SIMPSON, Circuit Judge:
The Canal Authority of the State of Florida (Canal Authority) brought eminent domain proceedings in a state court to condemn the fee simple title to approximately 3,500 acres of land in Marion County, Florida, owned by the Ocala Manufacturing Ice and Packing Company (Ocala Manufacturing), for the construction of the Cross-Florida Barge Canal. The state trial judge refused to approve the condemnation of the fee title to all but approximately 500 acres of the property involved. No appeal was taken from that ruling by the Canal Authority. As a proximate result of the Canal Authority's failure to pursue its state appellate remedies, this Court is faced with multiple appeals from a federal condemnation judgment. Complex and novel questions of law are presented. We are persuaded that we should reverse the judgment of the district court and remand for entry below of judgment for Ocala Manufacturing.
THE CANAL AUTHORITY OF THE STATE OF FLORIDA
The Canal Authority is a corporate entity which operates under the supervision of the Department of Natural Resources of the State of Florida. Florida Statutes, § 374.011, F.S.A. It is authorized by § 374.051(1)(a) to construct a canal across the peninsula of Florida and by § 374.071 to exercise the power of eminent domain to accomplish its objectives. Federal participation in the construction of the canal is contemplated by § 374.171.
THE ROLE OF THE FEDERAL GOVERNMENT IN THE CANAL PROJECT
The Canal Authority was created by the Florida Legislature in 1933. Nine years later, on June 15, 1942, the Chief of Engineers, United States Army, wrote the Chairman of the Committee on Rivers and Harbors, House of Representatives, regarding the participation of the United States Government in the construction of the Cross-Florida Barge Canal. On July 23, 1942, Public Law 77-675, 56 Stat. 703, authorizing the construction of a barge canal across the State of Florida, was approved.
The Chief of Engineers' letter, later catalogued as House Document No. 109, 79th Congress, 1st Session, read as follows:
Public Law 77-675 provided:
Subsequently, the Canal Authority and the Corps of Engineers, United States Army, entered into contractual arrangements for the sharing of costs in the construction of the Cross-Florida Barge Canal. These arrangements were ratified by Congress in Section 104 of Public Law 86-645, July 14, 1960, 74 Stat. 480, 484-5.
"Sec. 104. (a) That the Secretary of the Army is authorized and directed to donate and convey by quitclaim deed to the Ship Canal Authority of the State of Florida all of the right, title, and interest of the United States of America in and to —
(1) lands in Putnam County, Florida, acquired by the United States of America by condemnation proceedings in the United States District Court for the Southern District of Florida, Jacksonville Division, as case numbered 356 U.S.J. Civil; and (2) lands in Marion County, Florida, acquired by the United States of America by condemnation proceedings instituted in the United States District Court for the Southern District of Florida, Ocala Division, as cases numbered 9, 10, 11, 12, 13, 14, 15, 16, and 22, U.S. Ocala Civil.
(b) It is intended hereby to authorize and direct the conveyance of all lands heretofore acquired by the United States with funds provided by the said authority for rights-of-way for a proposed ship canal across Florida.
(c) The conveyance authorized by this section shall be made without monetary consideration therefor but upon the conditions that the Ship Canal Authority of the State of Florida will, without cost to the United States: (1) when called upon by the Chief of Engineers, United States Army, to do so, reconvey to the United States, free of any encumbrances placed thereon during ownership by said authority, those lands conveyed pursuant to this section that are required for the Cross Florida Barge Canal; (2) relocate any roads, bridges, or utility lines constructed on or across such lands after the conveyance under this section by the United States, if the relocation thereof is required by the Chief of Engineers; (3) maintain and preserve improvements previously constructed upon the land by the Federal Government in a manner that will not increase the cost of the barge canal project; (4) hold the United States safe and free from any damages resulting from the aforementioned construction; and (5) devote the proceeds from sales of any lands conveyed to it under this section solely for the acquisition, for transfer to the United States free of cost, of any other lands required for the barge canal project.
(d) Nothing in this section shall be construed as a limitation on the right of the Ship Canal Authority of the State of Florida to sell any of the lands that, in the opinion of the United States Army district engineer at Jacksonville, Florida, will not be required for the Cross Florida Barge Canal. Any surveys or descriptions required to permit the disposal of any such lands shall be paid for by the Ship Canal Authority of the State of Florida if desired by said authority prior to the appropriation of funds therefor by the Federal Government.
(e) Nothing in this section shall be construed as a waiver of the obligation of the Ship Canal Authority of the State of Florida to (1) furnish, without cost to the United States, all lands, easements, and rights-of-way necessary for the construction of the Cross Florida Barge Canal as authorized by the Act of July 23, 1942 ( 56 Stat. 703); (2) hold and save the United States free from any damages resulting from the construction of said barge canal; and (3) to take over, maintain and operate all highways, bridges, and roadways built in connection with the said barge canal project."
On January 15, 1971, the United States District Court for the District of Columbia granted the motion of the Environmental Defense Fund, Inc., for a preliminary injunction against further construction work on the canal project. Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, D.D.C., 1971, 324 F. Supp. 878. Before an injunctive order was entered, the President of the United States, on January 19, 1971, ordered the suspension of further work on the canal. The text of the President's statement is printed in the margin. The validity of the order suspending further construction of the canal has since been placed in issue by means of several lawsuits now pending in the United States District Court for the Middle District of Florida. See, In re Cross-Florida Barge Canal Litigation, Jud. Pan.Mult.Lit., 1971, 329 F. Supp. 543.
THE STATE COURT CONDEMNATION PROCEEDING
On March 18, 1969, the Canal Authority instituted action No. 69-203 in the Florida Circuit Court for Marion County, Florida. That suit sought the condemnation of fee simple title to the following adjoining parcels of land owned by Ocala Manufacturing:
Parcel #1 (Eureka Pool): 2,925.68 acres
Parcel #2 (Dosh Lock Site): 259.40 acres
Parcels #3 and #4 (spoil areas): 21.40 acres
Parcel #5 (canal prism): 212.60 acres
Ocala Manufacturing resisted this condemnation proceeding. On May 16, 1969, the state trial judge, Judge Booth, approved the taking of Parcel #2 and Parcel #5 in fee simple and granted perpetual easements to the Canal Authority with respect to Parcels #1, #3 and #4. These rulings were supported by the following findings:
"4. That the evidence presented affirmatively shows that the lands designated as Parcel No. 1 will not be altered in any way by the construction, operation, repair, or improvement of the Cross-Florida Barge Canal, its embankments, locks and appurtenances except to flood said lands because of the construction of Eureka Dam approximately twenty (20) miles north of said property and that said lands will only be used as a water storage area which does not require the owner being deprived of the fee simple title to said lands, but only requires the right by the petitioner to flood said lands, control erosion, control the input and withdrawal of water and mosquito control.
"5. That the evidence presented affirmatively shows that the lands designated as Parcel No. 3 and Parcel No. 4 are necessary for construction spoil areas for the Cross-Florida Barge Canal for an indefinite period of time and does not require the owner being deprived of the fee simple title to said lands, but only requires the perpetual right by the petitioner to use said lands as a spoil area.
"7. That the evidence presented affirmatively shows that a majority of the members of the Canal Authority of the State of Florida which adopted the Resolution of Necessity for fee simple title upon which this suit is founded were not informed that the United States Army Corps of Engineers only required an easement in certain of the lands covered by the Resolution and knew of no reason why an easement would not be sufficient for the lands required in the pool or reservoir area.
"8. That the evidence presented affirmatively shows that a majority of the members of the Canal Authority of the State of Florida which adopted the Resolution of Necessity for fee simple title upon which this suit is founded, and the Managing Director of the Canal Authority of the State of Florida, and the Chief of the Design Division of the United States Army Corps of Engineers, knew of no plans for a future use of the fee simple title other than the present needs which can be satisfied by an easement as to Parcel No. 1.
"9. That the Canal Authority of the State of Florida exceeded the authority granted to it by Chapter 374.071, based upon the evidence presented to this Court and grossly abused its discretion in determining to acquire by condemnation the fee simple title rather than the easements necessary for the construction, operation, repair, or improvement of the Cross-Florida Barge Canal as said Resolution pertains to Parcel No. 1, Parcel No. 3 and Parcel No. 4."
Following this ruling, the Corps of Engineers advised the Canal Authority that a perpetual flooding easement as to Parcel No. 1 would not suffice for the intended use of those lands. Accordingly, the Canal Authority elected not to appeal from Judge's Booth's decision as to Parcel No. 1 and dismissed the lands known as Parcel No. 1 from the condemnation proceeding.
On October 13, 1969, trial before a jury was had in the state court on the question of the proper valuation of the approximately 500 acres, (Parcels #2, #3, #4 and #5) interests in which the Canal Authority was seeking to condemn. Ocala Manufacturing presented expert testimony of two appraisers assessing respectively $1,607,811.00 and $1,517,000.00 as its total damages flowing from the taking of interests in the 500 acres. With respect to the value of the fee simple title to Parcels #2 and #5, the landowner presented high testimony in the amount of $163,691.00.
Chapter 73 of the Florida Statutes deals with eminent domain proceedings. Section 73.071 directs that in eminent domain proceedings all damages including the value of the interests taken and damages to untaken portions, be tried and fixed in the condemnation proceeding. Accordingly, the state trial judge accurately instructed the jury in pertinent part, as follows:
At the time of the filing and trial of this suit Florida Statutes 73.071, F.S.A. provided:
73.071 Jury trial; compensation; severance damages. —
(1) When the action is at issue, the court shall empanel a jury of twelve persons at once and submit the issue of compensation to them for determination which issue shall be tried in the same manner as other issues of fact are tried in the circuit courts.
(2) The amount of such compensation shall be determined as of the date of trial, or the date upon which title passes, whichever shall occur first.
(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; and
(b) Where less than the entire property is sought to be appropriated,
any damages to the remainder caused by the taking, including when the action is by the division of road operations of the department of transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy an established business of more than five years' standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause; any person claiming the right to recover such special damages shall set forth in his written defenses the nature and exent of such damages.
(4) When the action is by the division of road operations, county, municipality, board, district or other public body for the condemnation of a road, canal, levee or water control facility right-of-way, the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason of the construction or improvement made or contemplated by the petitioner, shall be offset against the damage, if any, resulting to such remaining adjoining property of the defendant property owner by reason of the construction or improvement, but shall not be offset against the value of the property appropriated, and if such enhancement in value shall exceed the damage, if any, to the remaining adjoining property there shall be no recovery over against such property owner for such excess.
(5) The jury shall view the subject property upon demand by any party or by order of the court.
(6) If the jury cannot agree on a verdict the court shall discharge them, empanel a new jury, and proceed with the trial.
(Emphasis supplied)
"The controlling law governing the appropriation of the property of another for purposes by the state, its agencies and political subdivisions, is found in Article Ten, Section Four of the Constitution of the State of Florida which reads: `No private property shall be taken except for public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the Court and available to them.'
"This Court has already determined in these proceedings that the Petitioner is entitled to condemn the private property involved in this cause for public use, and, therefore, the sole question to be determined by you is the amount of money to be paid to the Defendant as just and full compensation. Neither the propriety of the taking nor the location of the facility is a matter to be considered by you, nor should the matter of the Defendant's cost and expenses, including their attorney's fees, enter into your deliberations. The Petitioner is required to pay these costs, expenses and attorney's fees, the amount being established in a separate proceeding before this Court. Since the power of Eminent Domain is necessary for the public good, it would be unjust to the public if the Petitioners would be required to pay the owner more than a fair compensation for the loss that he
sustained by the appropriation of his property for the general good. On the other hand, the owner, being compelled by law to part with his property whether he desires to sell or not, it would be unjust to the owner to require him to accept less than fair compensation therefor.
"You are instructed that the controlling date to use in the determination of the value of the property sought to be taken in this cause is July 7, 1969.
"You are further instructed that for the purpose of this trial you will consider the Sharpes Ferry Road closed at the Bert Dosh Lock Site.
"You are instructed that in determining the question of the amount of compensation which should be awarded to the Defendant, you should take into consideration, one: the value of the land and improvements actually taken from the Defendant;
two: the damage, if any, to the Defendant's adjacent remaining land which is caused by the taking.
"In determining the full compensation to be paid for the land taken and the damage to the remaining lands, if any, you must find the fair market value of the subject property. The fair market value of the property may be deemed that sum which, considering all the circumstances, would be arrived at by fair negotiation between an owner willing to sell and a purchaser willing to buy, neither being under any pressure.
"In making that determination, there should be taken into consideration all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining. You should take into account, one: the use to which the subject property was or might be applied. The value of the property to the Petitioner for its particular use is not the sole test for determining its market value. You should not consider speculative or fanciful values or uses of the property. Prospective uses of the property, even though reasonable, should be considered only insofar as they affect the market value of the property as of the date of evaluation. Two: you should also consider the present general market value of other like properties in the same locality as the property in question.
"In conclusion, the Defendant must be compensated for what is taken from him and that is done when he is paid fair compensation therefor. The test for determining the fair compensation for the property taken by the condemnation proceedings is not: What has the taker gained; but what has the owner lost.
"In arriving at your verdict, you are instructed that your verdict shall not be less than the lowest value testified to by any witness, nor shall it be higher than the highest value testified to by any witness." (Emphasis added.)
The jury returned a verdict for Ocala Manufacturing in the sum of $575,292.00. No break-out of the elements which went into the computation of this award was provided by the jury. Seeking to clarify its rights under the jury's verdict, the Canal Authority submitted a proposed judgment to the state court which contained a provision awarding the Canal Authority the right to flood the lands designated as Parcel #1. On November 10, 1969, the state court entered judgment in the amount fixed by the jury, thereby vesting in the Canal Authority fee simple title with respect to Parcels #2 and #5 and perpetual easements as to Parcels #3 and #4. The judgment was silent as to the Canal Authority's right to flood the lands in Parcel #1. It became final on December 10, 1969 with the expiration of the time for appeal under Florida Appellate Rule 3.2, subd. b, 32 F.S.A. (effective October 1, 1968).
As of the date of filing of the state court suit and at the time of its trial, Florida Statutes § 73.081, F.S.A., governing the form of jury verdicts in condemnation, provided:
"Form of verdict. — The verdict of the jury shall state an accurate description of each parcel of the property sought to be appropriated; and the amount to be paid therefor, together with any damage to the remainder caused by the taking, including business damages where allowable by statute. The compensation awarded by the jury for each parcel of property sought to be appropriated
shall be determined as a whole, irrespective of the separate interests of the various parties, or the various items of damages claimed as to each parcel."
(Emphasis supplied)
Section 73.081 as to the form of jury verdicts was changed by the 1969 Florida Legislature, to read as follows:
"Form of verdict. — The verdict of the jury shall state an accurate description of each parcel of the property sought to be appropriated and the amount to be paid therefor, together with any damage to the remainder caused by the taking, and including business damages when allowable by statute. When severance damages, business damages, moving costs, or other special damages are sought, the verdict shall state the amount of such damages separately from the amounts of other damages awarded."
It is important to our decision to emphasize that at the time of trial all damages, direct or severance, were to be stated as a whole.
THE FEDERAL CONDEMNATION PROCEEDING
Following the dismissal of its condemnation proceeding in the state court with respect to the lands in Parcel #1, the Canal Authority asked the Corps of Engineers, United States Army, to acquire, by means of a federal eminent domain suit, the Eureka Pool property. It was understood that the Canal Authority would reimburse the United States for the cost of the condemned lands.
The United States of America, on October 3, 1969, instituted action No. 69-26-Civ-Oc in the Ocala Division of the United States District Court for the Middle District of Florida. This action was brought pursuant to the Acts of Congress authorizing federal participation in the Cross-Florida. This action was brought pursuant to the Acts of Congress authorizing federal participation in the Cross-Florida Barge Canal undertaking, supra, and the following statutes: Title 33, United States Code, Section 592; Title 22, United States Code, Section 593; Title 33, United States Code, Section 701; Title 33, United States Code, Section 701c-2; and Title 40, United States Code, Section 258a.
Title 33, United States Code, Section 592:
Title 33, United States Code, Section 593:
Title 33, United States Code, Section 701:
Title 33, United States Code, Section 701c-2:
Title 40, United States Code, Section 258a:
Two parcels of land were sought to be taken in No. 69-26-Civ-Oc: (1) Tract 1201, consisting of 2,992.58 acres, an area roughly equivalent to the lands described as Parcel #1 in the state eminent domain proceeding plus some additional acreage; and (2) Tract 1300A, consisting of 4.48 acres. On September 11, 1970, the Canal Authority, claiming an interest in Tract 1201 by virtue of the judgment in the state condemnation proceeding, entered its appearance in the federal action. Six days later, on September 11, 1970, the United States amended its condemnation complaint by naming the Canal Authority as a party claiming an interest in the property described in the complaint.
The district judge issued a pre-trial order on September 17, 1970. That order directed that the issue to be determined at the upcoming jury trial would be the just compensation for the estate as set forth in the complaint in condemnation as of October 9, 1969. It further directed that the distribution of the just compensation determined by means of the jury trial would be litigated in a non-jury, post-judgment proceeding in which the Canal Authority and the Southwest Florida Water Management District would be permitted to participate.
On November 13, 1970, the federal jury found the sum of $1,093,316.50 to be just compensation for the taking of Tract 1201 and on November 25, 1970, the district judge rendered judgment against the United States, and in favor of all parties having compensable interests in Tract 1201, in the amount of the jury verdict.
The United States moved for a new trial asserting that numerous errors had been committed during the course of the jury trial and attacking the verdict of the jury as excessive and without a basis in the evidence.
Ocala Manufacturing, on December 17, 1970, moved for an order of partial distribution in the amount of $375,000.00. That motion was granted by the district court on December 21, 1970.
Following a non-jury apportionment trial, the district judge, on January 21, 1971, rendered his decision apportioning the just compensation award returned by the jury on November 13, 1970. He found that, as of October 8, 1969, the Canal Authority possessed a compensable interest consisting of the right to flood 2,100 acres of the lands designated as Tract 1201. He then awarded the sum of $850,000.00 to Ocala Manufacturing and the sum of $243,316.50 to the Canal Authority for their respective interests in the Tract 1201 lands. On the same date, January 21, 1971, the district judge by separate order denied the motion of the United States for new trial.
Ocala Manufacturing, on January 29, 1971, moved for new trial as to the nonjury apportionment proceeding. Citing the President's suspension directive of January 19, 1971, Ocala Manufacturing, on March 10, 1971, moved to set aside the final judgment and the declaration of taking pertaining to the Tract 1201 lands.
On March 17, 1971, the United States noticed its appeals from the district court's judgment of November 25, 1970, and from the order, dated January 21, 1971, denying its motion for new trial.
The district judge on March 17, 1971, denied Ocala Manufacturing's March 10 motion to set aside the final judgment and the declaration of taking as to Tract 1201. A few days later, on March 26, 1971, Ocala Manufacturing gave notice of its appeals from the judgment entered November 25, 1970, and from the March 17, 1971, order denying the motion to set aside the judgment and the declaration of taking as to the Eureka Pool lands.
On July 13, 1971, the district judge denied Ocala Manufacturing's motion, filed January 29, 1971, to set aside the apportionment judgment rendered January 21, 1971. Ocala Manufacturing, on July 28, 1971, gave notice of its appeal from the July 13, 1971 order refusing to set aside the apportionment judgment. The final appeal in this matter was lodged on August 9, 1971, when the Canal Authority gave notice of its crossappeal from the apportionment judgment of January 21, 1971.
THE APPELLATE OBJECTIVES OF THE PARTIES
The United States, in this Court, does not contest the size of the jury verdict rendered in the federal condemnation proceeding on November 13, 1970. It notes in its brief that:
". . . this appeal is being prosecuted as a precautionary measure to insure that this Court has before it all of the relevant factors, including evidence and rulings of law, which have been made in this complex matter by the state court and the district court in both the valuation and distribution proceedings. We believe this is necessary to prevent a possible inequitable result to both the federal and the Canal Authority's interest should the proceedings be separately treated on appeal." Brief for the United States, pp. 7-8.
From this it appears that the United States assumes a posture roughly analogous to that of a stakeholder in an interpleader action, with the qualification that the United States is separately supporting the position of the Canal Authority.
As noted earlier in this opinion, the Canal Authority is obligated to reimburse the United States for the cost of the real property acquired in this federal condemnation proceeding. Its primary objective, therefore, is to minimize the amount which Ocala Manufacturing might be awarded by the federal courts. The Canal Authority advances as theoretical justification for such a minimization the argument that the state condemnation judgment implicitly vested in the Canal Authority a flowage easement across the Tract 1201 lands equivalent in value to the difference between the state jury verdict ($573,292.00) and the Ocala Manufacturing's high testimony of the fee value of the lands taken in the state proceeding ($163,691.00).
Finally, Ocala Manufacturing seeks to maximize the just compensation due it for the taking of the Tract 1201 lands. It contends that the state condemnation judgment endowed the Canal Authority with no rights whatsoever in the Tract 1201 lands and that assuming the state jury considered the damage to Parcel #1 caused by the taking of Parcels #2, #3, #4 and #5, it is impossible, at this late date, to determine just what portion of the state jury's verdict is to be allocated to the anticipated damages to Parcel #1. In the alternative, Ocala Manufacturing asks this Court to set aside the final judgment and the declaration of taking pertaining to the Tract 1201 lands and restore it to ownership. In this connection it offers to refund all moneys it has received in payment for Tract 1201.
THE APPELLATE CONTENTIONS OF THE PARTIES
The United States first argues that the district court erred in excluding any consideration by the jury of the prior state condemnation proceeding. It asserts that the jury in the federal proceeding should have been exposed to evidence tending to show that the state court jury valued the 500 acres of land taken in that proceeding at $575,292.00, or $409,601.00 more than the landowner's highest evidence of the value of the lands actually taken. Second, the United States asserts that the district court's non-jury apportionment proceeding only partially mitigated the failure to submit to the federal jury evidence of the state jury's valuation.
The Canal Authority supports the district court's determination that the state condemnation proceeding vested in the Canal Authority some interest in the Tract 1201 lands. It contends, however, that the district judge's determination that Ocala Manufacturing was entitled to receive $850,000.00 out of the federal jury's verdict is without support in the record and resulted in the payment of dual compensation to Ocala Manufacturing for the right to flood the Tract 1201 lands. Finally, the Canal Authority asserts that the district court committed error in refusing to strike the testimony of one of Ocala Manufacturing's witnesses, Appraiser J. Alvin Register, who testified at the apportionment hearing that the value of the right to flood Tract 1201 was $21,000.00.
Ocala Manufacturing, as related earlier, pursues alternative objectives in this Court: (1) the maximization of its federal condemnation award; and (2) the return of the lands described as Tract 1201. Its appellate contentions will be outlined accordingly.
With respect to its first objective of maximum just compensation Ocala Manufacturing argues:
1. The district court did not err in excluding from the federal jury's consideration the value fixed by the state jury for the acreage which the Canal Authority was permitted by the state court to condemn;
2. The district court did not err in ruling that the basic issue to be determined by the federal jury was the just compensation for the estate as set forth in the condemnation complaint as of the date of taking;
3. The district court erred in ruling that the Canal Authority had a compensable interest in the lands designated as Tract 1201;
4. There was no basis in the evidence for the award to the Canal Authority of $243,316.50 for its interest in Tract 1201; the maximum award the Canal Authority could possibly be entitled to is $21,000.00, Mr. Register's appraisal of the value of the Canal Authority's right to flood Tract 1201 to a level at 41 feet above mean sea level (natural flooding having already raised the water level to 41.2 feet).
Ocala Manufacturing, as to its second objective (return of Tract 1201), maintains:
1. The district court erred in summarily striking its affirmative defenses that: (a) the Canal Authority was the real party in interest in the federal condemnation proceeding; and (b) the doctrines of res judicata and/or collateral estoppel barred the relitigation of the issue of the Canal Authority's right to condemn the fee simple title to Tract 1201's lands.
2. The district court erred in entering an order granting possession of Tract 1201 to the United States without a hearing.
3. The district court erred in denying Ocala Manufacturing's motion to set aside the declaration of taking and the final judgment.
THE EXISTENCE OF A COMPENSABLE INTEREST
During the course of the state condemnation jury trial, evidence was presented bearing upon the question of damages to remaining lands not taken by the Canal Authority. This evidence sought to focus the jury's attention upon the following elements of severance damages: (1) loss of access; (2) damage to remaining timber; (3) loss of waterfront; (4) impairment of access; and (5) potential flooding. It appears that each of these elements is a legitimate basis for the award of severance damages under Florida condemnation law. See, e.g., Worth v. City of West Palm Beach, 1931, 101 Fla. 868, 132 So. 689 (loss of access to lake frontage caused by the taking of land for construction of a street held compensable); State Road Department of Florida v. Zetrouer, 105 Fla. 650, 142 So. 217 (jury held authorized to award damages in a condemnation proceeding for the depreciation in value of the defendant's land resulting from the relocation of a right of way); and State Road Department of Florida v. McCaffrey, Fla.App.2, 1969, 229 So.2d 668 (adjoining property owners held entitled to compensation for loss of access to a state road caused by the State Road Department's conversion of the road to a limited access facility).
"Probably the most prolific source of litigation in the condemnation area stems from the compensation to be granted to the condemnee for damage to his remaining adjoining property.
"In addition to full compensation for the property taken, the property owner may also recover for damages to his remaining adjoining lands; these are commonly called `severance damages'. The full measure of damages, then, includes both the value of the property taken and the damage to the adjacent remaining property. The primary consideration in computing the value of property taken and the damages to the remainder is the depreciation in value of the entire tract by reason of the taking.
"Although fair market value is a usual criterion and an important element in the compensation formula, it is not an exclusive standard for determining full or just compensation; and it is not a complete formula when a determination of damage to the remainder of the property is sought. In assessing the damage to remainder property, the court may consider as the compensation the difference in its market value before and after the taking.
"The two theories most used in computing compensation for property taken and damage to the remainder are the market value theory and the before and after theory. Under the market value theory, the compensation is computed by determining the value of the land taken and adding to this amount the difference between the value of the remainder area before and after the taking. Under the before and after theory, the tract is considered as a whole; that is, compensation is fixed by determining the difference between the value of the owner's entire tract, including the parcel taken, before the taking by the condemning authority, and the value of his remaining property. It appears that these rules merely state the same principle in a different way, but the application of the two theories frequently can bring materially different results.
"Numerous other variations of these methods have been used, but all of them are merely tools to be used by the court or by the jury in determining the ever elusive question of what constitutes full or just compensation.
"Damage to the remaining property may be caused by taking a portion of a building, by taking such a portion of the land that the property is rendered unusable or less valuable for the purposes for which it is adapted, by separating a parcel of land so that there are two remaining parcels, by the use to which the property owner's land is put by the condemning authority, or in any number of other ways. The primary consideration in computing both the compensation for the property taken and the severance damage is the depreciation in value to the owner by reason of the taking."
Sheppard, Compensation in Florida Condemnation Proceedings, 14 University of Florida Law Review 18, 37-39 (1961).
If the state condemnation trial had taken place after October 1, 1970, it would be a relatively easy task to determine if the Canal Authority was vested with the right to flood Tract 1201 by virtue of the state court's judgment and the amount awarded therefor. As noted in footnote 10, supra, Fla.Stat. § 73.081 now requires Florida condemnation juries to state severance damages separately from the amounts of other damages awarded. Prior to the effective date of the revision of § 73.081, the jury was under a duty merely to state the amount of compensation to which each owner was entitled, precisely what the jury did in the state case, Action #69-203.
The Canal Authority argues that the district court acted correctly in holding that the state condemnation judgment vested the Canal Authority with some interest in the Tract 1201 lands, that interest being the right to flood 2,100 acres of Tract 1201. Ocala Manufacturing, on the other hand, contends that there is no way to determine just what factors went into the jury's verdict in the state action because five (5) elements of severance damages were presented to the jury for its consideration, and because the compensation awarded fixed a whole sum.
We agree with Ocala Manufacturing's position on this point. Phrased simply, there is not enough reliable information available from which to ascertain just what elements of severance damages were included in the state jury's verdict. This informational insufficiency is so fundamental to this case that nothing would have been gained had the district court permitted the federal jury to take into consideration the state condemnation judgment. We conclude, therefore, that the district court was without a rational basis for finding that the Canal Authority was vested with a right to flood 2,100 acres of Tract 1201 by virtue of the state judgment.
Having determined that the district court erred in holding that the Canal Authority, as a result of the state proceeding, possessed a compensable interest in Tract 1201, we must address ourselves to the manner in which the federal condemnation judgment should be apportioned. As noted at the beginning of this opinion, this unfortunate situation would not have arisen had the Canal Authority pursued its appellate remedies following the state court's refusal to approve the taking of fee simple title to Parcel #1. The Canal Authority, probably to avoid the delays expected in the Florida appellate courts, or for some other reason, opted instead to enlist the assistance of the United States Army Corps of Engineers in securing fee simple title to the Eureka Pool property, Parcel #1. The Corps of Engineers cooperated fully by taking the necessary steps to initiate and complete the federal condemnation proceeding now before us on this appeal. It is clear that the federal suit succeeded where the state action — at least on the trial level — failed. In the federal suit the Cross-Florida Barge Canal project obtained complete ownership rights to the fee title to Tract 1201 with a minimum of delay. We recognize the possibility also present that Ocala Manufacturing may receive a windfall in the form of double payment for the right to flood the Eureka Pool area should we award it the full amount of the federal condemnation judgment.
The Canal Authority's arguments that it dismissed Parcel #1 from its state condemnation action (with subsequent resort to the power of the United States to obtain fee simple title) to minimize delays in the completion of the canal undertaking and that the award of the entire federal condemnation judgment to the landowner would constitute an undeserved windfall are on their face persuasive. Nevertheless, we are unable to reach a better solution than that Ocala Manufacturing be given judgment for the full amount of the federal judgment. Without question, Ocala Manufacturing is equitably entitled at least to a very considerable portion of the federal award. It is not the fault of the landowner Ocala Manufacturing, that the impenetrable veil of the state judgment renders a rational apportionment out of the question. If fault is present, it is that of the Canal Authority. If the Canal Authority had either (1) pursued its appellate remedy from the state court refusal to allow the taking of a fee simple title to Tract #1, or (2) had initially asked the United States to bring federal condemnation proceedings against all the Ocala Manufacturing owned lands required for the Canal, the present dilemma would not exist. The possibility that Ocala Manufacturing may receive double compensation for a portion of its interest in Tract 1201 is the price the Canal Authority must bear for dragging the federal judiciary into this jurisprudential quagmire. No completely satisfactory result can be achieved. We adopt the least objectionable.
THE RIGHT OF OCALA MANUFACTURING TO REGAIN POSSESSION OF TRACT 1201
As noted earlier, Ocala Manufacturing alternatively seeks a return of its Eureka Pool property. It advances two theories in this regard: (1) the Canal Authority was the real party in interest plaintiff in the federal condemnation action and was barred from relitigating its power to condemn the fee simple title to the Eureka Pool lands when it failed to appeal the state court ruling that a fee title was unnecessary and (2) the federal declaration of taking and the condemnation judgment should have been set aside by the district court following the President's decision to halt further work on the Cross-Florida Barge Canal.
With respect to Ocala Manufacturing's first theory we hold that the United States, acting pursuant to explicit statutory authorization, see footnotes 11-15, supra, was the real party plaintiff in interest in the federal condemnation action. The Cross-Florida Barge Canal project was designated by Congress for federal participation. In addition, Congress, by means of Title 33, United States Code, Sections 592 and 593, clearly envisioned the eventuality that the federal power of eminent domain would be required in aid of an undertaking such as the Cross-Florida Barge Canal. The first theory advanced by Ocala Manufacturing is without merit.
Ocala Manufacturing's second theory is articulated in its brief to this Court as follows:
"The District Court, while having jurisdiction of the cause, erred in denying the motion to set aside the declaration of taking and the final judgment upon abandonment of the public use for which the lands are sought. In the case at bar, while the District Court still had jurisdiction of the cause, the President of the United States, Richard M. Nixon, by Presidential Order, halted the construction
of the Cross Florida Barge Canal and ordered an abandonment of the project and the United States Army Corps of Engineers pursuant to that Order is now doing restorative work on those portions of the project which have been partially completed by removing embankments and so forth. All logic and reason supports the proposition that in the event that the public use for which lands are being taken has ceased prior to the conclusion of the proceedings for the taking of the lands those proceedings should be abated. Were an eminent domain proceeding instituted today for the acquisition of these lands known as Tract 1201, it would be a valid defense that the lands were not needed for public purpose or for a public use because of a published Order of the President of the United States. The fact that the proceeding has been started prior to the published Order should make no difference. This is not a case where the District Court had lost jurisdiction prior to the abandonment of the project but on the contrary, the project was abandoned while the District Court had jurisdiction. It is elementary that a District Court, while having jurisdiction of a cause, can alter any orders theretofore entered upon a subsequent change in facts and circumstances as we have in this case. The Constitution of the United States and the eminent domain statutes of the United States do not allow the taking of private property for any use other than a public use. In the case at bar the necessity for public use of the lands designated as Tract 1201 has ceased. Thus it appears that the District Court erred in refusing to grant the motion of the landowner to set aside the final judgment and declaration of taking in the instant case." Brief for Appellee-Cross Appellant, pages 26-27.
Title 40, United States Code, Section 258a (the text of which appears in footnote 15, supra) specifically provides that:
"Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States . . ."
In light of Section 258a, it is clear that the district court was without power, following the presidential order of January 19, 1971, to strip the United States of its fee simple title to Tract 1201. The critical date was the date of taking, October 3, 1969. It would appear that the provisions of Title 40, United States Code, 304a govern the disposition of real property no longer required for public use.
Title 40, United States Code, Section 304a:
In our resolution of these appeals we intend no expression of opinion of the validity of the presidential order of January 19, 1971 which halted further construction work on the Cross-Florida Barge Canal. With several other questions, the issue of validity of the presidential order is now pending before the United States District Court for the Middle District of Florida. See, In re Cross-Florida Barge Canal Litigation, supra.
CONCLUSION
For the reasons set forth above, the judgment of the district court is reversed and the cause is remanded to the district court with directions to enter judgment in favor of Ocala Manufacturing in the amount of $1,093,316.50 plus interest as provided by law.
Reversed, with directions.