Millender v. State Department of Transportation

774 So. 2d 767, 2000 Fla. App. LEXIS 15492, 2000 WL 1759859
CourtDistrict Court of Appeal of Florida
DecidedDecember 1, 2000
DocketNo. 1D99-4379
StatusPublished
Cited by3 cases

This text of 774 So. 2d 767 (Millender v. State Department of Transportation) 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
Millender v. State Department of Transportation, 774 So. 2d 767, 2000 Fla. App. LEXIS 15492, 2000 WL 1759859 (Fla. Ct. App. 2000).

Opinion

LAWRENCE, J.

Ferris G. Millender, his wife Margaret Millender, and Millender & Sons Seafood Company, Incorporated (Millender) appeal a final judgment holding an action for inverse condemnation and injunctive relief barred by the statute of limitations. We reverse.

The Florida Department of Transportation (DOT), in 1975, rerouted the river channel in the Carrabelle River in Franklin County, in order to build the new Tillie Miller Bridge. Millender, located within blocks of the bridge, found his property eroding. Millender’s initial efforts to retard erosion, including the construction of a sea wall, were successful but, after eight years of litigation with another state agency1 ending in 1993, Millender was forced to remove the seawall. Millender, as erosion continued,2 in 1993 sued DOT for in-junctive relief, full compensation, and damages.

The trial court determined that Millen-der’s 1993 action against DOT was barred by the statute of limitations. Millender appeals and the parties argue two issues: (1) whether the trial court erred in failing to apply the continuing tort theory; and (2) whether the trial court erred in failing to apply the federal Dickinson doctrine.3

The court below, as fact finder, found that: “In 1975 in conjunction with replacing the Tillie Miller Bridge the Defendant, Department of Transportation, realigned the navigational channel of the Carrabelle River from the north side of Davis Island to the south side of Davis Island causing erosion to [Millender’s] property.” The [769]*769court held, as a matter of law, that Millen-der’s action for inverse condemnation and injunctive relief was barred by the statute of limitations. We reverse based on both the continuing tort theory and the Dickinson doctrine, either of which warrants reversal.

The Continuing Tort Theory

This court, in an action for inverse condemnation and injunctive relief, has recognized the vitality of the continuing tort theory. Department of Transp. v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980) (affirming in part and reversing in part, and holding that where the land in question was permanently taken by flooding, if at all, some years before the owner-claimant assembled it, the owner had no claim in inverse condemnation without assignments of his predecessors’ claims; the state was properly enjoined from continuing its tortious conduct of diverting natural drainage onto the owner’s property; and the department acquired no prescriptive right to continue using any part of the owner’s property as a terminus for a revised drainage system). The court said:

Treating the Department’s diversion of drainage as a continuing tort, rather than as a permanent “taking” of all lands affected by it, enables us to sustain the circuit court’s injunctive relief notwithstanding that Burnette assembled the subject property long after the Department established the offending drainage pattern.

Id. at 922 (emphasis added). This language means that the continuing tort against Millender may be redressed by way of injunctive relief.

We know furthermore that the statute of limitations, in a continuing tort action, runs from the time of the last tor-tious act. Halkey-Roberts Corp. v. Mackal, 641 So.2d 445, 447 (Fla. 2d DCA 1994) (“We also note that the granting of summary judgment as to counts I and II in their entirety was error because several of the complained-of acts are alleged to have occurred within four years preceding the filing of the complaint.”), cited with approval in Pearson v. Ford Motor Co., 694 So.2d 61 (Fla. 1st DCA 1997). Millender’s action thus is timely.

The Dickinson Stabilization Doctrine

The United States Supreme Court holds that the statute of limitations for an inverse condemnation begins to run from the time “the situation becomes stabilized.” United States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) (affirming awards to landowners for a governmental taking). The high court explains:

The Government could, of course, have taken appropriate proceedings, to condemn as early as it chose, both land and flowage easements. By such proceedings it could have fixed the time when the property was ‘taken.’ The Government chose not to do so....
.... If suit must be brought, lest he [the claimant] jeopardize his rights, as soon as his land is invaded, other contingencies would be running against him—for instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. The source of the entire claim—the overflow due to rises in the level of the river—is not a single event; it is continuous. And as there is nothing in reason, so there is nothing in legal doctrine, to preclude the law from meeting such a process by postponing suit until the situation becomes stabilized. An owner of land flooded by the Government would not unnaturally postpone bringing a suit against the Government for the flooding until the consequences of inundation have so manifested themselves that a final account may be struck.
When dealing with a problem which arises under such diverse circumstances procedural rigidities should be avoided. All that we are here holding is that when the Government chooses not to [770]*770condemn land but to bring about a taking by a continuing process of physical events, the owner is not required to resort either to piecemeal or to premature litigation to ascertain the just compensation for what is really ‘taken.’

Id. at 747-49, 67 S.Ct. 1382 (emphasis added). Millender likewise should not be required to bring piecemeal actions; he justly waited until the consequences of state agency action “so manifested themselves that a final account may be struck.” Id. at 749, 67 S.Ct. 1382. The “final account” in the case at bar could be struck only when another state agency prevented Millender from protecting his buildings from falling into the river.

DOT nevertheless argues that this federal doctrine cannot be applied in Florida because as yet no Florida court has applied it; this argument is incorrect. The fact that a sound federal doctrine has yet to be employed in state law is no bar to its application in an appropriate case. A Florida district court of appeal moreover has cited, with approval, the federal case, and applied the Dickinson reasoning to affirm an inverse condemnation. See Hillsborough County Aviation Auth. v. Benitez, 200 So.2d 194 (Fla. 2d DCA 1967) (affirming the trial court’s judgment of inverse condemnation, citing United States v. Dickinson). The court said:

[W]e are asked if appellant has a prescriptive right of flight over appellees’ property.
It has been said that there is no single test for discovering in all cases when an avigational easement is first taken by overflights. Some annoyance must be borne without compensation.

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Cite This Page — Counsel Stack

Bluebook (online)
774 So. 2d 767, 2000 Fla. App. LEXIS 15492, 2000 WL 1759859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millender-v-state-department-of-transportation-fladistctapp-2000.