Home Owners of Winter Haven, Inc. v. Polk County

• Citation: 320 So.2d 480
• Decision Date: 24 October 1975
• Docket Number: No. 74--34,74--34
• Parties: HOME OWNERS OF WINTER HAVEN, INC., Appellant, v. POLK COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 480

320 So.2d 480

HOME OWNERS OF WINTER HAVEN, INC., Appellant, v. POLK COUNTY, a political subdivision of the State of Florida, Appellee.

No. 74--34.

District Court of Appeal of Florida, Second District.

Oct. 24, 1975.

Bernard B. Weksler of Aronovitz & Weksler, Miami, for appellant.

Barbara Dell McPherson and Geoffrey B. Dobson, Dept. of Transportation, Tallahassee, for appellee.

PER CURIAM.

Appellant (landowner) appeals from an assertedly inadequate jury award in a condemnation proceeding under which Polk County (County), in widening two roadways which intersected in front of the landowner's shopping center, consisting of 25.72 acres, in Winter Haven, took one strip of land 12.75 by 829.7 feet along State Road No. 544 (Avenue T N.W.) and another strip of land 17 by 652.6 feet along State Road No. 555 (U.S. Hwy 17) consisting of 0.505 acres which abutted the existing right of way as well as a three-year construction easement over an additional area.

After careful consideration of the record, briefs, and oral argument, we have concluded that the amount of the verdict was within the limits of properly admissible expert testimony of the value of the property; and, reversible error not having been demonstrated, we affirm.

The testimony revealed that appellant had purchased the property taken in fee, which constituted the then-existing highway frontage, at an average price of $1.80 per square foot a few years before the taking. Primarily basing his opinion upon the value of the property independently of the parent tract, that is, without reference to the fact that after the taking the landowner would still own the shopping center with virtually the same frontage on the same roadways, the landowner's expert, Carl Lake, evaluated the property in question at the time of taking at $57,300, or $3,70 a square foot. Polk County's expert, John Causey, on the other hand, did consider the property not merely as 'bulk land' in its location as highway frontage, but, rather, in relation to its value as part of the larger parcel which retained its frontage subsequent to the taking. In so doing, he evaluated the property at 97cents a square foot, or $20,000. The jury verdict for the land taken was $27,496.25, or $1.25 a square foot, which was more than the County's expert's opinion, but less even than the price paid for the property in question some time before. The landowner's primary point here complains of the inadequacy of the award, contending that Causey's testimony, which was the only evidence which might sustain it, was based upon erroneous theories of value. We hold otherwise. Causey's consideration of, as he said, '. . . (not) just the strip that is being taken . . . (but, rather,) the entire parent tract . . . the entire ownership--and . . . what effect the loss of this strip will have on the market value of the remaining ownership or the remaining parent tract . . .' was entirely appropriate for admission into evidence, and entirely proper for jury consideration as to the valuation of the parcels involved in this case.

The books are filled with arguments on each side of the question of whether, under varying circumstances, property valuation must be made, as it were, in bulk, without regard to the remaining tract, or whether one may consider--as did Mr. Causey and, obviously, the jury--the effect of its loss upon the landowner's remaining property. ¹ See 4A, Nichols on Eminent Domain, §§ 14.231, 14.31(1), and cases collected. We think that whatever the result in other situations, the use of Causey's method, denominated the 'slide back' theory in City of Los Angeles v. Allen, 1 Cal.2d 572, 36 P.2d 611 (1934). City of Fresno v. Cloud, 26 Cal.App.3d 113, 102 Cal.Rptr. 874, 879--881 (1972), is particularly pertinent, and certainly admissible in a case such as this one which involves a strip taking of highway frontage of a large parcel which possesses the same characteristics and may be just as valuable after as before the condemnation. Frenel v. Commonwealth of Kentucky Department of Highways, Ky.1962, 361 S.W.2d 280, and cases cited; In re Fourth Avenue in City of New York, 255 N.Y. 25, 173 N.E. 910 (1930). As the court observed in Territory of Hawaii v. Adelmeyer,45 Hawaii 144, 363 P.2d 979, 985--986 (1961):

Most of the partial taking cases applying the method of valuing the part taken in relation to the entire tract are those involving (as in this case) strips of land which had no real economic or market value standing alone. . . .

It seems clear to us, contrary to the appellant's contention, that the experts, and the jury, are not Required to conclude that the 'value' for eminent domain purposes of an independently unusable strip of road frontage is even equal to, much less greater than, the amount a landowner who does not have it is willing to pay to get it. Since the verdict was thus adequately supported by expert testimony the jury was entitled to consider, its amount forms no basis for reversal. Meyers v. City of Daytona Beach, 158 Fla. 859, 30 So.2d 354 (1947); Sallas v. State Road Department, Fla.App.1st 1969, 220 So.2d 378; Territory of Hawaii v. Adelmeyer, supra.

The landowner strongly argues that this cause must be reversed and remanded for a...