Division of Administration, State Department of Transportation v. Hillsboro Ass'n
This text of 286 So. 2d 578 (Division of Administration, State Department of Transportation v. Hillsboro Ass'n) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The condemnor in an eminent domain proceeding seeks reversal of the damage award because the jury was allowed to consider (and presumably the property owner was awarded) consequential damages to the adjoining remainder allegedly caused by the construction which subsequently took place on the parcel which was taken.
Appellee owned property on the north side of the Hillsboro Inlet in Broward County. This property was protected by a seawall along approximately 700 feet of its boundary. The Department of Transportation, desiring to build a new bridge across the inlet, instituted these proceedings and filed a Declaration of Taking which included two parcels of appellee’s property, designated as Parcels 103 and 104.' The latter parcel was merely a temporary detour easement, but Parcel 103 was appropriated in fee simple. It consisted of approximately 15,000 square feet of land with certain improvements thereon including 48 feet of the seawall. This taking occurred in December, 1964. Thereafter, the Department constructed a temporary or detour bridge across the inlet for use while the permanent bridge was under construction. After' the detour bridge was erected and during the course of construction of the permanent bridge, a 300 foot section of appellee’s seawall adjacent to the parcel taken was destroyed due to eroding of the land area behind it. It is the destruction of this 300 feet of seawall which is involved in this case.
Appellant contends that the jury should not have been permitted to consider, as an element of damage, the cost of rebuilding the 300 feet of seawall because (1) there was no competent evidence to show, that the destruction of the seawall was caused by appellant, and (2) even had there been, ' as a matter of law such loss is not a proper element of severance damage to the remainder. We treat the latter point first because we feel that it alone is dispositive of this appeal.
Severance damage, i. e., the damage to the remainder when less than the entire property is appropriated, is the damage caused by the taking. It does not include that which is consequential as a result of the manner in which the construction is performed. Weir v. Palm Beach County, Fla.1956, 85 So.2d 865; City of Tampa v. Texas Co., Fla.App.1958, 107 So.2d 216.1 The injury or damage caused is damnum absque injuria where the construction is lawful and performed without negligence or misconduct. Paty et al. v. Town of Palm Beach, 1947, 158 Fla. 575, 29 So.2d 363. If the damages result from negligence or misconduct in performing the construction, they would be the proper subject of a separate action in tort (where sovereign immunity is waived) or the proper subject of the claims bill (as was done in this case)
Without detracting from our holding herein that such consequential damages to the remainder are not properly to be considered in an eminent domain proceeding, we agree with appellant’s contention that there was no competent evidence that the construction of the bridge and its approaches caused the ultimate loss of the seawall. The only evidence on this point [580]*580(other than Chapter 70-504, discussed hereafter) was the non-expert opinion of appellee’s witness, Edmund L. MacDonald. Over the objection of appellant’s counsel, this witness was permitted to testify that the dredging and widening of the inlet changed the force and speed of the tide so that it directly impinged upon the seawall thereby causing the erosion and ultimate loss. Even had this opinion testimony been competent,^ the witness acknowledged that he had no knowledge that the Department of Transportation was responsible for the dredging and widening of the inlet. There was no testimony to. the effect that the construction of the bridge and approaches caused the loss of the seawall.
Appellee placed in evidence a copy of Chapter 70-504, Laws of Florida,3 a legislative claims bill which we have set out in full in the margin. It is appellee’s contention that the legislative finding set forth therein conclusively establishes that the construction caused the change in velocity, pattern and flow of the waters of the intracoastal waterway in such a manner as to greatly increase the erosion of the property and the undermining and damaging of the seawall. Though the argument is ingenious and somewhat persuasive, we must reject it as being violative of due process. Somewhat paradoxically, while appellee insists that the act conclusively establishes causal relationship between the construction and the damage to the seawall, it apparently is not willing to accord the same degree of conclusiveness to the finding as to the amount of such [581]*581damages4 nor to the language which provides that payment is directed “to settle the claim”.
Appellant also raises as a point on appeal the taxation of certain items of costs, but we find this point to be without merit on the authority of Cheshire v. State Road Dept., Fla.App. 1966, 186 So.2d 790.
The judgment is reversed and this cause remanded for the purpose of a new trial.
Reversed and remanded.
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286 So. 2d 578, 1973 Fla. App. LEXIS 6304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/division-of-administration-state-department-of-transportation-v-hillsboro-fladistctapp-1973.