299 So. 2d 629 | Fla. Dist. Ct. App. | 1974
Dissenting Opinion
(dissenting).
I would reverse.
The plaintiff filed a second amended complaint for inverse condemnation to which the defendants filed no motion to dismiss. In due course the case was heard before the trial judge “upon a full and plenary hearing” for the stated purpose of the judge making a judicial determination as to whether or not there had been a taking, as a condition precedent to submitting the matter to the jury for the determination of the damages.
None of the parties have raised any procedural issues. The appellees simply argue in their briefs, and argued during .oral argument before this Court, that the damages sustained by the plaintiff-appellant occurred as a result of a single incident and that therefore the plaintiff’s remedy was in a tort action rather than inverse condemnation ; further asserting that sovereign immunity barred a tort action.
A reading of the record before us reveals that the appellees’ “single incident” contention simply is not in accordance with the evidence. While it is clear that there has been no total taking of the plaintiff’s property in that it has not been rendered totally useless for residential purposes, or otherwise; nevertheless the evidence is equally clear that the plaintiff’s damage, which is not really contradicted, resulted not from a single incident but from repeated and continued floodings and excessive moisture, all of which occurred since ap-pellees changed the grade of the road in front of appellant’s home. Every witness who testified and who had actual knowledge of the circumstances as they existed prior to the construction of the new road and subsequent thereto, testified without exception that prior to the construction of the new road there was a sandy road
The Department of Transportation called one “expert witness”, whose testimony was based exclusively on hearsay information and upon contour maps which were also based upon secondhand information. He testified as an expert that because of the contour of the land no water should or would be shed upon appellant’s property. However, he did not testify that he knew the condition of the property before the construction of the highway nor did he testify that the property is now as dry as it was before such construction. It is also interesting to note that appellees’ own witness, an engineer, testified that based upon the information received from this same “expert” (and by the use of his contour maps) the appellees, before constructing the highway, determined that it would not be necessary to construct ditches nor to install culverts in the vicinity of the appellant’s property because there would be no water shed to be diverted by such ditches and culverts; but that in truth and in fact during construction they discovered that such information was incorrect and it did indeed become necessary to construct such ditches and to install such culverts. Further, according to all of the witnesses who testified on the subject, the ditches and culverts have not fulfilled their purpose of diverting the watef entirely off of appellant’s property. It is apparent therefore that the expert’s initial conclusions were in error and there is no evidence that the basis of the initial conclusions were in any manner altered prior to his testimony in the case sub judice.
In short, every witness who testified as to actual knowledge of the condition of the property before and after construction of the new road stated that before construction appellant’s property was high, dry and habitable and that it is now wet and soggy with water standing under the house. The situation appears to be permanent and continuing and therefore is not a “single incident”.
I have not overlooked that the able trial judge, as trier of the facts, actually viewed the premises. We are not told whether that view took place in an extremely dry per:od or during a storm. However, in my view, it really makes no difference. When a trial judge is the trier of facts he stands in exactly the same posture as a jury. The purpose of a view is to assist the jury (the trier of the facts) to better understand, interpret and weigh the evidence that has been adduced: It does not have the purpose of allowing the trier of the facts to arrive at an independent determination. (Dade County v. Renedo, Fla. 1962, 147 So.2d 313, 1 A.L.R.3d 1391). Florida courts have consistently held that while the knowledge gained by the jury’s view of the property and its surroundings may be of assistance to them in interpreting and weighing the testimony of the witnesses, the questions of value and damage must be determined upon the evidence and not upon information gained by the view. (See 12 Fla.Jur., Eminent Domain, § 143 and the many cases there cited.)
It appears to me, therefore, that the trial judge, notwithstanding his personal view, was bound by the testimony of the several witnesses who appeared before him who had actual knowledge of the condition of appellant's property prior to the new construction and subsequent thereto. The testimony of those witnesses unequivocally establishes that appellant has been damaged and that the damage is constant and continuing in nature. It did not result, according to those witnesses, from a single incident. Accordingly, appellant properly brought her suit for inverse condemnation rather than on a theory of tort, barred by the doctrine of sovereign immunity, as urged by appellees.
Lead Opinion
This is an appeal from a final order in a suit for inverse condemnation holding there was no taking of appellant’s property.
Appellant contends that her property has been taken by appellees through flooding resulting from the reconstruction and paving of a former dirt road in front of her house. Appellant’s witnesses testified that her property has been flooded at times in the past and has been wetter since the construction than it was prior thereto. With the construction, appellees built ditches along the new road in front of appellant’s home and appellant testified the water does not overflow these ditches. The land appellant’s home rests upon is not flat but is sloping. Appellees offered to fix appellant’s driveway so that water will not run down it and into her yard from the road, but she declined the offer because it would cause a bump at the top of her driveway.
We have read the transcript of testimony, considered the photographs and maps admitted into evidence and the oral arguments of counsel for the respective parties. The order of the trial judge comes to us with a presumption that he ruled correctly. The evidence is conflicting. The trial judge was in the best position to evaluate and judge the credibility and weight to be accorded the testimony of the various witnesses. In addition, he viewed the property in question and had the benefit of such view in making his evaluation.
Affirmed.
