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Sabal Trail Transmission LLC v. 18.27 Acres of Land in Levy County

United States District Court, N.D. Florida, Gainesville Division

November 15, 2017

Sabal Trail Transmission, LLC, Plaintiff,
18.27 Acres of Land in Levy County, Florida, et al., Defendants



         This is 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 taking.

         Plaintiff's 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.

         Pipeline 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 in part.


         The 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 (Fla. 1990).

         “When 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).

         “In 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).

         “As 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.

         “The 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.”

          In 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.



         To 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 ...

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