South Florida Water Management Dist. v. Ratner

• Decision Date: 18 April 1978
• Docket Number: Nos. 77-479,77-488 and 77-511,s. 77-479
• Citation: 357 So.2d 1055
• Parties: SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Florida Audubon Society and Tropical Audubon Society, Inc., Appellants, v. Nat RATNER, Appellee.
• Court: Florida District Court of Appeals

Page 1055

357 So.2d 1055

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Florida Audubon Society and Tropical Audubon Society, Inc., Appellants, v. Nat RATNER, Appellee.

Nos. 77-479, 77-488 and 77-511.

District Court of Appeal of Florida,Third District.

April 18, 1978.

Rehearing Denied May 19, 1978.

Thomas J. Schwartz, Robert Grafton and Stephen A. Walker, West Palm Beach, Fleming & Neuman, Miami, for appellants.

Horton, Perse & Ginsberg, A. Jay Cristol and Steven Mishan, Miami, for appellee.

Before PEARSON, HUBBART and KEHOE, JJ.

PEARSON, Judge.

These appeals are from a single order entitled "Amended Summary Judgment and Order on Motion for Summary Judgment." The appellants are the Central and Southern Florida Flood Control District, ¹ the Tropical Audubon Society, Inc., and the Florida Audubon Society. The District was the defendant and the Societies were granted leave by the trial court to intervene as parties defendant. The result of the partial summary judgment appealed is that the District must provide the appellee, plaintiff Nat Ratner, with a means of access to his lands. The operative portion of the order is as follows:

"1. Plaintiff's Motion for Partial Summary Judgment as to its demand that Defendant provide him with reasonable access to his property be and the same is hereby granted, and the Defendant is hereby directed to provide at its own expense and as quickly as possible, a means of access to the RATNER LAND, spanning Levee L-30 and L-30 Borrow Canal, such means to be sufficient to enable Plaintiff to engage in those activities which are specifically reserved to him in the EASEMENT DEEDS at such time as he may be authorized to exercise them in accordance with the provisions of said EASEMENT DEEDS. Plaintiff shall not be required to request or obtain a permit to make use of the RATNER LAND, or any part thereof, prior to, or as a condition precedent to, Defendant's being required to fulfill its obligation to provide access to Plaintiff pursuant to this Judgment. The Court reserves and retains jurisdiction over this cause in order to determine the question of the adequacy of such access, if the parties hereto are unable to reach an amicable agreement as to the method and type of access to be provided by the Defendant and the time within which such access shall be provided, and to determine such other issues as may properly be brought before the Court.

"2. Defendant's Motion for Summary Judgment as to the reversion of the easement is granted."

During the latter part of 1950 and January, 1951, the Central and Southern Flood Control District entered into certain easement agreements or flood contracts with Ratner's predecessors in title. At the time, the subject property had been platted. The easement agreements, prepared by the District, gave the District the right to construct, operate and maintain a project in the interest of flood control, reclamation and conservation on the lands owned in fee by the grantors. These Flood Easement Deeds provide that the District had the right, inter alia, to the:

". . . use and easement in and to the lands hereinafter described for any and all purposes necessary to the construction, maintenance and operation of any project in the interest of flood control, reclamation, conservation and allied purposes now or that may hereafter be conducted by the Grantee herein, its successors (the South Florida Water Management District), or assigns, including the right to permanently or intermittently flood all or any part of the area covered hereby as a result of the said construction, maintenance, or operation, in carrying out the purposes and intents of the statutes of the State of Florida relating to Central and Southern Florida Flood Control District (now the South Florida Water Management District) presently existing or that may be enacted in the future pertaining thereto. Any part of the whole thereof of the right, privilege, use and easement herein granted may be assigned for the public purposes contemplated herein by the grantee (South Florida Water Management District) at its own option and sound discretion without approval of the grantor herein."

The grantors retained substantial rights in and to their property which were enumerated in the documents:

"It is specifically understood and agreed that the foregoing grant of the uses, rights and privileges aforesaid shall in no wise prohibit or interfere with the right of the parties of the first part (the plaintiff's predecessors in interest), their heirs, administrators, assigns or lessees, to: (a) lease or conduct operations on the premises herein described, for the exploration or drilling for, or the developing, producing, storing, or removing of oil, gas or other minerals in or under the aforesaid premises, (b) remove topsoil, muck, etc., from the surface, (c) make such further use as will not conflict with the purposes for which this grant is given."

The foregoing provisions in each of the Easement Deeds are followed by the following reservation of rights to the grantor:

"To exercise these rights, ((a), (b) and (c) above), the Grantor (plaintiff's predecessor in interest), their heirs, administrators, assigns or lessees, and agents and employees, shall have such right of ingress and egress to and from said lands as may be necessary.

"It being further specifically understood and agreed that the rights retained under the provisions of this paragraph shall be exercised by the Grantor, their heirs, administrators, assigns or lessees, subject to any reasonable rules and regulations which the Governing Board of Flood Control District may prescribe for the efficient maintenance and operation of a public project in the interest of flood control reclamation, conservation and allied purposes, but which shall permit the reserved rights to exercise so that oil, gas and minerals may be developed, extracted and removed from the District in accordance with sound engineering principles."

Beginning in 1952, the District under its rights granted in the easement agreements constructed a system of levees and borrow canals which virtually surrounded the Ratner land. Levee 30 and Borrow Canal 30 physically separate the Ratner land from other lands to the east and from Krome Avenue. Levee 30 has an average height of approximately thirteen feet above natural ground level and has a width of some seventy feet. The adjacent borrow canal is approximately eighty feet in width and twenty feet deep. The system of levees and canals in which the Ratner land is located is known as Conservation Area 3, which is divided into Areas 3A and...