Jahoda v. State Road Dept.

• Decision Date: 21 November 1958
• Docket Number: No. 570,570
• Citation: 106 So.2d 870
• Parties: Frances J. JAHODA, Appellant, v. STATE ROAD DEPARTMENT, Appellee.
• Court: Florida District Court of Appeals

Page 870

106 So.2d 870

Frances J. JAHODA, Appellant, v. STATE ROAD DEPARTMENT, Appellee.

No. 570.

District Court of Appeal of Florida, Second District.

Nov. 21, 1958.

A. B. Angle and Morison Buck, Tampa, for appellant.

Richard B. Austin, Tallahassee, for appellee.

SHANNON, Judge.

This appeal arises out of a condemnation proceeding in which appellant was awarded $2,200 for a portion of her property taken and damages to the remainder.

The appellant has set forth three points of law in her brief. We will only discuss the first point and the others will stand affirmed.

In her first point the appellant states:

'Did the Court err in refusing to admit expert evidence showing damage to the remainder of defendant's property as result of the relocation of the highway in relation to defendant's property resulting in loss of through highway frontage for commercial purposes?'

The appellee, being dissatisfied, with the words used in the point of law suggests that a more correct statement to be argued is 'Does the defendant have such an interest in traffic passing along the highway abutting his property as to require payment for the loss of such traffic?'

The facts in the case are quite simple. The appellant owned approximately nine acres of land lying to the south of Highway 92, and the appellee, in constructing the new roadway, which lies to the north of Highway 92, condemned a portion of the appellant's property, .43 acres. This was a triangular piece of land lying in the corner of Garden Lane and Highway 92. This taking was in conjunction with a new highway being built, which veers from appellant's land just to the west and will not touch her land at all. The new highway will by-pass, to a large extent, Highway 92, and hence Highway 92 will become a secondary road.

The question which we have before us encompasses the basic question of whether or not the lower court was in error in disallowing in testimony the reduction in value of the appellant's remaining land by reason of rerouting traffic over the new highway. We have been cited to no cases in Florida nor have we found any directly on this question.

The Florida Statutes, 1957, § 73.10(2), F.S.A. provides as to compensation:

'The amount of such compensation shall be just compensation. Just compensation shall be the value of the property appropriated, irrespective of any benefit from any improvement proposed by the petitioner. The defendant property owner shall also be awarded compensation for damages, if any, to his remaining adjoining property.'

The appellant urges that this case does not involve a mere diversion of traffic whereby a land owner abutting a highway suffers damage from loss of business and commercial traffic by the building of the new highway, which diverts the flow of traffic away from his property. But, as emphasized in the appellant's brief, she is complaining for the reason that the appellee's project has relocated the highway and has, at the same time, and as part and parcel of the improvement, taken a portion of appellant's land without compensating her for damage to the remainder.

The appellant had owned this land approximately thirty years. It had 521 feet of frontage with a modest dwelling set back from the highway and facing the road known as Garden Lane. The property had been zoned as agricultural although at the trial various witnesses gave it as their opinion the best use of such property was commercial. There had previously was commercial. There had previously been a commercial enterprise on although from the testimony it was not presently operated. The jury verdict was for the value of the land taken and damages to the remainder of her property.

We quote from the record a portion of the testimony of appellant's expert witnesses on cross-examination:

'By Mr. Henry: Q. Did I understand you correctly, Mr. Copeland, in that this severance damage of $5,875 is for the loss of highway frontage or is it for diversion of traffic onto another highway? A. My opinion is that it is for loss of highway frontage because it will not be on the highway.

'Q. Is that figure for diversion of traffic to another road? A. You can call it whatever you like. It will not be on a main highway.

'Q. Now, the damage for which you have assessed some $5,875, as I understand you, is because east and west of this property your major flow is being diverted to the north? A. That is correct.

'Mr. Henry: If the Court please, we at this time, move to strike that figure of $5,875, testified to by this witness, and request the court to instruct the jury to disregard it as an improper element.

'The Court: I think that's correct, Mr. Buck. You have asked him to value the...