State Road Dept. v. Bender
| Decision Date | 02 May 1941 |
| Citation | 2 So.2d 298,147 Fla. 15 |
| Parties | STATE ROAD DEPARTMENT v. BENDER et al. |
| Court | Florida Supreme Court |
Rehearing Denied May 27, 1941.
En Banc.
Appeal from Circuit Court, Hillsborough County; L. L Parks, judge.
Shackleford Farrior & Shannon, T. M. Shackleford, Jr., Lamar Sarra, and William E. Thompson, all of Tampa, for appellant.
Mabry Reaves, Carlton & White, of Tampa, for appellees.
In 1925, a subdivision called Sun City was platted and projected in the southern part of Hillsborough County. It contained 427 acres or 1,642 lots with streets, alleys, parks, and other public areas and was located on the South side of Little Manatee River along State Road 541, better known as the Bayshore Highway. The plat was recorded and about 200 lots were sold to as many purchasers who are the present owners. The promoters of the subdivision improved some of the streets by paving and curbing and paved some of the sidewalks. Very few buildings were constructed, so when the boom collapsed, the project failed and was abandoned by the promoters.
In 1937 the State Road Department rebuilt and widened Bayshore Highway and in doing so entered the subdivision without the owner's consent and removed large quantities of shell, curbing, sidewalk, and builder's sand. It also constructed a canal of large proportions from Bayshore Highway across numerous lots, drives, and avenues of the subdivision into Little Manatee River. In widening Bayshore Highway, the State Road Department appropriated a strip of land 42 feet wide and 6,600 feet long, dug a large hold in one of the lots and committed other depredations to the property.
The bill of complaint herein was filed by the original owners except T. J. Fleming and alleges that the State Road Department appropriated the foregoing properties for public use without the authority of or without making or securing compensation to the owners and that it now refuses to do so and denies that it is suable or that the plaintiffs have a remedy against it. As to Fleming, it alleges these facts and that he (Fleming) became the owner of certain of the lots after the damage was done, but that by assignment, he became possessed of all rights and causes of action which the original owners possessed.
The bill of complaint prayed: (1) That the State Road Department restore the property to its original condition, or (2) that it be required to prosecute condemnation proceedings to determine the value of the properties appropriated and to pay complaints the amounts found to be due, or (3) that the court decree what part of the Bayshore Highway the properties taken were incorporated into and that the owners be given a lien on it for the amount so found and for other relief.
A motion to dismiss the bill of complaint was overruled, answer was filed, and on final hearing, the Chancellor found that 8,414.29 cubic yards of shell, 24,935 linear feet of concrete curbing and 1,003.3 cubic yards of builder's sand was taken by the State Road Department from the streets and lots of complainants, that the value of said materials including interest from the time of appropriation and attorney's fees was $23,606.68. The final decree ordered this amount with interest at six per cent from the date of the decree paid into the registry of the court, at which time a supplemental decree would be entered allocating the proper amount to the several lot owners, jurisdiction being reserved for this purpose. This appeal is from the final decree. Appellees filed cross assignments of error attacking the sufficiency of the award as to some items.
It is first contended that this is an unauthorized suit against the State which cannot be maintained.
The identical question was considered and answered contrary to the contention of appellants in State Road Department of Florida et al. v. Tharp, Fla., 1 So.2d 868, decided April 25, 1941. More need not be said on the question, since this is a stronger case on the point than the one last cited.
It is next contended that even though complainants have a cause of action, it cannot be maintained in equity because defendant would be deprived of its right of trial by jury.
The prayer for relief is in the alternative and the Chancellor could have ordered condemnation by a jury trial but he did not do so. In this, we must decline to hold him in error because (1) it is a class suit authorized by Section Fourteen of the Chancery Act, Acts 1931, c. 14658. (2) Hundreds of lots and dozens of lot owners are affected, making it a typical case for a court of equity where all owners can be dealt with fairly and at reasonable...
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...City of Miami v. Keton, 115 So.2d 547 (Fla.1959); Town of Davenport v. Hughes, 147 Fla. 228, 2 So.2d 851 (1941); State Road Department v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938); Olds v. Alvord, 133 Fla. 345, 183 So. 711 (1938); Dunscom......
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