North Dade Water Co. v. Florida State Turnpike Authority

• Decision Date: 17 September 1959
• Docket Number: No. 59-112,59-112
• Citation: 114 So.2d 458
• Parties: NORTH DADE WATER CO., a Florida corporation, Appellant, v. FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 458

114 So.2d 458

NORTH DADE WATER CO., a Florida corporation, Appellant, v. FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State of Florida, Appellee.

No. 59-112.

District Court of Appeal of Florida, Third District.

Sept. 17, 1959.

Rehearing Denied Oct. 8, 1959.

Myers, Heiman & Kaplan, Miami, for appellant.

Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for appellee.

CARROLL, CHAS., Judge.

This is an appeal from a judgment in eminent domain, rendered in the Circuit Court in Dade County.

The action, for acquisition of a right of way by the Florida State Turnpike Authority (referred to hereinafter as the 'Authority'), resulted in a judgment granting compensation to the owners for their lands which were taken, but denying an award for the appellant North Dade Water Co. (referred to hereinafter as the 'Utility Company') with whom the owners had contracted for certain utilities.

The path of the right of way traversed an area planned for subdivision. Portions thereof designated as Parcels 5, 6 and 10 were undeveloped. Parcel 4 was subdivided and largely built up, except in the portion or corner thereof which was traversed by the turnpike right of way, and the appellant had installed mains and facilities for furnishing water in that parcel.

The Authority and the Utility Company entered into an agreement with reference to relocation of the utility mains, pipes and facilities as required by the right of way taking. By § 340.07(5), Fla.Stat., F.S.A., the authority was entitled to require such relocation of utility facilities lying in the turnpike right of way, and in turn was required to compensate the Utility Company therefor. ¹

The question of such relocation costs or award was submitted to the court in a suit for declaratory decree where the amount to be paid by the Authority to the Utility Company was fixed at $35,877.60. ²

In the instant condemnation case the trial court ruled that the Utility Company held no franchise. The court also ruled that the Utility Company held no easements for evaluation in Parcels 5, 6 and 10 in which no development had occurred; and the court directed a verdict of no award to the Utility Company as to those parcels. We find no error in the latter ruling of the trial court.

The issues on Parcel 4 went to the jury as to the value of the naked easements of the Utility Company--again under rulings of the court that the Utility Company had no franchise rights for which it could be compensated and that the easements held by the Utility Company were in gross and not appurtenant. Those rulings by the court were made the basis of assignments of error, on the appeal which resulted when the jury found that the Utility Company was entitled to no award as to Parcel 4. In so deciding that issue, the jury had the benefit of testimony of the appraisers presented by the Authority who said the easements were of no value, and testimony of appraisers produced by the Utility Company who gave certain values thereto.

First, as to the Utility Company's claim that it held franchise rights extending to the lands taken for which it should have been compensated. The Utility Company had entered into certain written agreements with the private owner-developer under which the Utility Company undertook to provide water and sewer service. ³

That contract between the private parties did not create a franchise. The exclusive right to furnish sewer and water facilities, which was given by the contract to this Utility Company, did not result in the creation of a property right for which it was entitled to draw compensation, upon condemnation of a right of way across the property to which such contract related. 'Private parties cannot create a franchise. A franchise, in order to constitute a property right in the constitutional sense, must have been granted by the sovereign or its delegated agents. A contract giving one public service corporation the exclusive privilege of maintaining its works upon a certain tract of land creates no property right that the law will recognize when enforcing the exercise of eminent domain over the same land in behalf of another corporation. * * *' 2 Nichols, Eminent Domain, § 5.75 (3d ed: 1950). See, also Ex parte Marshall, 75 Fla. 97, 77 So. 869, L.R.A.1918C, 944; Day v. City of St. Augustine, 104 Fla. 261, 139 So. 880; State ex rel. Watkins v. Fernandez, 106 Fla. 779, 143 So. 638, 86 A.L.R. 240; 14 Fla.Jur., Franchises, § 2 et seq.; 10 F.L.P., Franchises, §§ 2, 3; 3 Powell, Real Property, §§ 432, 433; 1 Thompson, Real Property, § 308 (2d ed. 1939). It is settled that the incidental frustration of the performance of a contract by the public taking of certain other property is not compensable. See Board of Public Instruction of Dade County v. Town of Bay Harbor Islands, Fla.1955, 81 So.2d 637; Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773; Annotation, 152 A.L.R. 307.

Second, appellant challenges the ruling of the trial court that its easements were in gross and not appurtenant. An easement is in gross and personal to the holder when it is not appurtenant to other lands or premises. An easement is appurtenant when the right which it represents is attached to and belongs with some greater or superior right as a dominant estate. Burdine v. Sewell, 92 Fla. 375, 109 So. 648; 17-A Am.Jur., Easements, §§ 9-11; 11 Fla.Jur., Easements & Licenses, §§ 4-6.

The able trial judge was eminently correct in holding that the easements were unsupported by a dominant estate and were in gross and personal to the holder. See,...