State Road Dept. v. Chicone
| Decision Date | 09 December 1963 |
| Docket Number | No. 32430,32430 |
| Citation | 158 So.2d 753 |
| Parties | STATE ROAD DEPARTMENT of Florida, an Agency of the State of Florida, Petitioner, v. Jerry J. CHICONE et al., Respondents. |
| Court | Florida Supreme Court |
Robert D. Canada, Tallahassee, for petitioner.
M. W. Wells, Joel R. Wells, Jr., of Maguire, Voorhis & Wells, Orlando, for respondents.
The petitioner, State Road Department of Florida, hereinafter referred to as the Department, seeks review by certiorari of that decision of the District Court of Appeal, 2nd District, reported in 148 So.2d 532, asserting that said decision is in direct conflict with the decision of this Court in Sunday v. Louisville and Nashville Railway Company, 1912, 62 Fla. 395, 57 So. 351.
Briefly stated the Sunday decision held that Section 29, Article 16, Florida Constitution, F.S.A. required a private corporation condemning lands to pay 'full compensation' for the lands taken and that full compensation '* * * is the fair actual market value at the time of the lawful appropriation', including any increase in value which occurred in anticipation of the proposed improvement.
In the decision now under review the district court held that the trial judge did not aubse his discretion in granting the property owners, respondents here, a new trial. As appears in the reported decision the trial court granted a new trial on the grounds that: (1) it had committed error in allowing the Department's witnesses to testify as to the value of the lands being taken at the time the condemnation suit was filed where such witnesses testified that at such time the value of the lands was 'depressed' by the imminence of the taking, and (2) it had refused respondents' request to charge the jury to disregard the effect, if any, of the proposed taking on the value of the properties.
In approving the trial court's order granting a new trial the district court pointed out that the Sunday case did not hold that a decrease in market value occurring in anticipation of a proposed improvement could be considered in determining compensation to be paid for property being condemned, but had only held that an increase in value could be considered.
There is no conflict between the Sunday case and this decision under review on the theory advanced by the Department for the reasons next explained.
First, the Sunday case merely held that an increase in value of lands occurring in anticipation of a proposed improvement was an element of the compensation to be paid for lands taken. It did not hold that a decrease in value due to the anticipated effect of the proposed improvement should likewise be considered in determining the compensation to be paid. Although logic and reaosn might suggest that the converse of a rule ought to be adopted in a proper circumstance, until adopted and expressed the implication of such converse cannot create a conflict. Adoption of a rule or principle does not by implication, inference or analogy constitute an adoption of the converse of such rule or principle.
Second, there is a vital difference between the issue in the Sunday case and the one here which would make inapplicable the converse of the holding in that case assuming we would adopt it in a proper case.
In the Sunday case we were dealing with increase in value occurring in anticipation of the completion of a proposed public improvement.
In the instant case we are not concerned with the effect on value which is caused by anticipation of a proposed public improvement, but rather with the effect on value of land of the imminence of its being taken by condemnation. Anticipation of the complection of a public improvement may cause the property to become more or less desirable and valuable depending on the nature of the intended improvement and the location of the land in relation thereto.
But when land is definitely marked for condemnation, and this is the situation which confronts us here, it shares none of the beneficial effects which could flow from anticipation of the proposed improvement for it will not be available for private use when the project is completed. Once selected for condemnation the marketability, both sale and rental, and to some extent the use, of property is sterilized and its value, either as determined by market value or use by the owner, is decreased. This decrease no doubt is in proportion to the lapse of time between the announcement that the lands will be taken and the actual taking. It is difficult to conceive of a situation in which property will increase in value because of the prospect of condemnation. A tenant's use of such property can only be temporary, and a purchaser would buy only an undetermined award in a condemnation suit.
Nevertheless, while we find no conflict in decisions on the theory advocated by the Department, there is conflict between the instant decision and others rendered by this Court an another pertinent issue which gives us jurisdiction to consider and decide this cause.
Considering the district court's opinion as a whole, including the trial court's order recited therein, it holds in effect that where property is depreciated in value because of the imminence of taking the value thereof shall not be measured as of the time of taking, but at a time prior to the effect of the prospect of condemnation.
However, in the Sunday case, in many others, and recently in Yoder v. Sarasota County, Fla.1955, 81 So.2d 219, 'We have consistently ruled that the amount of compensation to be awarded to a property owner when his property is sought to be taken in an eminent domain proceeding is the value of the land taken at the time of the lawful appropriation.' In the Yoder case we specified that time as being determined by the filing of the condemnation suit in the proper court.
Strict application of the rule of the Yoder case without qualification would mean that in cases such as this, where the value of the property at the time of the taking is depreciated because of the prospect of condemnation, compensation would be awarded on the basis of value as depreciated. The distrit court held to the contrary which creates a jurisdictional conflict.
The relevant facts are simple. In 1957 the Department publicly announced the route through Orlando of Interstate Highway No. 4. Four of the parcels required for the right of way were owned by the respondents here. These parcels, all in one block, had improvements thereon all of which were leased when the route of the proposed highway was announced.
In 1958 the Department filed the first of several condemnation suits necessary to acquisition of the right of way for the highway, but the suit to acquire the parcels here involved was not instituted until May 10, 1960. On that date all of the parcels and improvements thereon were vacant except for a parking lot which was rented on a month to month basis.
At the trial the Department offered the testimony of two experts as to the value of the property involved. Both of these witnesses testified that in arriving at their opinions of value of the subject properties they 'discounted' the value of the properties because of the prospect of taking by the Department.
On cross examination respondents' counsel asked the Department's witness, Mr. Duckworth, concerning his statement as to values:
This witness also testified that his discount in value was approximately 20% of the value of the properties prior to the announcement of the route of the highway. He supported his use of this discount by saying that anyone renting the property after the announcement of the route of the expressway would have paid a lesser rental because of the prospect of condemnation.
The other expert for the Department, Mr. Bettes, testified that the properties had decreased in value because of the imminence of the taking and admitted that he had considered this fact in arriving at his opinion of value saying:
When asked what discount he used he answered:
'A discount over and above what the property would have been, in my opinion, worth prior to the announcement of the expressway.'
The respondent landowners made timely objection to evidence based on the depressed or discounted value of the land, moved to strike it and also requested the court to charge the...
To continue reading
Request your trial
-
City of Buffalo v. J. W. Clement Co.
...the De jure taking by proving its value at an earlier time before the debilitating threat of condemnation (see State Road Department v. Chicone, 158 So.2d 753, 758 (Fla.1963)) has depressed its value (see City of Buffalo v. Irish Paper Company, supra, 31 A.D.2d 470, 299 N.Y.S.2d 8, and case......
-
Lange v. State
...treatment of individuals whose rights in property must at times be subordinated to the needs of society as a whole. State Road Department v. Chicone, 158 So.2d 753 (Fla.1963); See generally Property, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensation' Law, 80 H......
-
City of Buffalo v. George Irish Paper Co.
...Strozzi, supra, 54 Misc.2d 1031, 283 N.Y.S.2d 919; City of Detroit v. Cassese, 376 Mich. 311, 317--318, 136 N.W.2d 896; State Road Department v. Chicone, 158 So.2d 753 (Fla. '63); City of Cleveland v. Carcione, 118 Ohio App. 525, 190 N.E.2d 52, 5 A.L.R.3d 891; Sayre v. United States, D.C., ......
-
Uvodich v. Arizona Bd. of Regents
...N.E.2d 179 (1966); City of Cleveland v. Carcione, supra; Sayre v. United States, 282 F.Supp. 175 (N.D. Ohio 1967); State Road Department v. Chicone, Fla., 158 So.2d 753 (1963). It is stated in Lewis on Eminent Domain, Vol. 2 (3d ed.) '* * * if the proposed improvement had depreciated the va......