Moore v. Choctawhatchee Elec. Co-op., Inc., CO-OPERATIV

• Decision Date: 21 March 1967
• Docket Number: CO-OPERATIV,INC,No. 1-22,1-22
• Citation: 196 So.2d 788
• Parties: James E. MOORE, and wife, Barbara H. Moore, Appellants, v. CHOCTAWHATCHEE ELECTRIC, Appellee.
• Court: Florida District Court of Appeals

Page 788

196 So.2d 788

James E. MOORE, and wife, Barbara H. Moore, Appellants, v. CHOCTAWHATCHEE ELECTRIC CO-OPERATIVE, INC., Appellee.

No. 1-22.

District Court of Appeal of Florida, First District.

March 21, 1967.

Ben L. Holley, Crestview, for appellants.

Ferrin C. Campbell, Crestview, for appellee.

RAWLS, Chief Judge.

Appellants instituted this action predicated upon the theory of inverse condemnation by which they contend that appellee has, without lawful authority, appropriated to its own use a part of their real property. Both parties moved for a summary judgment based on the pleadings, deposition of Moore, and an affidavit submitted by defendant's manager. The chancellor entered a summary final decree in favor of defendant Choctawhatchee, hence this appeal by appellants.

Appellants pose the following two points:

WHEN THE WIDTH OF A PRESCRIPTIVE EASEMENT IS IN DISPUTE, WAS THE LOWER COURT CORRECT IN GRANTING A SUMMARY JUDGMENT?

WHETHER THE LOWER COURT ERRED IN FAILING TO DEFINITELY DESCRIBE IN THE JUDGMENT WIDTHS OF THE RIGHT OF WAY.

which we will treat as one.

Essential facts are: In January, 1965, plaintiffs purchased 31 acres of land in Okaloosa County and constructed a home on the eastern side of same. Plaintiff James Moore testified that the land was so overgrown that although he walked over the land prior to purchasing same, he did not see defendant's electric transmission line traversing the western side. The complaint alleged that in July of 1965, defendant cleared a strip of land 30 to 35 feet in width and 960 feet in depth along the west side of the property and in so doing cut 5 or 6 pine trees and 25 to 30 oak trees which were 10 to 20 years old.

Defendant claims under an unrecorded easement executed by plaintiffs' predecessors in title in 1945, that grants to defendants an easement across 160 acres which is inclusive of plaintiffs' lands. Plaintiffs had no knowledge of the existence of said easement. It is significant that this easement does not define any particular width, but only provides that defendant is granted '* * * the right to enter upon the lands of the undersigned * * * and to construct, operate and maintain on the above described lands * * * an electric transmission or distribution line or system, and to cut and trim trees and shrubbery To the extent necessary to keep them clear of said electric lines or system. * * *'

The trial judge found upon sufficient evidence that since the transmission line was actually located on the property, and could be seen where it entered the property immediately after crossing a road, plaintiffs were given constructive...