State Dept. of Transp. v. Stubbs

• Decision Date: 27 June 1973
• Docket Number: No. 42873,42873
• Citation: 285 So.2d 1
• Parties: STATE of Florida DEPARTMENT OF TRANSPORTATION, Petitioner, v. William E. STUBBS and Gertrude Stubbs, Respondents.
• Court: Florida Supreme Court

Page 1

285 So.2d 1

STATE of Florida DEPARTMENT OF TRANSPORTATION, Petitioner, v. William E. STUBBS and Gertrude Stubbs, Respondents.

No. 42873.

Supreme Court of Florida.

June 27, 1973.

Rehearing Denied Nov. 27, 1973.

Geoffrey B. Dobson and Barbara Ann Dell McPherson, Tallahassee, for petitioner.

C. Ray Greene, Jr., of Greene, Greene, Smith & Davenport, Jacksonville, for respondents.

ERVIN, Justice.

This cause is before us on conflict certiorari granted to review the District Court of Appeal, First District, decision in Stubbs v. State Department of Transportation, 265 So.2d 425 (Fla.App.1972), which purportedly conflicts with Anhoco Corporation v. Dade County, 144 So.2d 793 (Fla.1962); Jacksonville, T. & K.W. Ry. Co. v. Thompson, 34 Fla. 346, 16 So. 282 (Fla.1894); and Jahoda v. State Road Department, 106 So.2d 870 (Fla.App.1958). We have examined the cases cited for conflict and have determined that we have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, F.S.A.

The District Court of Appeal, First District, reversed a trial court ruling excluding evidence as to severance damages resulting from a condemnation action instituted by Petitioner. The subject property was condemned in connection with the building of Interstate 295, a limited access highway. Because of the road construction it was considered necessary to abandon a portion of Firestone Road fronting on Respondents' land and carrying traffic north and south. Firestone Road will be closed to northbound and southbound traffic just south of the northern boundary of the Respondents' tract, and will also be closed to traffic three blocks south of the southern boundary of Respondents' property because of the relocation of Firestone Road in the form of an overpass east of Interstate 295.

Thus, whereas Respondents' land was accessible to automobile traffic moving both north and south on Firestone Road, in the future access will only be gained by traversing an overpass from the east side to the west side of a major interstate highway. The Respondents sought to introduce evidence at trial of severance damages resulting from the impairment of access to Respondents' property, part of a 15.4 acre tract being used as a trailer court and rental complex. The Circuit Court for Duval County ruled in a pretrial order that the Respondents could not recover severance damages for a condemnation that placed their property in a cul-de-sac. We are in agreement with the District Court's reversal of that judgment.

The acquisition of property and property rights for eminent domain purposes has long been recognized in American jurisprudence. In Florida, F.S., Section 338.04, F.S.A., provides for the taking of 'private or public property and property rights for limited access facilities and service roads, including rights of access. . . .' In Anhoco Corporation v. Dade County, 144 So.2d 793 (Fla.1962), at 798, we held that the Legislature 'specifically required' compensation for a destroyed right of access under the provision of that Section. The rationale for granting compensation, although not always expressed in judicial pronouncements, is that 'property' is something more than a physical interest in land; it also includes certain legal rights and privileges constituting appurtenants to the land and its enjoyment. This is part of a gradual process of judicial liberalization of the concept of property so as to include the 'taking' of an incorporeal interest such as the acquisition of access rights resulting from condemnation proceedings. See Stoebuck, The Property Right of Access Versus the Power of Eminent Domain, 47 Texas L.Rev. 733 (1969).

Anhoco Corporation v. Dade County, supra, involved a large parcel abutting a previously existing land service road which was being converted into a limited access facility. Two theatres were located on the property and had to be closed for varying lengths of time pending the construction of a frontage road paralleling the limited access facility and running the length of the abutting landowner's property. In holding that the landowner was entitled to compensation for the harm done during the interim, we stated:

'There can now be little doubt that when an established land service road is converted into a limited access facility the abutting property owners are entitled to compensation for the destruction of their previously existing right of access.

'Although the record is not sufficiently clear to specify the exact periods involved, it is apparent that Anhoco suffered substantial damages as a result of destruction of two or more of its rights of access prior to the establishment of the new frontage service road. It is entitled to compensation for this damage.' Id. at 797, 798.

Cf. Boney v. State, Department of Transportation, 250 So.2d 650 (Fla.App.1971); State Road Department of Florida v. McCaffrey, 229 So.2d 668 (Fla.App.1969); and Benerofe v. State Road Department, 210 So.2d 28 (Fla.App.1968), 217 So.2d 838 (Fla.1969).

Petitioner has argued orally and in briefs that the case presently under review is distinguishable from the Anhoco holding in that the Respondents still have access to Firestone Road by use of the overpass which crosses Interstate 295, and therefore their right of access is not 'destroyed.' We view this argument as an overly restrictive interpretation of Anhoco and not in keeping with the spirit of that decision or the cases cited above.

A perusal of the record indicates Respondents' commercial property has been adversely affected to some degree by the loss of access resulting from their property being placed in a cul-de-sac, which was a part of the project to bring into existence Interstate 295. The availability of ingress and egress to their property that previously existed has...