RICHARD VAN DUSEN AND MARY VAN DUSEN, HIS WIFE, APPELLANTS,
v.
VIRGIL P. DOBSON AND OPAL DOBSON, HIS WIFE, APPELLEES
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Homeowners sued their neighbors for damages to their swimming pool caused by the neighbors' unauthorized fill material raising the adjacent property approximately six feet during construction. The trial court granted defendants' motion for directed verdict, but the appellate court reversed, finding competent evidence of unreasonable use of property and reinstating a $16,900 jury verdict.
The trial court erred in granting the directed verdict because competent substantial evidence supported the plaintiffs' claim of unreasonable use of property. The $16,900 jury verdict is reinstated, establishing liability for damages caused by the defendants' excessive and unauthorized fill material.
[1] A landowner may be liable for damages to an adjacent property owner resulting from the unreasonable use of their property.
[2] Evidence of exceeding permitted fill amounts can support a finding of unreasonable use of property.
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Join FLexlaw to unlock all legal intelligence“there was competent substantial evidence of the defendants' unreasonable use of their property to the detriment of their neighbors”
Establishes the evidentiary standard and finds sufficient proof for liability based on unreasonable property use affecting neighbors
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Join FLexlaw to unlock all legal intelligenceThe Van Dusens' swimming pool was damaged when the Dobsons raised their immediately adjacent property by approximately six feet during residential con…
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GRIMES, Judge.
The plaintiffs (appellants) sued for damages to their swimming pool which resulted after defendants (appellees) raised their immediately adjacent property by about six feet in the course of building a residence thereon. Two of plaintiffs’ experts testified that the addition in vertical distance between the properties increased the underlying ground water pressure to the extent that it cracked the side of the plaintiffs’ nearby swimming pool. By comparing previous topographical surveys with the existing site, one of these witnesses estimated that the defendants must have utilized approximately six hundred cubic yards of fill in the construction of their residence even though their variance permit had authorized only two hundred fifty cubic yards.
Thus, while the testimony was conflicting, there was competent substantial evidence of the defendants’ unreasonable use of their property to the detriment of their neighbors. See Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535 (1917) (upholding a cause of action against the defendant’s unreasonable use of its property which resulted in raising the water table on the plaintiff’s land). The court erred in granting the defendants’ motion for judgment in accordance with motion for directed verdict. We reverse the judgment for defendants and direct that the $16,900 jury verdict be reinstated. Upon remand, the trial judge may rule on the pending motion for new trial.1
BOARDMAN, A.C.J., and CAMPBELL, J., concur. . It would have been preferable for the judge to have ruled on the motion for new trial at the same time as he granted the defendants’ other motion. Navarro v. City of Miami, 402 So. 2d 438 (Fla. 3d DCA 1981). If he had granted a new trial, the priority of that order could have been tested on this appeal, whereas in the event of a subsequent order granting a new trial, the plaintiffs will be entitled to another appeal. Fla.R.App.P. 9.110(a)(3).
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Collins v. The Sch. Bd. OF Broward Cnty., 471 So. 2d 560 (Fla. 4th DCA 1985)…court declined to rule on the School Board’s other motions, believing them to be moot. The School Board now contends, and we agree, that the case should be remanded to allow the lower court to rule on the remaining motions. See Van Dusen v. Dobson, 457 So. 2d 1062 (Fla. 2d DCA 1984); Navarro v. City of Miami, 402 So. 2d 438 (Fla. 3d DCA 1981). Accordingly, we reverse the trial court’s order granting the School Board’s motion for directed verdict, and instruct the court to reinstate the jury’s verdict. Upon r…
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Wallach v. Rosenberg, 527 So. 2d 1386 (Fla. 3d DCA 1988)…established that he had ... [no] reason to know of the latent defect in the sea wall.” On review of the record we find that there was more than sufficient evidence for the court to submit the issue of negligence to the jury. See Van Dusen v. Dobson, 457 So. 2d 1062 (Fla. 2d DCA 1984); Dock & Marine Constr. Corp. v. Parrino, 211 So. 2d 57 (Fla. 3d DCA 1968) (evidence was sufficient for jury to find for plaintiff whose sea wall collapsed because adjacent sea wall was removed in negligent manner). Ordinarily, it…
Authorities Cited
- Cason v. Fla. Power Co., 74 Fla. 1 (Fla. 1917)
- Navarro v. City OF Miami, 402 So. 2d 438 (Fla. 3d DCA 1981)