Peavy-Wilson Lumber Co. v. Brevard County

• Decision Date: 18 July 1947
• Citation: 159 Fla. 311,31 So.2d 483
• Parties: PEAVY-WILSON LUMBER CO., Inc., et al. v. BREVARD COUNTY et al.
• Court: Florida Supreme Court

31 So.2d 483

159 Fla. 311

PEAVY-WILSON LUMBER CO., Inc., et al. v. BREVARD COUNTY et al.

Florida Supreme Court

July 18, 1947

Rehearing Denied Aug. 1, 1947.

Appeal from Circuit Court, Brevard County; M. B. Smith judge.

W. J Steed, of Orlando, for appellants.

Butt &amp Akridge, of Cocoa, and Crofton & Wilson, of Titusville, for appellees.

ADAMS, Justice.

Pursuant to Sec 418.02, F.S.A., Brevard County filed its petition to condemn, by eminent domain, four hundred ninety acres of privately owned land. The purpose of the taking was for playgrounds, recreational centers and other recreational purposes. The action was opposed by the landowner on the ground that the county had shown no public necessity for the taking. In obedience to Sec. 127.01, F.S.A., the lower court tried the issue of public necessity for the taking and decided in favor of the county. Thereafter a jury was empaneled to assess the value and damages. Judgment was awarded on the verdict. Two appeals are prosecuted and consolidated: One from the preliminary decision on the question of public necessity and the other from the final judgment based on the jury verdict.

The only question insisted upon is whether there was any public necessity for the taking. The lands in question are being used by the owner for pasturage and watering live stock. The area is several miles removed from any community or settlement and at frequent intervals a large portion of the property is inundated; there are no first class roads or other improvements near the property and hardly any habitation within a radius of five or six miles. Much testimony was taken showing that the public had, from time immemorial, hunted, fished and utilized the property for picnics and other pleasures.

The owner fenced the property whereupon a petition, signed by a large portion of citizens, was presented to the Board of County Commissioners requesting that the property be condemned for public use. The county proceeded with the action without formulating and submitting any specific and detailed plan to the court. The County Commissioners took the position that they would take the land and then work out such use of it as the public might demand. It is claimed that the property has attractive sites which could be used for boys' and girls' camps, which contribute an element of color to the contention, yet, when the whole testimony is appraised, the bare fact is that the property is sought for a public hunting and fishing ground.

We approach the decision of this case by first determining whether there was any jurisdictional prerequisite shown by the petition.

The power of eminent domain is an attribute of the sovereign. It is not a vesture of the state conferred by constitution or statute. It is circumscribed by the constitution and statute in order that cherished rights of the individual may be safeguarded. It is one of the most harsh proceedings known to the law, consequently when the sovereign delegates the power to a political unit or agency a strict construction will be given against the agency asserting the power. Sutherland's Statutory Construction (3rd ed. by Horack) Vol. 3, page 249, Sec. 6504; Cooley on Constitutional Limitations, 8th Ed., Vol. 2, page 1112. Over the past several centuries the general principles of our law of eminent domain have taken form from the pattern of a democratic state. At one time the state owned all the property or possessed the power to wrest it from the owner. As our concepts of a democracy have grown, greater emphasis has been placed on the rights of the citizen among which has been the privilege to 'have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring possessing and protecting property, and pursueing happiness and obtaining safety.' Section 1, Declaration of Rights, Florida Constitution.

Our American courts have been ever alert to shield the citizen against encroachment by the sovereign as experience has shown that where a right is extended a corresponding liberty is curtailed, seldom if ever to be restored.

Statutes granting power, such as here asserted, are in contravention of the common rights of persons and should receive a strict construction. Lewis on Eminent Domain, 3rd Ed., Vol. 1, page 708, Sec. 388; also Cooley on Constitutional Limitations, supra. While the power of eminent domain is a power resting in the sovereign state, it can only be exercised by a county as authorized by statute. Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488. The functions of the state and county are primarily governmental. When other, or additional powers are conferred by statute they must be incident to the primary functions.

In 1925, the Legislature by Chapter 10100, Sec. 418.02, F.S.A., granted counties authority to acquire lands for playgrounds and recreational purposes. This chapter did not expressly grant the power of eminent domain and it is not necessary now for us to pass upon that question. The effect of this statute was to declare that the construction and maintenance of parks and playgrounds was a county purpose for which public funds could be expended. In 1945, the Legislature by Chapter 22802, Sec. 127.01, F.S.A., amended Sec. 127.01, by providing:

'(1) All counties of the state are delegated authority to exercise the right and power of eminent domain; * * * for any county purpose; * * *

'(2) Provided, however, that no county shall have the right to condemn any lands outside its own county boundaries, for parks, playgrounds, recreational centers or other recreational purposes; and provided, further, that in all actions now pending or which hereafter may be instituted by a county to acquire title, by eminent domain, to any lands for parks, playgrounds, recreational centers, or other recreational purposes, the party or parties, whose lands are sought to be taken, shall, in such condemnation suit have the right to present an issue before the court as to the necessity for the proposed taking, and the amount of land required for the purpose sought, and thereupon it shall be the duty of the court to receive and hear all relevant testimony on the issues created, and the court shall determine such issues as other issues of fact and law are determined before the court in equity, without regard to or presumption in favor of any prior determination by the county commissioners or the exercise of discretion by them. Only land for the taking...