Sibley v. Volusia County

• Decision Date: 23 May 1941
• Citation: 2 So.2d 578,147 Fla. 256
• Parties: SIBLEY et al. v. VOLUSIA COUNTY et al.
• Court: Florida Supreme Court

2 So.2d 578

147 Fla. 256

SIBLEY et al. v. VOLUSIA COUNTY et al.

Florida Supreme Court

May 23, 1941

Rehearing Denied June 10, 1941.

Chas. F. Wells, of Daytona Beach, and Hilburn &amp Merryday, of Palatka, for plaintiffs in error.

Hull Landis & Whitehair and John L. Graham, all of De Land for defendants in error.

BUFORD, Justice.

Writ of error brings for review judgment in favor of the plaintiff in condemnation proceedings.

Plaintiff in error presents two questions for our determination stated as follows:

'First Question: Where a County undertakes to furnish to the State Road Department a right of way for a State Road, and files a petition in condemnation for such purpose, is it necessary that it be alleged in such petition that the right of way sought to be acquired is a necessary right of way for said State Road, and that the lands sought to be condemned are necessary lands for the purpose of securing such right of way for said State Road?

'Second Question: If it is not necessary for a County, in its petition for condemnation of lands for a right of way for a State Road, to allege that such right of way is a necessary right of way, and that the lands sought to be condemned are necessary lands for the purpose of securing such right of way for said State Road; then does an answer to such petition show legal cause why said lands should not be taken for the purposes set forth in the petition, by alleging the lack of necessity of the right of way sought to be condemned, and the lack of necessity for the taking of respondents lands for such purpose?'

At the outset, we may say that plaintiff in error places much stress on Federal statutes relative to Federal aid by the Federal Government in the construction and maintenance of State Roads. We hold that such statutes have no effect upon the power of State agencies to establish roads but only come into play in connection with the contributions to be made by the Federal Government in money to aid in the construction and maintenance of the roads when and if they have been established.

We may also say that private interest in one route or another is not a matter to be considered as controlling in the determination of a location of a State highway.

The only practical difference between the contentions relied on in this case and those which were relied on in the case of Enzian v. State Road Department, 122 Fla. 527, 165 So. 695 (involving Road No. 31), is that in this case plaintiff in error relies on Chapter 12383, Acts of 1927, as a definite limitation to the route at that time occupied as State Road No. 21 as the only route which the State Road Department could adopt. That act provides:

'Section 1. That State Road No. 21 be redesignated as follows: Extend from Daytona Beach to DeLand as now established; thence from DeLand to Eustis via Crow's Bluff and Cassia [Section 2] * * * on the west side of the St. Johns River and extending westward via Altoona, intersecting State Road No. 38.'

On research we find that by the provisions of Chapter 9311, Acts of 1923, certain roads by name and number were established and among these were 'Road No. 21. Extending from Daytona to DeLand' and also 'Road No. 31. Road from Ocala to Waldo via Citra, Island Grove and Hawthorne.'

The record shows that Road No. 21 had never been established in accordance with the provisions of Chapter 9312, Acts of 1923, Sec. 1654, C.G.L. and, therefore, the only establishment of Road No. 21 which the 1927 Act could have referred to was the establishment effectuated by Chapter 9311, supra. This statutory designation and establishment of such road did not confine the State Road Department to adopting the route then occupied by the existing road. Enzian v. State Road Department, supra.

Plaintiff in error also contends that the petition in condemnation does not sufficiently show necessity for the exercise of eminent domain or power in the petitioner to exercise such power in the instant case.

The petition shows that the State Road Department had pursued the course required by Chapter 9312 in designating and establishing that part of the route of State Road No. 21 known as Project 5055; had surveyed and located that route; had caused a right of way map of said location and survey to be made; had adopted the same and caused it to be filed in the office of the Clerk of the Circuit Court of Volusia County, Florida. It showed that by proper resolution the State Road Department had requested and authorized the Board of County Commissioners of Volusia County, Florida, to acquire by gift, purchase or condemnation the right of way shown by the said map and included in the said survey; that a certified copy of the resolution had been presented by the State Road Department to the Board of County Commissioners and that at a meeting of the Board of County Commissioners held at DeLand, Florida, on September 24, 1940, by resolution the said Board of County Commissioners had agreed to acquire and furnish the said State Road Department the lands needed and required for the right of way of such road.

The petition further showed that the County Commissioners, pursuant to agreement to furnish to the said State Road Department the said lands needed for said right of way, had acquired by gift or purchase certain parts and parcels of said lands needed for such right of way, but that they had been unable to acquire all of the lands included in the plat and survey of such right of way and it, therefore, became necessary for petitioners to exercise their power of eminent domain to appropriate the necessary property for that county purpose including the purpose of securing the land for right of way for State roads to be constructed and maintained in Volusia County, Florida, and that because they had been unable to acquire by gift or purchase the lands involved in this suit the proceedings in condemnation were instituted. Several parcels of land were included and specifically described. The necessity for condemnation was sufficiently shown by the allegations of the petition.

As we have hereinbefore stated, other matters urged for the reversal of the judgment were in no material manner different from the matters urged by the appellant in the case of Enzian v. State Road Department, supra.

We do not feel that it is necessary to repeat the enunciations contained in the opinion in that case, but on authority of that opinion and judgment and in the light of what we have hereinbefore said, the judgment here should be affirmed and it is so ordered.

Affirmed.

BROWN, C. J., and BUFORD and CHAPMAN, JJ., concur.

BROWN, Chief Justice (concurring).

The main question involved in this case has been discussed in the foregoing opinion. Counsel for plaintiff in error in their very well prepared brief take the position that there was no authority for a county to condemn lands for rights of way for state roads except Chapter 10118 of the Acts of 1925, as amended by Chapter 17363 of the Acts of 1935. Section 1 of Chapter 10118 vests the power of eminent domain in the State Road Department to condemn all necessary lands and property for the purpose of securing rights of way for state roads and all bridges in connection therewith. Section 2 of the Act was declared unconstitutional in the case of Spafford v Brevard County, 92 Fla. 617, 623, 110 So. 451, but the Court held that the remainder of the Chapter was not affected by eliminating said Section 2. Section 3 authorized the several counties of the State to furnish to the State Road Department the necessary rights of way for state roads in or through their respective counties, and to that end vested the counties with the power of eminent domain to condemn all necessary lands for the purpose of securing rights of way for state roads, such condemnation proceedings to be brought and maintained as prescribed in Section 1505 et seq. of the Revised General Statutes of Florida. As amended by Chapter 17363, Section 3 of Chapter 10118 contained the provisions in the original section and added thereto a provision to the effect that the various counties may enter into contract to furnish necessary rights of way to the State Road Department, and to make bond with sufficient sureties conditioned to indemnify the State Road Department against expenses incurred by the counties in securing such rights of way, etc.

Sections 1505 and 1506 of the Revised General Statutes of Florida, referred to in both of the above statutes as prescribing the procedure for such eminent domain proceedings, were specifically repealed by Chapter 14716 of the Acts of 1931. This repeal...