Billboard to Distraction
by Ron Davis
The neighbor of a Florida shopping center must remove a newly installed billboard on his land because it blocks the center’s primary customer access.
The shopping center, located in the Orlando area, had paid the neighbor for an easement that allows customers to cross the land from and to a nearby major highway. So erection of the billboard had diminished the traffic flow and resulted in a decline in business at the center.
The shopping center owners consequently sued on grounds that the billboard is a “private nuisance” that interferes with their property rights. Moreover, they added, the billboard has caused a decline in the center’s visual appeal, has impeded a highway view of the center, and has presented a hazard from falling debris.
Finally, the center’s owners claimed that their neighbor violated the terms of the easement agreement and should pay them for the “diminished value of their property.”
The neighbor argued, however, that the billboard’s erection is a legitimate use of the land. Further, the neighbor maintained, the location of the billboard does not violate the terms of the easement so long as the center still has access for customers.
The easement states, however, that the shopping center owners have the use, for getting to and from the nearby major highway, of “all” the parcel of land on which the neighbor erected the billboard.
A Florida court ruled in favor of the neighbor on grounds that the shopping center owners have not totally lost the use of the neighbor’s land, but had merely been deprived of the use of one area—the site of the billboard. The shopping center owners appealed.
A Florida appellate court overruled the lower court, explaining, “The question is not whether the shopping center has been entirely deprived of ingress and egress, but, rather, whether or not there has been any interference of its right to free passage over the easement to the degree and amount originally contemplated by the two parties…. The easement is not ambiguous. The language clearly indicates that the easement is dominant over the entire parcel and, as such, cannot be reduced or infringed by the erection of the billboard.” (Sand Lake Shoppes Fam. v. Sand Lake Court, 816 So.2d 143 [Fla.App. 5 Dist. 2002])
Decision: May 2002
Published: August 2002