19. Taking Defined “Entering on Private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to public use . . .” Department of Health and Rehabilitative Services v. Scott
20. Inverse Condemnation 1) Cause of action by a property owner; 2) To recover the value of property; 3) Taken by a government authority; 4) Where there has been no formal exercise of eminent domain
21. Nature of the Taking Permanent physical invasion clearly recognized as a taking Temporary takings clearly recognized since 1987 What about a temporary physical invasion?
24. Taking Verses Damage Government may “damage” property in Florida without incurring liability for a taking. “Damages” are the consequences of a legal act that come about as a result of no physical invasion. Kirkpatrick v. City of Jacksonville
25. Paty v. Town of Palm Beach Palm Beach constructed a “groin” to protect Ocean Boulevard The “groin” changed the natural action of the ocean in such a way as to cause the erosion on the plaintiff’s land Distinction between “affected” and “invaded”
26. State Road Dept. v. Darby “Damage necessary incident to the prosecution of the work” Government must acquire the necessary interests Temporary construction easements
27. Public Purpose Argument Kirkpatrick: Government argued that they took the property, but that compensation was not required because it was not for a public purpose. Court disagreed. Might be different story in a taking verses trespass scenario See Hendler and Edwards Dairy, Inc.
28. Immunity Considerations Sovereign Immunity is governed by Fla. Stat. § 768.28 and applies to torts (trespass) but not takings Law enforcement cases Surveyors and engineers are allowed to enter by statute
31. Kenworth Case Truck was impounded for a period of two years Government argued that plaintiff’s claim was for a tort The court rejected the argument and said that plaintiffs raised a meritorious takings claim
32. Associates of Meadow Lake Flooding case decided after First English Trial Court found no taking because the city remedied the flooding Fifth District disagreed and said landowners were entitled to compensation for the denial of any reasonable use that occurred from the flooding
33. White v. Pinellas County Trial court granted summary judgment finding no taking when agents entered private property and cut down trees Supreme Court disagreed saying that if it was done for a public purpose then a taking occurred Supreme Court relied in part on Darby
34. Edwards Dairy, Inc. Dispute over permission to lay a pipe Trial court found no taking when landowner consented, but Second District said consent is irrelevant “Taking” consists of both an entry and appropriation
35. The test is not precise In addition to standard elements of inverse condemnation, the following may be required to distinguish a trespass from a taking: Entry Appropriation Public Purpose Conclusions?