CopyCited 46 times | Published | Supreme Court of Florida | 2004 WL 2359991
...No judicial determination is required for the landlocked owner to assert the right to a statutory way of necessity under section
704.01(2). However, the Legislature has provided for a judicial remedy when the servient landowner objects or refuses to permit the use of a statutory way of necessity. See §
704.04, Fla. Stat. (2003). [5] Section
704.04 allows a circuit court to determine entitlement to the easement; the type, extent, duration, and location of the easement; and compensation *1230 for use of the easement. When this judicial remedy is utilized, section
704.04 expressly provides that "[t]he easement shall date from the time the award is paid." Id....
...Darby,
126 So.2d 313, 318 (Fla. 1st DCA 1961). A common law way of necessity is an easement from its inception. However, a landowner who meets the requirements for a statutory way of necessity does not obtain an easement until an award ordered by the circuit court is paid. See §
704.04....
...lands are being used or desired to be used for the purposes specified in the statute." However, in Sapp, the Second District indicated that a claim to a statutory way of necessity always exists. See
472 So.2d at 546 (concluding that the "portion of section
704.04 which provides that `[t]he easement shall date from the time the award is paid' refers only to the court-ordered easement rather than to the statutory way of necessity which existed all of the time")....
...(7) State title to lands beneath navigable waters acquired by virtue of sovereignty. (8) A restriction or covenant recorded pursuant to chapter 376 or chapter 403. [4] Practicable is defined as "without the use of bridge, ferry, turnpike road, embankment, or substantial fill." §
704.03, Fla. Stat. (2003). [5] Section
704.04, Florida Statutes (2003), provides in full:
704.04....
CopyCited 9 times | Published | Florida 4th District Court of Appeal
...ingress and egress and it is not suggested otherwise. [2] It is noted that the Burches are not entitled to compensation by reason of the establishment of such easement for that, as stated, it is of common law origin and hence does not qualify under Section 704.04, F.S....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1988 WL 138488
...asement shall be used only in an orderly and proper manner." (Emphasis supplied.) Therefore, in the case of a statutory way of necessity, the only recourse available to the servient owner of an implied easement is a suit for compensation pursuant to section
704.04, *136 Florida Statutes. [1] Sapp v. General Development Corp.,
472 So.2d 544, 546 (Fla. 2d DCA 1985). In Sapp, the court explained that the "portion of section
704.04 which provides that `[t]he easement shall date from the time the award is paid' refers only to the court-ordered easement rather than to the statutory way of necessity which existed all of the time." The court further observed that as...
...The precise nature of the easement depends upon the existence vel non of a common law way of necessity. Thus, a judicial determination is relevant with respect to determining the nature of the easement, which in turn implicates the matter of compensation to the servient owner. § 704.04, Fla....
...Accordingly, the trial court's order denying an award of attorney's fees pursuant to section
57.105 is affirmed; and the trial court's grant of final summary judgment is reversed and remanded for further proceedings. WIGGINTON and NIMMONS, JJ., concur. NOTES [1] §
704.04, Fla. Stat. (1985), provides:
704.04 Judicial remedy and compensation to servient owner....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...land is across the common dividing line between appellants' properties over which the Means are entitled, if they choose, to a statutory way of necessity pursuant to §
704.01(2), F.S. 1971, upon payment of just compensation therefor as required by §
704.04, F.S....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2004 WL 2340685
...w the landlocked owner to use it, the appropriate recourse available to either party is to seek a judicial determination of the existence of the claimed statutory way of necessity and the amount of compensation the landlocked owner owes for its use. § 704.04, Fla....
...property may not arbitrarily block the use of the statutory way of necessity. Parham; Sapp. If the easement is awarded by the court and the amount of compensation is judicially determined, "[t]he easement shall date from the time the award is paid." § 704.04, Fla....
CopyCited 8 times | Published | Supreme Court of Florida | 1977 Fla. LEXIS 3900
...The conditions of both the former and current constitutional mandates are the same. No private property shall be taken "except (i) for a public purpose (ii) and with full compensation therefor paid to each owner." There can be no doubt that the condition of full compensation is met by the statute in question. Section
704.04, Florida Statutes (1975), provides a judicial remedy and compensation to the servient owner when Section
704.01(2) is invoked....
...The majority categorically concludes without analysis that the absence of a requirement *159 of compensation to the servient owner was the only impediment to the predecessor of Section
704.01(2) found in South Dade Farms. They maintain that this deficiency was cured by the amendment adding Section
704.04, Florida Statutes (1975)....
...It is crystal clear to me that this Court determined that the predecessor of Section
704.01(2), Florida Statutes (1975), violated both conditions limiting exercise of the power of eminent domain, i.e., (1) the taking must be for a public purpose, and (2) just compensation must be paid for that which is taken. Section
704.04, Florida Statutes (1975), may be an elixir for the latter, but it is no cure for the former....
...any interlocutory order passing upon a matter which upon final judgment would be directly appealable to the supreme court...." Art. V, § 3(b)(3), Fla. Const. [3] Arguments that the statute works a denial of property without due process of law are without merit. Section
704.04, Florida Statutes, provides for judicial remedy if the servient owner objects to a claim under Section
704.01(2). The objections to statutory easements of Section
704.01 voiced by this Court in South Dade Farms v. BSL Farms Co.,
62 So.2d 350 (Fla. 1950), have also been cured by the enactment of Section
704.04, Florida Statutes, since it provides for compensation to the servient owner if the court finds the statutory claim to exist....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...from "public benefit", courts are inevitably close to the role of lawmakers. That role is less spectacular, however, when the legislature has provided an answer consistent with a proper rule of law, as is true of that part of F.S. §§
704.01(2) and
704.04 F.S.A., with which we are concerned....
...ockraising purposes shall be shut off or hemmed in by lands, fencing or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. * * *" F.S. § 704.04, F.S.A.: "Judicial remedy and compensation to servient owner....
...the body politic. The legislature took that into account by requiring the owner of the dominant tenement to pay full compensation to the owner of the servient tenement as a condition precedent to the granting of the statutory was of necessity. F.S. § 704.04, F.S.A....
...They seek a decree of the Circuit Court ordering the Railroad to grant them the right-of-way, and offer to compensate the Railroad as they may be directed by the Court. They claim to have this right and remedy by virtue of the provisions of F.S. Section
704.01(2),
704.04, F.S.A....
...By amendment in 1953 the Legislature provided a method for appropriation by the county or owner of the dominant tenement through judicial process of such a way of necessity upon the payment of compensation to the owner of the servient tenement, Sec. 704.04....
..., believe that the appellees have no right through the exercise of either the police power or power of eminent domain, to acquire the claimed way of necessity over the Railroad's property without its consent, and that insofar as F.S. Sec.
704.01(2),
704.04, F.S.A....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1988 WL 8385
...[5] If Moran should undertake an action against Spolski to establish a prescriptive easement via the existing dirt road on his property and lose in that action, she could then seek a statutory way of necessity across the Brawner property pursuant to section
704.01(2), Florida Statutes (1985), and section
704.04, Florida Statutes (1985) (dealing with compensation therefor).
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1655
...of landlocked property to have access across his neighbor's land when title to both properties is not deraigned from a common grantor. §
704.01(2), Fla. Stat. (1983). The servient owner is entitled to compensation for a statutory way of necessity. §
704.04, Fla....
...Bird,
100 So.2d 57 (Fla. 1958). Yet, under section
704.01(2), the servient owner cannot establish a claim of trespass against the dominant owner. Assuming the use is not unreasonable, the only recourse available to the servient owner is to seek compensation under section
704.04. At this point, a lawsuit is filed, and the court is then called upon to determine "all questions including the type, extent and location of the easement and the amount of compensation." That portion of section
704.04 which provides that "[t]he easement shall date from the time the award is paid" refers only to the court-ordered easement rather than to the statutory way of necessity which existed all of the time....
...By virtue of having demonstrated that his property was landlocked, Sapp established that he had a way of necessity. Therefore, he was not entitled to claim a prescriptive easement. We do find, however, that he may have a cause of action for injunctive relief [2] or damages. As we interpret section 704.04, a servient owner cannot arbitrarily block the use of a statutory way of necessity....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1995 WL 492949
...As to the second ground for rehearing, under the stipulation, the parties, in effect, exchanged easement for easement, rather than monetary compensation. If the Trammells believe they are entitled to additional compensation, it seems such claim should be brought pursuant to section 704.04, Florida Statutes....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1994 WL 151316
...Bistline of Stromire, Bistline & Miniclier, Cocoa, for appellee. THOMPSON, Judge. Appellant, Louis A. Bell, appeals a final judgment of the trial court granting the appellee, W.T. Cox, Jr., a statutory way of necessity easement pursuant to sections
704.01(2) and
704.04, Florida Statutes (1991), over a portion of property owned by Bell....
...Cox alleged the property had no practical ingress and egress except through Bell's and the Messersmiths' properties, to Randon Lane, a public road. Bell filed an answer and asserted a counterclaim seeking a declaratory judgment that sections
704.01 and
704.04, Florida Statutes (1991), are unconstitutional....
...The court ordered Cox to pay Bell $56,100 as compensation for the use of the easement over his property. This amount was determined by an appraiser hired by Cox. The court also awarded attorney's fees of $10,000 and costs of $6,557.55 to Cox against Bell under section 704.04, Florida Statutes (1991), because Bell unreasonably refused to comply with the statute....
...and the weight of such evidence is solely in the province of the trial court. See Clegg v. Chipola Aviation, Inc.,
458 So.2d 1186 (Fla. 1st DCA 1984). There are two remaining issues that require attention. First, Bell argues that sections
704.01 and
704.04, Florida Statutes (1991), are unconstitutional and second, that the evidence does not support the determination that there was no common-law right of way to the property, which determination is essential before a statutory way of necessity can be used....
...re being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and *1383 proper manner. Section 704.04, Florida Statutes (1991), reads: When the owner or owners of such lands across which a statutory way of necessity under s....
...Bell has failed to show that there is no conceivable factual predicate supporting the classification. His argument, therefore, is without merit. Bell next argues that the statute is unconstitutional because it is vague. He argues that the term "unreasonable refusal" in section
704.04, Florida Statutes is constitutionally infirm because it authorizes the trial court to award attorney's fees and costs when either party "unreasonably refuses" to comply with section
704.01(2)....
...1980). Also, the statute is clear so that it does not invite arbitrary and discriminatory enforcement. See McKenney v. State,
388 So.2d 1232 (Fla. 1980); State v. Deese,
495 So.2d 286 (Fla. 2nd DCA 1986). Finally, Bell argues that sections
704.01 and
704.04 are contrary to the public purpose clause of the Florida Constitution....
...was through Bell's property. The trial court made no error. AFFIRMED. PETERSON, J., concurs specially, with opinion. HARRIS, C.J., dissents, with opinion. PETERSON, Judge, specially concurring. I agree with Judge Thompson that sections
704.01(2) and
704.04 are constitutional insofar as they provide a remedy to the owner of inaccessible lands to gain a way of necessity by compensation to the owner of the servient lands....
...It might be appropriate to do so before the inevitable case arises where a municipality extends its boundaries through the process prescribed by section
171.0413, Florida Statutes (1993) and an owner who has a parcel without access cannot step foot on it. I would urge trial courts to use sparingly the provision of section
704.04 that allows assessment of attorney's fees and costs against the owner of servient lands....
...I recognize that our supreme court in Deseret Ranches of Florida, Inc. v. Bowman,
349 So.2d 155 (Fla. 1977), against a challenge that the statute permitted the taking of private property for a nonpublic purpose in contravention of Article X, Section 6(a), Florida Constitution (1968), [1] upheld section
704.04 as being constitutional. That is not the issue before us. Our present case apparently presents the first challenge to the constitutionality of section
704.04 on the basis of a denial of equal protection....
...use of landlocked property." There is simply no rational basis for not applying this policy equally against those *1386 persons who own residential lots on either side of an arbitrary, often changing, municipal boundary. [2] To add insult to injury, section
704.04 permits, and the trial court awarded, attorney's fees and costs against Bell for his "unreasonable refusal to comply with the provisions of section
704.01(2)." Because Bell failed to voluntarily recognize Cox's statutory way of necessi...
...First, section
704.01(2), which establishes this statutory way of necessity contemplates that no compensation need be paid by the one acquiring this access across his neighbor's property. Payment is only required if the neighbor objects and insists on a judicial remedy under section
704.04....
...[3] To penalize property owners, therefore, by making them pay attorney's fees and costs merely because they elect to defend their interest in property by contesting the establishment of a statutory way of necessity across their property punishes them for exercising their basic constitutional rights. Section 704.04 permits nothing less than an action in eminent domain brought by a private individual....
...NOTES [1] The Messersmiths were defendants below but did not join in this appeal. Cox was ordered to pay the Messersmiths $31,000 for use of the easement, their attorney's fees and their costs because Cox never tendered an offer before trial for their easement. See § 704.04, Fla....
...[1] I agree with the court in Franklin v. Boatright,
399 So.2d 1132 (Fla. 1st DCA), rev. denied,
411 So.2d 382 (Fla. 1981), that the dissent by Justice Sundberg in Deseret was indeed a well-reasoned analysis of the constitutionality of section
704.01(2) which is the underpinning of section
704.04....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 12 Fla. L. Weekly Fed. B 344, 1999 Bankr. LEXIS 984, 1999 WL 613492
financial affairs of a debtor as required by Section 704(4) of the Bankruptcy Code. The trustee further
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 20753, 2006 WL 3589007
...cost of the liability risk associated with keeping the crossing open when the trial court decided the amount of compensation due appellant (the servient landowner) from appellee (the dominant landowner) for appellee's statutory way-of-necessity. See § 704.04, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal
...a horse farm. It was also improper for the trial court to award attorney's fees and costs because the Haggers failed to plead or prove that Appellants acted unreasonably by refusing to allow them access to the right of way across their property. See § 704.04, Fla....
CopyPublished | District Court of Appeal of Florida
...d electricity and telephone service over and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest *823 practical route, considering the use to which said lands are being put; * Section
704.04, Florida Statutes, F.S.A., provides in part: “When the owner or owners of such lands across which a statutory way of necessity under §
704.01(2) is claimed * * * objects or refuses to permit the use of such way under the conditions...
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 7276, 2005 WL 1160198
...stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practi *500 cable route of egress or ingress shall be available therefrom to the nearest practicable public or private road ... Section 704.04, Florida Statutes (2001), provides for compensation to the servient owner and states in pertinent part, as follows: Where said easement is awarded to the owner of the dominant tenement, it shall be in compliance with s.704.01(2) and sh...
...tion of the easement,” the circuit court does not have the discretion to grant an easement under section
704.01(2) except to provide access to the landlocked property for the uses expressly provided in section
704.01(2). When section
704.01(2) and section
704.04 are read in pari materia, it is clear that the legislature has permitted a statutory way of necessity to allow the dominant tenement to be used only for those purposes which are set forth in section
704.01(2), specifically “for a dwe...
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 20276
...compensation. However, we note that the constitutionality of Section
704.01 was upheld in Deseret Ranches of Florida, Inc. v. Bowman,
349 So.2d 155 (Fla.1977), which found that the objections raised in South Dade Farms were cured by the enactment of Section
704.04 providing for compensation to the servient owner....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4521, 1990 WL 85437
...are being put; and the use thereof, as aforesaid, shall *171 not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner. Section 704.04, Florida Statutes (1987), provides a judicial remedy for establishment of a statutory way of necessity. It provides: 704.04 Judicial remedy and compensation to servient owner....
...Further, we find that the record demonstrates competent substantial evidence to support the trial court’s conclusions. Finally, appellants argue that even if the trial court was correct in declining to establish the easement across appellee’s land, the trial court was nevertheless required by Section 704.04, Florida Statutes (1987), to establish the location of the nearest practical route, even though such route would have traversed lands owned by persons who were not parties to the litigation below....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 3281822, 2014 Fla. App. LEXIS 10536
...equest for an easement pursuant to section
704.01(2), Florida Statutes. Therefore, in addition to reversing the trial court on this issue, we also reverse the trial court’s determination that Appellees are entitled to attorney’s fees pursuant to section
704.04. We remand for the trial court to make all findings and take any actions required by section
704.04 when an ease *572 ment is granted pursuant to section
704.01(2)....
CopyPublished | Florida 1st District Court of Appeal
...whether the Appellants were entitled to attorney’s fees pursuant to the governing
statute, which provides that attorney’s fees and costs are owed to either party for
“unreasonable refusal to comply” with the provisions of the easement statute. §
704.04, Fla....
...for attorney’s fees and
costs under the abuse of discretion standard. See Fla. State Univ., Bd. of Trs. v.
Monk,
112 So. 3d 173, 173-47 (Fla. 1st DCA 2013) (Mem.); Moore v. Hillsborough
Cty. Sch. Bd.,
987 So. 2d 1288, 1289 (Fla. 1st DCA 2008). Section
704.04 provides
that attorney’s fees and costs are owed to either party for “unreasonable refusal to
comply with the provisions of s[ection]
704.01(2).” §
704.04, Fla....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 2008 Bankr. LEXIS 209
responsibilities of the Trustee pursuant to 11 U.S.C. § 704. 4. The undersigned conducted a Rule 2004 Examination
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1101, 1987 Fla. App. LEXIS 7901
...originally under common ownership and the two parcels eventually return to common ownership, the common law easement of necessity then terminates. The Millers state that it was with Fox in mind that they instituted their cause of action pursuant to section 704.04, which statute provides for the filing of an action for determination of whether a statutory way of necessity exists where the owner of the lands over which the way is claimed refuses to allow its use....
CopyPublished | Florida 5th District Court of Appeal
...a horse farm. It was also improper for the trial court to award attorney's fees and costs because the Haggers failed to plead or prove that Appellants acted unreasonably by refusing to allow them access to the right of way across their property. See § 704.04, Fla....
