Weir v. Palm Beach County

• Decision Date: 07 March 1956
• Citation: 85 So.2d 865
• Parties: Mrs. Grace WEIR, Appellant, v. PALM BEACH COUNTY, and the State Road Department of the State of Florida, Appellees.
• Court: Florida Supreme Court

Page 865

85 So.2d 865

Mrs. Grace WEIR, Appellant, v. PALM BEACH COUNTY, and the State Road Department of the State of Florida, Appellees.

Supreme Court of Florida, Special Division A.

March 7, 1956.

Anderson, Scott, McCarthy & Preston and Dwight Sullivan, Miami, for appellant.

Harry A. Johnston and Henry F. Lilienthal, West Palm Beach, for Palm Beach County.

Bryan W. Henry, Miami, for State Road Department of Florida.

THORNAL, Justice.

Appellant Weir who was plaintiff below appeals from a decree of the Chancellor sustaining a motion to dismiss her amended complaint.

The complaint in equity consisted of five 'counts'. It alleges that plaintiff owned certain realty in Delray Beach bounded on the north by Atlantic Avenue and on the east by Canal Avenue, which is paralleled on the east by the Intracoastal Waterway. A building facing Atlantic Avenue was located on the property and a parking lot to the rear of the building was accessible from Atlantic Avenue via Canal Avenue. The two streets intersected.

Beginning on October, 1951, and continuing until early 1953 it is alleged that the defendants engaged in a highway construction program which included the resurfacing and widening of Atlantic Avenue and replacement of a bridge over the Intracoastal Waterway. In count 1 appellant alleged that in the course of the construction program the defendants removed part of the public sidewalk; took part of plaintiff's land and destroyed the lateral support for plaintiff's land thereby causing the building to settle and crack. Count 2 claims damages for loss of business due to the prolonged period of construction. Count 3 claims damages for destroying the access to plaintiff's parking lot from Atlantic Avenue via Canal Avenue which resulted from the building of a retaining wall across the north end of Canal Avenue where it intersects Atlantic Avenue thereby eliminating entrance into Canal Avenue from Atlantic Avenue, except by a circuitous route running west and south of plaintiff's property. Count 4 claims loss of business and damages through enforce reduced rentals resulting from the construction of the retaining wall along the south boundary of Atlantic Avenue and in front of plaintiff's building forcing prospective customers to descend one of several flights of stairs in order to enter plaintiff's building and also destroying the view from the building. Count 5 was a composite claim that by committing the acts alleged the defendants have taken part of plaintiff's property for the benefit of the public without compensation to the plaintiffs thereby resulting in unjust enrichment of the defendants to the damage of the plaintiff. The complaint prays for restitution of the benefits acquired at plaintiff's expense or in the alternative a decree compensating plaintiff for loss of such benefits. Motions to dismiss the complaint were sustained and final decree entered for the defendants.

Although count 1 contains the bald allegation that the 'defendants took part of plaintiff's land,' it is not shown what part or how much of plaintiff's land was taken and in actuality it is conceded that the defendants did not in fact physically appropriate any part of the land itself. The complaint is grounded on the theory that the damages suffered by the plaintiff as a result of the improvement of the public way are tantamount to a 'taking' of plaintiff's property without compensation in contravention of our constitutional requirements. The relief sought is to compel restitution by compelling the defendants to exercise the power of eminent domain whereby the damages suffered by the plaintiff might be assessed and restitution accordingly made. We are confronted with the question whether removal of lateral support from real estate upon which a building has been constructed or interference with ingress, egress and view or interference with convenient accessibility all resulting from improvement of a public way and not involving any actual taking or physical invasion of the land of the complaining property owner is compensable as a 'taking' under the Florida Constitution.

Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A., reads:

'No person shall be subject to be twice put in jeopardy for the same offence, nor compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken without just compensation.' (Emphasis ours.)

Section 29 of Article XVI of Florida Constitution reads:

'No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.'

If the damage suffered by the plaintiff is the equivalent of a 'taking' or an appropriation of plaintiff's property for public use, then our Constitution itself recognizes the plaintiff's right to compel compensation. On the other hand, if the damage suffered is not a taking or an appropriation within the limits of our organic law, then the damages suffered are damnum absque injuria and compensation therefor by the defendants cannot be compelled.

Appellant relies on State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868, wherein the owner of a wateroperated sawmill was allowed compensation for the raising of the water level in his millrace thereby reducing capacity of the mill as the result of the filling in of a swamp by the State Road Department. There is a difference which should be pointed out. In the Tharp case, the fill constructed by the Road Department actually resulted in physical invasion of the property owner's millrace by causing an additional three feet of water to back up into the millrace itself. We had no such physical invasion in the case at bar. Here the government neither directly nor indirectly entered upon the actual property of the appellant.

With reference to the alleged destruction of lateral support, the appellant apparently overlooked the proposition that the right to lateral support from adjoining land applies only to the land in its natural state and does not extend to lands burdened by a building. Some authorities make an exception that damages can be recovered if the excavation destroying the lateral support is negligently made. We are not concerned with this exception for the reason that the complaint does not allege negligence in the excavation work in the case before us. See Crum v. Sumter County, 68 Fla. 122, 66 So. 723.

We find no Florida case directly on this point. However, the Supreme Court of Alabama in H. H. Parker & Bro v. Hodgson, 172 Ala. 632, 55 So. 818, 819, held:

'It is a settled principle of law that the right to lateral...