Parker v. Armstrong, 2078

• Decision Date: 07 December 1960
• Docket Number: No. 2078,2078
• Citation: 125 So.2d 138
• Parties: George C. PARKER, Sr., and Mamie B. Parker, his wife, Petitioners, v. William H. ARMSTRONG and State Road Department of Florida, an Agency of the State of Florida, Respondents.
• Court: Florida District Court of Appeals

Page 138

125 So.2d 138

George C. PARKER, Sr., and Mamie B. Parker, his wife, Petitioners, v. William H. ARMSTRONG and State Road Department of Florida, an Agency of the State of Florida, Respondents.

No. 2078.

District Court of Appeal of Florida, Second District.

Dec. 7, 1960.

Rehearing Denied Dec. 30, 1960.

Donald Walker, Orlando; William D. Jones, Jr.; Jones & Foerster, Jacksonville, for petitioner.

Bryan Henry, Clyde G. Trammell, Jr., Tallahassee, for respondent State Road Department.

ALLEN, Chief Judge

The above petition for writ of certiorari was argued before this court at the same time that the case of Rich v. Harper Neon Company, Incorporated, 124 So.2d 750, was argued and one point of law involved herein is similar to the question involved in that case, to-wit:

'Whether the condemnation jury in the same verdict where the amount of compensation to be paid by the condemnor for the taking of private property is determined shall also apportion such compensation between the former owner of the fee title and the tenant of an unexpired leasehold term.'

In the Rich case an opinion was filed November 23, 1960, in which we granted certiorari and quashed that part of the order of the circuit court which provided for a jury trial to determine the damages of the tenant. Based on the case of Rich v. Harper Neon Company, supra, we shall also grant certiorari in this case and quash that part of the order of the circuit court entered the 28th day of July, 1960, Paragraph (3), which provides for a jury trial to determine the damages of a tenant in this petition.

Petitioners also asked this court to quash the order of the court below which refused permission to the owner-defendant to open and close the trial.

The petitioners, in their brief, state the question as follows:

'Whether the right to open and close the trial rests with the owner-defendant or upon the condemnor in an eminent domain proceeding where only the issue of compensation is before the court for trial and determination.'

The petitioners further state in their brief, page 16:

'Without attempting to burden the Court with a completely exhaustive submission of applicable authorities from all of the other jurisdictions of the country, it may be stated emphatically that the great and overwhelming weight of authority sustains the right of the land owner in a condemnation action to open and to close in cases where the necessity of the taking is not in issue and the sole question is the amount of damages.'

It is stated in 73 A.L.R.2d 619, § 2, as follows:

'* * * [a]nd most condemnation proceedings are primarily concerned with the question of damages. On this issue a majority of the cases hold that the landowner has the burden of proof, together with the right to open and close the argument. There are, however, cases taking the view that, absent contrary statute, the party seeking condemnation, rather than the landowner, has the right to open and close.

'The division in the cases is mainly due to a lack of harmony on the questions of which party has the burden of proof on the whole case, and which party would be the loser in the absence of any proof. The conflict is partly due, however, to differences in local practice and statutory provisions. * * *'

The above annotation lists decisions from federal courts and from courts of Arkansas, Colorado, Indiana, Massachusetts, Minnesota, Missouri, Montana, Nebraska and Oklahoma as states according the land owner the right to open and close. While it lists decisions by federal and state courts in Alabama, Ceorgia, Illinois, Maryland, Ohio, Tennessee, Texas, Virginia, Washington and West Virginia as jurisdictions that, absent contrary statutory provisions, the condemnor has the right to open and close the argument in a condemnation case. It will be observed that the jurisdictions are about equally divided on the right to open and close the trial of the case.

A study of many cases set forth in this annotation reveals that the results of the decisions are affected by statutory provisions, procedural admissions on the part of either the landowner or the condemnor, and also on provisions of the constitutions of the various states.

Both the petitioners and the respondents state that this question has not been decided in Florida nor have we been able from independent research to find a case on point in eminent domain proceedings. We are of the opinion that under the constitution of Florida the condemning party has a duty to go forward with the evidence so that the jury may determine the value of the property taken before a judgment can be obtained on the question of damages, and, that having this burden to proceed in the case, the condemnor should have the right to open and close the case and should be accorded the right of opening and closing the oral argument to the jury.

Article XVI, Section 29, of the Florida Constitution, F.S.A., provides:

'No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.'

In the case of Seattle & M. R. Co. v. Murphine, 1892, 4 Wash. 448, 30 P. 720, the Supreme Court, in its opinion, said:

'* * * Upon the question whether, in cases of this character, the petitioner has the right to open and close, the decisions of the courts of the various states are not uniform. Where not controlled by statute, the courts all base their decisions on the general principle that the party on whom rests the burden or proof is entitled to begin and reply. The majority of the cases seem to hold that the burden of proof is upon the landowner, and consequently give the opening and closing to him. In this state no private property can be taken or damaged for public or private use without just compensation being first made or paid into court for the owner, * * *. The proceeding must be inaugurated by the party seeking to appropriate the land. * * *

'From the above provisions of the statute it will be seen that the corporation seeking the condemnation of land for its corporate uses is required to bring the landowner into court in a certain prescribed manner, and to show that the use for which the land sought to be appropriated is a public use, that the public interest requires the prosecution of the enterprise in which it is engaged, and that the land sought to be appropriated is necessary for the purposes of such enterprise. As to all of these matters, the burden of proof is, of course, upon the petitioner. Having gone thus far, and having come to the question of the amount of damages, does the burden of proof shift to the landowner, or remain with the petitioner? * * * No formal pleadings or issues being contemplated or required by the statute, in order, therefore, to determine which party ought to open and close, it is necessary to consider what is the substantial issue to be established, and on which party is imposed the burden of establishing it. The substantial fact to be determined, in this class of cases, is not whether the compensation is more than the petitioner concedes to be just, or is willing to pay, as some of the cases would seem to hold, nor whether the compensation to be made is less than the owner of the land is willing to receive, but simply what is full compensation. The question of damages cannot be tried upon the claim or demand of the landowner. The proceeding is not an action by him to recover damages for land actually taken, but is a proceeding instituted by the petitioner to ascertain what is a full compensation for the taking or injuriously affecting the land; and, before the land can be taken at all, the petitioner must proceed affirmatively, and have the amount of compensation 'ascertained and determined' according to law, or not succeed in the appropriation. If no proof should be offered, the petitioner would be defeated, and the proceeding would be dismissed. And, this being so, the petitioner had the right to begin and reply, both in the introduction of evidence and in the argument to the jury. [Citations omitted.]'

In the case of Commissioners of Sewerage of Louisville v. Reisert, 243 Ky. 494, 49 S.W.2d 324, the Court of Appeals of Kentucky had befoer it the correctness of the trial court respecting the burden of proof. The lower court had placed the burden on the landowner. In its opinion reversing the lower court, the Court said:

'* * * The burden of proof in the whole action rests upon the party who would be defeated if no evidence were given on either side. Civ.Code Prac. § 526. The party having the burden of proof must first produce his evidence and is entitled to conclude the argument to the jury. Civ.Code Prac. § 317, subsecs. 3 and 6.

'* * * Under the Constitution of Kentucky property cannot be taken or applied to public use without just compensation being made (section 13), and municipal or other corporations or individuals invested with the privilege of taking private property for public use must make just compensation for property taken, injured or destroyed. Such compensation shall be paid before the taking,...