SIDNEY BENEROFE, APPELLANT,
v.
STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, AND ESCAMBIA COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA ET AL., APPELLEE
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In a condemnation action, the court upheld the trial court's ruling that a property owner could not introduce evidence of severance damages for loss of access where no limited access highway was being constructed and no actual taking of ingress or egress rights had occurred or was shown to occur.
The trial court did not commit reversible error. Where no limited access is taken in an eminent domain proceeding, abutting property owners are not entitled to compensation for destruction of their right of access. However, if access rights are later taken or legally impaired, the property owner would have remedies available such as injunction or inverse condemnation.
“where a limited access is taken, the abutting property owners are entitled to compensation for the destruction of their previously-existing right of access”
Establishes the rule that limited access takings require compensation for loss of access rights
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Join FLexlaw to unlock all legal intelligenceThe State Road Department and Escambia County condemned land from the appellant for construction and maintenance of a state highway. The petition in c…
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A defendant in a condemnation action has appealed from a final judgment entered by the Circuit Court for Escambia County.
The sole question presented for our determination in this appeal is whether that court committed reversible error by ruling in a pre-trial order that the appellant was not entitled to introduce evidence of severance damages for loss of access in the absence of proof of loss of ingress and egress.
The appellees’ position in this appeal is that the trial court correctly so ruled because no limited access has been taken by the appellees in this eminent domain proceeding, as reflected by the petition in condemnation, by the trial court’s findings, and by the appellant’s own statements; and that, in the event of a later limited access taking, the appellant will be compensated, but until such time speculative damages may not be considered. This position strikes us as sound under the statutory and decisional law of this state.
Section 73.021, Florida Statutes, F.S. A., requires that a petition in condemnation state the estate or interest which the petitioner intends to acquire and the use for which the property is to be acquired. The petition before us states that the land in question is necessary for the purpose of constructing and maintaining a state highway. The petition does not seek to condemn land for a “limited access” highway, nor does it seek to condemn air, view, and light. As the District Court of Appeal, Second District of Florida, indicated in Meltzer v. Hillsborough County, 167 So.2d 54 (1964), the question of whether or not limited access is taken in an eminent domain proceeding, may be determinable from the petition.
In the pre-trial order the court recognized that a limited access was not being taken, saying: “We are not concerned here with a limited access taking, so there is *30no question of destruction or compensable impairment of access at this time.”
In his appellate brief the appellant admitted that he had “no evidence to introduce to the effect that the State intended to construct a limited access facility or intended to build any physical barricade which would impede ingress or egress, as a result of the project contemplated at the time of filing the suit.”
In essence, then, the trial court was simply confronted with a situation in which the appellant sought to’ introduce evidence of damages resulting from the taking of a right of ingress and egress when there was no showing that any such taking had occurred or would occur. Under those circumstances the court properly held that such evidence was inadmissible.
In so holding, we recognize the rule that, where a limited access is taken, the abutting property owners are entitled to compensation for the destruction of their previously-existing right of access. Anhoco Corporation v. Dade County, 144 So.2d 793 (Fla.1962). We here apply the well-settled converse of this rule — that, where there is no limited access, such owners are not so entitled. See Bowden v. City of Jacksonville, 52 Fla. 216, 42 So. 394 (1906).
This does not mean, of course, that, if the appellant’s right to ingress and egress is later taken or legally impaired, he would be remediless, for, in that eventuality, as the appellees point out in their brief the appellant would have a remedy “by an injunction, by an inverse condemnation action, or some similar remedy.”
The most nearly analogous case is that first cited above: Meltzer v. Hillsborough County. In that case the condemning authority took approximately 1.69 acres of the appellants’ 27.5 acres of continuous unimproved land as part of an area essential to the construction of an overpass and cloverleaf at a certain intersection in the City of Tampa. The appellants were awarded $31,000 for the taking, and asserted on appeal that the award was insufficient, claiming the loss of their right to ingress and egress. The Second District Court of Appeal, in effect, rejected this claim and affirmed the judgment appealed from, saying: “The appellee did not seek to condemn the right of way for construction of any limited access facility and the court specifically ruled that there was no destruction of access to the property.”
For the foregoing reasons the final judgment appealed from herein must be and it is
Affirmed.
WIGGINTON, C. J., and RAWLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State of Fla. Dep't OF Transp. v. Stubbs, 285 So. 2d 1 (Fla. 1973)…to compensation for this damage.” Id. at 797, 798. Cf. Boney v. State, Department of Transportation, 250 So. 2d 650 (Fla.App.1971); State Road Department of Florida v. McCaffrey, 229 So. 2d 668 (Fla.App.1969); and Benerofe v. State Road Department, 210 So. 2d 28 (Fla.App.1968), 217 So. 2d 838 (Fla.1969). Petitioner has argued orally and in briefs that the case presently under review is distinguishable from the Anhoco holding in that the Respondents still have access to Firestone Road by use of the overpass…
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Stubbs v. State of Fla. Dep't OF Transp., 265 So. 2d 425 (Fla. 1st DCA 1972)…ning lands and, in effect, are placed in a cul-de-sac. We do not agree. This court in Boney v. State Department of Transportation, 250 So. 2d 650, citing Anhoco Corp. v. Dade County, 144 So. 2d 793 (Fla.1962), and Benerofe v. State Road Department, 210 So. 2d 28 (Fla.App.1968), held that the taking had deprived appellants of a right to use one direction of an unopen, undedicated street bordering their property, and some right of access had been destroyed for which compensation was due. In due deference to t…
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Boney v. State, 250 So. 2d 650 (Fla. 1st DCA 1971)…an unopen, undedicated street bordering their property, nevertheless, some right of access, albeit previously unused, has been destroyed. We feel the facts below require application of the rule of law recognized in Benerofe v. State Road Department, 210 So. 2d 28, 30 (Fla.App.1968): “ * * * [WJhere a limited access is taken, the abutting property owners are entitled to compensation for the destruction of their previously-existing right of access. Anhoco Corporation v. Dade County, 144 So. 2d 793, (Fla.1962)…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Anhoco Corp. v. Dade Cnty., 144 So. 2d 793 (Fla. 1962)
- Bowden v. City of Jacksonville, 52 Fla. 216 (Fla. 1906)
- Meltzer v. Hillsborough Cnty., 167 So. 2d 54 (Fla. 2d DCA 1964)