Senate Bill sb1184e2

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    CS for SB 1184                                Second Engrossed



  1                      A bill to be entitled

  2         An act relating to transportation access;

  3         amending s. 704.01, F.S.; revising criteria for

  4         establishing a statutory way of necessity

  5         exclusive of common-law right; amending s.

  6         704.04, F.S.; removing a limitation on the

  7         existence of certain easements; providing for

  8         reenactment of certain provisions under certain

  9         circumstances; providing for effectiveness;

10         providing an effective date.

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12  Be It Enacted by the Legislature of the State of Florida:

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14         Section 1.  Subsection (2) of section 704.01, Florida

15  Statutes, is amended to read:

16         704.01  Common-law and statutory easements defined and

17  determined.--

18         (2)  STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW

19  RIGHT.--Based on public policy, convenience, and necessity, a

20  statutory way of necessity exclusive of any common-law right

21  exists when any land, including land formed by accretion,

22  reliction, or other naturally occurring processes, or portion

23  thereof, outside any municipality which is being used or is

24  desired to be used for a dwelling or dwellings or for

25  agricultural or for timber raising or cutting or stockraising

26  purposes is shall be shut off or hemmed in by lands, fencing,

27  or other improvements by of other persons so that no

28  practicable route of egress or ingress is shall be available

29  therefrom to the nearest practicable public or private road in

30  which the landlocked owner has vested easement rights. The

31  owner or tenant thereof, or anyone in their behalf, lawfully


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    CS for SB 1184                                Second Engrossed



 1  may use and maintain an easement for persons, vehicles, stock,

 2  franchised cable television service, and any utility service,

 3  including, but not limited to, water, wastewater, reclaimed

 4  water, natural gas, electricity, and telephone service, over,

 5  under, through, and upon the lands which lie between the said

 6  shut-off or hemmed-in lands and such public or private road by

 7  means of the nearest practical route, considering the use to

 8  which said lands are being put; and the use thereof, as

 9  aforesaid, shall not constitute a trespass; nor shall the

10  party thus using the same be liable in damages for the use

11  thereof,; provided that such easement shall be used only in an

12  orderly and proper manner.

13         Section 2.  Effective only if a court determines that

14  subsection (2) of section 704.01, Florida Statutes, as amended

15  by section 1 of this act, is unconstitutional and such

16  determination is upheld on appeal, it is the intent of the

17  Legislature that the provisions of such subsection shall be

18  the same as those in existence prior to amendment by this act,

19  and to that end subsection (2) of section 704.01, Florida

20  Statutes, as it existed prior to amendment by section 1 of

21  this act, is reenacted to read:

22         704.01  Common-law and statutory easements defined and

23  determined.--

24         (2)  STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW

25  RIGHT.--Based on public policy, convenience, and necessity, a

26  statutory way of necessity exclusive of any common-law right

27  exists when any land or portion thereof outside any

28  municipality which is being used or desired to be used for a

29  dwelling or dwellings or for agricultural or for timber

30  raising or cutting or stockraising purposes shall be shut off

31  or hemmed in by lands, fencing, or other improvements of other


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    CS for SB 1184                                Second Engrossed



 1  persons so that no practicable route of egress or ingress

 2  shall be available therefrom to the nearest practicable public

 3  or private road. The owner or tenant thereof, or anyone in

 4  their behalf, lawfully may use and maintain an easement for

 5  persons, vehicles, stock, franchised cable television service,

 6  and any utility service, including, but not limited to, water,

 7  wastewater, reclaimed water, natural gas, electricity, and

 8  telephone service, over, under, through, and upon the lands

 9  which lie between the said shut-off or hemmed-in lands and

10  such public or private road by means of the nearest practical

11  route, considering the use to which said lands are being put;

12  and the use thereof, as aforesaid, shall not constitute a

13  trespass; nor shall the party thus using the same be liable in

14  damages for the use thereof; provided that such easement shall

15  be used only in an orderly and proper manner.

16         Section 3.  Section 704.04, Florida Statutes, is

17  amended to read:

18         704.04  Judicial remedy and compensation to servient

19  owner.--When the owner or owners of such lands across which a

20  statutory way of necessity under s. 704.01(2) is claimed,

21  exclusive of the common-law right, objects or refuses to

22  permit the use of such way under the conditions set forth

23  herein or until she or he receives compensation therefor,

24  either party or the board of county commissioners of such

25  county may file suit in the circuit court of the county

26  wherein the land is located in order to determine if the claim

27  for said easement exists, and the amount of compensation to

28  which said party is entitled for use of such easement. When

29  Where said easement is awarded to the owner of the dominant

30  tenement, it shall be in compliance with s. 704.01(2) and

31  shall exist so long as such easement is reasonably necessary


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    CS for SB 1184                                Second Engrossed



 1  for the purposes stated herein. The court, in its discretion,

 2  shall determine all questions, including the type, duration,

 3  extent, and location of the easement, the amount of

 4  compensation, and the attorney's fees and costs to be awarded

 5  to either party for unreasonable refusal to comply with the

 6  provisions of s. 704.01(2), provided that if either of said

 7  parties so requests in her or his original pleadings, the

 8  amount of compensation may be determined by a jury trial. The

 9  easement shall date from the time the award is paid.

10         Section 4.  Effective only if a court determines that

11  section 704.04, Florida Statutes, as amended by section 3 of

12  this act, is unconstitutional and such determination is upheld

13  on appeal, it is the intent of the Legislature that the

14  provisions of such section shall be the same as those in

15  existence prior to amendment by this act, and to that end

16  section 704.04, Florida Statutes, as it existed prior to

17  amendment by this act, is reenacted to read:

18         704.04  Judicial remedy and compensation to servient

19  owner.--When the owner or owners of such lands across which a

20  statutory way of necessity under s. 704.01(2) is claimed,

21  exclusive of the common-law right, objects or refuses to

22  permit the use of such way under the conditions set forth

23  herein or until she or he receives compensation therefor,

24  either party or the board of county commissioners of such

25  county may file suit in the circuit court of the county

26  wherein the land is located in order to determine if the claim

27  for said easement exists, and the amount of compensation to

28  which said party is entitled for use of such easement. Where

29  said easement is awarded to the owner of the dominant

30  tenement, it shall be in compliance with s. 704.01(2) and

31  shall exist so long as such easement is reasonably necessary


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    CS for SB 1184                                Second Engrossed



 1  for the purposes stated herein. The court, in its discretion,

 2  shall determine all questions, including the type, duration,

 3  extent, and location of the easement, the amount of

 4  compensation, and the attorney's fees and costs to be awarded

 5  to either party for unreasonable refusal to comply with the

 6  provisions of s. 704.01(2) provided that if either of said

 7  parties so requests in her or his original pleadings, the

 8  amount of compensation may be determined by a jury trial. The

 9  easement shall date from the time the award is paid.

10         Section 5.  This act shall take effect upon becoming a

11  law.

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