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July 12, 1972
Mr. Dale Twachtmann
Southwest Florida Water Management Distr
P. O. Box 457
Brooksville, Florida 33512
You will recall that, when we were talking with the City of
St. Petersburg and Pinellas County, the question arose as to
whether we, as a public body, could condemn property that was
owned by the City or the County in the Big Cypress Reservoir
area. At that time, I could not answer the question, but sub-
sequent to that time I checked the law, and it is my opinion
that the Southwest Florida Water Management District would be
able to condemn the property of another public body.
Of course, we would have to build up proper facts and circum-
stances to bring us under the exception to the general rule that
such condemnation is not possible. Part of the information would
have to follow these lines
One exception to the general rule is that the condemning authority
has the power to take a portion of the tract in question because
the use to which it will be put is compatible with the current use
of the property. The rule stated in 29 CJS Eminent Domain, 74,
page 865, is as follows:
"New use consistent with prior use. The rule that power
to take property devoted to a public use must be conferred
expressly or by necessity implication applies only where
the second use will destroy or injure the use to which the
land was originally appropriated. So, in the absence of
some statutory provision expressly or by implication
forbidding it, property devoted to one public use may
under general statutory authority be taken for another
public use, where the taking will not materially impair
or interfere with or is not inconsistent with the use
already existing, and is nol detrimental to the public.
It is not material that some inconvenience may result to
the prior occupant, if the conditions are such that the
two uses can stand together."
It is also important to decide the need of the tract sought to
be condemned being superior to the use made of it by the public
body that has ownership of it.
I thought that this information might be of interest to you and
that we might advise the City and County of it if and when the
appropriate time arises.
Yours very truly,
Myron G. Gibbons
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