FIRST DISTRICT COURT OF APPEAL STATE 

OF FLORIDA

_____________________________ 

No. 1D18-283 

_____________________________ 

WILLIAM E. CAMPBELL and

FLORA D. CAMPBELL, 

Appellants, 

v. 

STATE OF FLORIDA, DEPARTMENT 

OF TRANSPORTATION, 

Appellee. 

_____________________________ 

On appeal from the Circuit Court for Duval County. 

Robert M. Dees, Judge. 

March 28, 2019

B.L. THOMAS, C.J. 

Appellants appeal the trial court’s final judgment quieting 

title of the subject property to the Florida Department of 

Transportation under section 95.361, Florida Statutes. We affirm. 

Facts 

On March 17, 2004, Appellants purchased a 5.72-acre parcel 

of property in Duval County abutting the eastern boundary of 

State Road 5. In June 2005, the Florida Department of 

Transportation (the Department) approved construction plans for 
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the River City Marketplace development. Based on a survey done 

by the Department, permits were issued for use of a publicly owned 

right-of-way on the edge of State Road 5 abutting Appellants’ 

property. The new development required the developer to widen 

State Road 5 and place a drainage swale, gas lines and power lines 

on the publicly owned right-of-way on the eastern edge of State 

Road 5, abutting the western border of Appellant’s property. 

Beginning in 2006 and continuing, routine maintenance was 

performed on the State Road 5 right-of-way, including the subject 

property; the maintenance involved mowing, litter pick-up, edging, 

mechanical sweeping, shoulder repair, tree trimming, ditch 

maintenance, curb, and sidewalk edging. 

At his deposition, Appellant William Campbell testified that 

he had been generally aware of the widening of State Road 5 but 

was not aware of the specifics of the project. Campbell testified 

that, between 2005 and 2014, he visited his property three times. 

In April 2015, Appellants began to develop the property and 

build a self-storage facility on it. In connection with this 

development, a surveyor marked the four corners of Appellants’ 

property. As a result, Appellants and the Department discovered 

that the right-of-way used in connection with the River City 

Marketplace development was insufficient to support the work 

that had been permitted; the permits issued in 2005 were based on 

an incorrect DOT survey which indicated that the public right-ofway extended 100 feet from State Road 5, when the right-of-way 

actually extended only 80 feet. Thus, the subject property – a 20-

foot-deep strip of land running along the western boundary of 

Appellants’ property, a 7281-square-foot-portion – was encroached 

by the road widening. 

On May 22, 2015, Appellants met with Department staff at 

the office in Jacksonville. At the meeting, a Department 

maintenance engineer conceded that the Department had made a 

mistake and wanted to resolve it. The engineer informed 

Appellants that he had conferred with the Department’s legal 

department and could offer Appellants one of two options: the 

Department could purchase the affected property from Appellants, 

or the Department could move the drainage swale and utilities 
3

from Appellants’ property and back onto the publicly owned rightof-way. The Department’s assistant right-of-way manager told 

Appellants it was unclear whether a taking had actually occurred, 

that the Department had not ordered an appraisal on Appellants’ 

property, and that the Department had not yet made a decision on 

how to proceed. 

Internally, the Department determined that it would cost 

$197,000 to relocate the overhead structures on the encroachedupon property, and $269,000 to relocate underground 

infrastructure. The Department did not make an offer to 

Appellants, and on July 30, 2015, the Department filed a 

maintenance map claiming title to the subject property. 

Appellants sued the Department for inverse condemnation, 

arguing that their property had been taken for public use without 

compensation. The Department filed a counterclaim to quiet title, 

arguing that section 95.361, Florida Statutes, had vested all right, 

title, and interest in the subject property to the Department. 

At a bench trial, the maintenance contracts manager for the 

Department testified that, from 2006 until the time of trial, the 

Department hired contractors to maintain property along State 

Road 5, including Appellants’ encroached-upon property. The 

manager testified that, under that contract, the Department 

issued specific work orders to be performed by the contractor and 

testified that routine maintenance on the State Road 5 right-ofway, including the subject property, involved mowing, litter 

pickup, edging, mechanical sweeping, shoulder repair, tree 

trimming, ditch maintenance, curb, and sidewalk edging. 

A contracted project manager testified that the contractor 

maintained all state roads, including the subject property. The 

manager testified that the contractor’s crews patrol the subject 

property twice a week and perform maintenance up to the tree line, 

including fixing potholes, striping, mowing, litter pick-up, tree 

trimming, weed eating, and cleaning ditches. The manager 

described the methods that the contractor used to document work 

performed under the contract and testified that he had never 

personally seen work performed on the subject property. A 

Department assistant maintenance engineer testified that the 
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Department issued final acceptance of permitted work for the 

River City Marketplace development on May 22, 2007, indicating 

that all permitted work was complete and acceptable to the 

Department. 

Appellant Flora Campbell recorded the May 22, 2015, 

conversation between Appellants and Department officials on her 

phone. Appellants offered a transcript of the recording as evidence 

at trial, arguing that it was probative of the fact that the 

Department made a representation and later changed its position. 

The trial court excluded the transcript, ruling that the Department 

employees had a reasonable expectation that their 

communications were private, and that the recording and 

transcript were inadmissible under section 934.06, Florida 

Statutes. 

The trial court found that the Department had been 

maintaining the subject property since May 22, 2007 at the latest, 

and that pursuant to section 95.361(1), Florida Statutes, the 

property vested in the Department four years later, on May 22, 

2011, before Appellants filed suit on August 18, 2015. The trial 

court found that the Department’s taking of Appellant’s property 

occurred in 2005, when the physical encroachment began. The

trial court further found that Appellants had not shown a claim of 

equitable estoppel, because they had not established that their 

position had detrimentally changed based on their reliance on the 

Department’s initial representation. Based on those findings, the 

trial court denied Appellant’s claim of inverse condemnation and 

granted the Department’s counterclaim to quiet title, confirming 

to the Department fee simple title to the property, as described and 

recorded in the Department maintenance map. 

Analysis

I. 

Whether Competent, Substantial Evidence Supports the Trial 

Court’s Final Judgment

An appellate court reviews a trial court’s application of section 

95.361, Florida Statutes, de novo, and any factual findings 

supported under the competent, substantial evidence standard of 
5

review must be upheld. Chackal v. Staples, 991 So. 2d 949, 953 

(Fla. 4th DCA 2008). 

Section 95.361(1), Florida Statutes, provides that when a road 

is constructed by a governmental entity, and the width of that road 

is maintained by that entity “continuously and uninterruptedly for 

4 years,” the entire maintained width of the road is “dedicated” to 

the public, vesting to the public the right, title, easement, and 

appurtenances. 

Section 95.361(2), Florida Statutes, provides that when a road 

is constructed by a nongovernmental entity, and the width of that 

road is regularly maintained by a governmental entity for seven 

years, the entire maintained width of the road is “dedicated” to the 

public, vesting to the public the right, title, easement, and 

appurtenances. “The test is not whether the maintenance is 

proper, or frequent, or thorough, or open and obvious. The test is 

whether the maintenance was appropriate to the circumstances 

and, if so, the statutory test is met.” Division of Admin., State 

Dep’t of Transp. v. Ideal Holding Co., 427 So. 2d 392, 393 (Fla. 4th 

DCA 1983). 

Appellants argue that there was no competent, substantial 

evidence to support the trial court’s finding that the Department 

constructed State Road 5 or maintained the subject, encroachedupon property for either four or seven years. The Department 

argues that competent, substantial evidence established that the 

Department has maintained the widened portion of State Road 5, 

and therefore established dedication, whether the initial widening 

was deemed to be constructed by the Department or a contractor. 

Competent, substantial evidence is “‘such evidence as will 

establish a substantial basis of fact from which the fact at issue 

can be reasonably inferred’ or such evidence as is ‘sufficiently 

relevant and material that a reasonable mind would accept it as 

adequate to support the conclusion reached.’” Heifetz v. Dep’t of 

Bus. Regulation, Div. of Alcohol & Tobacco, 475 So. 2d 1277, 1281 

(Fla. 1st DCA 1985) (quoting De Groot v. Sheffield, 95 So. 2d 912, 

916 (Fla. 1957)). 
6

The testimony at trial was such that the court could have 

“reasonably inferred” that the Department, through its current 

contractor, has maintained the subject property since at least May 

22, 2007, when a Department engineer accepted the permitted 

work as complete on the area which included the subject property. 

Therefore, competent, substantial evidence supported the trial 

court’s finding that the Department had continuously and 

uninterruptedly maintained the subject property from at least 

May 22, 2007 until the time of the suit in August 2015, and 

that, under section 95.361(1), Florida Statutes, title vested in the 

Department in 2011, after four years of maintenance, and would 

have vested after seven years of maintenance if the court had 

determined the widening of State Road 5 had been constructed by 

a nongovernmental entity.* Therefore, the trial court did not err 

in quieting title of the subject property to the Department. 

II. 

Whether Appellants’ Inverse Condemnation Claim 

Was Time Barred 

“The general rule of law is that a property owner must bring 

an inverse condemnation claim within four years of the physical 

invasion of the property caused by governmental action.” Judkins 

v. Walton Cty., 128 So. 3d 62, 64 (Fla. 1st DCA 2013). Evidence at 

trial established that the physical invasion of Appellants’ property 

began in November 2005, when the trees on the western edge of 

the property were cut and the area cleared. 

Appellants argue that “[i]t was upon discovery of the 

encroachment by FDOT that [Appellants] were denied the 

economic use of their property and that the statute of limitations 

began to run.” They argue that, because the taking was not readily 

identifiable, it did not occur until Appellants actually discovered it 

on April 7, 2015, citing Sarasota Welfare Home, Inc. v. City of 

 * The trial court found that the widening of State Road 5, 

although actually constructed by a contractor, was done by the 

Department for the purposes of section 95.361(1), Florida Statutes; 

therefore, only four years of continuous maintenance was required 

before titled vested in the Department. 
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Sarasota, 666 So. 2d 171, 173 (Fla. 2d DCA 1995). Appellants 

argue that Sarasota Welfare Home supports their argument, 

because the Second District held that the taking occurred when the 

physical invasion was discovered. Appellants misread Sarasota 

Welfare Home. In that case, the City of Sarasota in 1970 buried a 

sewer pipe that extended onto property owned by Sarasota Welfare 

Home; the physical invasion was not discovered until 1988. Id. at 

172. The Second District held that the determination of whether 

a taking occurs is fact intensive and found that the discovery of the 

invasion caused the property owners to be denied the benefit of 

their property, therefore, that was when the taking occurred for 

the purposes of the inverse condemnation statute of limitations. 

Id. at 173. 

Here, however, Appellants were “denied substantially all 

economically beneficial or productive use” of a portion of their land, 

when the Department encroached upon it by widening State Road 

5 beginning in November 2005. Appellants’ window to file an 

inverse condemnation action ended in November 2009, four years 

after Appellants were deprived the beneficial use of their property. 

Appellants filed suit on August 17, 2015; therefore, the trial court 

did not err in denying Appellants’ inverse condemnation claim as 

time barred. 

III. 

Whether the Department Was Equitably Estopped 

From Obtaining Title to the Subject Property 

A trial court’s decision to apply the doctrine of equitable 

estoppel is reviewed for an abuse of discretion, provided there is 

competent, substantial evidence to support each element of the 

doctrine. Dep’t of Revenue ex rel Thorman v. Holley, 86 So. 3d 1199, 

1203-04 (Fla. 1st DCA 2012). 

“As a general rule, equitable estoppel will be applied against 

the state only in rare instances and under exceptional 

circumstances.” State, Dep’t of Revenue v. Anderson, 403 So. 2d 

397, 400 (Fla. 1981). 

To establish a claim of equitable estoppel: (1) the party against 

whom estoppel is sought must have made a representation about 
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a material fact that is contrary to a position it later asserts; (2) the 

party seeking estoppel must have relied on that representation; 

and (3) that party must have changed his or her position to their 

detriment, based on the representation. Lewis v. Dep’t of Health & 

Rehab Servs., 659 So. 2d 1255, 1256-57 (Fla. 4th DCA 1995). 

The trial court found that the Department’s initial statements 

regarding either the removal of infrastructure or purchase of the 

subject property, and its subsequent decision to pursue neither of 

those options, constituted a change of position to establish the first 

element of equitable estoppel. However, the trial court found that 

Appellants did not change their position in reliance on the 

Department’s statements, as in either scenario, Appellants could 

have filed suit; thus, Appellants could not prove detrimental 

reliance. We agree. 

The Department did not lull Appellants “into a 

disadvantageous legal position,” Major League Baseball v. 

Morsani, 790 So. 2d 1071, 1076 (Fla. 2001); the subject property 

vested to the Department before the maintenance engineer made 

any misstatement. The trial court therefore did not abuse it 

discretion in finding that the State was not estopped from an 

ownership claim in the subject property. 

IV. 

Whether Exclusion of the Secret Recording and 

Transcript of the May 22, 2015 Meeting Was Harmless Error 

“[I]n a civil appeal, the test for harmless error requires the 

beneficiary of the error to prove that the error complained of did 

not contribute to the verdict.” Special v. West Boca Med. Ctr., 160 

So. 3d 1251, 1265 (Fla. 2014). 

Appellants argue that the “meeting transcript clearly shows 

that FDOT strongly presented options to [Appellants] during the 

meeting . . . .” The transcript was probative to the first prong of 

equitable estoppel, i.e., that the State made a representation and 

subsequently changed its position. The testimony at trial was 

consistent with the transcript, as the Department’s maintenance 

engineer testified that he presented Appellants with two options 
9

before later proceeding under the “dedication” in section 95.361, 

Florida Statutes. Additionally, the trial court found that “the 

Department’s statement of its initial position only satisfies the 

first element of equitable estoppel,” thus, finding in favor of 

Appellants on the element that the transcript was offered to prove. 

Therefore, any error in excluding the transcript was harmless, as 

it did not affect the judgment. 

Conclusion 

Based on the foregoing, the trial court did not err in denying 

Appellant’s inverse condemnation claim and quieting title in the 

subject property to the Department. We therefore affirm the 

court’s final judgment.

AFFIRMED.

WETHERELL and WINSOR, JJ., concur. 

_____________________________ 

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331. 

_____________________________ 

Andrew Prince Brigham and E. Scott Copeland of Brigham 

Property Rights Law Firm PLLC, Jacksonville, for Appellants. 

Wayne W. Lambert, General Counsel, Marc A. Peoples, Assistant 

General Counsel, Department of Transportation, Tallahassee, for 

Appellee.