LORN A. MAZEROLLE ET AL., APPELLANTS,
v.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION ET AL., APPELLEE
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In this condemnation case, the court reversed a judgment awarding $760.00 for property taken by the Florida Department of Transportation, holding that the trial court erred in excluding surveyor testimony about the legal description ambiguity that affected the amount of land actually taken.
The court held that the testimony should have been admitted because a jury cannot properly set compensation for property taken without knowing the actual amount of property involved. The ambiguity in the legal description and its effect on the quantity of land taken is relevant to the jury's valuation function.
[1] A jury cannot determine the amount of compensation to be paid for property in a condemnation action without knowing the precise amount of property being taken.
[2] A trial court errs by excluding testimony that clarifies an ambiguous legal description of property in a condemnation action, thereby hindering the jury's ability to dete…
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Join FLexlaw to unlock all legal intelligence“this court cannot see how a jury can set a valuation on property when they do not know how much property was actually taken”
The court's core holding that the ambiguity about the quantity of land taken must be resolved before the jury can properly determine compensation.
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Join FLexlaw to unlock all legal intelligenceThe state condemned appellants' property, and at trial on the question of value, the state offered an order of taking with an ambiguous legal descript…
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Appellants seek reversal of a judgment in a condemnation action awarding them $760.00 for their property taken. At the trial on the question of value, testimony of appellants’ witness as to the legal description of the land to be taken was held inadmissible. Appellants assign that ruling as error. We agree.
The testimony of Charles Bassett, a registered land surveyor, was proffered to determine how much land was actually taken. He testified that the description in the order of taking read that the survey line could be on the southerly line of the right of way, but it appeared that they intended it to be on the center line of the right of way because the description stated that the property is 67 feet from the survey line, exclusive of existing road right of way. This is a particularly significant ambiguity since if the survey line is taken to be on the southerly right-of-way line, then there is an additional 3,350 square feet for which compensation would be due.
Section 73.071(3), Florida Statutes, F.S. A., provides that:
“(3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
(a) The value of the property sought to be appropriated.”
Although appellee cites this statute as a basis for affirming the trial court’s decision, this court cannot see how a jury can set a valuation on property when they do not know how much property was actually taken. It is true that the sufficiency of the legal description would perhaps be more properly raised at the time of the order of taking, but that does not necessarily mean that the erroneous description cannot later be corrected in order to facilitate the jury’s function of setting proper compensation for property actually taken.
The exclusion of the evidence sought to be given by appellants’ witness concerning the apparent ambiguity as to the location and amount of land taken ef*366fectively interfered with the jury’s ability to arrive at a value verdict based upon appellants’ version of the facts had the jury elected to believe that version.
Accordingly, the judgment reviewed herein is reversed.
RAWLS and JOHNSON, JJ., concur.
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Dade Cnty. v. Still, 370 So. 2d 64 (Fla. 3d DCA 1979)…roceeding should receive all information on the value of the property being taken. See also this court’s recent opinion in Garcia v. State Department of Transp., 342 So. 2d 522 (Fla. 3d DCA 1977); and Mazerolle v. State of Florida, Dept. of Transp., 266 So. 2d 364 (Fla. 1st DCA 1972). The appellees, on the other hand, point out that no compensation was paid when the ordinance was passed either in 1938 or in 1951, when the County announced that it would at sometime in the future be taking a portion of the lan…