THE CANAL AUTHORITY OF THE STATE OF FLORIDA, A BODY CORPORATE UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLANT,
v.
JOYCE G. MAINER (FORMERLY JOYCE ELAINE GAY), ERNEST GAY, RONALD GAY AND VERTON GAY; WALTER R. BERMAN, AS TRUSTEE; FRANCIS S. GAY AND CATHERINE DUANE GAY; OCALA MANUFACTURING, ICE AND PACKING COMPANY; KENNETH T. HODGES AND ALVERNA C. HODGES, HIS WIFE; HASTY-GREENE INVESTMENTS, INC., A FLORIDA CORPORATION; SILVER SPRINGS SHORES, INC., A FLORIDA CORPORATION; JOHN H. COUSE AND BARNETTA S. COUSE; ASTOR WEST, INC.; JAMES J. GRIFFITTS AND LEOLA H. GRIFFITTS, APPELLEES

Fla. 5th DCA | 1983-10-13
Nos. 82-817 to 82-827
COBB and COWART, JJ., concur.
440 So. 2d 1304 Florida District Court of Appeal, Fifth District (1983) Negative Treatment
Cited by 8 cases

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Synopsis

The Canal Authority of Florida appealed from judgments ordering it to return lands and repay purchase prices in condemnation cases after the Cross Florida Barge Canal project was abandoned. The court reversed, holding that the Canal Authority could retain fee simple interests acquired through condemnation but must release easement interests conditioned on the canal project's completion.


Holding

The Canal Authority may retain fee simple interests acquired in condemnation proceedings without compensation, as failure of consideration absent fraud is insufficient to set aside completed condemnation orders and recorded deeds. However, easement interests conditioned on use for the canal project must be released and revert to the original owners, with no requirement for payment to the Canal Authority based on current land values.


Headnotes

[1] A condemning authority's fee simple interest in land acquired by order of taking cannot be collaterally attacked for failure of consideration absent proof of extrinsic fr…

[2] Failure of consideration is insufficient grounds to set aside a fully executed and recorded deed absent an affirmative showing of fraud.

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Key Quotes

“Such fee interests created by an order of taking cannot be collaterally attacked on the ground of failure of consideration unless extrinsic fraud is proved.”

Establishes the standard for challenging condemnation orders acquiring fee simple interests—extrinsic fraud must be shown, which was absent here.

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Facts & Procedural History

The Canal Authority was created in 1933 and began the canal project in 1935. Construction resumed in 1964 but was halted by President Nixon's order in…

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Opinion of the Court
SHARP, Judge.

SHARP, Judge.

The Canal Authority of the State of Florida appeals from eleven consolidated final judgments ordering it to convey lands back to appellees, the former landowners, and ordering the former owners of the parcels to return the purchase prices paid through various condemnation proceedings completed many years ago. We reverse.

The Canal Authority, a corporate entity created by state law 1 was formed in 1933. Construction of the canal project began in 1935, but stopped on June 20, 1936, when the initial congressional appropriation of federal funds was depleted. In 1942, the United States Congress continued the canal project by passing a law requiring local interests to provide the following assurances:

To furnish lands and rights-of-way required for the Canal; to take over and maintain and operate all highway bridges and roadways after completion, and to protect the United States from damages incident to the construction of the Canal.

In 1960 the Canal Authority extended the required assurances, which were formally accepted in November 1963. The federal government then appropriated funds to recommence construction of the canal project. Work began again on the project in February 1964, and proceeded continuously thereafter until stopped by President Nixon’s order on January 19, 1971. Only about 25 miles were actually excavated and none of the parcels in this case, were involved in the construction. Nothing has been constructed since 1971 except for the completion of the State Road 40 bridge, the restoration work in connection with what was to have been the railroad bridge relocation at Dun-nellon, and the construction of a fishing ramp platform for the handicapped at the spillway of Rodman Dam. Since 1971, no funds have been appropriated by the United States Congress for land acquisition, expansion, or construction of the canal project. In light of the above evidence, we affirm the trial court’s finding that the plans of the Canal Authority to construct the canal project have been abandoned,2 but we disagree as to the court’s application of this finding to the law in these cases.

The trial court, in essence, granted a re-cission remedy in these cases after it determined that a major part of the consideration for the acquisition of appellees’ lands was the future enhancement of the value of their remaining lands. This had not occurred because the canal was not built, and therefore, there was a failure of consideration. One fee in these cases was acquired by deed executed under threat of condemnation. The other fees were created by orders of taking.3 Two easements were held by the Canal Authority: one acquired by deed and one by an order of taking.4

All of the fees in these cases were held by the Canal Authority in fee simple, without any condition or reservation. Such fee interests created by an order of taking cannot be collaterally attacked on the ground of failure of consideration unless extrinsic fraud is proved.5 There is no evidence whatsoever in this record to establish extrinsic fraud. This distinguishes this appeal from Canal Authority v. Ocala Manufacturing Company, 365 So. 2d 1060 (Fla. 1st DCA 1979),6 and puts it in line with Carlor Company, Inc. v. City of Miami, 62 So. 2d 897 (Fla.1953); Canal Authority v. Harbond, Inc., 433 So. 2d 1345 (Fla. 5th DCA 1983); and Langston v. City of Miami Beach, 242 So. 2d 481 (Fla. 3d DCA 1971). Similarly, failure of consideration, absent an affirmative showing of fraud, is not sufficient grounds for setting aside a fully executed and recorded deed.7 Under these circumstances, the Canal Authority may retain its ownership of the lands acquired in fee simple.

We reach a different result regarding the easements, however. The easements, by the very language of their creation, made their existence limited or conditioned upon use by the Canal Authority for the canal project, now abandoned. The document that conveys an easement to the Canal Authority from Hasty-Greene declares: “TO HAVE AND TO HOLD said rights and easement unto the Grantee and its assigns forever, or until such time as said property should no longer be required for the purposes of The Cross Florida Barge Canal project....” (Emphasis supplied). The circuit court order of taking that grants a perpetual easement to the Canal Authority from Ocala Manufacturing states that the easement is “for the purpose of constructing, operating, repairing, or improving the Cross Florida Barge Canal.... ”

Where a condemning authority only has an easement, and its right to use the property has been lost or the public use has ended, the easement is extinguished, and all of its rights revert to the owner of the fee.8 The owners of the servient tenements in these cases now hold their lands free from the public easements. No quitclaim deeds or payments to the Canal Authority are required.

We reject appellant’s contention that a sum based on current values of the land be returned to the Canal Authority by Ocala Manufacturing. There is little precedent or authority for such a requirement.9 The Canal Authority had the right to use the easement over the lands, which is what it paid for. Whether it was able to utilize the easement or not makes no difference. Further, there was no showing that Ocala Manufacturing procured the abandonment, or conducted itself unfairly in extinguishing the easement.

Accordingly, the final judgments are reversed and these proceedings are remanded for entry of final judgments consistent with this opinion.

REVERSED AND REMANDED.

COBB and COWART, JJ., concur. . Ch. 374, Florida Statutes (1981); Ch. 16176, 1933 Laws of Florida.

. 3 Nichols, Eminent Domain § 9.33 (3d ed.1981); C.J.S. Eminent Domain § 458 (1965).

. The lands acquired in fee simple were those formerly owned by Astor West, Berman, Couse, Gay, Griffitts, Hasty-Greene (by donation), Hodges, Mainer, and Silver Springs Shores.

. The lands acquired by easement were those formerly belonging to Hasty-Greene (by donation) and Ocala Manufacturing.

. See Carlor Co., Inc. v. City of Miami, 62 So. 2d 897 (Fla.1953).

. Canal Authority v. Ocala Mfg. Co., 365 So. 2d 1060 (Fla. 1st DCA 1979), is further distinguishable from the instant case in that it involved the rescission of a contract.

. 19 Fla.Jur.2d Deeds § 54 (1980); see Collins v. McKelvain, 138 Fla. 463, 189 So. 655 (1939); J.C. Vereen & Sons, Inc. v. City of Miami, 397 So. 2d 979 (Fla. 3d DCA 1981).

. 3 Nichols, supra note 2, at § 9.36; 30 C.J.S., supra note 2, at § 460.

. Some older cases were split on the question of whether a condemning authority could recover damages paid after a project was abandoned. See Annot., 121 A.L.R. 12 (1939). However, the better view is that abandonment, after the fee owner’s right to damages have become vested, will not entitle the condemning authority to recover the funds paid to the owners. 30 C.J.S., supra note 2, at § 338.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kempfer v. ST. Johns River Water Mgmt. Dist., 475 So. 2d 920 (Fla. 5th DCA 1985)
    …before the waiver of sovereign immunity. Further, we have held that a landowner may properly seek a judicial determination of whether an easement held by a state agency over his land has been abandoned. Canal Authority of State of Florida v. Mainer, 440 So. 2d 1304 (Fla. 5th DCA 1983). In Mainer, we held that express easements given by deed to a condemning authority which were conditioned upon the life of a condemning authority’s project, expired by their own terms when the project was abandoned.17 In a prope…
    1 / 2
  • Mainer v. Canal Auth. OF the State of Fla., 467 So. 2d 989 (Fla. 1985)
    …OVERTON, Justice. This is a petition to review a decision of the Fifth District Court of Appeal reported as Canal Authority v. Mainer, 440 So. 2d 1304 (Fla. 5th DCA 1983). These nine consolidated cases were brought by the petitioners to reacquire lands originally taken by the Canal Authority for the construction of the Cross-Florida Barge Canal. The district court held that the Canal Authority cou…
  • Feather v. Donaldson, 481 So. 2d 937 (Fla. 5th DCA 1985)
    …ce, Rana Park Corporation, absent its subsequent conveyance of the fee interest, remains the owner of the fee subject to the easement. If the purpose of the easement no longer is necessary, it may be extinguished. Canal Authority of State v. Mainer, 440 So. 2d 1304 (Fla. 4th DCA 1983). However, under the existing circumstances, title to the fee could not devolve to the Donaldsons by operation of law under section 255.22. Having resolved this case on these grounds, we decline to address the other issues raised…

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