509 So. 2d 1322 | Fla. Dist. Ct. App. | 1987
Florida Power Corporation was using a power line across certain land under
The Criggers also argue on this appeal that the extent of the taking should be the use the power company is actually making of the land and not an easement 100 feet wide. The trial court’s determination that the power company needs the 100 foot wide right of way to serve the public is based on evidence presented by the power company. The issue of the size of the easement and extent of the taking was presented by the Criggers in the second appeal and not reversed. Therefore, the trial court’s ruling was impliedly affirmed, became the law of the case and res judica-ta, is not properly the subject of a second challenge on this appeal, and it is affirmed.
The power company appropriated the balance of the 100 foot easement through an eminent domain action pursuant to chapter 74, Florida Statutes. To the extent that the 100 foot easement exceeds the seven-eighths interest in land in actual use previously appropriated by the power company from the Criggers on August 21, 1979, there was a new and additional “taking” of additional land with a new and different date of taking. Under section 74.061, Florida Statutes, for the purpose of computing compensation, the 100 foot wide easement was “taken” immediately upon the making of the good faith deposit required by sections 74.051(2) and (3), Florida Statutes, by the power company under the order of taking dated May 30,1984, which was the first of the two orders of taking entered herein.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
. Because the 100 foot right-of-way taken by formal direct eminent domain action in 1984 includes the August 21, 1979, "inverse” taking of the Criggers’ seven-eighths interest in the land actually being used by the power company, the compensation for both takings with their different dates of taking can be determined as follows:
*1324 (A) have the jury determine the full value of the power company's actual use of its power line over the Criggers’ property as of August 21, 1979.
(B) have the jury determine the full value of the 100 foot wide easement as of its date of taking in 1984.
The amount of compensation to be paid to the Criggers can then be computed in either of two ways:
(1) subtract the sum found in (A) from the sum found in (B), and to the difference add a sum equal to seven-eighths of (A) (being the value of the Criggers’ seven-eighths interest on August 21, 1979), or
(2) by awarding the Criggers the sum found in (B) reduced by a sum equal to one eighth of (A) (being the value of the power company’s rights on August 21, 1979 under the Lilly easement).