State Road Dept. of Florida v. Tharp
| Decision Date | 25 April 1941 |
| Citation | 1 So.2d 868,146 Fla. 745 |
| Parties | STATE ROAD DEPARTMENT OF FLORDA et al. v. THARP. |
| Court | Florida Supreme Court |
Rehearing Denied May 19, 1941.
En Banc.Appeal from Circuit Court, Washington County; Ira A Hutchison, judge.
T. M Shackleford, Jr., of Tampa, for appellants.
James N Daniel, of Chipley, for appellee.
The facts in this case are simple but they are laden with a live question. Appellee owned a water mill on Hard Labor Creek in Washington County which he and his predecessors in title had been operating as a saw mill, grist mill, or shingle mill for more tnan seventy years. It was propelled by water impounded in a millpond by erecting a dam across the creek to the east of the mill.
When the water left the millrace, it flowed through a swamp area in five channels. At a point four or five hundred feet west of the mill, the State Road Department erected a bridge and fill aggregating 640 feet in length. The fill completely obstructed four of the channels, the result being to raise the elevation of the water in the millrace at least three feet, reducing the capacity of the mill fifty per cent.
Appellee as complainant filed his bill of complaint against the appellants as defendants alleging the foregoing facts and that he repeatedly protested the building and maintenance of the fill, that it amounted to the taking of his property for the benefit of the public without due process, that such taking constituted a continual trespass and an irreparable injury to the plaintiff, that he is prohibited from maintaining an action at law to recover damages against the State Road Department, and that his only relief is in equity. The bill prayed for an injunction against continuing the trespass and to require removal of the fill in so far as it obstructed the channels to the creek. In lieu of the latter, the defendant was granted the privilege of exercising the right of eminent domain as a means of making restitution to the plaintiff. A motion to dismiss was denied and on final hearing the chancellor granted the relief prayed for. This appeal is from the final decree.
The sole question presented is whether or not this is a suit against the State as contemplated by and authorized pursuant to Section 22, Article 3 of the Constitution of Florida.
The doctrine of the nonsuability of the State rests on public policy and should be liberally construed to effectuate the purpose for which it was designed. If the State could be sued at the instance of every citizen, the public service would be disrupted and the administration of government would be bottlenecked. Section 2, Article 3 of the Federal Constitution, limits the rule slightly but otherwise the State cannot be sued without its consent. As to tort actions, the rule is universal and unqualified unless relaxed by the State, but in other fields, it is not universal in application and cannot be said to cover the field like the 'dew covers Dixie'.
Immunity of the State from suit does not afford relief against an unconstitutional statute or against a duty imposed on a State officer by statute, nor does it afford a State officer relief for trespassing on the rights of an individual even if he assume to act under legal authority. It will not relieve the State against any illegal act for depriving a citizen of his property; neither will it be permitted as a plea to defeat the recovery of land or other property wrongfully taken by the State through its officers and held in the name of the State. It will not be permitted as a City of refuge for a State agency which appropriates private property before the value has been fixed and paid.
Section 22 of Article 3 of the Constitution authorizes provision by general law for bringing suit against the State for all liabilities now or hereafter existing, but it has no application to the case at bar, and if it did, it should be read in connection with Section 4 of the Bill of Rights providing that all courts be open in order that every person may seek redress for injury done to his lands, goods, person, or reputation.
Here we have a case in which complainant's millrace was flooded and the efficiency of his water mill reduced fifty per cent by the act of a State agency. The millrace with the water from the millpond is to the water mill what the dynamo is to the machine driven by electricity or the engine is to the machine driven by steam. It is the power that drives the water mill and it is property protected by the Bill of Rights. True it is a species of property like the horse and buggy, gradually approaching extinction but so long as, as in this case, it affords subsistence for man and beast, it must be protected.
If a State agency can deliberately trespass on and destroy the property of the citizen in the manner shown to have been done here and then be relieved from making restitution on the plea of nonliability of the State for suit, then the constitutional...
To continue reading
Request your trial
-
Springville Banking Co. v. Burton
...must be entitled to sue therefor and such are the universal holdings of the courts * * * [Cit.] and State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868, clearly and tersely affirms appellants' position "* * * To deprive the citizen of his property by other than legal proces......
-
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC.
...immunity would not necessarily bar such action. As Justice Terrell ruled for the Florida Supreme Court in State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868 (1949): Immunity of the State from suit does not afford relief against an unconstitutional statute or against a duty......
-
Bradsheer v. Dept. of Highway Safety
...paying full compensation. See Boulis v. Fla. Dep't of Transp., 733 So.2d 959, 962-63 (Fla.1999). See also State Rd. Dep't of Fla. v. Tharp, 146 Fla. 745, 1 So.2d 868, 869 (1941) (holding that immunity of the state "will not relieve the State against any illegal act for depriving a citizen o......
-
Department of Transp. v. Burnette
...which it was put at the time of the acts constituting the taking, Burnette renders inapplicable such decisions as State Road Dept. v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941), in which the Supreme Court liberalized the "taking" test as necessary to protect the owner's entitlement to undimini......
-
Real property actions
...an award for the taking.” City of Jacksonville v. Schumann , 167 So.2d 95, 98 (Fla. 1st DCA 1964). See Also State Road Dep’t. v. Tharp , 1 So.2d 868, 869 (Fla. 1941). The full compensation required by the Constitution, in a direct condemnation action, is equally required in inverse condemna......