Pre-Filing Flashcards
Is ED in rem or in personam? XXX???XXXX
Damages belong to owner @ time of taking.
Do not pass to subsequent grantee except by provision in the deed or assignment.
The power of eminent domain is exercised against the land and is an in rem proceeding,
not in personam. Miccosukee Tribe of Indians of Florida v. Dept. of Environmental
Protection ex rel. Board of Trustees of Internal Improvement Trust Fund, 78 So.3d 31
(Fla. 2d DCA 2012).
See also,
The Florida Constitution does not provide for an in rem action in
eminent domain proceedings. It grants to the owner of real property the
right to a jury determination of damages, all questions of judicial expertise
notwithstanding. The constitution grants to the individual owner the right
that compensation determined by a jury shall be paid or secured to him
before the property may be taken. Thus, the Florida Constitution provides
for the compensation of persons
What is provided in 5th Amend. of the U.S. constitution?
$5 = just comp.
———–
Feds prohibited to take:
(a) Pub Use,
(b) w/o DP,
(c) w/o Just comp.
What is provided in 14th Amend. of the U.S. constitution?
State can’t take w/o
(a) DP,
(b) Equal Prot.
———–
How remember which is which?
5th - started out applying to Fed.
14th - later added application to States (LGs).
———–
<5th, 14th ~ Art 1, Sec. 9>
Art 10, Sec 6 - 106 is fullest # - full comp
What is provided in Art 10, Sec 6 of the FL constitution?
106 ~ ED’s highest (fullest) #’d const reference = FULL $COMP$
———-
Entitled “Eminent Domain”
———–
Can’t take:
1. w/o Pub purp.,
2. w/o Full comp,
3. To convey to private O unless 3/5 maj legis.
———–
Can take for:
Easements to drain 1 Os prop onto or thru another’s
What does FL’s Constitution provide at Art I, Sec 9?
“I” am Due “9” lives.
———–
Due Process. Can’t take life, liberty or prop. w/o DP.
Which public Agency takes priority if one seeks to ED property of the other?
Depends.
———–
3 Doctrines:
(A) Prior Agency if no express grant.
(B) Compatible if doesn’t materially impair or alter existing.
(C) New Agency if express grant or nec implied.
Distinguish Public Purp v. Pub Necessity.
there is a Purposeful Quality in Nature
i have a Necessity to Select Quantity
———–
Purp: Quality & Nature of the project.
Nec: Quantity & Selection of the property.
What 10 items must you state in ED complaint?
Hint1: Nature of the project is not one of them.
Hint2: Plural (10 things).
(1) Demand prop condemned, title vest in LG
(2) GF negotiation»_space;
(3) Mobile home on prop.
(4) Public purp.
(5) Authority
(6) public Necessity - SCALE
(7) Interest to obtain
(8) Names, residences + legal disabs of interest Os
(9) ID property
(10) Survey performed, in GF will construct over property.
Must project be available to everyone?
No.
Just can’t be made avail to only particular users.
In common to public, regardless how few.
What if private benefits?
Incidental private benefit okay. Public benefit must dominate.
Can the result of ED give control of use away from the public?
No. Manner of enjoyment or use in public control.
Ex. After ED, LG intended to lease the property contracting its management to private = FAIL
What 5 things are weighed to make Necessity?
It’s a NECESSITY to WEIGH on a SCALE.
———–
LG must show it properly WEIGHED these 5 factors in order to establish necessity SCALE
1. Safety considerations.
2. Cost
3. Avail of alternate routes
4. Long range planning
5. Environmental Factors
Public necessity rule, re: amt taken.
Take no more than is necessary for H, S + W (health, safety + welfare).
Who decides public necessity?
Judge, not jury.
———–
How remember?
lawsuit always Necessitates a Judge, not a jury
How does burden shift?
LG proves it has pub purp + nec.
O proves it has DIBs.
— abuse of Discretion, Illegality, Bad faith
