CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1998 WL 101695
...Hamilton County,
652 So.2d 1237 (Fla. 1st DCA 1995); Crigger v. Florida Power Corp.,
469 So.2d 941 (Fla. 5th DCA 1985), and affirm all issues raised. We write, however, to address Basic Energy's claim regarding the meaning of the word "appropriation" in section
73.041, Florida Statutes....
...During the appeal's pendency while title was vested in the city, DOC constructed the proposed state prison on the land. As a result of this court's reversal and remand, title to the land reverted to Basic Energy, and DOC initiated an eminent domain proceeding pursuant to section 73.041, Florida Statutes, to obtain title to the land on which the prison now stood....
...The lower court held that July 18, 1994, the date DOC ousted Basic Energy from its property, was the date of appropriation and ordered that the jury would determine the amount of full compensation as of that date. The court concluded as a matter of law that "appropriation" as used in section 73.041 means "`a taking to the exclusion of others; a conversion of property where performed without right'" and found this definition confirmed in various cited inverse condemnation cases. The court also found that the property is being used for a legitimate public purpose. The crux of appellant's argument is that property is not appropriated for purposes of section 73.041 until the property is lawfully appropriated, which according to appellant occurs when an order of taking issues....
...the time of taking, which in some cases may be the time of wrongful taking of the property, but which usually will be the time of institution of the proceedings.")(citing Casa Loma Springs Dev. Co. v. Brevard County,
93 Fla. 601,
112 So. 60 (1927)). Section
73.041, with which we are concerned here, applies to the specific circumstance presented when an entity with eminent domain powers must acquire title to land after it already has begun using the property, i.e., after it has taken possession. The statute provides as follows:
73.041 Acquiring or perfecting title after appropriation....
...has occurred. Although the definition of "appropriation" is not provided by statute, the word is implicitly defined by its use in the statute as the time the governmental entity began "using" the land. Basic Energy argues that the 1941 amendments to section 73.041's predecessor statute, which added the compensation and appropriation language, resulted from State Road Department v....
...745,
1 So.2d 868 (1941), in which the court stated that a governmental appropriation or taking must be accomplished through orderly process. This pronouncement, however, was hardly a new constitutional precept. A review of the statutory history of section
73.041 reveals the more likely source for the compensation and appropriation language in the statute....
...It appears, therefore, that the compensation and appropriation language amended to this statute in 1941 during the consolidation process stemmed from the statute on acquiring title applicable to drainage districts and not from Tharp. Substantially the same language regarding appropriation and compensation is retained in 73.041. Thus, the trial court's determination in this case that the word "appropriation" in 73.041 refers to the time of possession is supported by the legislative history of the statute. Because there is no case law construing the term "appropriation" in section 73.041, Basic Energy relies for support on Yoder v....
...lands. Nevertheless, the value must be established in light of these elements as of the time of lawful appropriation. Id. at 220-221. Importantly, Yoder did not address the special circumstance of an eminent domain proceeding maintained pursuant to section 73.041....
...The Florida Bar, Florida Eminent Domain Practice & Procedure § 9.31 (1996)(citing Crigger v. Florida Power Corp.,
469 So.2d 941 (Fla. 5th DCA 1985) and County of Volusia v. Pickens,
439 So.2d 276 (Fla. 5th DCA 1983)). Accordingly, we affirm the trial court's interpretation of section
73.041 and its determination of the date of appropriation in its non-final order of taking and all other issues raised in this appeal....
