Right to Compensation: Are Trees and Crops Subject to Eminent Domain in Florida?

“Full compensation” is designed to make the property owner whole at an eminent domain proceeding. It’s as if the condemnation never occurred and the owner voluntarily sold the property.  But what if the condemning authority takes something less than the entire property? Any taking of an interest in your property—no matter how slight—still requires the payment of full and fair compensation for that interest.  The condemning authority may effectively take trees and crops in some eminent domain proceedings.  But if the government takes trees and crops through eminent domain in Florida, you are entitled to full compensation.

Eminent Domain in Florida related to Trees and Crops

Photo Credit: Josh Sorenson

Value of Trees and Crops

When a property is subject to eminent domain in Florida, the condemning authority must include the value of the trees and crops in the payment of full compensation to the owner. See McClelland v. Town of Eustis, 88 Fla. 272, 102 So. 159 (1924).

In some circumstances, the condemning authority may be forced to pay compensation for trees, even without taking the subject property.  See Florida Power Corp. v. Wenzel, 113 So. 2d 747 (Fla. 2d DCA 1959) (finding that where certain trees were located close enough to present a danger to the safe and efficient construction of power line, the trees could be removed, and—upon payment of just compensation—the trees could be taken without also taking the land upon which the trees stood).

However, in other cases, trees may not be considered for compensation, without a taking of the subject property upon which they are located.  See South Florida Water Mgmt. District v. Basore of Florida, Inc., 723 So. 2d 287 (Fla. 4th DCA 1999) (finding that where flooding caused by a failed storm water system destroyed agricultural crops, the flooding failed to rise to the level of a permanent taking of the property required for just compensation).

Using Replacement Cost instead of Diminution in Value

It is well-established that trees and crops may be subject to compensation. However, the valuation of those trees and crops may be subject to further scrutiny.  For instance, the proper measure of damages—or compensation—for the taking of citrus trees is the replacement cost of the trees, rather than the diminution in value of the owner’s property, as a whole, without the trees.  Florida Dept. of Agriculture and Consumer Services v. Lopez-Brignoni, 114 So.3d 1138 (Fla. 3d DCA 2013).

Using Severance Damages

Sometimes trees are not cultivated for their fruit, but are rather prized for their sentimental and aesthetic qualities. In this situation, the appropriate measure of damages is severance damages, resulting from a loss in value of the remaining property after the trees are removed.  Sabal Trail Transmission, LLC v. +/- 18.27 Acres of Land in Levy Cty., Fla., 280 F. Supp. 3d 1331 (N.D. Fla. 2017).

Using Lost Profits

An additional measure of damages may be lost profits, where an owner can demonstrate that but-for the destruction of un-matured crops, the owner would not have suffered a loss of profits from the sale of the crops.  Lee County v. T&H Associates Ltd., 395 So 2d 557 (Fla. 2d DCA 1981).  In the case of un-matured crops, the compensation may be calculated by determining what the value would eventually be at the time the owner planned to market and sell the crops.  Dept. of Agriculture & Consumer Serv’s v. Mid-Florida Growers, Inc., 570 So. 2d 892 (Fla. 1990).

Photo credit: Marek Novotný

Conclusion on Eminent Domain in Florida

You should receive full and fair compensation for all interest in the property taken during any eminent domain proceeding. If your rights in trees and crops are adversely affected, just compensation likely is due. Every owner should consider the full scope of the taking and apply the proper valuation method to calculate compensation for the trees and crops affected.

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