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Ocean Boulevard (Claim of Ownership) 05.08.2003 i► t:r�`1 CITY OF ATLANTIC BEACH J�1 800 SEMINOLE ROAD � P_: N''' ATLANTIC BEACH,FLORIDA 32233-5445 isI TELEPHONE: (904)247-5800 FAX: 904 247-5805 -;� SUNCOM: 852-5800 http://ci.atlantic-beach.fl.us May 8, 2003 Mr. John Long 215 Plaza Drive Atlantic Beach, FL 32233 RE: Ocean Boulevard Dear Mr. Long; You and I have spoke several times in the last couple of years about your claim of ownership to a portion of the paved part of Ocean Boulevard in Atlantic Beach which runs in front of your house. I told you that I would discuss your contentions with the City Attorney, which I have done on more than one occasion. Most recently, our City Attorney has provided a written opinion concerning the City's right to continue to maintain the road in its present location. The opinion is dated May 7, 2003 and a copy is enclosed for your review. It is the City's contention that it has the right under Florida Law to continue to maintain Ocean Boulevard in its present location regardless of actual ownership of the right of way. Florida Law gives municipalities the right to continue to maintain public streets provided they have been in existence for at least four years. This is called a prescriptive easement. Ocean Boulevard was a paved city street that existed prior to your purchase of the property in the 1970's. 1t has been continuously maintained as a city street since that time. I hope that this will resolve this matter once and for all. If you have any questions or require any further information please let me know. I am, Very truly yours, J' rty Manager cc: Bob Kosoy, Public Works Director Alan Jensen, City Attorney U:J/UO/LUUJ 11.J1 7UY-4Y0-7700 HC1-11`1 1. JCIV7CIY N I I T FHI7C UL ALAN C. JENSEN Attorney at Law 935 North Third Street Post Office Box 50457 Jacksonville Beach,Florida 32240-0457 Telephone (904)246-2500 Facsimile(904)246-9960 E-Mail: A3enseuLaw®aol.com May 7, 2003 VIA EASIMILE (904) 247-5805 James R. Hanson, City Manager City of Atlantic Beach 800 Seminole Road Atlantic Beach, FL 32233 Re: Fla. Stat. §95.361: Mr. Long on Ocean Blvd. Dear Jim: You recently inquired regarding the above referenced section of the Fla. Statutes and whether it applies to the City's long standing difference of opinion with Mr. Long about ownership of a portion of Ocean Blvd. You indicated Mr. Long has a deed from when he bought the property in the 1970s that indicates that he owns some of the pavement. It is my understanding that Ocean Blvd. is a dedicated street, constructed by the City, and is a very narrow right of way. It is also my understanding that existing pavement may go over a portion of the property owned by Mr. Long. I am not aware of the specifics of this situation, including the exact location of Mr.Long's property on Ocean Blvd., how much the pavement may encroach on his property, but it is my understanding that this encroachment, if any, has been in existence for many, many years. Sec. 95.361 of the Fla. Statutes normally applies to when a government agency constructs a road and then maintains and repairs it continuously and uninterruptedly for four years, and the road was constructed over privately owned property, that upon the government agency taking certain steps, the road may then be determined to be owned by the government agency. This situation the statute apparently addresses is slightly different from Ocean Blvd. and Mr. Long. I have reviewed dozens of cases decided by the Florida appeals courts, most of them fairly old cases. I didn't find anything recently.decided involving this issue. However, some of the cases are still good law and may well apply to this case. For example, there are cases regarding the fact that the owner of the property continues to pay ad valorem taxes which are imposed and collected by the City (the County in our case) would not be helpful to the City's case in claiming ownership to that portion of the road which encroaches over private property. See, for example, City of Miami vs. Jansik, 89 S0.2'1 644 (1956). It is my opinion that obtaining ownership of the property owned by Mr. Long over which Ocean Blvd, encroaches into his property may be very difficult under the UJ/UO!LUUJ 11..71 JUY—Lb10—JJOU 1-11—f-111 L JCIVDC1 Hl I T f NVC U James R. Hanson, City Manager §95.361: Mr. Long on Ocean Blvd. Page 2 prescriptive ownership procedures set forth in Fla. Stat. §95.361, and that more than likely if the City took that action it may well have to compensate Mr. Long for the value of the property taken. However, there are also cases where a county, for a period of more than four years maintained and repaired a public road extending 15 ft. over onto a portion of a land owner's property, and under these circumstances the county acquired an easement for public road purposes over such 15 ft. strip of property, and having acquired such easement, the county was authorized to extend the pavement within the area as long as the result ofthe improvement was not a further encroachment. Broward County vs. Bouldin, 114 So 2' 737 (Fla. god DCA 1959). A copy of the Bouldin case is enclosed. It certainly appears that the City has for more than four years maintained and repaired a public road which extends a certain number of feet onto Mr. Long's property, and therefore the City has acquired an easement for public road purposes over that section of Mr. Long's property and would be authorized to continue maintaining that portion of Ocean Blvd. as long as no further encroachment occurs. As a result, it is my opinion that a prescriptive easement has vested with the City of Atlantic Beach for that portion of the road which may encroach on his property. Because there does not appear to have been any litigation on this issue in a number of years, we have to rely on these older cases and cannot be certain what the courts would do if the issue was brought up again. I would certainly suggest that the City continue to maintain Ocean Blvd. in its present location and that if the matter were ever taken to court, the City would be declared to have, at a minimum, a prescriptive easement over that portion of the road that encroaches on Mr. Long's property. In this situation, I do not believe Mr. Long would be entitled to any compensation if he took court action against the City. If you have any questions at all regarding this matter, please don't hesitate to contact me. Very truly yours, AL• . SEN ACJ/tdb Cc: Donna Kaluzniak, Utility Director Public Works (w/enc) 6,, oALAN C.JENSEN Attorney at Law (iTh 2 935 North Third Street Post Office Box 50457 tville Bench,Florida 32240-0457 Teleph___ Facsimile(904)246-9960 E-Mail; AlensenLaw@aoi.com FAX MEMORANDUM DATE: May 8, 2003 Time: () • 30a TO: Jim Hanson, City Manager COMPANY: City of Atlantic Beach FAX NUMBER: (904) 247-5805 NUMBER OF PAGES: 3 (including cover sheet) FROM: ALAN C. JENSEN, ESQ. CLIENT/MATTER NO.: Fla. Stat. §95.361: Mr. Long on Ocean Blvd. MESSAGE To follow is the "revised" letter regarding the above matter. Please note changes to 3"° to last paragraph and last sentence before closing of letter. Please review and advise Alan if you have any other concerns regarding this matter. Thanks. Theresa The information contained in this facsimile message is attorney privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via U.S. Postal Service. Thank you. OW 131fz1717J 13:74 704-Z4b-77b17 ALAN 1.; JENSEN Al lY PAGE 01 • ALAN C. JENSEN Attorney at Law 935 North Third Street Post Office Box 50457 Jacksonville Beach,Florida 32240-0457 Telephone (904)246-2500 Facsimile (904)246-9960 E-Mail: AJensenLaw®aol.com FAX MEMORANDUM DATE: May 2, 2003 Time: i . •. 7 TO: Jim Hanson, City Manager COMPANY: . City of Atlantic Beach FAX NUMBER: (904) 247-5805 NUMBER OF PAGES: 7(including cover sheet) FROM; ALAN C. JENSEN, ESQ, CLIENT/MATTER NO.: .fpr O«c\—% o MESSAGE Letter and case reference to follow. The information contained in this facsimile message is attorney privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via U.S. Postal Service. Thank you. LLJ/GL/L1313LI 1,3:D4 7134-Lob-7JbCl ALAN U JENSEN ATTY PAGE 02 ALAN C.JENSEN Attorney at Law 935 North Third Street Post Office Box 50457 Jacksonville Beach,Florida 32240-0457 Telephone(904)246-2500 Facsimile(904)246-9960 -Mail: AjensenLaw@aol.com May 2, 2003 Vi,A,NASI III,E (904) 247-5805 James R. Hanson, City Manager City of Atlantic Beach 800 Seminole Road Atlantic Beach, FL 32233 Re: Fla. Stat. §95.361: Mr. Long on Ocean Blvd. Dear Jim: You recently inquired regarding the above referenced section of the Fla. Statutes and whether it applies to the City's long standing difference of opinion with Mr. Long about ownership of a portion of Ocean Blvd. You indicated Mr. Long has a deed from when he bought the property in the 1970s that indicates that he owns some of the pavement. It is my understanding that Ocean Blvd. is a dedicated street, constructed by the City, and is a very narrow right of way. It is also my understanding that existing pavement may go over a portion of the property owned by Mr. Long. I am not aware of the specifics of this situation, including the exact location of Mr.Long's property on Ocean Blvd., how much the pavement may encroach on his property, but it is my understanding that this encroachment, if any, has been in existence for many, many years. Sec. 95.361 of the Fla. Statutes normally applies to when a government agency constructs a road and then maintains and repairs it continuously and uninterruptedly for four years, and the road was constructed over privately owned property, that upon the government agency taking certain steps, the road may then be determined to be owned by the government agency. This situation the statute apparently addresses is slightly different from Ocean Blvd. and Mr. Long. I have reviewed dozens of cases decided by the Florida appeals courts, most of them fairly old cases. I didn't find anything recently decided involving this issue. However, some of the cases are still good law and may well apply to this case. For example, there are cases regarding the fact that the owner of the property continues to pay ad valorem taxes which are imposed and collected by the City (the County in our case) would not be helpful to the City's case in claiming ownership to that portion of the road which encroaches over private property. See, for example, City of Miami vs. Jansik, 89 So.2nd 644 (1956). It is my opinion that obtaining ownership of the property owned by Mr. Long over which Ocean Blvd. encroaches into his property may be very difficult under the O:J!OL,LULL) 1.7.:JY 70Y-LYO-77OV FLL_HIV U .IN C.IY NI IT rHUC q.3 James R. Hanson, City Manager §95.361: Mr, Long on Ocean Blvd. Page 2 prescriptive ownership procedures set forth in Fla. Stat. §95.361, and that more than likely if the City took that action it may well have to compensate Mr. Long for the value of the property taken. However, there are also cases where a county, for a period of more than four years maintained and repaired a public road extending 15 ft. over onto a portion of a land owner's property, and under these circumstances the county acquired an easement for public road purposes over such 15 ft. strip of property, and having acquired such easement, the county was authorized to extend the pavement within the area as long as the result of the improvement was not a further encroachment. Broward County vs, Bouldin, 114 So 2' 737 (Fla. 2"d DCA 1959). A copy of the Bouldin case is enclosed. It certainly appears that the City has for more than four years maintained and repaired a public road which extends a certain number of feet onto Mr. Long's property, and therefore the City has acquired an easement for public road purposes over that section of Mr. Long's property and would be authorized to continue maintaining that portion of Ocean Blvd. as long as no further encroachment occurs. Whether the City would have to pay Mr. Long any money for the value of this easement is unclear from the cases I have reviewed. Since Mr. Long has known of this situation for many years and has failed to take any action against the City in this regard, I would certainly argue to any court that he would not be entitled to any compensation and that a prescriptive easement has vested with the City of Atlantic Beach for that portion of the road which may encroach on his property. Because there does not appear to have been any litigation on this issue in a number of years, we have to rely on these older cases and cannot be certain what the courts would do if the issue was brought up again. I would certainly suggest that the City continue to maintain Ocean Blvd. in its present location and that if the matter were ever taken to court, the City would be declared to have, at a minimum, a prescriptive easement over that portion of the road that encroaches on Mr. Long's property. As stated above, I think the City would also have good defenses to any claim for compensation Mr. Long might make in such a court action. If you have any questions at all regarding this matter, please don't hesitate to contact me. Very truly y• rs, frALASEN ACJ/tdb Cc: Donna Kaluzniak, Utility Director Public Works (w/enc) UL/LL/uJ 1J.JY Jc/Y LYu JJL/v F,LMII L VLi1..1L11 M1 1 1 r HVL VY • 1 l4 So.2d 737 Page 1 (Cite as: 114 So.2d 737) I)istrict Court of Appeal of Florida,Second District. pavement within the area so long as the result of the improvement was not a further encroachment. F.S.A. BROWARD COUNTY and State Road 337.31, Department of Florida,Appellants, v. 13]Mandamus€ 95 H.E.BOULDJN et at,Appellees. 250k95 No.674. A county, having the power of eminent domain, could properly be ordered to exercise the power as a method Sept,25, 1959. of compensating a private property owner for property Rehearing Denied Oct.21, 1959. taken for public purposes. Action by property owner to enjoin a county and State 141 Eminent Domain X69 Road Department from extending a public road over the 148k69 laud of property owners. The Circuit Court, Broward County,Otis Farrington,.i.,entered o decree in favor of 14J Mandamus X95 property owners,and an appeal was taken. The District 250k95 Court of Appeal, Thorned, Campbell, Associate Judge, held that where the county, as a result of widening of a Under the state constitution, a private owner is entitled highway, encroached three feet onto the land of a to just compensation for his property taken and used for property owner beyond portion of his land over which public purposes and when a public agency of its own county had acquired an easement for public road volition moves onto private property and proceeds to purposes, property owner was entitled to a decree use it for public purposes, the property owner is directing county either to remove the additional justified in seeking relief through the averts, and pavement which resulted in the trespass on his property, thereby compelling the public agency either to restore or,in the alternative,to proceed to exercise its power of the property taken or to compensate the owner for the eminent domain as a method of restitution, and to taking, determine the compensation to be paid to property owner for the property taken. 15J Mandamus C°'95 250k95 Reversed in pail and affirmed in part 151 Mandamus 098(1) West Headnotes 250k98(1) 11]Highways X14 Where a county, as a result of widening of a highway, 200k]4 encroached three feet onto the land o1'a property owner beyond portion of his land over which county had When a public casement by prescription is acquired for acquired an easement for public road purposes, road purposes, the width of the easement is not limited property owner was entitled to a decree directing county to that portion of the roadway actually traveled or either to remove the additional pavement which resulted paved,hut it includes also the land which is needed and in the trespass on his property, or, in the alternative, to used for the support and maintenance of the paved or proceed to exercise its power of eminent domain us a traveled portion,including shoulders and ditches, method of restitution, and to determine the compensation to be paid to property owner for the 12)Highways€ '14 property taken. 200k14 16)Counties€ 228 Where a county, for a period of more than four years 104k228 maintained and repaired a public road extending 15 feet over onto a portion of landowner's property, county In action by an individual property owner seeking acquired an easement for public road purposes over equity relief to prevent a trespass by county on his land, such 15-foot strip of property,and having acquired such or in the alternative to compel exercise of the power of easement, the county was authorized to extend the eminent domain to compensate therefor, property Copr.©West 2003 No Claim to Orig. U.S. Govt. Works YJJ/ VL!Z. J J. IVY • • 1.14 So 2d 737 page 2 (Cite as: 114 So.2d 737) owner,even though he prevailed,was not entitled to an appellee Bouldin. The paved portion of the road was award of costs against the county,in view of fact neither 18 feet in width. The county maintained the shoulder the state nor its agencies can be subjected to payment of and ditch 6 feet in width on each side of the pavement cvsL5 in the absence of statute or contract. The center line of the pavement was the south line of Bouldin's property. Neither the County nor the State 17) Counties € 1 Road Department had ever acquired by conveyance 104k1 either an easement or the fee title to the maintained roadway. It will, therefore, be noted that the easement A county is a political subdivision of the state. by prescription was acquired over the sough 15 feet of Bouldin's property. *739 In December 1956, the 18)Eminent Domain 265(3) County and the Road Department undertook to widen 148k265(3) the pavement to an overall width of 24 feet,using 3 feet of the ditch and shoulder on each side for pavement. Under section of constitution requiring just Obviously,this would have left only 3 feet for shoulder compensation he paid when private property is taken, and ditch on each side of the pavement after it was under statute allowing recovery of costs when a public completed. Bouldin sought a temporary restraining agency proceeds to acquire private property by exercise order to stop the road building. This was denied. The of power of eminent domain, in any proceeding County and Road Department proceeded to widen the instituted by a county to acquire additional property pavement as planned and on final hearing the needed for a roadway, following entry of a decree Chancellor concluded that the widening of the directing county either to cease a trespass or commence pavement,in effect,constituted a trespass on Bouldin's such condemnation proceedings, amount of costs property to the extent of 3 feet, and that as a result the expended by property owner in protecting his property County and Road Department, as well as the public, against illegal encroachment by the county could were trespassing an additional 3 feet over the Bouldin properly he considered as an element of damages in property. This conclusion was reached in the light of arriving at amount of just compensation to be paid to testimony to the effect that a 6 foot shoulder was him.F.S.A.Const. Declaration of Rights,§ 12; F.S.A. § essential to the maintenance of the 18 foot road. The 73.16. Chancellor drew the conclusion that after the road was *738 John U. Lloyd, Fort Lauderdale, for appellant, paved to 24 feet, a shoulder at least 6 feet in width Broward County. would be needed. 14e found as a fact that the appellants were actually trespassing on the lands of Bouldin to the Jack W Pierce,Tallahassee, for appellant,State Road extent of 3 feet. By the decree he directed the County to Department. condemn this additional 3 feet or else remove 3 feet of the new pavement on Bouldin's side of the road. He George W. Kates and Lewis M. Ress, North Miami, also concluded that the County should be held liable for for appellees the costs Reversal of this decree is now sought. THORNAI.,CAMPBELL,Associate Judge. The appellants contend that they were within their lawful authority when they widened the pavement; that The appellants Broward County and the State Road the width of necessary shoulders should be determined Department of Florida, who were defendants below, by the Road Department rather than by a court, and seek reversal of a final decree in favor of Bouldin, finally,that the County should not be held liable for the plaintiff below, in a proceeding to enjoin appellants cost. from extending a public road over the land of the Bouldin contends that the result of the widening was appellees, an actual trespass on his land and as much as he was compelled to bring this proceeding to force the The determining point is whether the appellants had appellants to do their lawful duty, he should not be the power to widen a roadway acquired by prescription required to pay the costs_ and if so,the extent of the widening. The parties are not in accord as to the width of the For more than four years prior to December 1956, original pavement or the width of the roadway as appellant Broward County had maintained and repaired maintained by Broward County. The evidence, a public road extending over a portion of land owned by however, adequately supports the conclusion of the Copr ©West 2003 No Claim to()rig.U.S. Govt.Works VJ/ VL/LVVJ 1J.JY JVY LYV JJVV r�,••,I 1 n, • 114 So.2d 737 Page 4 (Cite as: 114 So.2d'737,*740) supra. compensation be paid when private property is taken for public purposes, Section 12,Declaration of Rights, Appellee suggests that the order directing the county F.S.A.Const., and Section 73.16, Florida Statutes, to pay the costs is supported by State Road Department F.S.A., allows recovery of costs when a public agency v, Bender, supra. We think, however, the decision proceeds to acquire private property by the exercise of relied upon does not support the conclusion of the trial the power of eminent domain. We, therefore,have the judge. This is so because in the Bender case the view that in any proceeding instituted by Broward Chancellor proceeded at once to value the property and County to acquire the additional property of the make an award by his final decree. *741 In the instant appellee Bouldin needed for the roadway which is the case the Chancellor merely directed the County and the subject of this suit, the amount of the costs expended Road Department to proceed to acquire the property as herein by the appellee in protecting his property against a condition to its continued use. National Rating Bureau illegal encroachment by the public agency might Inc. v. Florida Power Corp., Fla,1957, 94 So.2d 809, properly be considered as an element of damages in 64 A.L.R.2d 859. It is a rule generally accepted in this arriving at the amount of'just compensation'to be paid State that neither the State nor its agencies can be to him. Jacksonville Terminal Co. v.Blanchard,85 Fla. subjected to the payments of costs in the absence of 500, So, 286;De Sota County v.Highsmith,Fla,,60 statute or contract. Corneal v_ State Plant Board, So.2d 915. F1a.1958, 101 So.2d 371;State ex rel.Ervin v. Colonial The final decree is affirmed in port and reversed in Acceptance, Inc.,Fla.1955, 80 So.2d 681. It is settled part that in Florida a County is a political division of the State, view that in this particular proceeding 154 So. It is so ordered. 172. We, therefore, have the views that in this particular proceeding the Chancellor committed error in ALLEN,C.J.,and KANNER,J.,concur. awarding the judgment for costs against Broward County. 114 So.2d 737 181 However, our Constitution requires that just END OF DOCUMENT • Copr. Wcst 2003 No Claim to Orig. U.S. Govt. Works n7/nZ/ZnuJ 1.1:74 yn4-L4b- Jbn ALAN L JtNSLN Al1Y PAGE 07 ' 114 So.2d 737 page 3 (Cite as: 114 So.2d 737,*739) Chancellor to the effect that the original pavement was the appellants encroached an additional 3 feet on the 18 feet wide with a 6 foot ditch and shoulder on each property of Bouldin. We understand the finding to be side, The evidence on the point being in conflict we that such additional 3 feet were being used for find no basis for disturbing the finding of the Chancellor necessary shoulders and ditches. The decree then on this point. He was,therefore, correct in concluding directed the appellants to proceed to acquire the that under Section 337.31, Florida Statutes, F.S.A. additional land which had been subjected to their (formerly Section 341.59, Florida Statutes) the County trespass. We can find nothing wrong with this order, had acquired an easement for road purposes over the 30 The County, having the power of eminent domain, foot strip, 15 feet of which were located on Bouldin's could properly be ordered to exercise the power as a land. method of compensating the private property owner for the property taken for public purposes. This is a [1] Generally, the width of a prescriptive way is method of restitution which has been recognized by this limited to the extent of the actual user. However, it is Court in similar situations. State Road Department of well settled that when a public easement by prescription Florida v, Tharp, 146 Fla. 745, 1 So.2d 868; Weir v. is acquired for road purposes,the width of the easement Palm Beach County, Fla.1956, 85 So.2d 865. The is not limited to that portion of the roadway actually Florida Constitution recognizes that the private property traveled or paved. It includes also the land which is owner is entitled to just compensation for his property needed and used for the support and maintenance of the taken and used for public purposes. When a public paved or traveled portion. This includes shoulders and agency of its own volition moves on to private property ditches. 25 Am.Jur.,Highways, Section 36,page 359; and proceeds to use it for public purposes,the property 39 C.J.S. Highways § 20, p. 938; Campbell v owner is justified in seeking relief through the courts, Covington County, 161 Miss. 374, 137 So. 111; Grubb and thereby compelling the public agency either to v.Teale,265 Ala. 257,90 So.2d 727. restore the property taken or to compensate the owner for the taking. We have examined the cases cited by the appellants for a contrary rule but do not find that they are [5] The Chancellor, therefore, ruled correctly in applicable in the case at bar. directing the appellants either to remove the additional pavement which resulted in the trespass on appellee's [2] Section 337.31, Florida Statutes, F.S.A., property or,in the alternative,to proceed to exercise the recognizes the acquisition of an easement for road power of eminent domain as a method of restitution and purposes and the dedication of the roadway to the to determine the compensation to be paid to the public 'to the extent in width which has been actually ' appellee Bouldin for the additional property taken. worked'for a period of four years. We think that our conclusion is further supported by Section 337.03(13), [6][7] We are next confronted by the contention of the Florida Statutes, F.S.A., which defines a road as appellants that the Chancellor committed error in including the road bed, right-of-way, culverts, ditches, assessing costs in the instant proceeding against slopes and embanlanents. "740 We, therefore, appellant Broward County. conclude that Broward County had acquired an easement for public road purposes to the extent of the It should be recalled that this was an equity proceeding sough 15 feet of Bouldin's land, instituted originally to enjoin the commission of a trespass. The plaintiff appellee in the alternative Having acquired the casement for road purposes the ultimately sought to compel the appellants either to County, with the assistance of the State Road remove the additional pavement or to proceed to Department, was authorized to extend the pavement condemn the additional property taken. Unlike some of within the area of the acquired easement so long as the our precedents, this was not a class suit in which the result of the improvement was not a further Chancellor undertook to fix the value of the property encroachment upon the Bouldin property. The added taken as an incident to the exercise of his equity powers. pavement was widened with the use of the property Hills-borough County v.Kensett, 107 Fla. 237, l38 So pursuant to the highway easement acquired. This, 400, 144 So. 393; State Road Department v. Bender, however, does not authorize the appellants to encroach 147 Fla. 15, 2 So.2d 298. In the instant case an further on the abutting private property. individual property owner was seeking equity relief to prevent the trespass or in the alternative to compel the [31[4] The Chancellor found, and there was evidence exercise of the power of eminent domain to compensate to support his finding, that as a result of the widening therefor, State Road Department of Florida v. Tharp, Copr.C West 2003 No Claim to Orig. U.S,Govt.Works 114 So.2d 737 Page 1 (Cite as: 114 So.2d 737) District Court of Appeal of Florida,Second District. pavement within the area so long as the result of the improvement was not a further encroachment. F.S.A. § BROWARD COUNTY and State Road 337.31. Department of Florida,Appellants, v. [3]Mandamus C=:'95 H.E.BOULDIN et al.,Appellees. 250k95 No.674. A county, having the power of eminent domain, could properly be ordered to exercise the power as a method Sept.25, 1959. of compensating a private property owner for property Rehearing Denied Oct.21, 1959. taken for public purposes. Action by property owner to enjoin a county and State [4]Eminent Domain 0=69 Road Department from extending a public road over the 148k69 land of property owners. The Circuit Court, Broward County, Otis Farrington,J.,entered a decree in favor of [4]Mandamus C=95 property owners,and an appeal was taken. The District 250k95 Court of Appeal, Thornal, Campbell, Associate Judge, held that where the county, as a result of widening of a Under the state constitution, a private owner is entitled highway, encroached three feet onto the land of a to just compensation for his property taken and used for property owner beyond portion of his land over which public purposes and when a public agency of its own county had acquired an easement for public road volition moves onto private property and proceeds to purposes, property owner was entitled to a decree use it for public purposes, the property owner is directing county either to remove the additional justified in seeking relief through the courts, and . pavement which resulted in the trespass on his property, thereby compelling the public agency either to restore or,in the alternative,to proceed to exercise its power of the property taken or to compensate the owner for the eminent domain as a method of restitution, and to taking. determine the compensation to be paid to property owner for the property taken. [5]Mandamus G95 250k95 Reversed in part and affirmed in part [5]Mandamus 098(1) West Headnotes 250k98(I) [1]Highways C='14 Where a county, as a result of widening of a highway, 200k14 encroached three feet onto the land of a property owner beyond portion of his land over which county had • When a public easement by prescription is acquired for acquired an easement for public road purposes, road purposes,the width of the easement is not limited property owner was entitled to a decree directing county to that portion of the roadway actually traveled or either to remove the additional pavement which resulted paved,but it includes also the land which is needed and in the trespass on his property,or, in the alternative, to used for the support and maintenance of the paved or proceed to exercise its power of eminent domain as a traveled portion,including shoulders and ditches. method of restitution, and to determine the compensation to be paid to property owner for the [2]Highways C '14 property taken. 200k14 [6] Counties 0228 Where a county, for a period of more than four years 104k228 maintained and repaired a public road extending 15 feet over onto a portion of landowner's property, county In action by an individual property owner seeking acquired an easement for public road purposes over equity relief to prevent a trespass by county on his land, such 15-foot strip of property,and having acquired such or in the alternative to compel exercise of the power of easement, the county was authorized to extend the eminent domain to compensate therefor, property Copr. ©West 2003 No Claim to Orig.U.S. Govt. Works 114 So.2d 737 Page 2 (Cite as: 114 So.2d 737) owner,even though he prevailed,was not entitled to an appellee Bouldin. The paved portion of the road was award of costs against the county,in view of fact neither 18 feet in width. The county maintained the shoulder the state nor its agencies can be subjected to payment of and ditch 6 feet in width on each side of the pavement. costs in the absence of statute or contract. The center line of the pavement was the south line of Bouldin's property. Neither the County nor the State [7]Counties 1 Road Department had ever acquired by conveyance 104k1 either an easement or the fee title to the maintained roadway. It will, therefore, be noted that the easement A county is a political subdivision of the state. by prescription was acquired over the sough 15 feet of Bouldin's property. *739 In December 1956, the [8]Eminent Domain X265(3) County and the Road Department undertook to widen 148k265(3) the pavement to an overall width of 24 feet,using 3 feet of the ditch and shoulder on each side for pavement. Under section of constitution requiring just Obviously,this would have left only 3 feet for shoulder compensation be paid when private property is taken, and ditch on each side of the pavement after it was under statute allowing recovery of costs when a public completed. Bouldin sought a temporary restraining agency proceeds to acquire private property by exercise order to stop the road building. This was denied. The of power of eminent domain, in any proceeding County and Road Department proceeded to widen the instituted by a county to acquire additional property pavement as planned and on fmal hearing the needed for a roadway, following entry of a decree Chancellor concluded that the widening of the directing county either to cease a trespass or commence pavement, in effect, constituted a trespass on Bouldin's such condemnation proceedings, amount of costs property to the extent of 3 feet, and that as a result the expended by property owner in protecting his property County and Road Department, as well as the public, against illegal encroachment by the county could were trespassing an additional 3 feet over the Bouldin properly be considered as an element of damages in property. This conclusion was reached in the light of arriving at amount of just compensation to be paid to testimony to the effect that a 6 foot shoulder was him.F.S.A.Const.Declaration of Rights,§ 12; F.S.A. § essential to the maintenance of the 18 foot road. The 73.16. Chancellor drew the conclusion that after the road was *738 John U. Lloyd, Fort Lauderdale, for appellant, paved to 24 feet, a shoulder at least 6 feet in width Broward County. would be needed. He found as a fact that the appellants were actually trespassing on the lands of Bouldin to the Jack W. Pierce, Tallahassee, for appellant, State Road extent of 3 feet. By the decree he directed the County to Department. condemn this additional 3 feet or else remove 3 feet of the new pavement on Bouldin's side of the road. He George W. Kates and Lewis M. Ress, North Miami, also concluded that the County should be held liable for for appellees. the costs. Reversal of this decree is now sought. THORNAL,CAMPBELL,Associate Judge. The appellants contend that they were within their lawful authority when they widened the pavement; that The appellants Broward County and the State Road the width of necessary shoulders should be determined Department of Florida, who were defendants below, by the Road Department rather than by a court, and seek reversal of a final decree in favor of Bouldin, finally,that the County should not be held liable for the plaintiff below, in a proceeding to enjoin appellants from extending a public road over the land of the Bouldin contends that the result of the widening was appellees. an actual trespass on his land and as much as he was compelled to bring this proceeding to force the The determining point is whether the appellants had appellants to do their lawful duty, he should not be the power to widen a roadway acquired by prescription required to pay the costs. and if so,the extent of the widening. The parties are not in accord as to the width of the For more than four years prior to December 1956, original pavement or the width of the roadway as appellant Broward County had maintained and repaired maintained by Broward County. The evidence, a public road extending over a portion of land owned by however, adequately supports the conclusion of the Copr. ©West 2003 No Claim to Orig.U.S. Govt.Works 114 So.2d 737 Page 3 (Cite as: 114 So.2d 737,*739) Chancellor to the effect that the original pavement was the appellants encroached an additional 3 feet on the 18 feet wide with a 6 foot ditch and shoulder on each property of Bouldin. We understand the finding to be side. The evidence on the point being in conflict we that such additional 3 feet were being used for find no basis for disturbing the fmding of the Chancellor necessary shoulders and ditches. The decree then on this point. He was, therefore, correct in concluding directed the appellants to proceed to acquire the that under Section 337.31, Florida Statutes, F.S.A. additional land which had been subjected to their (formerly Section 341.59, Florida Statutes) the County trespass. We can find nothing wrong with this order. had acquired an easement for road purposes over the 30 The County, having the power of eminent domain, foot strip, 15 feet of which were located on Bouldin's could properly be ordered to exercise the power as a land. method of compensating the private property owner for the property taken for public purposes. This is a [1] Generally, the width of a prescriptive way is method of restitution which has been recognized by this limited to the extent of the actual user. However, it is Court in similar situations. State Road Department of well settled that when a public easement by prescription Florida v. Tharp, 146 Fla. 745, 1 So.2d 868; Weir v. is acquired for road purposes,the width of the easement Palm Beach County, Fla.1956, 85 So.2d 865. The is not limited to that portion of the roadway actually Florida Constitution recognizes that the private property traveled or paved. It includes also the land which is owner i$ entitled to just compensation for his property needed and used for the support and maintenance of the taken and used for public purposes. When a public paved or traveled portion. This includes shoulders and agency of its own volition moves on to private property ditches. 25 Am.Jur., Highways, Section 36,page 359; and proceeds to use it for public purposes,the property 39 C.J.S. Highways § 20, p. 938; Campbell v. owner is justified in seeking relief through the courts, Covington County, 161 Miss. 374, 137 So. 111; Grubb and thereby compelling the public agency either to v. Teale,265 Ala.257,90 So.2d 727. restore the property taken or to compensate the owner for the taking. We have examined the cases cited by the appellants for a contrary rule but do not find that they are [5] The Chancellor, therefore, ruled correctly in applicable in the case at bar. directing the appellants either to remove the additional pavement which resulted in the trespass on appellee's [2] Section 337.31, Florida Statutes, F.S.A., property or,in the alternative,to proceed to exercise the recognizes the acquisition of an easement for road power of eminent domain as a method of restitution and purposes and the dedication of the roadway to the to determine the compensation to be paid to the public 'to the extent in width which has been actually appellee Bouldin for the additional property taken. worked for a period of four years. We think that our conclusion is further supported by Section 337.03(13), [6][7] We are next confronted by the contention of the Florida Statutes, F.S.A., which defines a road as appellants that the Chancellor committed error in including the road bed, right-of-way, culverts, ditches, assessing costs in the instant proceeding against slopes and embankments. *740 We, therefore, appellant Broward County. conclude that Broward County had acquired an easement for public road purposes to the extent of the It should be recalled that this was an equity proceeding sough 15 feet of Bouldin's land. instituted originally to enjoin the commission of a trespass. The plaintiff appellee in the alternative Having acquired the easement for road purposes the ultimately sought to compel the appellants either to County, with the assistance of the State Road remove the additional pavement or to proceed to Department, was authorized to extend the pavement condemn the additional property taken. Unlike some of within the area of the acquired easement so long as the our precedents, this was not a class suit in which the result of the improvement was not a further Chancellor undertook to fix the value of the property encroachment upon the Bouldin property. The added taken as an incident to the exercise of his equity powers. pavement was widened with the use of the property Hills-borough County v.Kensett, 107 Fla. 237, 138 So. pursuant to the highway easement acquired. This, 400, 144 So. 393; State Road Department v. Bender, however,does not authorize the appellants to encroach 147 Fla. 15, 2 So.2d 298. In the instant case an further on the abutting private property. individual property owner was seeking equity relief to prevent the trespass or in the alternative to compel the [3][4] The Chancellor found, and there was evidence exercise of the power of eminent domain to compensate to support his finding, that as a result of the widening therefor. State Road Department of Florida v. Tharp, Copr. ©West 2003 No Claim to Orig.U.S. Govt.Works 114 So.2d 737 Page 4 (Cite as: 114 So.2d 737,*740) supra. compensation be paid when private property is taken for public purposes, Section 12,Declaration of Rights, Appellee suggests that the order directing the county F.S.A.Const., and Section 73.16, Florida Statutes, to pay the costs is supported by State Road Department F.S.A., allows recovery of costs when a public agency v. Bender, supra. We think, however, the decision proceeds to acquire private property by the exercise of relied upon does not support the conclusion of the trial the power of eminent domain. We, therefore,have the judge. This is so because in the Bender case the view that in any proceeding instituted by Broward Chancellor proceeded at once to value the property and County to acquire the additional property of the make an award by his final decree. *741 In the instant appellee Bouldin needed for the roadway which is the case the Chancellor merely directed the County and the subject of this suit, the amount of the costs expended Road Department to proceed to acquire the property as herein by the appellee in protecting his property against a condition to its continued use. National Rating Bureau illegal encroachment by the public agency might Inc. v. Florida Power Corp., Fla.1957, 94 So.2d 809, properly be considered as an element of damages in 64 A.L.R.2d 859. It is a rule generally accepted in this arriving at the amount of'just compensation'to be paid to him. Jacksonville Terminal Co. v. Blanshard,85 Fla. State that neither the State nor its agencies can be subjected to the payments of costs in the absence of 500,96 So. 286;De Sota County v.Highsmith,Fla.,60 statute or contract. Corneal v. State Plant Board, So.2d 915. Fla.1958, 101 So.2d 371;State ex rel.Ervin v.Colonial The final decree is affirmed in part and reversed in Acceptance, Inc.,Fla.1955, 80 So.2d 681. It is settled part. that in Florida a County is a political division of the State. view that in this particular proceeding 154 So. It is so ordered. 172. We, therefore, have the views that in this particular proceeding the Chancellor committed error in ALLEN,C.J.,and'CANNER,J.,concur. awarding the judgment for costs against Broward County. 114 So.2d 737 [8] However, our Constitution requires that just END OF DOCUMENT Copr. ©West 2003 No Claim to Orig.U.S. Govt. Works