SHEDRICK STATEN, as Personal Representative of the Estate of Robert Taylor, deceased, Appellant,
v.
CELSO M.
GONZALEZ-FALLA, as trustee for the Gilman Article III Trust, Appellee.
CASE NO.:
1D03-5185
COURT OF APPEAL
OF
2005
Opinion withdrawn by,
Substituted opinion at, Motion granted by Staten v. Gonzalez-Falla,
904 So. 2d 498, 2005
An appeal from the Circuit
Court for
Thomas E. Stone,
George T. Reeves of Davis,
Schnitker, Reeves & Browning, P.A.,
VAN NORTWICK, J.
Shedrick Staten, as the
personal representative of the Estate of Robert Taylor, appeals the trial
court's award to Celso M. Gonzalez-Falla, as trustee for the Gilman Article III
Trust, of a statutory way of necessity across the
Gonzalez-Falla filed a
complaint against Staten, seeking a statutory way of necessity across the
Section 704.01(2) permits a
statutory way of necessity on the following grounds:
Based on public policy,
convenience, and necessity, a statutory way of necessity exclusive of any
common-law right exists when any land or portion thereof outside any
municipality which is being used or desired to be used for a dwelling or
dwellings or for agricultural or for timber raising or cutting or stock raising
purposes shall be shut off or hemmed in by lands, fencing, or other improvements
of other persons so that no practicable route of egress or ingress shall be
available therefrom to the nearest practicable public or private road . . .
Section 704.04, Florida
Statutes (2001), provides for compensation to the servient owner and states in
pertinent part, as follows:
Where said easement is awarded
to the owner of the dominant tenement, it shall be
in compliance with s.704.01(2) and shall exist so long as such easement
is reasonably necessary for the purposes stated herein. The court in its
discretion, shall determine all questions, including the type, duration, extent,
and location of the easement, the amount of compensation, and the attorney's
fees and costs to be awarded to either party for unreasonable refusal to comply
with the provisions of s. 704.01(2) . . .
While the circuit court has the
discretion to determine the "type, extent, duration and location of the
easement," the circuit court does not have the discretion to permit a use
for that easement which is not provided for in section 704.01(2). When section
704.01(2) and section 704.04 are read in pari materia, it is clear that the
legislature has permitted a statutory way of necessity for only those uses which
are enumerated in section 704.01(2), specifically "for a dwelling or
dwellings or for agricultural or for timber raising or cutting or stock raising
purposes."
In
We agree with the reasoning in
[Stein v. Darby, 126 So. 2d 313 (Fla. 1st DCA 1961)] and hold the
statute constitutional under the present Constitution. The inverse of
appellant's contention is true: the statute's purpose
is predominantly public and the benefit to the private landholder is
incidental to the public purpose. Although state public policy may have altered
with respect to the methods of land use since 1961, sensible utilization of land
continues to be one of our most important goals. We take notice that
(Emphasis supplied). Thus,
section 704.01(2) survives constitutional challenge because "it provides a
lawful means by which to accomplish full utilization of the state's natural
resources, [and] their development in the ordinary channel
of commerce and industry." Stein v. Darby, 126 So. 2d
313, 316 (Fla. 1st DCA 1961).
The Supreme Court revisited the
statute again in Blanton v. City of
The fact that the Legislature
has chosen to retain the statutory remedy indicates that the Legislature
continues to believe that those enumerated uses of land in the unincorporated
areas of the state still serve an important public purpose.
* * *
Holding that MRTA operates to
extinguish a claim to a statutory way of necessity would, contrary to
legislative intent, render these landlocked parcels unusable, either because the
landlocked owner is without a means of access to the parcel or is being asked to
pay an exorbitant fee. To the extent that Blanton's allegations set forth a
claim for a statutory way of necessity, he is entitled to prove that claim.
Blanton, 887 So. 2d at 1229.
(Emphasis supplied). See also Guess
v. Azar, 57 So. 2d 443, 445 (Fla. 1952) (the statutory way of necessity
would permit "the appellants to cross the appellees' lands only for
reaching their homes or for transportation in connection with agriculture or
stock raising," but that the statutory easement could not be used for
transportation of shell for commercial purposes); Hunt v. Smith,
137 So. 2d 232, 233-34 (Fla. 2d DCA 1962) ("The statutory way of necessity
exists only when the lands are being used or desired to be used for the purposes
specified in the statute."); Blue Water Corp. v. Hechavarria,
516 So. 2d 17 (Fla. 3d DCA 1987) (rejecting Blue Water's argument that section
704.01(2) could be read to allow uses other than as stated therein, and holding
that a statutory way of necessity would not be allowed for a commercial fishing
operation, in part, because Blue Water's land was not being used "as a
dwelling, for agricultural, timber raising or cutting, or stockraising
purposes" as required by section 704.01(2)).
Accordingly, it was error for
the trial court to fail to restrict the use of the easement across the
REVERSED and REMANDED for
further proceedings consistent with this opinion.
POLSTON AND THOMAS, JJ., CONCUR.
SHEDRICK STATEN, as personal representative of the Estate of ROBERT TAYLOR, deceased, and SHEDRICK STATEN, Individually, Appellant,
v.
CELSO M.
GONZALEZ-FALLA, as trustee for the Gilman Article III Trust, Appellee.
CASE NO.
1D03-2856
COURT OF APPEAL
OF
855 So. 2d 247
Released for Publication
An appeal from the Circuit
Court for
George T. Reeves,
WOLF, C.J., BOOTH and HAWKES,
JJ., CONCUR.
PER CURIAM.
Having considered the
appellant's response to this Court's order dated
WOLF, C.J., BOOTH and HAWKES, JJ., CONCUR.
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