United States District Court, N.D. Florida, Gainesville Division
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
E. WALKER UNITED STATES DISTRICT JUDGE
an eminent domain case. Over a year has passed since this
Court granted Plaintiff's Motion for Partial Summary
Judgment, ECF No. 38, as to Plaintiff's right to condemn
an easement through Defendants' property to build a
natural gas pipeline. Since then, Plaintiff took possession
of the subject property. Pipeline construction began and
ended. And now Plaintiff must compensate Defendants for the
activities understandably caused significant heartburn for
Defendants. One Defendant described the “continued
intrusion” on the property, including Plaintiff's
practice of “fly[ing] the damn helicopter over there,
” and “people coming in . . . unannounced.”
ECF No. 70-10 at 82. This Defendant also worried about the
fact that Plaintiff put the pipeline in the ground
“less than a football field” away from his
children's bedroom windows. Id. at 90.
construction presented other challenges for Defendants. Most
importantly, for purposes of this Order, is the fact that
during the past year Plaintiff's activities (1) destroyed
several mature live oak trees on the property during the
construction process, (2) prevented Defendants from leasing
pasture to cattle farmers, and (3) prevented Defendants from
planting more profitable crops in accordance with their
farm's normal rotation. This Court has considered,
without hearing, Plaintiff's Motion for Partial Summary
Judgment, ECF No. 65, to determine whether these kinds of
losses may be compensated-that is, whether a jury may
consider evidence of these losses in reaching its
determination of “full compensation.” Based on
the reasons stated below, Plaintiff's motion is
GRANTED in part and DENIED
Natural Gas Act adopts Florida substantive law as the federal
measure of compensation in this case. Sabal Trail
Transmission, LLC v. Real Estate, Case No.
1:16cv63-MW/GRJ, 2017 WL 2783995, at *6 (N.D. Fla. June 27,
2017). Florida's Constitution provides that “[n]o
private property shall be taken except for a public purpose
and with full compensation therefor paid to each owner or
secured by deposit in the registry of the court and available
to the owner.” Fla. Const., art. X, § 6(a). Full
compensation “must be determined by reference to the
state of affairs that would have existed absent any
condemnation proceeding whatsoever.” Fla. Dep't
of Revenue v. Orange Cty., 620 So.2d 991, 992 (Fla.
1993). “[A]ll evidence relevant to the issue of full
compensation is admissible in eminent domain
proceedings.” Fla. Power & Light v.
Jennings, 518 So.2d 895, 895 (Fla. 1987). But
“[t]he constitutional right to receive full
compensation under eminent domain is not a right to receive
general damages.” Dep't of Agr. and Consumer
Servs. v. Mid-Florida Growers, Inc., 570 So.2d 892, 899
an injury is to land and the injury is of a more or less
permanent nature, the usual measure of damages is the
difference between the value of the land before and after the
injury.” Atl. Coast Line R. Co. v. Saffold,
178 So. 288, 602 (Fla. 1938). And when less than the entire
property is taken, “full compensation” for the
taking “consists of the value of the property taken and
severance damages to the remainder caused by the taking, if
any.” Partyka v. Fla. Dep't of Transp.,
606 So.2d 495, 496 (Fla. 4th DCA 1992) (citing Fla. Stat.
§ 73.071(2), (3)(a), & (b)). Importantly, though,
the Florida Supreme Court notes that aside from the usual
measure of damages, courts should “tak[e] into account
all facts and circumstances which bear a reasonable
relationship to the loss occasioned the owner by virtue of
the taking of his property.” Jacksonville
Expressway Auth. v. Henry G. Du Pree Co., 108 So.2d 289,
291 (Fla. 1958).
calculating the damage to the remaining property, Florida
courts have adhered to a ‘before and after' rule
under which severance damages are calculated as the
difference between the value of the property before and after
the taking.” Fla. Dep't of Transp. v. Armadillo
Partners, Inc., 849 So.2d 279, 283 (Fla. 2003). And
“[t]he burden of proof of a claim for severance damages
is on the condemnee.” Division of Admin., State of
Fla. Dep't of Transp. v. Frenchman, Inc., 476 So.2d
224, 226 (Fla. 4th DCA 1985).
to intangibles, business damages and lost profits are not
included in . . . full compensation.” Fla.
Dep't of Revenue v. A. Duda & Sons, Inc., 608
So.2d 881, 885 (Fla. 5th DCA 1992). “Severance damages
and business damages are interrelated but not identical
concepts.” Seminole Cty. v. Sanford Court
Inv'rs, Ltd., 743 So.2d 1165, 1170 (Fla. 5th DCA
1999). “The purpose of awarding business damages in an
eminent domain proceeding is to mitigate the hardship
suffered by a business when the taking of only a portion of
property reduces the value associated with the location of
the business.” Id. at 1168.
payment of compensation for intangible losses and incidental
or consequential damages . . . is not required by the
constitution, but is granted or withheld simply as a matter
of legislative grace.” Tampa-Hillsborough Cty.
Expressway Auth. V. K.E. Morris Alignment Serv., Inc.,
444 So.2d 926, 928 (Fla. 1983). Thus, an owner may recover
business damages only by statute. Id.; see
also Fla. Stat. § 73.071 (3)(b). Section
73.071(3)(b) limits such recovery to cases involving a
partial taking which causes damage to or destroys “an
established business of more than 5 years' standing . . .
owned by the party 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.”
this case, Defendants have not sought business damages.
See ECF No. 72 at 20. Nor have they plead such
damages pursuant to statutory requirements. See Fla.
Stat. § 73.071(3)(b) (“[A]ny person claiming the
right to recover such special damages shall set forth in his
or her written defenses the nature and extent of such
damages.”). This Court simply notes the difference
between constitutionally required severance damages and
statutorily available business damages to aid in its
analysis-but more on that later.
start, Defendants assert they're entitled to compensation
for the value of several mature live oak trees that Plaintiff
cut down in order to build the pipeline. “Standing or
growing timber, and trees generally, form a part of the
realty, and belong to the owner thereof, as much so as to the
soil itself.” 98 C.J.S. Woods and Forests
§ 2 (2017) (collecting cases). With respect to
cultivated, fruit-bearing trees, the Florida Supreme Court
has held that the value of such trees as an improvement on
the land may be considered to compensate for their loss.
McClelland v. Town of Eustis, 102 So. 159, 273 (Fla.
1924). Trees may also be condemned separate and apart from
the land; for example, in a condemnation proceeding to cut
down “danger trees” near a right of way for an
electric power transmission line. Florida Power Corp. v.
Wenzel, 113 So.2d 747 (Fla. 2d DCA 1959). And while
standing trees are ...