Lee County v. Charlotte County, 5246

• Court: Florida District Court of Appeals
• Writing for the Court: ALLEN; WHITE, J., and DURDEN, WILLIAM L.
• Citation: Lee County v. Charlotte County, 174 So.2d 108 (Fla. App. 1965)
• Decision Date: 24 March 1965
• Docket Number: No. 5246,5246
• Parties: LEE COUNTY, a political subdivision of the State of Florida, Appellant, v. CHARLOTTE COUNTY, a political subdivision of the State of Florida, et al., Appellees.

Page 108

174 So.2d 108

LEE COUNTY, a political subdivision of the State of Florida, Appellant, v. CHARLOTTE COUNTY, a political subdivision of the State of Florida, et al., Appellees.

No. 5246.

District Court of Appeal of Florida, Second District.

March 24, 1965.

Rehearing Denied April 29, 1965.

William H. Shields and Frank A. Pavese, of Pavese & Waldorf, Fort Myers, for appellant.

Leroy Hill, Punta Gorda, for appellees.

ALLEN, Acting Chief Judge.

Lee County filed a petition to intervene in a suit which was instituted by Charlotte County to acquire, by eminent domain, property located in Charlotte County. The lower court granted a motion by Charlotte County to dismiss the petition to intervene and this appeal followed.

The petition to intervene alleged that the condemnation proceeding was for a drainage canal and that the engineering map shows this canal is to be constructed entirely within Charlotte County but that the canal abruptly ends at the Charlotte County-Lee County line; that if no disposition of the collected waters is made they will flow into the Gulf of Mexico across property owned by private citizens in Lee County and that this amounts to a taking of public and private property within the meaning of the eminent domain statutes. Furthermore, Lee County claims that it will have to undertake a drainage project, that the assessment and tax revenue from this land will be impaired and that a county bridge will, in time of heavy rain, be flooded.

Fla.Stats. § 73.05, F.S.A. provides:

'Intervention.--Any person not expressly made a party, interested in or having a lien upon the property described in the petition, may become a party, as of course, before the return day or afterward by leave of court, by filing his petition of intervention in the cause setting forth his interest under oath.'

In the Florida Bar's Manual, Florida Civil Practice Before Trial, Chapter 11, Joinder of Parties and Actions, the Honorable Paul E. Raymond, a former Dean of Stetson University College of Law, states at p. 322:

'Intervention is provided for by Fla.R.Civ.P. 3.4:

"Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.'

'There is no special rule permitting intervention in law cases, although it is arguable that the language of Fla.R.Civ.P. 1.17 could be interpreted to be broad enough to allow an outside party to move for his being joined as a party in the cause if the grounds stated in the rule were met. The Supreme Court of Florida has rejected this view and held that intervention in a lawsuit was not permissible without a statute or rule of court expressly allowing it. Warshaw-Seattle, Inc. v. Clark, 85 So.2d 623 (Fla.1955) * * *.'

Eminent domain proceedings provide for the taking of property by a public body with compensation for the property taken and damage to the remainder of the property by reason of the taking. Section 73.05 provides that a person not expressly made a party but interested in or having a lien upon the property described in the petition may, in effect, intervene in the cause by setting forth his interest under oath.

It is conceivable that Lee County may be affected by the result of the drainage sought to be constructed by Charlotte County, but we cannot see that the lower court erred in holding that they had no right to intervene under Section 73.05, which specifically provides for intervention in eminent domain cases.

In the case of Laclede Gas Company v. Abrahamson, Mo.1956, 296 S.W.2d 100, 61 A.L.R.2d 1286, the owners of certain lands sought to intervene in an action to condemn easements in adjacent lands for the establishment and operation of an underground gas storage reservoir. It appeared that no interest in the would-be intervenors' lands was sought in the condemnation action but the underground storage might result in consequential damage by increasing the amount and pressure of water under the would-be intervenors' lands. On appeal from orders of the trial court denying the motions for intervention, the Supreme Court of Missouri held that the would-be intervenors did not have the necessary interest for mandatory intervention.

In the opinion of the Court it is stated:

'The purpose of this action is to take rights...