J. E. STACK, JR., AND WIFE, MADGE ENGLISH STACK, APPELLANTS,
v.
OKALOOSA COUNTY, APPELLEE
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This eminent domain appeal concerns a trial court's erroneous grant of a prescriptive easement when the County failed to prove public necessity for condemnation. The court reversed, holding that the prescriptive easement was a gratuitous grant unsupported by pleadings and against which the appellants had no notice or opportunity to defend.
The prescriptive easement grant was erroneous because it was not pleaded or sought in the complaint, and the appellants had no notice or opportunity to defend against it. The subsequent order directing location of the easement was a nullity because it was entered after the trial court lost jurisdiction following the notice of appeal.
[1] A trial court cannot grant a prescriptive easement when the pleadings do not allege or seek such relief and the hearing was solely on the issue of condemnation.
[2] A party must have notice and an opportunity to defend against a claim for a prescriptive easement.
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Join FLexlaw to unlock all legal intelligence“The prescriptive easement was a gratuitous grant to appellee by the trial judge upon his conclusion from the evidence that appellee had not shown a right to condemn the property but had shown a prescriptive easement.”
Establishes the central error: the easement was granted without legal basis or pleading support.
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Join FLexlaw to unlock all legal intelligenceThe County brought an eminent domain action to condemn property owned by Stack and his wife. The trial court found the County failed to prove public n…
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McCORD, Judge.
The above two consolidated appeals are from the same cause of action below (an eminent domain proceeding) and the same parties are appellants and appellees in both appeals. Case No. EE-305 is an appeal from a final judgment (termed an order) in which the trial court found that appellee had failed to prove public necessity for taking the property and denied appellees the right to condemn the property. The judgment further found that the evidence established that the public had an easement by prescription to the width of a two-rut road along the property described in appellee’s third amended complaint and granted an easement by prescription.
Case No. EE-462 is an appeal from a subsequent order entered by the trial court on its own motion after notice of appeal had been filed in Case No. EE-305. This order directed appellants to select the location of the “two-rut road” over which the court had, by the final judgment, granted the easement by prescription.
The foregoing final judgment and subsequent order must be reversed. As to the final judgment, there were no pleadings contained in appellee’s third amended complaint which alleged or sought a prescriptive easement. The hearing out of which the grant of prescriptive easement was ordered was solely upon the question of appel-lee’s right to condemn the property. The prescriptive easement was a gratuitous grant to appellee by the trial judge upon his conclusion from the evidence that appellee had not shown a right to condemn the property but had shown a prescriptive easement. The suit being solely a condemnation suit, appellants had no notice and no opportunity to defend against a prescriptive easement. The grant of prescriptive easement was error. As to the order entered after the notice of appeal had been filed, it was entered after the trial court had lost jurisdiction of the cause and was therefore a nullity. Smith v. State, 208 So. 2d 462 (Fla. 1 DCA 1968).
This being an appeal in an eminent domain action, appellants’ attorney’s motion for the allowance of a reasonable attorney’s fee for the prosecution of these appeals is granted, and upon remand it is directed that the trial court determine the amount of such fee and order its payment.
Reversed and remanded with directions to enter judgment for appellants on appel-lee’s third amended complaint.
BOYER, C. J., and DREW, E. HARRIS, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Blum v. Blum, 382 So. 2d 52 (Fla. 3d DCA 1980)…, while the appeal from the final judgment was pending in this court, it had no jurisdiction to enter these orders and they are therefore vacated and set aside. E. g., Goodner v. Shapiro, 367 So. 2d 1110 (Fla. 3d DCA 1979); Stack v. Okaloosa County, 347 So. 2d 145 (Fla. 1st DCA 1977); Fla.R.App.P. 9.600(b), (c). Affirmed in part, reversed in part and remanded with directions; post-judgment orders reversed. . This figure included $100 per month in college expenses, as well as $200 per month for orthodontia f…
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Goodner v. Shapiro, 367 So. 2d 1110 (Fla. 3d DCA 1979)…the final judgment. Since that order was entered, also without leave of. this court, while the appeal taken by the plaintiffs was pending before us, it was therefore likewise void as one entered without jurisdiction. E. g., Stack v. Okaloosa County, 347 So. 2d 145 (Fla. 1st DCA 1977).…
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State v. Dick C.P. Lantz, 440 So. 2d 446 (Fla. 3d DCA 1983)…4th DCA 1978); General Portland Land Development Co. v. Stevens, 356 So. 2d 840 (Fla. 4th DCA 1978); State ex rel. American Home Insurance Co. v. Seay, 355 So. 2d 822 (Fla. 4th DCA), cert. denied, 361 So. 2d 835 (Fla.1978); Stack v. Okaloosa County, 347 So. 2d 145 (Fla. 1st DCA 1977).3 From these decisions then, we can reach no other conclusion but that our stay order unambiguously defined the parameters of the trial court’s power with respect to its previously-entered order. It cannot be disputed that the e…
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- State Rd. Dep't of Fla. v. Hardrives Co., 208 So. 2d 462 (Fla. 1st DCA 1968)