CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1992 WL 301304
...ations cable along the CSX railroad right of way across their property without obtaining permission or paying compensation to them, and thus seek a determination that MCI has acted illegally and must remove its cable from the property. MCI relies on section 362.02, Florida Statutes, as authority for it to acquire from the railroad "the right to construct, maintain and operate lines of telegraph or telephone along and upon the right-of-way of any railroad in the state, and to that end is granted all powers for the exercise of the right of eminent domain......
...ed by both CSX and MCI. On rehearing, the Davises contend that the ouster of MCI from the right-of-way, as demanded by their Complaint for Unlawful Entry and Detention, is the only proper consequence of this Court's prior ruling that Florida Statute § 362.02 does not authorize commercial telecommunications use of a railroad right-of-way without payment of compensation to the underlying fee owners. This result necessarily follows, they contend, because no eminent domain or inverse condemnation procedure is available to supply the compensation element the Court found necessary to effectuate the Section 362.02 usage as so interpreted. Conversely, MCI sought reconsideration of the predicate ruling of law which rejected MCI's first affirmative defense the asserted sufficiency of Section 362.02, in and of itself, to authorize MCI's usage of the right-of-way for its telecommunications cable regardless of the ownership status of the underlying fee. MCI also sought leave to submit evidence that would supply an historical context for revisiting this question of law as it related to the practical purposes for the enactment of Florida Statute § 362.02 in 1903. Over the Davis' objections, *736 the Court authorized the parties to use ordinary discovery tools to develop proofs concerning the proper construction and practical affect of Section 362.02....
...[5] This was not an eminent domain proceeding, as initially determined; and in no way did the decree impair the railroad's right to maintain its right-of-way and track over the property in question; nor the concomitant rights of telecommunications interests under Florida Statute § 362.02. In contrast to this, the Court finds it determinatively significant that this railroad right-of-way has existed since 1863; was aided in its creation by the fledgling Florida government and federal government; was in place when the predecessor of Section 362.02 was enacted in 1903, and when the Davises began acquiring this land in 1905; and was occupied by Western Union's commercial telegraph lines for many decades before the Seaboard v....
...Acts of Congress in the 19th Century required railroads that had been granted right-of-way passage through United States lands to make their telegraph facilities broadly available for governmental, commercial and all other purposes. Likewise, the State of Florida by the "telegraph act" of 1903, now Florida Statute § 362.02 expressly authorized telecommunications lines in railroad rights-of-way....
...Until the filing of this action in 1988, there is no record nor apparently any family memory of any objection by Mr. Davis or his successors to Western Union's obvious presence in the right-of-way. This Court finds that this historical record is relevant to show the circumstances in which Florida Statute § 362.02 was enacted, and to show its usage for many years in the public interest it was enacted to secure....
...were most affected for many years: the railroads, the telegraph and telephone companies, the State, and the underlying owners of land interests up and down these rights-of-way. This record tends also to refute the Davises' claim that Florida Statute § 362.02, if construed to authorize MCI's use of the right-of-way, takes from the Davises a property interest that is protected from takings by the United States and Florida Constitutions. Ch. 5211, § 1, Florida Laws (1903), now Florida Statute § 362.02 (1989) (emphasis added) provided as follows: Any telegraph or telephone company now organized or which may hereafter be organized under the laws of this or any other state shall have the right to construct, along and upon the right-of-way o...
...Considering the language of the statute itself; its motivation by antecedent Acts of Congress; the uniform results the 1903 Act evidently intended throughout Florida; the damage that would be inflicted if disparity rather than uniformity were now to be judicially declared; and the practical construction that § 362.02 has received from the State, the railroads, and the affected public all these years; the Court can come but to one conclusion that Florida Statute § 362.02 fully warrants MCI's usage of this right-of-way easement without need for either consent by or compensation to underlying interests such as are held in this case by the Plaintiffs Davis....
...Judgment. This Court remains reluctant to give the judicially created "incidental use" theory initial effect in Florida. Hoffman v. Jones,
280 So.2d 431 (1973). The meaning and effect of the statute is another matter, however. Nothing in the text of §
362.02 suggests a legislative purpose to confine its effect only to railroad rights-of-way that are held in fee simple title....
...Union lines and poles extending for forty years across this railroad right-of-way through their lands. The additional burden is thus nominal or minimal at most. In accordance with these findings and analysis, the Court concludes that Florida Statute § 362.02 has effect to authorize Defendant MCI's usage of the right-of-way, as described; and that the demand of the Plaintiffs Davis for ouster or compensation should be denied....
...erved by discussing them in detail, as none of the points requires reversal of the judgment. We find no error in the trial court's ruling. We are particularly persuaded by the record showing that when the Davis family acquired this property in 1905, section 362.02 was in full force and effect and authorized telecommunications companies such as Western Union to place, with the railroad's consent, telegraph communication lines on poles and cross-bars erected along the railroad tracks to serve the communications needs of both the railroad and Western Union customers....
