Opinion
No. 81-484.
September 28, 1983. Rehearing Denied November 15, 1983.
Appeal from the Circuit Court, Broward County, Miette K. Burnstein, J.
James A. Scott of Tripp, Scott, Conklin Smith, Fort Lauderdale, for appellants.
Margaret-Ray Kemper, Appellate Atty., Ella Jane P. Davis, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for appellee.
We affirm the trial court's judgment denying appellants' claim of inverse condemnation. We believe the trial court's determination that Pembroke Road in Broward County was a state road for purposes of effecting the reservation of an easement in favor of the state in a 1944 deed issued to appellants' predecessor in title is supported by competent substantial evidence and is consistent with pertinent statutory provisions concerning state roads and rights of way. The trial court concluded that Pembroke Road had been specifically established by legislative act as a state road several years before the 1944 deed was issued; that Pembroke Road had existed at the location set out by the legislature for many years prior to the legislative designation; and that the 1944 deed specifically reserved the state's rights in Pembroke Road now challenged by the appellants. While the statutes defining state roads for various purposes are somewhat ambiguous, we do not believe the trial court's conclusions are inconsistent with those provisions insofar as they affect the issue of whether the state's interest in Pembroke Road was preserved by the 1944 deed. Cf. §§ 320.01(17), 341.28, 341.47 and 341.60, Fla. Stat. (1941).
While we have concluded that the trial court acted correctly, we believe the statutory provisions sufficiently uncertain, and the issue decided to be sufficiently important, that we certify the following question to the Supreme Court:
Was it necessary, under the statutory scheme in existence prior to the issuance of the 1944 deed involved herein, for the State of Florida to have surveyed and fixed the line of a road, and filed such survey with the Clerk of the Circuit Court of the county where the road was located, before the road in question could be officially classified as a state road?
HURLEY, J., concurs.
DOWNEY, J., dissents, with opinion.
As I understand this record, when the Everglades Drainage District conveyed the property in question to Johnson (appellant's predecessor in title) in January, 1944, Pembroke Road was not a state road as defined in Section 341.28, Florida Statutes (1941). In order to be classified as a state road, it must have been designated as such by the Legislature and the location of the line and right of way must have been surveyed and fixed upon by the [State Road] Department or its duly authorized engineers and representatives. Thereafter, a certified copy of the plat of such survey was required to be filed in the office of the Clerk of the Circuit Court in the county where the road existed. In 1944 the line of the road had not been surveyed or fixed by the department. This was not done until 1975. Therefore, the reservation in the Johnson deed reserving unto the State of Florida an easement 200' wide, lying 100' on each side of the centerline of any state road existing on the date of the deed should not affect appellant's property.
Given the foregoing, it appears to me that appellants were entitled to compensation for the property taken.