Before eminent domain: the writ of ad quod damnum

Dr. John D. Westcott (1807-1889), Surveyor General of Florida (1855) Pres. Florida canal company (1881-1889). Courtesy, Museum of the Confederacy, Richmond, Va. (Carte d' visite).
Dr. John D. Westcott (1807-1889), Surveyor General of Florida (1855) Pres. Florida canal company (1881-1889). Courtesy, Museum of the Confederacy, Richmond, Va. (Carte d’ visite).

Florida did not become a state until 1845. In the Treaty with Spain in 1819, the East and West Floridas would become the Territory of Florida under federal jurisdiction in 1821 until the “territory” became a “state” under the United States Constitution. Most of the meager population inhabited the extreme northern portion of the territory. The Everglades would not even be surveyed by the federal government until 1910.

It was still the Wild West in the Sunshine State. After the Civil War, there were still few settlers in south Florida because there was no means of transportation. Nevertheless, as early as 1838, entrepreneurs applied to the governor and the territorial council for charters to construct and operate railroads and inland waterways as private corporations. After 1845, the procedure changed little.

Applications were made to the new State Legislature. Until the Legislature passed a general corporation act permitting persons to apply for and receive charters pro forma if certain requirements were met, applying for and receiving charters to conduct business as corporations remained a cumbersome and political procedure.

Before and after statehood but before the passage of eminent domain law permitting certain public bodies given such power to take property under judicial supervision, railroad and canal companies enjoyed the special privilege of the ancient writ of ad quod damnum. Upon unilaterally deciding that it was necessary for one or both of these two types of transportation companies to extend a railroad or canal through private property, in the absence of mutual agreement on the price of the taking, a railroad or canal company could apply for a writ to the local county judge, who, in turn would empanel twelve residents to determine the value of the taking.

As soon as the company paid the sum determined, the proceedings ended and the company could extend its railroad or canal work on private property, without the usual delays, convoluted legal procedures, and payment of exorbitant attorney’s fees. In 1881, a financially destitute State of Florida agreed to incorporate four St. Augustine entrepreneurs to dredge what would become the Florida portion of the Intracoastal Waterway for a million acres of east coast state land and the right to collect tolls upon the waterway’s completion in 1912.

A Ten-Minute Trip Through the Cape Cod Canal

The purchase of the Cape Cod Canal built by August Belmont was authorized by the same Act of Congress in 1927 that authorized the Army Corps of Engineers to enlarge and perpetually maintain the Florida East Coast Canal.  Like the Cape Cod Canal, the Florida East Coast Canal was privately owned and collected tolls from marine traffic transiting the waterway.

The difference was that Federal funds were used to buy the Cape Cod Canal and every other waterway along the Atlantic coast to create parts of what some called the Atlantic Intracoastal Waterway, with the exception of the Florida East Coast Canal.  The State of Florida created a special taxing district along the Florida coast to issue bonds and buy the waterway for $725,000.  No other state was required to turn over its inland waterways to the federal government, free of charge.