Lee County v. Exchange Nat. Bank of Tampa

417 So. 2d 268
CourtDistrict Court of Appeal of Florida
DecidedJuly 21, 1982
Docket81-1176
StatusPublished
Cited by14 cases

This text of 417 So. 2d 268 (Lee County v. Exchange Nat. Bank of Tampa) 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.

Bluebook
Lee County v. Exchange Nat. Bank of Tampa, 417 So. 2d 268 (Fla. Ct. App. 1982).

Opinion

417 So.2d 268 (1982)

LEE COUNTY, Florida, a Political Subdivision of the State of Florida, Appellant,
v.
The EXCHANGE NATIONAL BANK OF TAMPA, As Trustee, et al., Appellees.

No. 81-1176.

District Court of Appeal of Florida, Second District.

May 28, 1982.
As Amended on Denial of Rehearing July 21, 1982.

Frank A. Pavese and Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellant.

Harold Hume, Jr. of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, and S.W. Moore of Brigham, Reynolds, Moore, Muir & Gaylord, Sarasota, for appellee The Exchange Nat. Bank of Tampa, as Trustee.

GRIMES, Acting Chief Judge.

This is an appeal from that portion of a condemnation judgment which awarded severance damages to the appellee.

In October of 1979, Lee County filed suit to condemn some 3,500 acres from various owners for use in conjunction with the proposed Southwest Florida Regional Airport. Appellee holds title as trustee to 2,932 acres of undeveloped land lying northeast of the proposed airport. The county condemned 127 acres of appellee's land which represents the most easterly extension of the airport site. A sketch showing the relationship between appellee's land and the proposed airport follows:

*269

Preliminary studies for the airport indicated that there would be a significant noise impact on the area surrounding the airport. To ameliorate the noise problem, the county determined to take far more property than was needed for the actual airport facility. The rest is intended to form "environmental buffer zones" at both ends of the airport. All of the 127 acres of appellee's property being taken is within the buffer zone and will not be developed or disturbed in any manner.

On the issue of severance damages, the court denied the county's motions to exclude evidence of any decrease in value of appellee's remaining property caused by the construction of the proposed facility on property taken from other landowners. Thus, appellee's appraisers were permitted to testify that because of the proximity to the airport, the bulk of appellee's remaining property would no longer be suitable for residential purposes which was its highest and best use. The jury returned a verdict of $267,000 for the 127 acres taken and $968,400 as damages to the remainder.

The county raises two primary points, but the only one which we believe to have merit is whether the court erred in allowing the jury to consider evidence showing a decrease in the value of the appellee's remainder caused by the use to which the property taken from other landowners will be put.

When a portion of a landowner's property is acquired by eminent domain, he is entitled to be paid not only for the land taken but also for damages suffered by the remainder. 4A P. Nichols, The Law of Eminent Domain § 14.02 (rev. 3d ed. P. Rohan 1981). In Florida, the right to severance damages is now guaranteed by section 73.071(3)(b), Florida Statutes (1979). Often, the damage to the remaining land occurs because it has been reduced by the taking to a smaller size or even cut in two. Sometimes the depreciation occurs because of the condemnor's intended use of the taken property. We are presently concerned with the latter aspect of damages.

In the case of a partial taking, a landowner is generally entitled only to such damages to the remainder as are attributable to the use or activity on the land which is taken and is not entitled to such consequential damages from activity occurring on land which is taken from others. Annot., 59 A.L.R.3d 488, 499 (1974). The most prominent authority for this rule is Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328 (1924), in which the government took a portion of the landowner's property for use in the construction of a nitrate plant. However, the actual plant was to be built on property taken from other landowners. In rejecting the landowners' claim for damages to the remainder caused by the proposed nitrate plant, the court said:

The rule supported by better reason and the weight of authority is that the just compensation assured by the 5th Amendment to an owner, a part of whose land is taken for public use, does not include the diminution in value of the remainder, caused by the acquisition and use of adjoining lands of others for the same undertaking.

266 U.S. at 372, 45 S.Ct. at 117 (citations omitted).

However, the rule is often subject to an exception which authorizes an award for damages to the remainder where the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put. Annot., 59 A.L.R.3d 488, 501 (1974). A good example of the application of the exception *270 is found in cases in which the landowner is permitted to recover for the damages to the remainder of his property caused when the condemned land is to be used as part of the construction of a highway. E.g., Andrews v. Cox, 129 Conn. 475, 29 A.2d 587 (1942). These cases are grounded on the premise that it is impossible to separate the damages caused by the small portion of the highway built upon the taken land from the damages caused by the highway as a whole. But see Kentucky Department of Highways v. Williams, 487 S.W.2d 290 (Ky. Ct. App. 1972).

A leading case involving the taking of property for use as an airport is Boyd v. United States, 222 F.2d 493 (8th Cir.1955). In Boyd the government condemned fifteen acres of an eighty-two acre farm which was to be located at the northern tip of the airport complex. In rejecting the landowners' claim that they were erroneously denied the opportunity to prove that their remainder had been damaged by the fact that the taken property was to be used for airport purposes, the court said:

But a landowner's right to compensation for such a depreciating injury to his remainder has relation only to the affecting use that may be made of the taken part of his own tract and "does not include the diminution in value of the remainder caused by the acquisition and use of adjoining lands of others for the same undertaking." Campbell v. United States, 266 U.S. 368, 372, 45 S.Ct. 115, 117, 69 L.Ed. 328.
Appellants therefore could not claim a right to prove or recover for any diminution in value which might be occasioned to their remainder by the fact that it was being made to adjoin an air base generally, of which their 15.7 taken-acres were to constitute merely some slight, incidental or abstract segment — for example, a vacant border area — having no specifically demonstrative and directly affective utilization or function. Any depreciating injury which would exist to their remainder in such a situation would have to be regarded legally as being simply a consequence from the air base generally and as not being provably a product of their 15.7 taken-acres.

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Bluebook (online)
417 So. 2d 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-county-v-exchange-nat-bank-of-tampa-fladistctapp-1982.