DONALD CRIGGER AND ELAINE CRIGGER, APPELLANTS,
v.
FLORIDA POWER CORPORATION, APPELLEE

Fla. 5th DCA | 1985-05-30
No. 84-944
Cobb, Chief Judge, Frank D. Upchurch, Jr., J., Cowart, J.
469 So. 2d 941 Florida District Court of Appeal, Fifth District (1985) Negative Treatment
Cited by 16 cases

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Synopsis

The court reversed the trial court's determination of the date of taking in an inverse condemnation action, finding the date of October 26, 1976 was not supported by competent and substantial evidence, and remanded for a new evidentiary hearing to establish the correct date of wrongful appropriation.


Holding

The trial court's determination that the date of taking was October 26, 1976 was not supported by competent and substantial evidence and must be reversed.


Headnotes

[1] The date of taking in an inverse condemnation action is an integral part of determining the right to immediate possession and an essential predicate to trial on full and…

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Facts & Procedural History

Florida Power Corporation sought a right-of-way easement over the Criggers' property. The trial court issued an order of taking granting Florida Power…

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Opinion of the Court
COBB, Chief Judge.

COBB, Chief Judge.

This appeal is from an order of taking in an inverse condemnation action. We have jurisdiction in this cause, as the order of taking grants to Florida Power Corporation the “full right of possession” to a requested right-of-way easement, simultaneous with the posting of a sum designated in the order (double the amount of the good-faith estimate). Clearly, the order does more than merely determine the date of the condemnor’s wrongful appropriation of the property; it determines the legal right to immediate possession of property per Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). While the appellants’ points on appeal focus primarily on the question of the date of the taking, this focus does not render this appeal nonjusti- dable. The question of the date of the taking is an integral part of a determination of the right to immediate possession of property, and is an essential predicate to the subsequent trial on full and just compensation.

The evidence in this case establishes that there was in fact a taking by Florida Power. The point that is not clear is the date of the taking. The trial court’s conclusion that the date of taking was October 26, 1976, is not based on competent and substantial evidence. Accordingly, we reverse and remand for an evidentiary hearing to determine the proper date of taking, which would be the date Florida Power first wrongfully appropriated the property described in the appellants’ complaint.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

Dissent
COWART, Judge,

COWART, Judge,

dissenting:

This case involves the appeal of an order of taking in an inverse condemnation case.

Because this is an inverse condemnation case1 in which the property has been taken or appropriated by the defendant, Florida Power Corporation in fact2 rather than through the formal exercise of the power of eminent domain in an action instituted by defendant under Chapters 73 and 74, Florida Statutes, the taking in this case occurred when Florida Power Corporation first actually used the plaintiff’s property without the plaintiff’s consent and not when the plaintiff surrendered possession under an order of taking issued pursuant to Section 74.051, Florida Statutes.

The situation here is like that contemplated by Section 73.041, which provides for the acquisition or perfection of the title to an interest in land the condemning authority is already using. The purported “order of taking” in this inverse condemnation case in substance merely states the trial court’s interlocutory determination of the date of appropriation for the purpose of later determining defendant’s proper compensation. It does not constitute a non-final order determining the right to immediate possession of property, the review of which is authorized by Rule 9.130(a)(3)(C)(ii), Florida Rules of Appellate Procedure, and this appeal should be dismissed.

As to the substantive point reached in the majority opinion, because Crigger suffered no damages before his cause of action accrued, the proper date of taking for the purpose of calculating damages, should be the date when plaintiff’s cause of action against Florida Power for inverse condemnation actually accrued, which was the date when Florida Power’s use of the land in question first became wrongful as to, and actionable by, plaintiff, whatever the facts determine that date to be.

. See Crigger v. Florida Power Corporation, 436 So. 2d 937 (Fla. 5th DCA 1983).

. See 21 Fla.Jur.2d Eminent Domain § 161 (1980).


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Citator

Cited By

  • Fed. Home Loan Mortg. Corp. v. Molko, 584 So. 2d 76 (Fla. 3d DCA 1991)
    …ies to such cases as condemnation suits where a condemnor is permitted to take possession and title to real property in advance of final judgment.” Committee Notes, Fla.R.App.P. 9.130(a)(3)(C)(ii) (emphasis supplied); Crigger v. Florida Power Corp., 469 So. 2d 941 (Fla. 3d DCA 1985). An order denying the appointment of a receiver does not disturb possession prior to the final judgment. Accordingly, where, as here, the trial court’s order does not deprive a party of the possession of property, rule 9.130(a)(3)…
  • Osceola Cnty. v. Best Diversified, Inc., 830 So. 2d 139 (Fla. 5th DCA 2002)
    …ty, this court does not have jurisdiction over the instant case. Accordingly, since good cause has not been shown, this appeal is dismissed. DISMISSED. THOMPSON, C.J., and HARRIS, J., concur. . County and DEP cite Crigger v. Florida Power Corp., 469 So. 2d 941 (Fla. 5th DCA 1985), in support of their proposition that rule 9.130(a)(3)(C)(ii) confers jurisdiction on this court. What distinguishes the instant case from Crigger is that the order in Crigger granted Florida Power Corporation the "full right of…
  • State v. Mid-Florida Growers, Inc., 541 So. 2d 1243 (Fla. 2d DCA 1989)
    …ifth District has held that compensation in an inverse condemnation proceeding, as a general rule, should also be determined on the date of the taking. County of Volusia v. Pickens, 439 So. 2d 276 (Fla. 5th DCA 1983); Crigger v. Florida Power Corp., 469 So. 2d 941 (Fla. 5th DCA 1985), appeal after remand, 509 So. 2d 1322 (Fla. 5th DCA 1987), review denied, 519 So. 2d 986 (Fla.1987). In the Pickens case, the county took private land by inverse condemnation on August 18, 1976. The trial court allowed the jury t…

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