final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Karen Cole,
Jeffrey C. Regan and Judson Bradley of Regan, Whelan, Zebouni
& Atwood, P.A., Jacksonville, for Appellants.
D. Pickles and Michel Fox Orr of the Law Offices of Dawson
& Orr, P.A., Jacksonville, for Appellee Homeowners'
Association; Jason R. Teal, Deputy General Counsel, and
Jeffrey C. Close, Assistant General Counsel, Jacksonville,
for Appellee City of Jacksonville.
and Susan Simon brought an action for inverse condemnation
against the City of Jacksonville alleging that it committed,
and continuously commits, a taking because neighborhood
streets dedicated to the City direct storm water to a pond
that sits partially on the Simons' property. The trial
court disagreed, and we do as well.
1984, a developer and builder created the Deer Meadows
subdivision and designed its stormwater system to direct
water from the streets into two ponds, one of which is
located on lots 15 and 16. The developer recorded a plat
depicting the streets and easements (but not the pond), and
the City accepted the plat as well as the responsibility to
maintain the streets and easements. Lot 16 was first sold in
1986, and the Simons became the fourth owners in 1993. The
Simons knew there was a pond on lot 16 that received storm
water from the neighborhood and, prior to purchasing the lot,
were advised that the then-owners of lot 15 as well as
previous owners of lot 16 maintained the pond themselves.
Over a decade later, the Simons determined that the City
should be responsible for maintaining the pond and, when the
City disagreed, filed suit. The Simons' claim for inverse
condemnation alleged that the City owns or controls the
streets, or both, that the streets are designed to discharge
storm water into the Simons' pond, that the City has no
property rights to the pond, and that the City is thus using
(or "taking") the pond.
trial court found that the Simons could not assert a claim
for inverse condemnation because, even if there had been a
taking by the City, it occurred before the Simons (or the
three prior owners) purchased the property and there was no
evidence that the Simons had been transferred any interest in
an inverse-condemnation claim. On appeal, the Simons argue
that the City is committing a taking without compensation,
that their claim is not barred because the City did not show
that its use of the pond was adverse to all prior owners, and
that the Simons' revocation of any existing license to
use the pond permits this claim.
Department of Transportation v. Burnette, 384 So.2d
916, 918-19 (Fla. 1st DCA 1980), the government reversed the
natural flow of water drainage to allow for the building of a
school, redirecting the flow towards the subject property
which "impose[d] a substantial burden" by making
half of the property subject to flooding. Later, the owner of
the 100-acre property alleged that the government's
action prohibited him from building a development he planned
to build and constituted a constitutional taking.
Id. This claim was flawed because the governmental
acts complained of were before the plaintiff's purchase
of the property; the "land was permanently
'taken,' if at all, some years before" the
plaintiff purchased it and it was the prior owners "who
were deprived of rights in property, if anyone was[.]"
Id. at 919-20. Only the owner at the time of the
taking has suffered an injury entitling him to recovery:
The theory is that where the government interferes with a
person's property to such a substantial extent, the owner
has lost a part of his interest in the real property.
Substituted for the property loss is the right to
compensation. When the original owner conveys what remains of
the realty, he does not transfer the right to compensation
for the portion he has lost without a separate assignment of
Id. at 920 (quoting Brooks Inv. Co. v. City of
Bloomington, 232 N.W.2d 911, 918 (1975)).
any governmental acts were taken long before the Simons
bought the property. The Simons bought the property knowing
that a pond was on it, that the pond received neighborhood
stormwater, and that the prior owners had maintained it
themselves. The Simons may not purchase the property fully
aware and then claim a governmental taking and demand
compensation. See id. ("If the rule were
otherwise, the original owner of damaged property would
suffer a loss and the purchaser of that property would
receive a windfall."). Contrary to the Simons'
contention, this case is not similar to Brevard County v.
Blasky, 875 So.2d 6, 10, 12-13 (Fla. 5th DCA 2004),
where a revocable written license granted the government
permission to use land until the government abruptly asserted
title to the property. Rather, a builder and developer
designed a subdivision where lot 16 would receive
neighborhood storm water, the City accepted responsibility to
maintain roads and easements, and the Simons eventually
purchased the property. If there was any action taken by the
City that could constitute a taking, it was long before the
Simons owned the property.
Thomas, J., concurs; Wetherell,  ...