Florida/Georgia Personal Injury & Workers Compensation

...See Stoebuck, The Property Right of Access Versus the Power of Eminent Domain, 47 Texas L.Rev. 733 (1969). Id. at 2. Palm Beach County argues that Anhoco and Stubbs are not authority for recovery in the instant case because both of those decisions involved takings under section 338.04, Florida Statutes (1973), which mandated that property owners be reimbursed for loss of access incurred in the construction of limited access roads....

...This would seem to follow once it is recognized, as Florida does, that the right of access is a property right which appertains to the ownership of land. We did not *849 intend that Division of Administration v. Capital Plaza, Inc., 397 So.2d 682 (Fla. 1981), be read as limiting the rationale of Stubbs to takings under section 338.04....

...The State Road Department by virtue of a conveyance from Dade County owned merely an easement for public road purposes in former SR 826, the original land service road. 2. Anhoco owned the basic fee in SR 826, with an easement of ingress and egress to and from its theaters which abutted the land service highway. 3. Section 338.04, Florida Statutes, F.S.A., a part of the limited access facilities statute, requires a condemning authority to acquire the fee simple title to a right-of-way when it seeks to obtain land upon which it contemplates constructing a limited access road....

...We, therefore hold that the respondent is liable for any award properly made to Anhoco for the temporary encroachment upon its right of access. In our opinion in 116 So.2d 8, we specifically recognized Anhoco's right of access and squarely held that under Chapter 338, Florida Statutes, F.S.A., and particularly Section 338.04, the condemning authorities, in the establishment of a limited access facility must compensate abutting property owners for the destruction of rights of access to a previously existing land service road which is being converted into the limited access facility....

...ompensation is not recoverable. Henry L. Doherty & Co. v. Joachim, 146 Fla. 50, 200 So. 238; Weir v. Palm Beach County, Fla. 1956, 85 So.2d 865. Moreover, the Legislature has specifically required compensation for the destroyed right of access. Sec. 338.04, Florida Statutes, F.S.A....

...heir property in a cul-de-sac. We are in agreement with the District Court's reversal of that judgment. The acquisition of property and property rights for eminent domain purposes has long been recognized in American jurisprudence. In Florida, F.S., Section 338.04, F.S.A., provides for the taking of "private or public property and property rights for limited access facilities and service roads, including rights of access......

...Where some right of access is still available, as would appear in the cause under consideration, it is for the jury to determine whether the resulting damages are nominal or substantial. See State Road Department of Florida v. McCaffrey, supra; Stoebuck, supra at 765. The taking from Respondents involved a Section 338.04 limited access taking....

...r limited access road purposes. They were not, of course, afforded direct access to the Interstate 295. In a situation of this kind where a portion of one's property and/or access rights to an existing road is taken for limited access road purposes, Section 338.04 as construed in the Anhoco case requires consideration by the jury of severance damages for loss of access rights....

...ation of severance damages where there is a direct physical taking of property for the construction of a limited access road. The instant case is distinguishable from Stubbs because the road involved here is not a limited access facility governed by section 338.04....

...ry's consideration. Where some right of access is still available, as would appear in the cause under consideration, it is for the jury to determine whether the resulting damages are nominal or substantial... . The taking from Respondents involved a Section 338.04 limited access taking....

...r limited access road purposes. They were not, of course, afforded direct access to the Interstate 295. In a situation of this kind where a portion of one's property and/or access rights to an existing road is taken for limited access road purposes, Section 338.04 as construed in the Anhoco case requires consideration by the jury of severance damages for loss of access rights....

...It also says Capital Plaza limits applicability of Stubbs to cases where the physical taking of a portion of the condemnee's property was for the purpose of causing the complained-of impairment of access. We think DOT is correct. [3] In Capital Plaza the supreme court read Stubbs to say that severance damages under section 338.04, Florida Statutes (1971), are to be put before the jury where there is a direct physical taking of property for the construction of a limited access road....

...e new interstate. As already stated, the trial court had ruled the condemnees could not recover severance damages. The district court reversed, and the Florida Supreme Court agreed with the district court. The Stubbs holding depends in great part on section 338.04, Florida Statutes, which sets the rules for compensation for the taking of "property and property rights for limited access facilities and service roads, including rights of access." The supreme court had already determined in Anhoco Corporation v....

...are right; and that "and/or" is a monstrosity. Thanks to the use of "and/or," that paragraph says that taking of land directly for the limited access road or taking of a substantial amount of one's access is a sufficient basis for compensation under section 338.04; and that evidence of severance damages should be permitted to be placed before the jury so that it may determine whether the impact on access was substantial, and if so, what was the value of the damages. [3] We would point out the Capital Plaza court itself distinguished that case from Stubbs because no limited access facility governed by section 338.04 was involved in Capital Plaza; rather Capital Plaza concerned only building of a median in an existing roadway, making left turns directly into appellee's property no longer possible....

...to a width of 50 feet by the questioned deed. The petition of Anhoco Corporation and Theatre Associates, Inc., for a rehearing was granted on "the question of diversion, and whether or not the diversion brought into play the second paragraph of Sec. 338.04 [Florida Statutes 1955, F.S.A.] so that condemnation of the fee would be necessary and the opportunity then given [petitioners] to prove damages to [the] right of access under the first paragraph of Sec. 338.04 * * *." To return to the decision of the District Court of Appeal it was there determined that the chancellor erred when he found that the use of the existing road as a limited access facility was inconsistent with the easement originally intended and that court cited the Highway Code, Sec....

...orities of the state [the extensive power] to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities" latter parts of the chapter impose conditions for the protection of property owners. In Sec. 338.04 it is specified that for the purposes of the law the authorities "may acquire private or public property and property rights for limited access facilities * * * including rights of access * * *." (Italics supplied.) And immediately following i...

...In the course of the proceedings the petitioners will have the opportunity to present evidence of the value to them of the "property and property rights" including the right of "access", which will be acquired for "limited access facilities." Sec. 338.04(1), supra....

...across limited access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time." In this respect the majority seems to conclude that Section 338.04, F.S.A. requires the authorities to condemn and acquire the fee of the roadway in order to establish a limited access facility and in such proceedings to pay the land owner the damages which may be occasioned by interfering with his rights of access. Section 338.04 merely provides that the authorities may acquire private or public property or property rights for limited access facilities and when such action is taken, such rights shall be acquired in fee simple....

...the needs of the public purpose involved. When, however, the Legislature stipulates the extent of the interest in land which must be acquired, then both the condemnor and this Court are bound to recognize the legislative prescription. In construing Section 338.04, Florida Statutes, F.S.A., a part of the Limited Access Facilities Act, we have held that when the State Road Department desires to construct a limited access highway upon the surface of the land, it must acquire the fee simple title to the land. The provisions of Section 338.04, supra, are identical with the provisions of Section 349.10, supra, governing the respondent authority here....

...See State Road Department of Florida v. McCaffrey, [229 So.2d 668 (Fla. App. 1969)] supra; Stoebuck, supra at 765." * * * * * * "... In a situation of this kind where a portion of one's property and/or access rights to an existing road is taken for limited access road purposes, Section 338.04 as construed in the Anhoco case requires consideration by the jury of severance damages for loss of access rights." The court went on to point out in Stubbs that "access," as a property interest, does not include a right to traffic flo...

...True, there was still "access", although their property was placed in a "cul-de-sac" ( Stubbs, opinion page 3); but they were also deprived of a portion of their "access" directly by the taking. Furthermore, in both Stubbs and Anhoco the court emphasized that the takings were for "limited access facilities" under Section 338.04, Florida Statutes. In the Stubbs' opinion the court said: "In Florida, F.S., Section 338.04, F.S.A., provides for the taking of `private or public property and property rights for limited access facilities and service roads, including rights of access......

...Anhoco line of decisions. It is therefore clear that a distinction has been made in awarding or denying damages in the so-called "access" cases based upon whether the taking is or is not incident to construction of a "limited access facility" under Section 338.04, Florida Statutes....

...ed had the overpass been built according to the plans (as represented by the pleadings) before the courts in the injunction case. Lewis further contends that the overpass is a limited access facility and as such the Road Department is required under Section 338.04, F.S., F.S.A., to condemn the consequential rights of access, air, view and light....

Stubbs, 285 So.2d 1 (Fla.1973). Stubbs held that section 338.04, Florida Statutes (1971) mandates jury consideration

Highway 19. We think the court erred and reverse. Section 338.04, F.S.1971, first enacted in 1955, provides

...a limited access highway. The property owners’ position is that the source of the power is found in Fla.Stat. § 337.27 (1973), and that rest areas are not there specified. We need not decide that point as there is an alternate source, Fla. Stat. § 338.04 (1973), which empowers the acquisition of property for limited access facilities....

...ute and clear method of procedure rather than a muddy and uncertain standard for trial court use. In conclusion, we hold: 1. The Respondent has the authority to condemn property for use as a rest area incident to a limited access highway. Fla. Stat. § 338.04 (1973)....

simple title. Plaintiff notes that F.S.1967, section 338.-04, F.S.A., provides for the acquisition of property