes the trial judge's findings as to (1) the cause of the flooding; (2) the permanency of the flooding; and (3) the degree of the appellees' ouster from and the deprivation of the appellees' use of their property.

The County first maintains that the flooding conditions of the appellees' property existed prior to the subdivision's construction and points to a witness's testimony for support. The witness testified that he had observed water standing on the appellees' property prior to construction of the subdivision. However, the witness's testimony in its entire context was inclined toward the conclusion that the County's actions or the lack thereof had extremely heightened the standing water problem on the appellees' property.

The County next disputes the permanency of the invasion of water, contending that under precedent this invasion must be deemed temporary in nature. The County argues that the invasion, if any, results in recurrent but temporary flooding and only amounts to consequential damage, not a taking. Poe v. State Road Department at 901. For support, the County relies on the reference in the partial final judgment to "[t]he 'taking' of the Plaintiffs' property by the repetitious flooding during the rainy season ...." (Emphasis added.) The County asserts that the foregoing language shows that the trial judge misapplied the law. On the contrary, the judgment taken in its entirety and the record, upon...