DONALD L. JOYNT AND AMY M. JOYNT, APPELLANTS,
v.
ORANGE COUNTY, FLORIDA, ETC, APPELLEE
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In this eminent domain case, the Florida appellate court addresses whether the term "right-of-way" in the business damages statute is limited to road takings or can include drainage facility easements. The court reverses the trial court's restrictive interpretation and holds that "right-of-way" encompasses various types of easements, including drainage facilities.
The term "right-of-way" as used in section 73.071(3)(b) is not confined to road takings and may include drainage facility easements. Therefore, property owners are entitled to seek business damages even when the taking involves non-road right-of-way easements.
[1] The term "right-of-way" in eminent domain statutes is not limited to road takings and may include easements for drainage facilities.
[2] Florida Statutes section 73.071(3)(b) requires business damages when a business of more than five years duration is damaged by the taking of only a portion of the parent…
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Join FLexlaw to unlock all legal intelligence“the term "right-of-way" as used in this section is not confined to road takings”
The court's core holding rejecting the trial court's narrow interpretation of the statutory term.
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Join FLexlaw to unlock all legal intelligenceThe Joynts owned property from which Orange County sought to take a portion via eminent domain. The taking involved a drainage facility easement rathe…
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HARRIS, Judge.
In this eminent domain case, the property owner is seeking business damages. The sole issue presented by the parties is whether the term “right-of-way” contained in section 73.071(3)(b), Florida Statutes, is limited to a road right-of-way, as found by the trial court, or whether the term may include right-of-way easements for drainage facilities as urged by the property owner. We find the term “right-of-way” as used in this section is not confined to road takings and reverse.
First, although not raised specifically by either party, it appears that the statute itself requires business damages any time a business of more than five years duration is damaged by the taking of only a portion of the parent tract. The statute, with surplus language removed, provides as follows:
(3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
* * * * * *
(b) Where less than the entire property is sought to be appropriated, ... and the effect of the taking of the property involved may damage or destroy an established business of more than 5 years’ standing, owned by the parties whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause....
Section 73.071(3)(b) contemplates two types of possible severance damages from a partial taking — damages caused to the remainder and damages caused to a business which has existed for at least five years. The business damage provision of the subsection is as set out above. The clause which is excluded from the above quote, “any damages to the remainder caused by the taking including, when the action is by the Department of Transportation, county, municipality, board, district, or other public body for the condemnation of a right-of-way,” relates to damages to the remainder. It appears that both types of severance damage may be offset by the betterment caused by the improvements under the provisions of section 73.071(4).
Subsection 4 of section 73.071 makes it clear that the legislature recognized that the term “right-of-way” has an all-inclusive definition. It speaks of a “road, canal, levee, or water control facility right-of-way.” (Emphasis added.) It appears, therefore, that had the legislature intended to limit subsection 3 severance damages to a “road” right-of-way condemnation, it would have done so in plain language.
REVERSED and REMANDED.
DAUKSCH and W. SHARP, JJ., concur.
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Blockbuster Video, Inc. v. State, 714 So. 2d 1222 (Fla. 2d DCA 1998)…2 (Fla. 2d DCA 1968), and has not always been used in all subsequent cases discussing the single tract issue. For example, the term is not used in Department of Transp. v. Jink, 498 So. 2d 1253 (Fla.1986). The term is used in Joynt v. Orange County, 701 So. 2d 1249 (Fla. 5th DCA 1997), when discussing a claim for business damages, but the holding and analysis in that case do not conflict with our ruling in this case.…
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Dep't OF Transp. v. Jack's Quick Cash, Inc., 748 So. 2d 1049 (Fla. 5th DCA 1999)…rtial taking to the damages sustained by “an established business of more than 5 years standing.” § 73.071(3)(b), Fla. Stat. (1991); Blockbuster Video, Inc. v. State, Department of Transp., 714 So. 2d 1222 (Fla. 2d DCA 1998); Joynt v. Orange County, 701 So. 2d 1249 (Fla. 5th DCA 1997). The motion sought primarily a finding that Bill Brown VW had been in business on parcel 114 for the requisite five-year period and was therefore entitled to claim business damages for the partial taking of parcel 114.1 Regardin…
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Modern, Inc. v. Florida, 381 F. Supp. 2d 1331 (M.D. Fla. 2004)…he decree at issue did not expressly state that the roadways were specifically and solely for ingress and egress, i.e., the "easement was without limitation or restriction.” 430 P.2d at 318. 29 . Plaintiffs cite Joynt v. Orange County, 701 So.2d 1249 (Fla. 5th DCA 1997), for the proposition that the term "road right of way” "necessarily includes the right to maintain drainage facilities such as drainage ditches, canals, and levies.” (Doc. 57 at 32). What Joynt actually held was that the te…