Why The SS Attorney For The U S Flushes The Constitution S Down His Toilet

THE PIMP BEHIND THE PROSTITUTES
“ANARCHY” BRIAN ALBRITTON
SS ATTORNEY FOR THE U.S.
PARODY OF LEGAL PERVERSIONS, “O.R. 569/875”
Naziland, Florida
Brian, why have anarchy and lawlessness become such a big thing:
“Criminally “claiming” “land” is good for the country and good for
U.S. business. Adolf Hitler did it extensively, and so do we as a
matter of policy. Let’s be patriotic here. It would be highly
unpatriotic to ever construe the Constitution in favor of pro se
Plaintiffs. Our lawyers must make a living, too.
When I pimp my whores, I tell them perversions make good
prostitutes. Yes, Jennifer is a sweet little thing, and she got that
natural talent. When I look into her eyes I see perversion and
prostitution written all over her body. You know she has been doing
a great job f…… these pro se Plaintiffs. All they are is an unpatriotic
pain in a pimp’s penis. Never forget these weapons of mass
deception:
Real Property Rule 1: “Judicial adjudication”, due process, and equal

protection are unpatriotic.
Real Property Rule 2: U.S. terror destroys titles. We call it operation

“oppression”. Oppression destroys ownership. You get the picture.
Real Property Rule 3: Record title and record ownership mean

nothing in the U.S. It would be un-American not to obstruct justice
and not to protect our Governmental gang members.
Have a nice day. Come and see us again here in Naziland.”
One last question “Anarchy” Brian: What are your most favorite and least
favorite books?
“Really, I don’t read that much. Pimping is a hard hands-on business,

no pun intended. If I catch my whores reading any of this precedent
stuff, I punish them real hard, no pun intended, and flush it down our
filthy toilet. Go in there and read the FLUSH NOW LIST:
• Florida Constitution
• U.S. Constitution
• Eminent Domain Statutes
• Marketable Record Title Act
• Hillsborough County v. Kensatt, 144 So. 393 (Fla. 1932)
• State Plant Board v. Smith, 110 So.2d 401 (Fla. 1959)
• Daniels v. State Road Dept., 170 So.2d 846 (Fla. 1964)
• Thursby v. Stewart, 138 So. 742 (Fla. 1931)
• Simmons v. State, 36 So.2d 207 (Fla. 1948)
• …. “
CRIMES OF CORINIS
FLORIDA ATTORNEY GENERAL LEGAL OPINION, AGO 78-125,

IN SUPPORT OF CRIMES BY FEDERAL DEFENDANTS AND THEIR
LAWYER JENNIFER “WHORE” CORINIS
SCANDAL OF GOVERNMENTAL SCAM “O.R. 569/875”:

NAZI STYLE TACTICS OF CRIMINAL “CLAIMS”
“The determination and adjudication of property rights is a judicial

function which may not be exercised by the legislative branches of
government…” Here, Lee County was not any judicial branch of
government and had absolutely no authority to “claim” land.
Here, the law prohibited Lee County, FL, and/or its governing body to
adjudicate any property rights. Here, the law did not recognize the hoax of
a “land” “claim” by Lee County.
Here vexatiously, the “Federal Defendants” deceived and perpetrated

fraud upon the Court.
I
SCAM “O.R. 569/875” WAS AN NVALID INVASION OF THE JUDICIARY
“It is a fundamental principal in this state that the determination and
adjudication of property rights is a judicial function which cannot be
performed by the Legislature. Hillsborough County v. Kensatt, 144 So. 393
(Fla. 1932); State Plant Board v. Smith, 110 So.2d 401 (Fla. 1959); Daniels
v. State Road Dept., 170 So.2d 846 (Fla. 1964). Legislation which
constitutes an invasion of the province of the judiciary is invalid. Thursby
v. Stewart, 138 So. 742 (Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla.
1948).”
Advisory Legal Opinion - Municipalities, vacation of streets and roads Page 5 of 6
right, title, or interest and all right of reversion shall be

barred and unenforceable.
With regard to the instant inquiry, therefore, it is apparent

that the Frostproof City Council does not 'own' streets which
have been dedicated to public use. Cf. AGO 078-118 in which this
office concluded that a county was not authorized to convey or
transfer ownership and control of dedicated streets to a
'homeowners association' since the county possessed no legal
title in the property which it could convey or transfer. Under
such circumstances, there would appear to be no legal basis upon
which the city could require abutting fee owners to pay to secure
property interests which they already possess. See McQuillin
Municipal Corporations s. 30.189, at 123 (3rd rev. ed. 1977),
stating: 'A municipality is not entitled to compensation for loss
of a public easement in streets in which it does not own the
fee.' Accord: Lockwood & Strickland Co. v. City of Chicago, 117
N.E. 81, 82 (Ill. 1917), in which the court held, among other
things:
[I]t would be beyond the power of the city to grant or convey to

a private person or corporation the ground embraced in a vacated
street or alley. Whether a city owns the fee in an alley or
merely an easement, when it is vacated because no longer needed
for public use, the law disposes of the reversionary interest,
and the reversionary rights cannot be granted or conveyed by the
city. . . . Whether the alley was no longer needed for public
use, and whether the public interest would be subserved by its
vacation, could not be made to depend on how much the city could
get for its action. The legislative powers of a city must be
exercised for the public benefit, but that does not authorize a
municipality to sell or bargain legislation as a means of
obtaining revenue.
The State Constitution provides that all natural persons shall have
the inalienable right 'to acquire, possess and protect property . .
..' Section 2, Art. I, State Const. Additionally, s. 9, Art. I, State
Const., provides that no person 'shall be deprived of . . . property
without due process of law . . ..' Section 6, Art. X, State Const.,
states that '[n]o private property shall be taken except for a public
purpose and with full compensation therefor . . ..' Thus, the
acquisition, possession, enjoyment, use, and alienation of property
and property rights are controlled by constitutional law and the
common law. Moreover, the term 'property' for purposes of the above-
cited constitutional provisions includes more than the abutting
landowner's fee simple title. As stated in Seldon v. City of
Jacksonville, 10 So. 457, 459 (Fla. 1891):
There is incident to abutting property, or its ownership, even
http://74.125.47.132/search?q=cache:4-iypP7OQ6MJ:myfloridalegal.com/ago.nsf/printvie... 4/30/2009
4/24/2010 Statutes & Constitution :Constitution : …
The Florida Constitution

CONSTITUTION
OF THE
STATE OF FLORIDA
AS REVISED IN 1968 AND SUBSEQUENTLY AMENDED
The Constitution of the State of Florida as revised in 1968 consisted of certain revised articles as proposed by
three joint resolutions which were adopted during the special session of June 24-July 3, 1968, and ratified by
the electorate on November 5, 1968, together with one article carried forward from the Constitution of 1885, as
amended. The articles proposed in House Joint Resolution 1-2X constituted the entire revised constitution with
the exception of Articles V, VI, and VIII. Senate Joint Resolution 4-2X proposed Article VI, relating to suffrage
and elections. Senate Joint Resolution 5-2X proposed a new Article VIII, relating to local government. Article V,
relating to the judiciary, was carried forward from the Constitution of 1885, as amended.
Sections composing the 1968 revision have no history notes. Subsequent changes are indicated by notes
appended to the affected sections. The indexes appearing at the beginning of each article, notes appearing at
the end of various sections, and section and subsection headings are added editorially and are not to be
considered as part of the constitution.
PREAMBLE
We, the people of the State of Florida, being grateful to Almighty God for our constitutional liberty, in order
to secure its benefits, perfect our government, insure domestic tranquility, maintain public order, and
guarantee equal civil and political rights to all, do ordain and establish this constitution.
ARTICLE I DECLARATION OF RIGHTS
ARTICLE II GENERAL PROVISIONS
ARTICLE III LEGISLATURE
ARTICLE IV EXECUTIVE
ARTICLE V JUDICIARY
ARTICLE VI SUFFRAGE AND ELECTIONS
ARTICLE VII FINANCE AND TAXATION
ARTICLE VIII LOCAL GOVERNMENT
ARTICLE IX EDUCATION
ARTICLE X MISCELLANEOUS
ARTICLE XI AMENDMENTS
www.leg.state.fl.us/Statutes/index.cfm… 1/104
(c) The governor shall appoint all commissioned officers of the militia, including an adjutant general who
shall be chief of staff. The appointment of all general officers shall be subject to confirmation by the senate.
(d) The qualifications of personnel and officers of the federally recognized national guard, including the
adjutant general, and the grounds and proceedings for their discipline and removal shall conform to the
appropriate United States army or air force regulations and usages.
SECTION 3. Vacancy in office.--Vacancy in office shall occur upon the creation of an office, upon the death,
removal from office, or resignation of the incumbent or the incumbent's succession to another office,
unexplained absence for sixty consecutive days, or failure to maintain the residence required when elected or
appointed, and upon failure of one elected or appointed to office to qualify within thirty days from the
commencement of the term.
History.--Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary
of State May 5, 1998; adopted 1998.
SECTION 4. Homestead; exemptions.--
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution
shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the
purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on
the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous
land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent
inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land,
upon which the exemption shall be limited to the residence of the owner or the owner's family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except
the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real
estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married,
may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is
incompetent, the method of alienation or encumbrance shall be as provided by law.
History.--Am. H.J.R. 4324, 1972; adopted 1972; Am. H.J.R. 40, 1983; adopted 1984; Am. proposed by
Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998;
adopted 1998.
SECTION 5. Coverture and property.--There shall be no distinction between married women and married
men in the holding, control, disposition, or encumbering of their property, both real and personal; except that
dower or curtesy may be established and regulated by law.
SECTION 6. Eminent domain.--
(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to
each owner or secured by deposit in the registry of the court and available to the owner.
ARTICLE XII SCHEDULE
ARTICLE I
DECLARATION OF RIGHTS
SECTION 1. Political power.
SECTION 2. Basic rights.
SECTION 3. Religious freedom.
SECTION 4. Freedom of speech and press.
SECTION 5. Right to assemble.
SECTION 6. Right to work.
SECTION 7. Military power.
SECTION 8. Right to bear arms.
SECTION 9. Due process.
SECTION 10. Prohibited laws.
SECTION 11. Imprisonment for debt.
SECTION 12. Searches and seizures.
SECTION 13. Habeas corpus.
SECTION 14. Pretrial release and detention.
SECTION 15. Prosecution for crime; offenses committed by children.
SECTION 16. Rights of accused and of victims.
SECTION 17. Excessive punishments.
SECTION 18. Administrative penalties.
SECTION 19. Costs.
SECTION 20. Treason.
SECTION 21. Access to courts.
SECTION 22. Trial by jury.
SECTION 23. Right of privacy.
SECTION 24. Access to public records and meetings.
SECTION 25. Taxpayers' Bill of Rights.
SECTION 26. Claimant's right to fair compensation.
SECTION 27. Marriage defined.
SECTION 1. Political power.--All political power is inherent in the people. The enunciation herein of certain
rights shall not be construed to deny or impair others retained by the people.
SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have
inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be
rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance,
disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by
law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
History.--Am. S.J.R. 917, 1974; adopted 1974; Am. proposed by Constitution Revision Commission, Revision
No. 9, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
SECTION 3. Religious freedom.--There shall be no law respecting the establishment of religion or prohibiting
or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public
morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be
taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid
of any sectarian institution.
SECTION 4. Freedom of speech and press.--Every person may speak, write and publish sentiments on all
subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the
liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be
given in evidence. If the matter charged as defamatory is true and was published with good motives, the party
shall be acquitted or exonerated.
SECTION 5. Right to assemble.--The people shall have the right peaceably to assemble, to instruct their
representatives, and to petition for redress of grievances.
SECTION 6. Right to work.--The right of persons to work shall not be denied or abridged on account of
membership or non-membership in any labor union or labor organization. The right of employees, by and through
a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the
right to strike.
SECTION 7. Military power.--The military power shall be subordinate to the civil.
SECTION 8. Right to bear arms.--
(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the
state shall not be infringed, except that the manner of bearing arms may be regulated by law.
(b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the
purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer
of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried
and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in
Florida law shall not be subject to the provisions of this paragraph.
(c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than
December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a
felony.
(d) This restriction shall not apply to a trade in of another handgun.
History.--Am. C.S. for S.J.R. 43, 1989; adopted 1990.
SECTION 9. Due process.--No person shall be deprived of life, liberty or property without due process of law,
or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against
oneself.
SECTION 10. Prohibited laws.--No bill of attainder, ex post facto law or law impairing the obligation of
contracts shall be passed.
SECTION 11. Imprisonment for debt.--No person shall be imprisoned for debt, except in cases of fraud.
SECTION 12. Searches and seizures.--The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures, and against the unreasonable interception of private
communications by any means, shall not be violated. No warrant shall be issued except upon probable cause,
supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or
things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right
shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by
the United States Supreme Court. Articles or information obtained in violation of this right shall not be
admissible in evidence if such articles or information would be inadmissible under decisions of the United States
Supreme Court construing the 4th Amendment to the United States Constitution.
History.--Am. H.J.R. 31-H, 1982; adopted 1982.
SECTION 13. Habeas corpus.--The writ of habeas corpus shall be grantable of right, freely and without cost.
It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invasion,
suspension is essential to the public safety.
SECTION 14. Pretrial release and detention.--Unless charged with a capital offense or an offense
punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person
charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on
reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical
harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the
accused may be detained.
History.--Am. H.J.R. 43-H, 1982; adopted 1982.
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Florida Attorney General

Advisory Legal Opinion
Number: AGO 78-125
Date: October 24, 1978
Subject: Municipalities, vacation of streets and roads
David B. Higginbottom
City Attorney
Frostproof
QUESTION:
Is a municipality authorized by law to require abutting landowners

who request vacation of a public street to prove a revesionary
interest in the property and pay for the proportionate costs of an
appraisal and for the proportionate appraised value of such property
interest as conditions to the vacation?
SUMMARY:
A municipality possesses no authority under the Municipal Home Rule

Powers Act to require property owners whose land abuts a dedicated
public street to 'prove a reversionary interest' or any other
property interest or property right in the streetbed prior to and as
a condition to the vacation of such street. The determination and
adjudication of property rights is a judicial function which may not
be exercised by the legislative branches of government; hence any
such exercise by a municipality does not constitute a lawful exercise
of a municipal governmental power for a municipal purpose. In
addition, while the vacation of streets in the public interest or
when the streets are no longer required for public use is a
legislative function which may be performed by a municipality, a
municipality possesses neither statutory nor constitutional authority
to exact payment for or otherwise interfere with the property rights
of landowners whose property abuts a public street as conditions to
or in exchange for the exercise of its power to vacate streets no
longer required for public use.
Your letter advises that the Frostproof City Council has adopted a
'motion' which reads as follows:
[I]n the future a qualified appraiser [shall] be used by the city

to set the value of a street (to become property) when requested
for closure. The person or persons making the request would have
to bear the expense of the appraisal and proof of a reversionary
clause. They would be notified and bills [sic] for the appraised
property value before actual closing of the street could take
place. Payment to be made on date of actual closing.
Section 2(b), Art. VIII, State Const., provides in pertinent part:
Municipalities shall have governmental, corporate and proprietary

powers to enable them to conduct municipal government, perform
municipal functions and render municipal services, and may
exercise any power for municipal purposes except as otherwise
provided by law. (Emphasis supplied.)
Statutory implementation of the broad grant of home rule is provided

by Ch. 166, F. S., the Municipal Home Rule Powers Act. Section
166.051(1), F. S., of that act states in relevant part that
'municipalities . . . may exercise may power for municipal purposes,
except when expressly prohibited by law.' (Emphasis supplied.) Thus,
it is clear that the only limitation upon the exercise of power by a
municipality is that it must be exercised for a municipal purpose.
State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla. 1977).
Although the phrase 'municipal purposes' is not defined by the

constitution, it is defined by s. 166.021(2), F. S., as 'any activity
or power which may be exercised by the state or its political
subdivisions.' But see City of Miami Beach v. Forte Towers, Inc., 305
So.2d 764, 765-769 (Fla. 1974) (Dekle, J., concurring), in which
Justice Dekle observed:
It is not the definition of municipal purposes found in . . . s.

166.021(2) that grants power to the municipality . . . but rather
the provision of . . . s. 166.021(1) which expressly empowers
municipalities to 'exercise any power for municipal purposes,
except when expressly prohibited by law.'
It is a fundamental principal in this state that the determination

and adjudication of property rights is a judicial function which
cannot be performed by the Legislature. Hillsborough County v.
Kensatt, 144 So. 393 (Fla. 1932); State Plant Board v. Smith, 110
So.2d 401 (Fla. 1959); Daniels v. State Road Dept., 170 So.2d 846
(Fla. 1964). Legislation which constitutes an invasion of the
province of the judiciary is invalid. Thursby v. Stewart, 138 So. 742

(Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla. 1948). Thus, while
the vacation of streets is a legislative function which may be
validly delegated to municipalities (see Sun Oil Company v. Gerstein,
206 So.2d 439, 440 (3 D.C.A. Fla., 1968), AGO 075-171), no
legislative body (whether state, county, or municipal) is authorized
to invade private property rights or require abutting property owners
to prove a reversionary or any other interest in real property as a
condition to the vacation of a public street. Accordingly, the action
taken by the Frostproof City Council does not constitute a municipal
purpose; and, therefore, it is outside the scope of municipal home
rule powers possessed by the municipality.
Moreover, under the general rule, the interest acquired in land by a

municipal corporation for street purposes is held in trust for the
benefit of all the public, regardless of whether the corporation owns
the fee or has merely an interest therein. Sun Oil Company v.
Gerstein, supra; 30 Am. Jur.2d Highways Streets and Bridges s. 159. A
municipality is empowered to vacate streets only when the vacation is
in the public interest or when the street is no longer required for
public use and convenience. 64 C.J.S. Municipal Corporations s. 1668.
Consequently, in AGO 078-118, I noted, as a caveat, with respect to
the vacation of county roads:
[I]f the general public is using the roads and streets in

question (including public service vehicles such as garbage
trucks, police, fire or emergency vehicles), then the county
should not close or vacate the roads or streets in question as
such vacation would be injurious to the public welfare or violate
individual property rights.
Applying these principles to your inquiry, it is clear that the

city council should not undertake to vacate any streets in the
absence of a determination that the general public would benefit
from the vacation or that such streets are no longer required for
the public use and convenience.
As to whether a municipality is authorized to exact charges or

payments from abutting landowners as a condition to or in
exchange for the vacation of a public street, it is necessary to
analyze the property interests possessed by the public and the
abutting or adjoining landowners in public streets.
Recently, in AGO's 078-63, 078-88, and 078-118, I examined the

elements and effect of the dedication of property for public use.
There are two basic requirements to the existence of a valid
dedication to the public. First, there must be a clearly
manifested intention by the owner of the property to dedicate it
to public use. Second, the public, through its authorized agents,
must clearly show its intent to accept the dedication. City of
Miami v. Florida East Coast Railway Co., 84 So. 726 (Fla. 1920);
Roe v. Kendrick, 200 So. 394 (Fla. 1941). An offer of dedication
to the public may be accomplished by making and recording a plat
and selling lots with reference thereto. See, e.g., Florida East
Coast Railway Co. v. Worley, 38 So. 618 (Fla. 1905); Miami Beach
v. Undercliff Realty and Investment Co., 21 So.2d 783 (Fla.
1945); and see, s. 177.081, F. S.
However the dedication to the public is accomplished, it is clear

that such dedication does not have the effect of transferring
legal title from the grantor to the public. To the contrary, the
fee remains in the grantor (or his grantees) while the public
acquires only a right of easement in trust, so long as the
dedicated land is used for the intended purpose of the
dedication. Attorney General Opinion 078-118. Unless otherwise
specifically provided in the conveyance, the legal title of the
grantor in the dedicated property passes to the grantees of those
lots sold with reference to a plat, which lots abut the dedicated
streets. Their title extends to the center of the street subject
to the public easement. Walker v. Pollack, 74 So.2d 886 (Fla.
1954); Smith v. Horn, 70 So. 435 (Fla. 1915); New Fort Pierce
Hotel Co. v. Phoenix Tax Title Corp., 171 So. 525 (Fla. 1936);
United States v. 16.33 Acres of Land in County of Dade, 342 So.2d
476, 480 (Fla. 1977); cf. Emerald Equities v. Hutton, 357 So.2d
1071 (2 D.C.A. Fla., 1978). Therefore, a street in which the
public has only an easement when properly vacated ceases to be a
street; the abutting landowners continue to hold fee simple title
to the center of the vacated roadbed unencumbered by the
easement. Smith v. Horn, supra; Robbins v. White, 42 So. 841,
843-844 (Fla. 1907); AGO 078-118.
See also s. 177.081(1), F. S., providing that every plat of a

subdivision filed for record must contain a dedication by the
developer; s. 177.081(2), F. S., providing that all streets,
rights-of-way, and public areas shown on plats approved by the
affected local governments shall be deemed dedicated to the
public for the uses and purposes stated in such plat, unless
otherwise stated therein by the dedicator; s. 177.085(1), F. S.,
providing that when any landowner subdivides his land and
dedicates streets or roadways on the plat but reserves unto the
dedicator the reversionary interests in the dedicated streets or
roadways, and thereafter conveys abutting lots, such conveyance
carries with it the reversionary interest in the abutting street
to the center line, unless the landowner clearly provides
otherwise in the conveyance; and s. 177.085(2), F. S., providing
that prior holders of any interest in the reversionary rights in
the streets and roads in recorded plats of subdivided lots, other
than the owners of abutting lots, 'shall have 1 year from July 1,
1972, to institute suit . . . to establish or enforce the right,'
and that, if no such action is instituted within that time, any


things:

obtaining revenue.
where the abutter's fee or title does not extend to the middle of
the street, but only to its boundary, certain property rights
which the public generally do not possess. They are the right of
egress and ingress from and to the lot by the way of the street,
and the right of light and air which the street affords. Viewing
property to be not the mere corporal subject of ownership, but as
being all the rights legally incidental to the ownership of such
subject, which rights are generally said to be those of user,
exclusion, and disposition, or the right to use, possess, and
dispose of, . . . we are satisfied that the rights just mentioned
are within the meaning of the word 'property,' as it is used in
this constitutional provision. [10 So. 457, 459 (1891)
(construing s. 12, Declar. Rts., State Const. 1885, in part a
predecessor of s. 6, Art. X, State Const.).]
See also Lutterloh v. Mayor and Council of Town of Cedar Keys, 15

Fla. 306, 308 (1875); City of Miami v. East Coast Ry. Co. , 84 So.
726, 729 (Fla. 1920); McCorquodale v. Keyton, 63 So.2d 906 (Fla.
1956); Monell v. Golfview Road Association, 359 So.2d 2 (4 D.C.A.
Fla., 1978).
Accordingly, it has been held that the rights of abutting or adjacent

purchasers depend on principles of law applicable to private property
rather than public dedication since these rights depend upon a
'private easement implied from sale with reference to a plat showing
streets [etc.]' rather than upon any dedication to the public
generally. Burnham v. Davis Islands, Inc., 87 So.2d 97, 100 (Fla.
1956). An abutting landowner may be entitled to compensation from a
public body when it vacates a public street for consequent loss of
access to such landowner's property on the theory that a property
right has been taken without compensation. See Pinellas County v.
Austin, 323 So.2d 6, 8 (2 D.C.A. Fla., 1975). If follows, then, that
the several property interests of abutting landowners are subject to
constitutional protection. Clearly the attempt by a municipality to
usurp private property rights or property interests or to barter or
sell such property rights as conditions to or in exchange for the
exercise of its legislative power to vacate streets no longer
required for public use, does not constitute a municipal purpose and
is outside the scope of municipal home rule powers.
Prepared by:
Patricia R. Gleason
Assistant Attorney General
4/24/2010 Re-Made Man
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Re-Made Man
By Mark Gordon | Managing Editor - Thursday, March 05, 2009
Brian Albritton, one of the Gulf Coast’s preeminent

experts in defending those charged with white-collar
crimes, has moved to the other table: Prosecution.
On a midnight drive from Tampa to West Palm Beach a few years ago, A. Brian
Albritton was holding court on one of his favorite topics: 20th century German
philosophy.
Albritton and a passenger, a fellow attorney and colleague, were engaged in a vigorous
debate about deep thinkers such as Karl-Otto Apel and Hans-Georg Gadamer. While the
pitch-black chatter bored the duo’s legal assistant sitting in the backseat to tears, the
debate was so spirited that they forgot to pull over for gas. By the time they got to the East
Coast, they were riding without air conditioning and going easy on the gas pedal to
conserve fuel.
It was vintage Albritton.
His friends, colleagues and former employers tell similar stories. No matter the task or
cause, Albritton goes into it with an all out high-quotient of passion, relentlessness and
academic fortitude. That goes from attending punk-rock concerts with his teenage sons to
cooking for Billy Graham while attending divinity school to cracking courtroom one-liners.
“You cannot be around Brian without being impressed with his sincerity,” says Bill
Hamilton, an attorney with Holland & Knight in Tampa that has known and worked with
http://74.125.45.132/search?q=cache:… 1/6
Albritton since 1993. “And he immediately makes his intellectual prowess felt.”
Now the citizens and businesses of the counties on the Gulf Coast, not to mention 20-
something other counties in the state, from Naples to the Florida-Georgia border, are about
to get a taste of Albritton, 51.
That’s because the Tampa native and graduate of New College in Sarasota was recently
sworn in as U.S. Attorney for the Middle District of Florida, the largest of the three
Sunshine State federal court districts. It’s also one of the largest judicial districts in the
Southeast in terms of land mass and population.
Reverse approach
The appointment is unique for several reasons beyond Albritton’s qualifications and
background. For starters, Albritton is one of the only U.S. Attorneys out of 94 nationwide
to be nominated under the Bush Administration and retained — so far — under the Obama
Administration.
Indeed, the appointment was apolitical, or at least as non-partisan as a Washington D.C.

appointment can be.
Albritton, a registered Republican, says he’s not politically active and unlike several other
U.S. Attorneys nationwide, his appointment isn’t a reward for fundraising or knowing the
right people. U.S. Sens. Mel Martinez and Bill Nelson, a Republican and a Democrat,
respectively, jointly picked Albritton for the nomination after a committee appointed by the
senators vetted his background last summer.
The process weaved its way through Washington, where the full Senate swore Albritton in
Oct. 15. Standing in the Senate chambers that day was a real aw-shucks moment for
Albritton, who replaces Robert O’Neil, a veteran federal prosecutor who filled in as interim
U.S. Attorney for about a year.
“It is really kind of simple,” says Albritton. “There was a need and I thought I could
contribute. I didn’t do it for politics.”
The appointment, however, is also somewhat unusual for its career trajectory. To accept
the U.S. attorney position, Albritton gave up a big salary at Holland & Knight, where he
was a litigation partner for 18 years, specializing in white-collar criminal defense and patent
and trademark infringement cases. Many times in the legal profession, that career move
goes the other way, when a young prosecutor becomes a defense attorney, usually to make
more money.
Albritton is taking the reverse approach, which makes sense to many who know him.
“Brian is an extremely knowledgeable, experienced and fair-minded attorney,” says Brad
Kimbro, an executive partner at Tampa-based Holland & Knight. “He is the consummate
professional.”
Cooking a future
In the early and mid-1970s, however, Albritton was the consummate wanderer, trying to
figure out what to do with his life.
When he was 16, after just one year at Plant City High School in Hillsborough County,
Albritton left the area on a hitchhiking trip. He ended up in Colorado, where he took some
college classes at a branch of U.S. International University.
The experience opened up Albritton to what has become his life-long pursuit of
challenging himself intellectually. He soon came back home and in 1975 he found just the
place for his burgeoning curiosity: New College in Sarasota.
The school was known for its wide variety of philosophy-related class offerings and its
aversion to letter grades as opposed to the overall learning experience.
Albritton got a job as a short order cook at Cafe L’Europe on St. Armand’s Circle while
attending New College. The sous-chef down the line from him was Raymond Arpke, who
now owns Euphemia Haye, a prominent restaurant on Longboat Key.
Arpke chuckles at the thought of Albritton becoming a distinguished attorney in charge of

prosecuting federal crimes in 35 Florida counties. Not that Arpke thought Albritton wasn’t
capable of doing anything he wanted in life, but it’s a long way from long hair dude
smoking filter-less cigarettes — two Albritton staples of the ’70s.
“Back then,” says Arpke, “he called himself an existentialist.”
After graduating New College, Albritton headed to Harvard Divinity School, where he
earned a Master’s degree in theological studies. He says he enrolled in the program to learn
about religion, not to become ordained. And in the process, he used his newfound
cooking skills to get a job in the school’s kitchen.
That led to a job helping to prepare meals for a diverse group of visitors, including Billy
Graham and the Dalai Lama’s support staff.
Divinity school led to law school; Albritton eared his JD degree from Boston College Law
School in 1988. After a two-year stint as a clerk for U.S. Middle District of Florida Judge
William Terrell Hodges in Tampa, Albritton took a position with Holland & Knight.
Top-secret clearance
Returning to Tampa brought back a childhood love for Albritton: Cycling. After years of
being off the bike, Albritton went back at it with the same vigor he displays in the
courtroom. Says Albritton: “I’m wild about cycling.”
He owns a Roubaix, a carbon road bike that can cost up to $3,000 and he can be seen
pedaling it around South Tampa or St. Petersburg on most weekends for his 50- or 60-
mile rides. He recently brought the bike to Tallahassee, where in between visiting his mom
he rode around the state capital.
While Albritton says his clerkship with Judge Hodges was his most formative in the law, it
was at Holland & Knight where he grew into his own as a lawyer.
Albritton’s major cases included serving as the lead defense attorney for Jeffrey Rondeau,
a U.S. Army Sergeant charged with treason-related offenses in the early 1990s. Rondeau, a
onetime Tampa resident stationed in Germany, was accused of giving away Army and
other U.S. government secrets to the Czechoslovakian government.
In preparing a defense for Rondeau, Albritton traveled to Germany, where he interviewed

other alleged conspirators, a trip that involved receiving top-secret clearance from the U.S.
military. Rondeau pled guilty to some of the charges and was sentenced to 18 years in
prison in 1994. “That was my first big case,” says Albritton.
Closer to home, Albritton worked as lead defense counsel on dozens of cases, many of
which carried a theme of protecting or restoring reputations.
In the summer of 1998, for instance, Albritton represented Secily Wilson, a TV news
reporter for the Tampa Fox affiliate. Wilson was accused of kicking and scratching a
Florida Highway Patrol trooper while resisting arrest after being pulled over for speeding.
A Sumter County jury acquitted Wilson of the charges and she later won a civil suit in the
case.
But the majority of Albritton’s criminal defense work, which focused on representing
businesses and executives, was about staying out of a courtroom. He was constantly
working behind the scenes for his clients, talking with prosecutors and investigators to try
to prevent an investigation from turning into an indictment.
“Because an indictment can put a company out of a business,” says Albritton, even if the
case is won in a courtroom.
The courtroom, when Albritton does get there, is another place he has shown himself to
rise above the standard attorney. Both colleagues and those who sat in opposition praise
Albritton’s work ethic and deep understanding of a case and the pertinent case law.
But to John Guard, a Holland & Knight attorney who considers Albritton a mentor, the
U.S. Attorney’s best courtroom moves are his one-liners. “He has kind of got a real dry
sense of humor,” Guard says. “He can shift the mood of the courtroom.”
Growing caseload
The more serious business facing Albritton is the challenge of running the prosecutions of
the Middle District of Florida, a diverse collection of agencies, departments and
bureaucrats. He oversees more than 100 attorneys that are broken into criminal, civil and
appellate divisions.
Albritton has recently begun traveling the district for law enforcement listening breakfasts,
where any department that might come into contact with his office sends a liaison. It’s a
packed room at each stop, with everyone from county sheriff’s deputies working on joint
federal-local investigations to U.S. immigration and drug enforcement agents.
Albritton’s chief task is to prosecute crimes during a time when the office is in a growth
spurt. The district prosecuted 1,384 cases in 2008, a 19% increase over the 1,163
prosecutions in 2007.
In Albritton’s four months in the office, those prosecutions have been varied. The list
includes the continuation of pursuing defendants in an $82 million mortgage loan fraud that
originated in Sarasota to recently indicting eight alleged violent gang members in Pasco
county on federal gun and drug charges.
Albritton says that so far he is just trying to keep up with O’Neil, the interim U.S. Attorney
he took over for who now runs the office’s criminal division. But in keeping with the times
of the day, Albritton foresees an increase coming in investigations and prosecutions in two
specific areas — mortgage fraud and white-collar prosecutions.
Consider it a warning from the former longhaired existentialist turned bike-toting top
prosecutor.
“He is a renaissance man,” says Hamilton, the Holland & Knight attorney who debated
20th century German philosophy with Albritton on the midnight car ride. “It’s an overused
expression, but it really fits Brian.”
REVIEW SUMMARY
Individual. A. Brian Albritton, U.S. Attorney, Middle District of Florida.
Location. The Middle District of Florida covers 35 Sunshine State counties, including the
entire Gulf Coast region.
Key. Albritton is the fourth U.S. Attorney for the district since 2002, but the second to be
presidentially appointed and not serving on an interim basis.
U.S. Attorney’s Office,

Middle District of Florida
The U.S. Attorney’s Office for the Middle District of Florida covers 35 counties in the
state. The headquarters is in Tampa and it has four regional offices, including one in Fort
Myers.
A. Brian Albritton, who was sworn in as the district’s lead attorney in October, is the
fourth U.S. Attorney to run the office since 2002. The others:
• Paul Perez: Appointed by President Bush in March, 2002. Perez resigned in March 2007
to accept a position as chief compliance officer with Jacksonville-based insurance firm
Fidelity National Financial. Perez left his position the same day former U.S. Attorney
General Alberto Gonzales came under criticism for his role in firing eight federal
prosecutors in other states. Perez said his resignation was for personal reasons and not
related to that controversy;
• Jim Klindt: The first assistant under Perez. He was named Acting U.S. Attorney after
Perez left and held the position for eight months, until he was named a magistrate judge in
Jacksonville;
• Robert O’Neil: The first assistant under Klindt and a longtime criminal prosecutor in the
office. O’Neil held the interim U.S. Attorney position for a year, beginning in October,
2007. O’Neil is now the head of the district’s criminal prosecution division.
Case 2:09-cv-00791-CEH-SPC Document 159 Filed 04/21/10 Page 1 of 7
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JENNIFER FRANKLIN PRESCOTT,

DR. JORGE BUSSE,
Plaintiffs,
v. Case No. 2:09-cv-791-FtM-36SPC
ROGER ALEJO; KENNETH M. WILKINSON; JACK N. PETERSON; ROGER

DESJARLAIS; LEE COUNTY, FLORIDA; LEE COUNTY VALUE
ADJUSTMENT BOARD; LORI L. RUTLAND; STATE OF FLORIDA, BOARD
OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND; STATE
OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; CHAD
LACH; CHARLES -BARRY- STEVENS; REAGAN KATHLEEN RUSSELL;
KAREN B. HAWES; ROGER DESJARLAIS; CHARLIE GREEN; BOB JANES;
BRIAN BIGELOW; RAY JUDAH; TAMMY HALL; FRANK MANN; UNITED
STATES ATTORNEY(S); SEAN P. FLYNN; E. KENNETH STEGEBY; DAVID P.
RHODES; A. BRIAN ALBRITTON; CYNTHIA A. PIVACEK; JOHNSON
ENGINEERING, NC.; STEVEN CARTA; MIKE SCOTT; HUGH D. HAYES;
GERALD D. SIEBENS; STATE OF FLORIDA ATTORNEY GENERAL
WILLIAM M. MARTIN; PETERSON BERNARD; SKIP QUILLEN; TOM
GILBERTSON,
__________________________________/
FEDERAL DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
The United States of America, by and through the undersigned Assistant United
States Attorney, and on behalf of the named defendants A. Brian Albritton, U.S.
Attorney for the Middle District of Florida, and David P. Rhodes, Sean P. Flynn, and E.
Kenneth Stegeby, Assistant U.S. Attorneys for the Middle District of Florida (the “USAO
Defendants”), submits their Opposition to Plaintiffs’ Motion for Summary Judgement
Against Defendant U.S. Attorneys, Notice of Case Fixing & Corruption on Record and
Conspiracy of Corruption by “Legal Whores” Chappell & Corinis, Notice of Criminal

Concealment of Forged Parcel 12-44-2D-0I-00000.00A0 (“Motion for Summary
Judgment”).
Plaintiffs’ Motion should be denied in all respects. The Plaintiffs has fallen far
short of demonstrating that they are entitled to summary judgment.
STATEMENT OF UNDISPUTED FACTS
As it pertains to the USAO Defendants, Plaintiffs’ Complaint includes claims
against the USAO Defendants for fraudulent concealment, material misrepresentation,
conspiracy, and obstruction of justice, based on the USAO Defendants alleged
conspiracy to conceal, and to further, the Lee County defendants’ scheme to deprive
Plaintiffs of their property rights. Busse VII Complaint ¶¶ 222-230. The “evidence” that
Plaintiffs cite to support their concusory allegations of fraud and conspiracy by the
USAO Defendants is that a 1969 Lee County resolution was forged. The only other
pertinent fact appears to be that the USAO Defendants diagree with the Plaintiffs’
position.
In their Motion, the Plaintiffs claim to be entitled to summary judgment against
the USAO Defendants on the issues in their Compalint for two reasons, as described in
their prayer for relief:
An order for Summary Judgment against said Defendant U.S. Attorneys

under FRCP 56, because said forgeries were “no genuine issue as to any
material fact”, and because Defendants never answered and/or defended
against the conclusively proved allegations in Plaintiffs’ Complaint.
Motion, p. 29.1
1
The majority of Plaintiffs’ so-called “summary judgment” motion consists of accusations
against Magistrate Judge Chappell of a laundry list of misdeeds, all of which have been
repeated ad nauseam, using scandalous and impertinent language, in Plaintiffs’ filings. These
allegations do not pertain to the USAO Defendants.
2
ARGUMENT
I. PLAINTIFFS FAIL TO ESTABLISH ENTITLEMENT TO SUMMARY

JUDGMENT UNDER RULE 56
Plaintiffs’ Motion for Summary Judgment makes no effort to comply with the
basic requirements of such a motion under Fed. R. Civ. P. 56. To prevail on a motion
for summary judgment, the moving party must establish that “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, show
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden
of identifying those portions of the pleadings, depositions, answers to interrogatories,
admissions, and/or affidavits which it believes demonstrate the absence of a genuine
issue of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. Northern Crossarm
Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004). While the court is required to “make
all reasonable inferences in favor of the party opposing summary judgment,” it is not
required to make all possible inferences in the non-moving party's favor. Chapman v.
Al Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Whether a fact is material
is dictated by the substantive law underlying the moving party’s claims. Celotex, 477
U.S. at 323 (“The substantive law applicable to the claimed causes of action will identify
which facts are material.”)
If a moving party properly makes a summary judgment motion by demonstrating
the absence of a genuine issue of material fact, the non-moving party must “go beyond
the pleadings through the use of affidavits, depositions, answers to interrogatories and
3
admissions on file, and designate specific facts showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324.
Here, Plaintiffs have failed to establish that there are any facts in the record that
are material, let alone that there are undisputed material facts. Conclusory statements
cannot pass for “facts” in a summary judgment motion.
B. Plaintiffs’ Motion Fails to Establish Any Material Facts
The “facts” Plaintiffs’ cite in their brief are not facts at all; rather, the facts consist
of Plaintiffs’ insistence that a 1969 Lee County document is a forgery, and that all
defendants know that it is a forgery:
there was no genuine issue as to any material fact, because

Governmental forgeries “D.R. 569/875" and “12-44-20-01-00000.00A0”
were contrary to Florida and Federal law and null and void from the outset.
The fake legal descriptions in said forgeries never existed, Plat Book 3,
Page 25 (1912).
It is not, however, an established fact that the document is forged or invalid. Plaintiffs
make no effort to cite to anything in the record -- other than their own statements -- to
establish any facts, material or otherwise. Thus, the Plaintiffs cannot meet their burden
to establish that there is no genuine issue as to any material fact, and summary
judgment must be denied. Celotex, 477 U.S. at 322.
C. Plaintiffs Are Not Entitled to Judgment as a Matter of law
Plaintiffs fail to state any cognizable legal arguments in support of their
conclusory allegations against the USAO Defendants. For example, they fail to plead
even the bare minimum required to state a claim for fraud. Allegations of fraud must
satisfy the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil
Procedure Rule 9(b), which requires that “a party must state with particularity the
4
circumstances constituting fraud.” Fed.R.Civ.P. 9(b). Likewise, Plaintiffs must plead
with particularity that the parties to an alleged conspiracy knew of the conspiracy and
agreed to commit fraud. See Tippens v. Round Island Plantation, L.L. C., No.
09-CV-14036, 2009 WL 2365347, at *5 (S.D.Fla. July 31, 2009). Plaintiffs’ allegations
of misrepresentation and obstruction of justice are stated in conclusory fashion, with
absolutely no support. In addition to their failure to establish the absence of a disputed
genuine issues of material fact (or any fact), Plaintiffs can point to no issue of law on
which they would be entitled to judgment, even if they did produce material facts (which
they have not).
D. Waiver
Finally, the Plaintiffs’ argument that the USAO Defendants somehow “waived”
their defenses against the Plaintiffs’ Complaint is nonsense. The USAO Defendants
timely filed a motion to dismiss premised on absolute immunity, res judicata, and
frivolousness. That motion is pending. There has been no waiver. Plaintiffs’ argument
on this point should be rejected, along with the other arguments Plaintiffs raise in
support of their Motion for Summary Judgment.
CONCLUSION
In light of the foregoing, the USAO Defendants submit that this Court should
deny plaintiffs’ Motion for Summary Judgment in all respects. Additionally, the USAO
Defendants respectfully renews their request that this Court institute a pre-filing
injunction against Plaintiffs, and dismiss Plaintiffs’ Complaint with prejudice, for the
reasons outlined in the USAO Defendants’ pending motions (Dkt. No. 69 and 149).
5
Respectfully submitted,
A. Brian Albritton
United States Attorney
By: s/ Jennifer Waugh Corinis

Jennifer Waugh Corinis
Assistant United States Attorney
Fla. Bar No. 49095
400 North Tampa Street, Suite 3200
Tampa, Florida 33602
Telephone: (813) 274-6310
Facsimile: (813) 274-6200
Email: jennifer.corinis@usdoj.gov
6
Certificate of Service
I HEREBY CERTIFY that on April 21, 2010, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system, which will send a notice of
filing.
I FURTHER HEREBY CERTIFY that on April 21, 2010, I further served the below
listed non-participants in the CM/ECF system by U.S. mail, first class postage prepaid:
JORG BUSSE JENNIFER FRANKLIN PRESCOTT

P.O. Box 11124 P.O. Box 845
Naples, FL 34101-7561 Palm Beach, FL 33480-0845
Plaintiff Plaintiff
/s/ Jennifer Waugh Corinis

JENNIFER WAUGH CORINIS
Assistant United States Attorney
7
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Florida Attorney General

Advisory Legal Opinion
Number: AGO 78-125
Date: October 24, 1978
Subject: Municipalities, vacation of streets and roads
David B. Higginbottom
City Attorney
Frostproof
QUESTION:
Is a municipality authorized by law to require abutting landowners

who request vacation of a public street to prove a revesionary
interest in the property and pay for the proportionate costs of an
appraisal and for the proportionate appraised value of such property
interest as conditions to the vacation?
SUMMARY:
A municipality possesses no authority under the Municipal Home Rule

Powers Act to require property owners whose land abuts a dedicated
public street to 'prove a reversionary interest' or any other
property interest or property right in the streetbed prior to and as
a condition to the vacation of such street. The determination and
adjudication of property rights is a judicial function which may not
be exercised by the legislative branches of government; hence any
such exercise by a municipality does not constitute a lawful exercise
of a municipal governmental power for a municipal purpose. In
addition, while the vacation of streets in the public interest or
when the streets are no longer required for public use is a
legislative function which may be performed by a municipality, a
municipality possesses neither statutory nor constitutional authority
to exact payment for or otherwise interfere with the property rights
of landowners whose property abuts a public street as conditions to
or in exchange for the exercise of its power to vacate streets no
longer required for public use.
Your letter advises that the Frostproof City Council has adopted a
'motion' which reads as follows:
[I]n the future a qualified appraiser [shall] be used by the city

to set the value of a street (to become property) when requested
for closure. The person or persons making the request would have
to bear the expense of the appraisal and proof of a reversionary
clause. They would be notified and bills [sic] for the appraised
property value before actual closing of the street could take
place. Payment to be made on date of actual closing.
Section 2(b), Art. VIII, State Const., provides in pertinent part:
Municipalities shall have governmental, corporate and proprietary

powers to enable them to conduct municipal government, perform
municipal functions and render municipal services, and may
exercise any power for municipal purposes except as otherwise
provided by law. (Emphasis supplied.)
Statutory implementation of the broad grant of home rule is provided

by Ch. 166, F. S., the Municipal Home Rule Powers Act. Section
166.051(1), F. S., of that act states in relevant part that
'municipalities . . . may exercise may power for municipal purposes,
except when expressly prohibited by law.' (Emphasis supplied.) Thus,
it is clear that the only limitation upon the exercise of power by a
municipality is that it must be exercised for a municipal purpose.
State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla. 1977).
Although the phrase 'municipal purposes' is not defined by the

constitution, it is defined by s. 166.021(2), F. S., as 'any activity
or power which may be exercised by the state or its political
subdivisions.' But see City of Miami Beach v. Forte Towers, Inc., 305
So.2d 764, 765-769 (Fla. 1974) (Dekle, J., concurring), in which
Justice Dekle observed:
It is not the definition of municipal purposes found in . . . s.

166.021(2) that grants power to the municipality . . . but rather
the provision of . . . s. 166.021(1) which expressly empowers
municipalities to 'exercise any power for municipal purposes,
except when expressly prohibited by law.'
It is a fundamental principal in this state that the determination

and adjudication of property rights is a judicial function which
cannot be performed by the Legislature. Hillsborough County v.
Kensatt, 144 So. 393 (Fla. 1932); State Plant Board v. Smith, 110
So.2d 401 (Fla. 1959); Daniels v. State Road Dept., 170 So.2d 846
(Fla. 1964). Legislation which constitutes an invasion of the
province of the judiciary is invalid. Thursby v. Stewart, 138 So. 742

(Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla. 1948). Thus, while
the vacation of streets is a legislative function which may be
validly delegated to municipalities (see Sun Oil Company v. Gerstein,
206 So.2d 439, 440 (3 D.C.A. Fla., 1968), AGO 075-171), no
legislative body (whether state, county, or municipal) is authorized
to invade private property rights or require abutting property owners
to prove a reversionary or any other interest in real property as a
condition to the vacation of a public street. Accordingly, the action
taken by the Frostproof City Council does not constitute a municipal
purpose; and, therefore, it is outside the scope of municipal home
rule powers possessed by the municipality.
Moreover, under the general rule, the interest acquired in land by a

municipal corporation for street purposes is held in trust for the
benefit of all the public, regardless of whether the corporation owns
the fee or has merely an interest therein. Sun Oil Company v.
Gerstein, supra; 30 Am. Jur.2d Highways Streets and Bridges s. 159. A
municipality is empowered to vacate streets only when the vacation is
in the public interest or when the street is no longer required for
public use and convenience. 64 C.J.S. Municipal Corporations s. 1668.
Consequently, in AGO 078-118, I noted, as a caveat, with respect to
the vacation of county roads:
[I]f the general public is using the roads and streets in

question (including public service vehicles such as garbage
trucks, police, fire or emergency vehicles), then the county
should not close or vacate the roads or streets in question as
such vacation would be injurious to the public welfare or violate
individual property rights.
Applying these principles to your inquiry, it is clear that the

city council should not undertake to vacate any streets in the
absence of a determination that the general public would benefit
from the vacation or that such streets are no longer required for
the public use and convenience.
As to whether a municipality is authorized to exact charges or

payments from abutting landowners as a condition to or in
exchange for the vacation of a public street, it is necessary to
analyze the property interests possessed by the public and the
abutting or adjoining landowners in public streets.
Recently, in AGO's 078-63, 078-88, and 078-118, I examined the

elements and effect of the dedication of property for public use.
There are two basic requirements to the existence of a valid
dedication to the public. First, there must be a clearly
manifested intention by the owner of the property to dedicate it
to public use. Second, the public, through its authorized agents,
must clearly show its intent to accept the dedication. City of
Miami v. Florida East Coast Railway Co., 84 So. 726 (Fla. 1920);
Roe v. Kendrick, 200 So. 394 (Fla. 1941). An offer of dedication
to the public may be accomplished by making and recording a plat
and selling lots with reference thereto. See, e.g., Florida East
Coast Railway Co. v. Worley, 38 So. 618 (Fla. 1905); Miami Beach
v. Undercliff Realty and Investment Co., 21 So.2d 783 (Fla.
1945); and see, s. 177.081, F. S.
However the dedication to the public is accomplished, it is clear

that such dedication does not have the effect of transferring
legal title from the grantor to the public. To the contrary, the
fee remains in the grantor (or his grantees) while the public
acquires only a right of easement in trust, so long as the
dedicated land is used for the intended purpose of the
dedication. Attorney General Opinion 078-118. Unless otherwise
specifically provided in the conveyance, the legal title of the
grantor in the dedicated property passes to the grantees of those
lots sold with reference to a plat, which lots abut the dedicated
streets. Their title extends to the center of the street subject
to the public easement. Walker v. Pollack, 74 So.2d 886 (Fla.
1954); Smith v. Horn, 70 So. 435 (Fla. 1915); New Fort Pierce
Hotel Co. v. Phoenix Tax Title Corp., 171 So. 525 (Fla. 1936);
United States v. 16.33 Acres of Land in County of Dade, 342 So.2d
476, 480 (Fla. 1977); cf. Emerald Equities v. Hutton, 357 So.2d
1071 (2 D.C.A. Fla., 1978). Therefore, a street in which the
public has only an easement when properly vacated ceases to be a
street; the abutting landowners continue to hold fee simple title
to the center of the vacated roadbed unencumbered by the
easement. Smith v. Horn, supra; Robbins v. White, 42 So. 841,
843-844 (Fla. 1907); AGO 078-118.
See also s. 177.081(1), F. S., providing that every plat of a

subdivision filed for record must contain a dedication by the
developer; s. 177.081(2), F. S., providing that all streets,
rights-of-way, and public areas shown on plats approved by the
affected local governments shall be deemed dedicated to the
public for the uses and purposes stated in such plat, unless
otherwise stated therein by the dedicator; s. 177.085(1), F. S.,
providing that when any landowner subdivides his land and
dedicates streets or roadways on the plat but reserves unto the
dedicator the reversionary interests in the dedicated streets or
roadways, and thereafter conveys abutting lots, such conveyance
carries with it the reversionary interest in the abutting street
to the center line, unless the landowner clearly provides
otherwise in the conveyance; and s. 177.085(2), F. S., providing
that prior holders of any interest in the reversionary rights in
the streets and roads in recorded plats of subdivided lots, other
than the owners of abutting lots, 'shall have 1 year from July 1,
1972, to institute suit . . . to establish or enforce the right,'
and that, if no such action is instituted within that time, any


things:

obtaining revenue.
where the abutter's fee or title does not extend to the middle of
the street, but only to its boundary, certain property rights
which the public generally do not possess. They are the right of
egress and ingress from and to the lot by the way of the street,
and the right of light and air which the street affords. Viewing
property to be not the mere corporal subject of ownership, but as
being all the rights legally incidental to the ownership of such
subject, which rights are generally said to be those of user,
exclusion, and disposition, or the right to use, possess, and
dispose of, . . . we are satisfied that the rights just mentioned
are within the meaning of the word 'property,' as it is used in
this constitutional provision. [10 So. 457, 459 (1891)
(construing s. 12, Declar. Rts., State Const. 1885, in part a
predecessor of s. 6, Art. X, State Const.).]
See also Lutterloh v. Mayor and Council of Town of Cedar Keys, 15

Fla. 306, 308 (1875); City of Miami v. East Coast Ry. Co. , 84 So.
726, 729 (Fla. 1920); McCorquodale v. Keyton, 63 So.2d 906 (Fla.
1956); Monell v. Golfview Road Association, 359 So.2d 2 (4 D.C.A.
Fla., 1978).
Accordingly, it has been held that the rights of abutting or adjacent

purchasers depend on principles of law applicable to private property
rather than public dedication since these rights depend upon a
'private easement implied from sale with reference to a plat showing
streets [etc.]' rather than upon any dedication to the public
generally. Burnham v. Davis Islands, Inc., 87 So.2d 97, 100 (Fla.
1956). An abutting landowner may be entitled to compensation from a
public body when it vacates a public street for consequent loss of
access to such landowner's property on the theory that a property
right has been taken without compensation. See Pinellas County v.
Austin, 323 So.2d 6, 8 (2 D.C.A. Fla., 1975). If follows, then, that
the several property interests of abutting landowners are subject to
constitutional protection. Clearly the attempt by a municipality to
usurp private property rights or property interests or to barter or
sell such property rights as conditions to or in exchange for the
exercise of its legislative power to vacate streets no longer
required for public use, does not constitute a municipal purpose and
is outside the scope of municipal home rule powers.
Prepared by:
Patricia R. Gleason
Assistant Attorney General
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STATE PLANT BOARD v. WALTER A. SMITH AND WIFE (03/25/59)
SUPREME COURT OF FLORIDA.
Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com
March 25, 1959
STATE PLANT BOARD, A BODY CORPORATE UNDER THE LAWS OF THE STATE OF FLORIDA; W. G. COWPERTHWAITE, AS
PLANT COMMISSIONER; AND CHARLES POUCHER, INDIVIDUALLY, AND AS AGENT OF SAID BOARD, APPELLANTS,
v.
WALTER A. SMITH AND WIFE, MILDRED C. SMITH, APPELLEES.
Richard W. Ervin, Atty. Gen., Ralph E. Odum, Asst. Atty. Gen., Joseph O. Macbeth, Sebring, and M. H. Edwards, Bartow, for
appellants.
H. C. Crittenden, Winter Haven, G. B. Fishback, Orlando, Robert L. Staufer, Winter Haven, Harry Lee, Sebring, and Edward J. Hanlon,
Jr., Winter Garden, for appellees.
Author: Roberts
ROBERTS, Justice.
This is an interlocutory appeal from an order of the lower court holding unconstitutional all of § 2 of Ch. 57-365, Laws of 1957 [ §
581.17(2), Fla.Stat.1957, F.S.A.], except the first paragraph thereof, and declining to dismiss the plaintiff-appellees' suit for
injunctive relief against the appellant, the State Plant Board, upon its motion.
The Act in question was adopted by the Legislature following the decision of this court in Corneal v. State Plant Board, Fla.1957, 95
So.2d 1, 4, and with direct reference thereto in the Preamble to the Act. In the Corneal case this court held that the so-called "pull
and treat" program adopted by the State Plant Board ("the Board" hereafter) under general legislative authority for the
containment and eradication of a citrus disease known as spreading decline, caused by a burrowing nematode, could not be carried
out on a compulsory basis without compensating the grower for "at least, the loss of profits sustained by the owner whose healthy
trees are destroyed under the compulsory program of 'pull and treat' * * *." The nature of the disease and the Board's program for
its control and eradication are discussed at some length in that opinion, and this discussion will not be repeated here. It suffices to
say that the burrowing nematodes infest and attack the lower root system of a citrus tree and, eventually, cause the tree to
"decline" and to become commercially unprofitable; and the Board's program calls for the destruction, according to a set formula, of
both infested and noninfested trees and the fumigation of the soil in the cleared area.
Section 1 of the 1957 Act, supra, provides that "[the] citrus disease known as spreading decline, caused by the burrowing
nematode is hereby declared to be a dangerous public nuisance"; and in the first paragraph of § 2 of the Act the Board is directed
to carry out a compulsory program of containment and eradication of the disease, including the destruction of infested trees and
fumigation of the soil, in accordance with the rules and regulations of the Board. (These portions of the Act were not disturbed by
the Chancellor in the order here reviewed.) The remaining provisions of § 2 - held unconstitutional by the Chancellor - provided for
the payment of "reasonable compensation not to exceed $1,000.00 per acre" for the destruction of uninfested trees, set out a
formula for the guidance of the Board or its agents in determining "just and fair compensation" to be paid to the grower for the
destruction of such trees, provided for a hearing before the Board as to the adequacy of such compensation, and for judicial review
of the Board's administrative determination in this respect. The Act specifically provided that no compensation should be paid for the
destruction of infested trees.
While not expressly so provided, it is the clear implication of the Act - and the Board has so interpreted it - that the compulsory
program of "pull and treat" may be carried out summarily in any citrus grove in which the burrowing nematodes are found by the
Board's agents, and that the grove owner is entitled to an administrative and judicial hearing on the sole question of the adequacy
of the compensation to be paid to him - and this only after the trees, infested and non-infested, have actually been destroyed.
In their complaint the plaintiffs-appellees attacked the statute on the grounds, inter alia, that it authorized the taking of their
property without due process of law and without just compensation, contrary to the Florida and federal constitutions [ § 12,
…findacase.com/…/wfrmDocViewer.aspx 1/4
Declaration of Rights, Fla.Const., F.S.A; 14th Amend., U.S.Const.], and that it also violated § 29, Art. 16 of the Florida constitution,
F.S.A. prohibiting the taking of property for public use unless full compensation therefor "shall be first made to the owner, or first
secured to him by deposit of money." The Board based its motion to dismiss principally on the decision of this court in Corneal v.
State Plant Board, supra, 95 So.2d 1, urging that the statute "tracked" in every respect the mandate of this court in that case and
that the only question for judicial determination was the reasonableness of the compensation to be awarded plaintiffs for the
destruction of their non-infested trees.
In his order here reviewed the Chancellor held that, insofar as the statute authorized the summary destruction of infested trees, it
met the constitutional requirements of due process; but that "[the] attempt of the Legislature * * * to empower the State Plant
Board to destroy healthy trees before compensation shall be paid or secured to the owner, and the further attempt by said act to
place a ceiling of $1,000 per acre as compensation for healthy trees so destroyed and providing that said payment should be made
only after such destruction, violates the provisions of Section 12 of the Bill of Rights, Florida Constitution, and also Section 29, Article
16 of the Florida Constitution." He interpreted the opinion of this court in the Corneal case as requiring "full compensation" to be
made to the grove owner and opined that "any attempt by the Legislature to place a ceiling on compensation that is less than the
fair market value of the property destroyed or that attempts to destroy Plaintiffs' healthy trees before compensation shall be paid or
secured to Plaintiffs is clearly unconstitutional."
We will first dispose of the question of whether the destruction of citrus trees in this situation is an appropriation of private property
for public use within the intendment of § 29 of Art. 16 of the Florida constitution. We think the conclusion in inescapable that it is
not.
There is a very clear distinction between an appropriation of private property to a public use in the exercise of the power of eminent
domain, and the regulation of the use of property - and its destruction, if necessary - in the exercise of the police power. "Under the
power of eminent domain the sovereign may make a compulsory purchase of the property of the citizen when such property is to be
appropriated to a public purpose or use, but such compulsory purchase, or taking as it is called, cannot be made even by the
sovereign 'without just compensation'". Moody v. Jacksonville, T. & K.W.R. Co., 1884, 20 Fla. 597, 606. Or, stated differently, in the
exercise of the power of eminent domain the sovereign "compels the dedication of the property, or some interest therein, to a
public use, or, if already dedicated to one public use, then to another." State ex rel. Lamar v. Jacksonville Terminal Co., 1900, 41 Fla.
377, 27 So. 225, 237. See also Adams v. Housing Authority of City of Daytona Beach, Fla.1952, 60 So.2d 663.
On the other hand, the police power is exercised by the sovereign to promote the health, morals and safety of the community,
Adams v. Housing Authority, supra; it rests "upon the fundamental principle that every one shall so use his own as not to wrong or
injure another." Mugler v. State of Kansas, 123 U.S. 623, 661, 667, 8 S. Ct. 273, 300, 31 L. Ed. 205, quoted in Pensacola & A.R. Co.
v. State, 1889, 25 Fla. 310, 5 So. 833, 3 L.R.A. 661. "'To destroy property because it is a public nuisance is not to appropriate it to
public use, but to prevent any use of it by the owner, and to put an end to its existence, because it could not be used consistently
with the maxim, sic utere tuo ut alienum non laedas.'" Bowman v. Virginia State Entomologist, 1920, 128 Va. 351, 105 S.E. 141, 145,
12 A.L.R. 1121, quoting 1 Lewis on Eminent Domain, 3d ed., § 247.
It is abundantly clear, then, that the Act in question was enacted in the exercise of the police power of the sovereign state and not
in the exercise of the power of eminent domain. Accordingly, it must be held that the able Chancellor erred in testing the validity of
the Act by the organic requirements contained in § 29 of Art. 16.
But the Chancellor also stated in the order here reviewed that the Act "violates the provisions of Section 12 of the Bill of Rights,
Florida Constitution". While the language of the order appears to be referable only to a violation of § 29 of Art. 16, the issue as to a
violation of § 12 of the Declaration of Rights was made by the pleadings; this being so, this court's decision, on appeal, "must be
made, not on the basis of whether the trial court or chancellor traveled the proper route, used proper reasoning, or laid his
conclusion on proper grounds, but rather on whether his conclusion is correct or incorrect." Chase v. Cowart, Fla.1958, 102 So.2d
147, 150.
So the fact that § 29 of Art, 16 is not applicable to the Act does not dispose of the case. There still remains the question of the
impact of the provisions of § 12 of the Declaration of Rights, Fla.Const. of 1885, prohibiting the taking of private property without
due process of law and without just compensation. And it might be noted that the provisions of our constitution guaranteeing these
sacred and basic rights ante-date by almost fifty years the organic limitations imposed by § 29 of Art. 16. These provisions have
been incorporated in all of our state constitutions, from that of 1838 up to and including our present constitution of 1885. Section 29
of Art. 16, which was new in the constitution of 1885, merely specified additional organic limitations upon the exercise of the power
of eminent domain by "any corporation or individual" over and above those already imposed on the exercise of this power by the
"due process" and "just compensation" provisions referred to above, now appearing in § 12, supra. See State ex rel. Moody v.
Baker, 1884, 20 Fla. 616, 655; Spafford v. Brevard County, 1926, 92 Fla. 617, 110 So. 451, reh'g denied, 92 Fla. 623, 110 So. 454,
457.
It has long been settled in this jurisdiction, however, that the prohibition against the taking of private property "without just
compensation" contained in § 12, supra, is not limited to the taking of property under the right of eminent domain. State ex rel.
Davis v. City of Stuart, 1929, 97 Fla. 69, 120 So. 335, 348, 64 A.L.R. 1307. Thus, this provision has been applied to hold invalid an
order of the railroad commission reducing the rates of a railroad company to such an extent that the railroad company could not pay
the expenses of operation, Pensacola & A.R. Co. v. State, 1889, 25 Fla. 310, 5 So. 833, 3 L.R.A. 661; to hold invalid a municipal
ordinance fixing water rates at a level that reduced the company's gross receipts below its reasonable costs and operating
expenses, Village of Virginia Gardens v. Haven Water Co., Fla.1956, 91 So.2d 181; to hold invalid a Special Act extending municipal
boundaries to include rural lands, State ex rel. Davis v. City of Stuart, supra, 120 So. 335; to require a city to compensate the owner
of oyster beds for damage to such beds caused by the City's dumping sewage into the river, Gibson v. City of Tampa, 1938, 135 Fla.
637, 185 So. 319; to hold invalid zoning ordinances in their application to a particular property, Dowling v. State, Fla.1955, 82 So.2d
519; Ex parte Wise, 141 Fla. 222, 192 So. 872, and to hold invalid an ordinance forbidding bathing in a privately owned lake from
which the city water is drawn, Pounds v. Darling, 75 Fla. 125, 77 So. 666, L.R.A. 1918E, 949. And while not expressly so stated, it is
clearly implied in our opinion in Corneal v. State Plant Board, supra, 95 So.2d 1, that the Board's compulsory program of pull and
treat, as therein discussed, was also violative of the mandate of § 12, supra, prohibiting the taking of private property without just
compensation.
In considering whether the act in question violates the concept of just compensation commanded by § 12, supra, it should be noted
that the Legislature made specific provision for the payment of "reasonable compensation not to exceed one thousand dollars per
acre" for the destruction of uninfested trees and required the Board to consider the several factors specified in the Act, "and other
reasonable factors having a bearing on just and fair compensation," in determining the amount of compensation to be paid the
individual grower. It might also be noted, parenthetically, that the Act provided that no compensation should be made for the
destruction of infested trees, as distinguished from trees that, although infested with burrowing nematodes, have not yet begun to
"decline" and thus are, presumably, still commercially profitable. This provision was also attacked in the plaintiffs' complaint, coupled
with an allegation that, of the 41 trees found by the Board's agents to be infested with burrowing nematodes, only three showed
any signs of decline. The Chancellor did not rule on this issue except by indirection. His order struck down all these provisions, in
toto, on the theory that grove owners were entitled to "full compensation", represented by the "fair market value" of the "healthy"
trees destroyed, alleged in the complaint (and admitted, for the purpose of the motion, by the Board's motion to dismiss) to be $40
each, and for which the Board proposed to pay the plaintiffs a total of $206.54 as compensation for the destruction of 165
uninfested trees.
But we are not here concerned with the adequacy of the compensation proposed to be paid to plaintiffs, since this issue has not yet
been ruled upon by the Chancellor. On this interlocutory appeal from the order denying the Board's motion to dismiss, we are
concerned only with the validity of the Act in its application to all citrus growers and, at this point, with the question of whether the
Act complies with the requirement of § 12, supra, that "just compensation" be paid to citrus growers such as plaintiffs. The Act
requires the Board to pay "just and fair" compensation to such citrus growers, and we do not see how the Legislature could have
done more. "Just compensation" for the destruction of a citrus tree in a grove infested with burrowing nematodes is not the
equivalent, as it cannot be, of the "fair market value" of a citrus grove in which no infestation has been found. And insofar as the
order here reviewed held that the grove owner is entitled to "full compensation" equal to the "fair market value" of each healthy
tree destroyed, it must be held to be in error.
We agree with the Chancellor, however, that the Legislature was not justified in fixing the maximum amount of compensation that
could be paid. When, in the exercise of the police power, the State through its agents destroys diseased cattle, unwholesome
meats, decayed fruit or fish, infected clothing, obscene books or pictures, or buildings in the path of a conflagration, it is clear that
the constitutional requirement of "just compensation" does not compel the State to reimburse the owner whose property is
destroyed. Such property is incapable of any lawful use, it is of no value, and it is a source of public danger. A legislative provision
for compensation in such cases is a mere bounty that may, of course, be fixed at whatever level the Legislature desires. Cf.
Campoamor v. State Live Stock Sanitary Board, 1938, 136 Fla. 451, 182 So. 277.
But where, as here, a provision for "just compensation" is a clear requisite to the act of destruction, then we find no authority for
the Legislature's specification of the maximum compensation to be paid.
Art. 2 of our constitution provides for the distribution of powers among the legislative, executive and judicial branches of our
government and states that "no person properly belonging to one of the departments shall exercise any powers appertaining to
either of the others, except in cases expressly provided for by this Constitution." It is settled in this state that "the determination of
what is just compensation for private property that is taken for public use is a judicial function that cannot be performed by the
Legislature either directly or by any method of indirection." Spafford v. Brevard County, supra, 110 So. 451, 454. While this was a
case involving the taking of property under the power of eminent domain, it is equally applicable to the legislative encroachment
upon the powers of the judiciary attempted here in the taking of property under the police power.
We next consider the question of whether the Chancellor erred in holding the Act invalid insofar as it authorized the destruction of a
grove owner's healthy trees "before compensation shall be paid or secured to" the owner. Here, again, the Chancellor is using the
language of § 29 of Art. 16, prohibiting the taking of property by eminent domain proceedings "until full compensation therefor shall
be first made to the owner, or first secured to him by deposit of money; * * *" But the analogous question under the due process
clause of § 12, supra, is whether the owner should have been given the opportunity to have an administrative determination by the
Board, and a judicial review of such administrative determination, of the amount of compensation he should receive, prior to the
destruction of his healthy trees. In other words, does a summary destruction of an owner's trees followed by an administrative and
judicial hearing on the question of the amount of compensation to be paid to him, comport with "due process"? An allied question,
contended for in the lower court and here argued by the plaintiffs-appellees, is whether summary destruction of his trees without
giving him an opportunity to be heard either administratively or judicially on the question of the propriety or reasonableness of the
action by the Board's agents, is a denial of due process.
Due process of law is not an exact concept. Generally speaking, it "implies conformity with the natural and inherent principles of
justice for the protection of individual rights, forbids the taking of one's property without compensation, and requires that no one be
condemned in person or property without opportunity to be heard." Louis K. Liggett Co. v. Amos, 1932, 104 Fla. 609, 141 So. 153,
156. The opportunity to be heard "must be full and fair, not merely colorable or illusive." Ryan's Furniture Exchange, Inc. v. McNair,
1935, 120 Fla. 109, 162 So. 483, 487. Accord: Redman v. Kyle, 1919, 76 Fla. 79, 80 So. 300.
It is well settled, however, that the concept of due process does not necessarily require the granting of a hearing prior to the taking
of official action in the exercise of the police power. Where a compelling public interest justifies the action, the Legislature may
authorize summary action subject to later judicial review of the validity thereof. See Yakus v. United States, 1944, 321 U.S. 414, 64
S. Ct. 660, 88 L. Ed. 834, often cited in cases involving "due process." Thus, it has long been established that in the exercise of its
police power the state may summarily seize or destroy diseased cattle, contaminated food, obscene publications, illicit intoxicants,
narcotics, prohibited weapons, gambling devices and paraphernalia, and other property that menaces the public health, safety or
morals. The seizure of such goods is justified because the danger exists that the property deemed malefic will be distributed to the
public to its injury, or used for an illegal purpose, absent a seizure and pending a proceeding to determine the propriety of the
seizure. Cf. Metallic Flowers v. City of New York, 1957, 4 A.D.2d 292, 164 N.Y.S.2d 227.
It is obvious that no such danger exists in the situation here. The citrus disease here involved - spreading decline caused by a
burrowing nematode - is not carried by the wind or by insects from grove to grove; "the burrowing nematode causing the disease
travels underground from one tree to another at an average rate throughout the state of 1.6 trees, or 36 feet, per year." Corneal v.
State Plant Board, supra, 95 So.2d 1, 2. The fruit borne by the healthy trees, even though the tree may have some infestation, is no
different from that on the uninfested trees. The only possible reason for the summary destruction of the healthy trees would be the
imminent danger of the spread of the disease from an infested to a non-infested grove. Since the facts developed in the Corneal
case, and alleged in the complaint in the instant case, show that there is no such danger, we cannot find a "compelling public
interest" sufficient to justify making an exception to the basic and fundamental rule of due process, requiring notice and a hearing
before depriving a person of a substantial right. This is particularly true in view of the fact that we can find no justification for the
legislative declaration that "No compensation shall be made by the board for the destruction of trees which are infested by the
burrowing nematode at the time of their destruction." As noted above, the question of what is "just compensation" must be finally
determined by the judiciary, unless the grove owner is satisfied by the amount offered by the Board's agent. And, as previously
stated, an infested tree may be healthy, in the sense that it has not yet begun to decline, and still commercially profitable. A court
might wish to consider the profits expected from such productive, although infected, tree in determining "just compensation." And it
is apparent that an X-mark on a map, showing an infested tree destroyed under the Board's pull and treat program, and the
testimony of the parties as to the condition of the tree, would not be the best evidence of the condition of the tree. Thus, in
addition to the fact that the statutory provision quoted immediately above is an invasion of the province of the judiciary, it might
also deny to the grower a hearing that is "full and fair, not merely colorable or illusive." Ryan's Furniture Exchange, Inc. v. McNair,
supra, 162 So. 483.
In summary, the Chancellor was correct in holding invalid those portions of the Act and the Rules of the Board placing a ceiling of
$1,000 on the compensation to be paid to the grove owner and authorizing summary destruction of the owner's citrus trees prior to
a hearing on the adequacy of compensation proposed to be paid to him. The owner is also entitled to an opportunity to be heard on
the propriety or "reasonableness" of the administrative action of the Board's agents insofar as the program of pull and treat
proposed for his grove is concerned, prior to the destruction of his citrus trees under such program. See Bailey v. Van Pelt, 1919, 78
Fla. 337, 353, 82 So. 789. We also agree with the Chancellor's indirect holding that the provision denying compensation for infested
trees, without regard to whether they are still productive and not yet "declined", is unlawful. We do not agree with his conclusion
that "full compensation" measured by the fair market value of the trees must be paid to the owner.
It follows, therefore, that the Board's compulsory program of pull and treat cannot be summarily carried out in any grove, either as
to infested or uninfested trees, without giving the grove owner an opportunity to be heard on the questions of the propriety of the
action of the Board's agents and the adequacy of the compensation proposed by such agents to be paid to him. This is so because,
even if the infested trees were subject to summary destruction as a legislatively declared nuisance, they could not be destroyed
except as a part of the Board's over-all program of pull and treat, involving the destruction of infested and non-infested trees and
fumigation of the cleared area, since destruction of the infested trees alone would be ineffective to control the disease, see Corneal
v. State Plant Board, supra, 95 So.2d 1, and thus would not serve a public purpose.
It would seem that the invalid provisions of the statute could be deleted without doing violence to the primary legislative intention
to provide for a compulsory program for the containment and eradication of spreading decline. The Act itself declared its intent that
"if any section, subsection, sentence, clause or provision of this act be held invalid the remainder of the act shall not be affected." §
6, Ch. 57-365, Laws of 1957.
Accordingly, we hold that the phrase "not to exceed $1,000.00 per acre" in the third paragraph of § 2 of the Act, and the sixth
paragraph of § 2, prohibiting the payment of compensation for infested trees, are invalid and of no effect; and that, insofar as the
Act may be interpreted as authorizing the summary destruction of citrus trees without an opportunity to be heard prior to such
destruction, it is invalid, as are the Board's Rules so interpreting it. The remainder of the Act is valid and effective.
The order here reviewed is affirmed in part and reversed in part and the cause remanded for further proceedings consistent
herewith.
TERRELL, C.J., and THOMAS, DREW and THORNAL, JJ., concur.
19590325
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HAROLD K. DANIELS AND RUTH K. DANIELS v. STATE ROAD DEPARTMENT FLORIDA (09/30/64)
SUPREME COURT OF FLORIDA.
Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com
September 30, 1964
HAROLD K. DANIELS AND RUTH K. DANIELS, HUSBAND AND WIFE, APPELLANTS,

v.
STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, AND SARASOTA COUNTY, A POLITICAL
SUBDIVISION OF THE STATE OF FLORIDA, APPELLEES.
Clyde H. Wilson, Sarasota, for appellants.
Bryan W. Henry and P. A. Pacyna, Tallahassee, for State Road Dept. of Florida; Wm. S. Boylston, Sarasota, for Sarasota County,
appellees.
Author: Roberts
ROBERTS, Justice.
In this direct appeal from a judgment entered in eminent domain proceedings, the questions of (1) the applicability of Section 29 of
Article XVI, Florida Constitution, F.S.A., to condemnation proceedings instituted by a state agency or political subdivision to acquire
property for a purely public purpose, and (2) the validity of Section 73.10(3), Florida Statutes, F.S.A., are squarely presented.
Accordingly, we have jurisdiction of the appeal under Section 4, Article 5 of our Constitution.
Section 29 of Article XVI reads as follows:
"No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation
therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any
benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of
competent jurisdiction, as shall be prescribed by law."
And the statute the validity of which was upheld in the lower court, Section 73.10(3), supra, provides that
"When the suit is by the state road department, county, municipality, board, district or other public body for the condemnation of a
road right-of-way, the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason
of the construction or improvement made or contemplated by the petitioner, shall be offset against the damage, if any, resulting to
such remaining adjoining property of the defendant owner by reason of the construction or improvement, but such enhancement in
value shall not be offset against the value of the property appropriated, and if such enhancement in value shall exceed the damage,
if any, to the remaining adjoining property there shall be no recovery over against such property owner for such excess."
It is contended here by appellants, who are the owners-condemnees of the subject property, that Section 29 of Article XVI, supra, is
applicable to the condemnation proceedings instituted by the appellees, who are the State Road Department of Florida and the
County of Sarasota, to acquire appellants' property; that such constitutional provision "permits the landowner to receive remainder
damages without diminution from the benefit of any improvement proposed;" that Section 73.10(3), supra, authorizing the setoff of
"enhancement in value" against remainder damages is repugnant to such constitutional provision; and that it was, therefore,
reversible error on the part of the trial judge to admit evidence of the increase in the value of the remainder of appellants' tract of
land resulting from the construction of the highway through such tract.
The appellees concede that statements in some of the opinions of this court appear to support appellants' contention as to the
applicability of Section 29 of Article XVI, supra, to eminent domain proceedings instituted by agencies or political subdivisions of the
state, as well as to those instituted by private corporations or individuals. They point out, however, that this question has never
been squarely presented to this court, so that the statements relied upon are obiter dicta; and they strongly urge that an
examination of the Journal Convention of 1885 at which Section 29 of Article XVI was first adopted, reveals clearly that it was
intended to apply only to private corporations and individuals and not the State, its agencies and political subdivisions. We agree
for the reasons stated hereafter.
It should first be remembered that the superior dominion - the "eminent domain" - which the State holds over all the soil within its
bounds is, like the police power, an inherent attribute of sovereignty to be exercised in case of public exigency or for the public
good. It may be limited by the Constitution, but it is not created by the organic law of the State. "It is an attribute of sovereignty
which the state would have even [though] there were no constitutional grant of the power." Spafford v. Brevard County (1926), 92
Fla. 617, 110 So. 451, 458. It could, apparently, be exercised without the payment of any compensation whatsoever to the owner
of the land taken, in the absence of a constitutional inhibition, see Smith v. City of Greenville (1956), 229 S.C. 252, 92 S.E.2d 639;
and, indeed, it seems that in the early days in some states it was common practice to lay out highways without compensation to
the owner of the land - either by virtue of rights reserved in the grant of public lands or by a long-established practice based on the
slight value of the land and the general need for roads. See the comment by the annotator in 68 A.L.R. at page 784.
It was, however, so much a matter of natural justice that private property should not be taken for public use without compensation
that in almost all of the states a provision specifically forbidding the taking of private property for public use without just
compensation was included as a part of their organic law. Such a provision is, of course, a part of the so-called Bill of Rights of the
federal constitution, having been included as a part of the Fifth Amendment thereto; and it has been a part of Florida's organic law
since 1838. It was included in all of the Constitutions of this State and was incorporated - apparently as a matter of course - as
Section 12 of the Declaration of Rights of the Constitution of 1885, F.S.A., which, with amendments, is our present constitution.
Having provided in the traditional manner, in Section 12, that private property shall not be taken "without just compensation," it
seems clear that in adopting an additional section relating to the exercise of the right of eminent domain the framers of the
Constitution of 1885 intended to specify additional organic limitations upon the exercise of this sovereign right by "any corporation
or individual." We so stated in State Plant Board v. Smith, Fla.1959, 110 So.2d 401, 405.
This brings us, then, to the first question presented here: Did the framers of the Constitution of 1885 intend that a state agency or
political subdivision of the state should be subject to the additional limitations prescribed by Section 29 of Article XVI? Many state
agencies, although purely public bodies, are or have been in the past designated as a "body corporate" by statute and given many
of the attributes of a private corporation, such as the right to sue and to be sued. The State Road Department, one of the appellees
here, was formerly such a statutory corporate entity. Yet it cannot be doubted that such a state agency retains its essential
character as an arm of the state; and we think it is equally clear that the members of the Constitutional Convention of 1885 had in
mind private corporations only, and not a public body, in adopting Section 29 of Article XVI.
We reach this conclusion, first, from an examination of the Journal of the Constitutional Convention of 1885. It there appears that
the constitutional provision in question came out of the Committee on Private Corporations as a minority report (see pp. 296-298 of
the Journal) in form almost identical to that in which it was finally adopted (with only the words "or individual" omitted) and was
tabled. It was then offered by the Committee on Miscellaneous Provisions, with the words "or individual" now included (see pp. 488-
489 of the Journal), and was adopted. It was placed by the Committee on Style and Arrangement of the Constitution of 1885 with
other constitutional provisions relating specifically to private corporations and individuals. See Sections 28, 30 and 31 of Article XVI.
Thus, the background against which it was adopted indicates, almost conclusively, that it was intended to apply only to private
corporations (and individuals) to whom the Legislature might delegate the power of eminent domain in a proper case.
We need not rely entirely upon this, however. The language of the provision itself is indicative of the true intent of its adopters. It
reads: "No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation
therefor shall be first made to the owner, * * *" (Emphasis added.) As pointed out by the late and revered Justice Armistead Brown
in Spafford v. Brevard County, supra, 110 So. at page 457:
"* * * in the exercise of eminent domain for the acquisition of lands for state roads, neither [the State Road Department nor
Brevard County] is acquiring anything for itself in its corporate capacity, but only for the state, and all that either may acquire under
the act here in question will be 'appropriated to the use of' the state. * * The status of railroad and other private corporations,
although they are permitted to condemn property only for public purposes, is quite different. * * * the title thereto, and the use,
management, and operation thereof, is private, and the profits made go to the private owners. So, in a very real sense, the
property acquired by the exercise of the delegated power of eminent domain by such corporations is 'appropriated to the use of'
the corporations, and this section of the Constitution applies."
Relevant here also is the fact that, prior to the Constitutional Convention of 1885, the Florida Legislature had delegated to public
utility corporations (Ch. 1639, Acts of 1868) and to railroad and canal companies (Ch. 1987, Acts of 1874) the right to condemn
rights of way and property for their use in providing their respective public services; and, presumably, by the year 1885 these
private corporations were beginning to expand their activities in this state. It is also noteworthy that, prior to 1885, it had been
held by federal and state courts that special benefits accruing from road or other improvements could be deducted not only from the
amount awarded for severance damage but also from the amount awarded for the land itself in determining "just compensation."
See McIntire v. State (Ind.1840) 5 Blackf. 384; Weir v. St. Paul, S. & T.F.R. Co. (Minn. 1871) 18 Minn. 155; cases collected in the
annotation in 68 A.L.R. beginning at page 784. (This is and has always been the interpretation of the "just compensation" clause of
the Fifth Amendment to the federal constitution. See Bauman v. Ross, 1897, 167 U.S. 548, 17 S. Ct. 966, 42 L. Ed. 270; U.S. v. 1,000
Acres of Land (D.C.La.1958) 162 F. Supp. 219.) The argument usually given in support of this interpretation of "just compensation"
is that the property owner who receives direct, special and peculiar benefits to his remaining property as a result of the
improvement has received something which the general public has not received and for which he should account. "Otherwise, he is
favored above the rest, and instead of simply being made whole, he profits by the appropriation, and the taxes of the others must
be increased for his special advantage." Pottawatomie County v. O'Sullivan, 17 Kan. 58. (Emphasis added.)
The taxing power of the state or a political subdivision thereof is not, of course, involved in a taking of property by a railroad or
canal company or other private corporation for their use in providing a public service; and in requiring that full compensation shall be
made for private property appropriated to the use of a corporation or individual "irrespective of any benefit from any improvement
proposed by such corporation or individual", the framers of the Constitution of 1885 must have intended to make sure that the
landowner would receive, at least, the value of the land actually taken by the private corporation for a right-of-way or terminal
facilities without regard to the benefits that could or would accrue to the remainder of his property at some future date when the
improvement was finally completed and which, in the late 1800's, would probably have been, in most cases, highly speculative at
the time of the taking. See in this connection Orgel's Valuation Under Eminent Domain, 2d ed. 1953, Vol. 1, Sec. 7, p. 46, in which he
says, inter alia, that "The development of the various doctrines restricting consideration of benefits was probably the result of the
extensive railway acquisitions during the nineteenth century." It is also noteworthy that the section in question contains another
limitation in that it specifically provides for the payment or deposit in advance of the amount of the compensation due to the
landowner for the property appropriated to the use of the corporation. This is clearly for the purpose of protecting the owner from
an improvident or insolvent private corporation or individual.
It is our considered opinion, then, that the framers of the Constitution of 1885 intended to spell out, in Section 29 of Article XVI,
what would be "just compensation" for property taken by a private corporation or individual for their use in performing a public
service, and, in addition, the method of determining such compensation and the time of payment thereof; and that, by leaving
Section 12 of the Declaration of Rights intact, they intended for the state and its agencies and political subdivisions to be subject to
the more general provisions thereof - "nor shall private property be taken without just compensation".
The more general limitation contained in Section 12 of the Declaration of Rights - that private property shall not be taken "without
just compensation" - is almost universally held to require that compensation be made for the taking, and that such compensation
should include not only the value of the land actually appropriated by the condemnor but also the so-called severance damages, if
any, caused by the taking when only part of a tract is condemned. See 18 Am.Jur., Eminent Domain, Sec. 265, p. 905. This was early
established as the legislative policy of this state (Ch. 3712, Acts of 1887) and judicially approved by this court. See Orange Belt
Railway Co. v. Craver (1893) 32 Fla. 28, 13 So. 444. The more general provision of Section 12 applies to all condemnors alike -
whether public or private bodies - so that severance damage may be claimed, as "just compensation", regardless of whether the
taking is by the state or by a private corporation or individual.
This disposes of the constitutional questions presented here; but in order completely to dispose of the case on appeal, as we are
authorized to do, two more points need some clarification. One, appearing on the face of the record, we shall discuss by way of
caveat; Cf. Great Northern Railroad Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360, 85 A.L.R. 254. See
also special concurring opinion of Thornal, J. in State v. County of Palm Beach, Fla., 89 So.2d 607. The other has been presented
here by the appellants but does not appear to have been properly presented to the lower court. Since we think that both are of
importance to the Bench and the Bar of this state, as well as to the litigants in this case, we will discuss them briefly.
The first point which we need discuss concerns the authority of the Legislature of this state to enact Section 73.10(3), supra. This
statute purports to say what compensation shall be paid to a landowner for property appropriated by the state or other public body
for a road right-of-way, by declaring that
"* * * the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason of the
construction or improvement made or contemplated by the petitioner, shall be offset against the damage, if any, resulting to such
remaining adjoining property of the defendant owner by reason of the construction or improvement * * *."
It has been said that "[the] preservation of the inherent powers of the three branches of government - legislative, executive, and
judicial - free from encroachment or infringement by one upon the other, is essential to the safekeeping of the American system of
constitutional rule." Simmons v. State, 1948, 160 Fla. 626, 36 So.2d 207. And if the legislation hampers judicial action or interferes
with the discharge of judicial functions, it cannot be given effect. 11 Am.Jur., p. 908, cited in Simmons v. State, supra.
It is well settled that the determination of what is just compensation for the taking of private property for public use "is a judicial
function that cannot be performed by the Legislature either directly or by any method of indirection." Spafford v. Brevard, supra, 110
So. at page 455, quoted in State Plant Board v. Smith, Fla.1959, 110 So.2d 401. See also Monongahela Navigation Co. v. U.S.
(1892) 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463; United States v. New River Collieries, 262 U.S. 341, 43 S. Ct. 565, 67 L. Ed. 1014;
Baltimore & Ohio R. Co. v. U.S., 1935, 298 U.S. 349, 56 S. Ct. 797, 80 L. Ed. 1209.
As stated in Baltimore & Ohio R. Co. v. U.S., supra, 298 U.S. 349, 56 S. Ct. 797, 80 L. Ed. at p. 1224:
"The just compensation clause may not be evaded or impaired by any form of legislation. Against the opposition of the owner of
private property taken for public use, the Congress may not directly or through any legislative agency finally determine the amount
that is safeguarded to him by that clause. If as to the value of his property the owner accepts legislative or administrative
determinations * * * no constitutional question arises. But, when he appropriately invokes the just compensation clause, he is
entitled to a judicial determination of the amount."
And in Monongahela Navigation Co. v. U.S., supra, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463, in which the Supreme Court struck
down an Act of Congress purporting to exclude an element of value (the franchise to collect tolls) in the purchase of the lock and
dam of the Navigation Company, the court said that just compensation means that "a full and perfect equivalent for the property
taken" must be returned to the owner, and that
"By this legislation congress seems to have assumed the right to determine what shall be the measure of compensation. But this is
a judicial, and not a legislative, question. * * * It does not rest with the public, taking the property, through congress or the
legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The
Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry." (Emphasis
added.)
It cannot be doubted, therefore, that the question of whether "enhancement in value" of the property as a result of the
improvement, when only part of a tract is taken, should be offset against damages to the remainder in determining "just
compensation" for such remainder damage, is a purely judicial question. Similarly, the question of what is a public use is a judicial
one. But, as stated by Mr. Justice Brown, in Spafford v. Brevard County, supra, 110 So. at page 458:
"While the question of whether the use for which private property is taken is a public use is ultimately a judicial question, where the
Legislature declares a particular use to be a public use, the presumption is in favor of its declaration, and the courts will not
interfere therewith unless the use is clearly and manifestly of a private character."
And, as in the case of a legislative declaration of "public use", a legislative declaration of "just compensation" which is in accord with
the judicial view of the matter should not be disturbed. As stated in Chesapeake & Ohio Canal Co. v. Key (1829) 3 Cranch, C.C. 599,
Fed. Cas. No. 2,649, which involved a Virginia Statute containing a provision similar to Section. 73.10(3):
"If the jury had not been required by the charter to consider the benefit as well as the damage, they would still have been at liberty
to do so, for the constitution does not require that the value should be paid, but that just compensation should be given. * * * The
insertion, therefore, of that provision in the charter which requires the jury to do what they would be competent to do without such
a provision, and which, in order to ascertain a compensation which should be just towards the public, as well as just towards the
individual, they ought to do, cannot be considered as repugnant to the constitution."
Our conclusion in this respect is, then, that the Legislature may declare its policy with respect to the compensation that should be
made in taking private property for public use; and that these declarations, while not conclusive or binding, are persuasive and will
be upheld unless clearly contrary to the judicial view of the matter.
It might be noted that the State, speaking through its Legislature, may of course impose upon itself, and upon those to whom it
delegates the right of eminent domain, an obligation to pay more than what the courts might consider a "just compensation." See
Lewis, Eminent Domain, 3d ed., Vol. 2, Sec. 696, in which the author notes that this has frequently been done "by excluding the
consideration of benefits." And the comment of the annotator in 145 A.L.R. at page 17 on this point is interesting. He says:
"In this field of uncertainty as to the meaning of the requirement of just compensation, there seems to be only one point as to
which the courts are in agreement. No matter how much they disagree on the question as to whether and to what extent the
constitutional requirement prevents the legislature from decreasing the compensation of an owner or condemnee by allowing the
deduction of benefits therefrom, there seems to be substantial agreement that this requirement does not prevent the legislature
from providing as against the condemning parties, what shall be deemed just compensation, and that the legislature, although it
cannot direct that anything less than just compensation be made, may require more liberal compensation than that which would
satisfy the constitutional requirement."
This brings us to the point argued in their Reply Brief by the appellants - and that is, that "enhancement in value" means that
resulting from benefits which are special and peculiar to the remainder of the tract, a portion of which is taken, and not an
enhancement in value which inures to the community in general or to the public in common; and that there was no evidence
whatsoever that the increase in the market value of the remainder of appellants' tract was special or peculiar to it or any different
from that accruing to the appellants in common with the public.
There is merit to their contention in this respect, but we cannot find that the appellants objected on this ground to the testimony of
the appellees' witnesses as to increased market value of the remainder of appellants' tract of land. The position that they took
throughout the trial, and in their original brief, was that no evidence whatsoever of "enhancement in value" was admissible, since
the statute, Section 73.10(3), was unconstitutional.
Since there does not appear to have been any judicial statement by this court or any other court of this state concerning this
matter, we direct the attention of the Bench and the Bar to the statement in 29 C.J.S. Eminent Domain § 183, p. 1064, as follows:
"By the weight of authority, the benefits which may be set off against the value of the property taken or the damage to that injured
in making an improvement, are those which are special or local or which result directly and peculiarly to the particular tract [or
parcel] of which a part is taken, and general benefits resulting to the owner in common with the public cannot be set off."
See also 18 Am.Jur., Eminent Domain, Sec. 298, page 942, stating that "Even where benefits may be deducted from the damages
claimed, it is therefore the rule that only special benefits may be considered."
An annotation in 145 A.L.R., beginning at page 7, on the subject "Deduction of benefits in determining compensation or damages in
eminent domain", deals exhaustively with the subject, including the many and diverse views of the courts in this country as to the
distinction between general and special benefits. As to this distinction, it has been said that more rules, different from and
inconsistent with each other, have been laid down on this point than upon any other point in the law of eminent domain. See
Territory of Hawaii v. Mendonca (Hawaii), 375 P.2d 6. In this case the court defined special benefit in highway condemnation cases
as being "the special and direct benefit arising from its own position upon the way itself" as distinguished from those benefits "'not
arising from location on the way, but from the facilities and advantages occasioned by the way' which affects all estates in the
neighborhood equally * * *."
Thus, insofar as "enhancement in value" is concerned, evidence thereof would not be admissible without proof that the increase in
value resulted directly and peculiarly to the landowner's remaining land as a result of the improvement, over and above that
enjoyed by neighboring property which might or might not be on the highway. "The question in each case is whether or not the
special facilities afforded by the improvement have advanced the market value of the property beyond the mere general
appreciation of property in the neighborhood." Pittsburgh B & B Ry. Co. v. McCloskey, 110 Pa. 436, 1 A. 555, 556.
See also Shirley v. Russell (1927), 149 Va. 658, 140 S.E. 816, in which it was held by a majority of the court that the question of
whether an increase in market value resulting from the construction of a public highway does or does not constitute a peculiar
benefit which may be offset against remainder damage, must depend upon the facts and circumstances of each particular case; and
the following cases, which deal extensively with the subject: State by and through State Highway Commission v. Bailey (1957), 212
Or. 261, 319 P.2d 906; Lineburg v. Sandven (1946), 74 N.D. 364 21 N.W.2d 808; State v. Smith (1957), 237 Ind. 72, 143 N.E.2d 666.
It might be noted, also, that the construction of a street or highway may result only in damage to the remaining property and not
necessarily work a benefit thereto. See Worth v. City of West Palm Beach, 1931, 101 Fla. 868, 132 So. 689; Boxberger v. State
Highway Commission, 126 Colo. 526, 251 P.2d 920.
Since, as noted, the appellants did not raise in the court the objection made, apparently as an after-thought, in their Reply Brief,
concerning the question of whether the enhancement in value of their property constituted a general or a special benefit, we
cannot hold the lower court in error in admitting evidence thereof for the consideration of the jury and in charging the jury thereon.
We have, however, examined the evidence and do not find that the evidence of severance damage, against which the evidence of
increased value may have been offset, was sufficient to warrant the jury in awarding an amount therefor. As the Second District
Court of Appeal pointed out in City of Tampa v. Texas Co., 107 So.2d 216, the burden of showing damage to the remainder of a
landowner's property by reason of the taking is upon the landowner. Upon the record made in the court below, the verdict and
judgment must be affirmed.
It is so ordered.
THORNAL, O'CONNELL, CALDWELL and HOBSON (Ret.), JJ., concur.
THOMAS, Acting C.J., dissents.
19640930
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Why The SS Attorney For The U S Flushes The Constitution S Down His Toilet

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Why The SS Attorney For The U S Flushes The Constitution S Down His Toilet

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THE PIMP BEHIND THE PROSTITUTES

“ANARCHY” BRIAN ALBRITTON

SS ATTORNEY FOR THE U.S.

PARODY OF LEGAL PERVERSIONS, “O.R. 569/875”

Real Property Rule 1: “Judicial adjudication”, due process, and equal

Real Property Rule 2: U.S. terror destroys titles. We call it operation

Real Property Rule 3: Record title and record ownership mean

Have a nice day. Come and see us again here in Naziland.”

“Really, I don’t read that much. Pimping is a hard hands-on business,

FLORIDA ATTORNEY GENERAL LEGAL OPINION, AGO 78-125,

SCANDAL OF GOVERNMENTAL SCAM “O.R. 569/875”:

“The determination and adjudication of property rights is a judicial

Here vexatiously, the “Federal Defendants” deceived and perpetrated

right, title, or interest and all right of reversion shall be

With regard to the instant inquiry, therefore, it is apparent

[I]t would be beyond the power of the city to grant or convey to

There is incident to abutting property, or its ownership, even

The Florida Constitution

ARTICLE I DECLARATION OF RIGHTS

ARTICLE II GENERAL PROVISIONS

ARTICLE III LEGISLATURE

ARTICLE VI SUFFRAGE AND ELECTIONS

ARTICLE VII FINANCE AND TAXATION

ARTICLE VIII LOCAL GOVERNMENT

SECTION 4. Homestead; exemptions.--

(2) personal property to the value of one thousand dollars.

SECTION 6. Eminent domain.--

ARTICLE XII SCHEDULE

SECTION 1. Political power.

SECTION 2. Basic rights.

SECTION 3. Religious freedom.

SECTION 4. Freedom of speech and press.

SECTION 5. Right to assemble.

SECTION 6. Right to work.

SECTION 7. Military power.

SECTION 8. Right to bear arms.

SECTION 9. Due process.

SECTION 10. Prohibited laws.

SECTION 11. Imprisonment for debt.

SECTION 12. Searches and seizures.

SECTION 13. Habeas corpus.

SECTION 14. Pretrial release and detention.

SECTION 15. Prosecution for crime; offenses committed by children.

SECTION 16. Rights of accused and of victims.

SECTION 17. Excessive punishments.

SECTION 18. Administrative penalties.

SECTION 19. Costs.

SECTION 20. Treason.

SECTION 21. Access to courts.

SECTION 22. Trial by jury.

SECTION 23. Right of privacy.

SECTION 25. Taxpayers' Bill of Rights.

SECTION 26. Claimant's right to fair compensation.

SECTION 27. Marriage defined.

SECTION 7. Military power.--The military power shall be subordinate to the civil.

SECTION 8. Right to bear arms.--

(d) This restriction shall not apply to a trade in of another handgun.

History.--Am. C.S. for S.J.R. 43, 1989; adopted 1990.

History.--Am. H.J.R. 31-H, 1982; adopted 1982.

History.--Am. H.J.R. 43-H, 1982; adopted 1982.

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Florida Attorney General

Is a municipality authorized by law to require abutting landowners