Bass v. Ramos

• Decision Date: 14 December 1909
• Parties: BASS v. RAMOS.
• Court: Florida Supreme Court

50 So. 945

58 Fla. 161

BASS v. RAMOS.

Florida Supreme Court

December 14, 1909

In Banc. Error to Circuit Court, Escambia County; J. E. Wolfe Judge.

Ejectment by O. L. Bass against John Ramos. Verdict for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A charge directing a verdict for the defendant should never be given, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiff. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue presented by the plaintiff, it should be submitted to the jury as a question of fact, and not taken from them and passed upon by the judge as a question of law.

Where it is apparent that no evidence has been submitted upon which the jury could lawfully find for the plaintiff, the judge may direct a verdict for the defendant.

If upon the evidence adduced a verdict for the plaintiff could lawfully have been rendered, a charge of the court to find for the defendant is error that necessarily injures the plaintiff.

The general rule, in actions of ejectment, that the claimant must recover upon the strength of his own title, does not operate to prohibit the acquisition of possessory rights, which may be enforced in actions of ejectment between parties in cases where the true owner does not intervene; but a prior possession, to be effective as against a mere squatter or intruder in actual possession, must be an actual, unabandoned possession.

A plaintiff may recover possession of realty by vertue of a proper prior possession; for then he recovers as much upon the strength of his own title as if he shows a good title to the premises.

A plaintiff in ejectment without title cannot recover as against a mere intruder without title, if such plaintiff has not himself had a prior actual possession of the land.

A recovery in ejectment may be had by one without title, but who was in prior actual and proper possession of the land and such prior possession need not have been for the statutory period necessary to mature into a perfect title by adverse possession.

In order to recover the possession of lands by the means of an action of ejectment, the plaintiff must have either a title to the lands, with a present right of continued possession or must have had actual bona fide possession of the lands with a right to maintain a continued possession, when ousted by defendant, and a present right to the possession when the action was begun.

In an action of ejectment, if the character of the land is such that continued, actual possession is apparently not allowed by law, or if the prior possession was not actual, or was unlawful, or was a mere pretense, or was that of an intruder or trespasser, there should be a showing of title or right of possession, in order to recover possession in ejectment.

While ordinarily the possession of land may be presumed to be lawful, yet the character of the land, the time and manner of possession and other apparent circumstances, may rebut a presumption of lawful possession, and put the party claiming such possession to the proof of the lawfulness of the asserted possession.

Private parties cannot by ejectment recover possession of lands under navigable waters, when such parties have no legal title to or right to use the land, and even when the title is in private parties, a recovery of possession is subject to the rights of the public in the waters.

Where a plaintiff in ejectment shows no title, but only that he had some time previously put a one-wire fence around land in the waters of a navigable bay, including the land in controversy, and employed some one to keep up the fence, the direction of a verdict for the defendant in actual possession will not be held to be error.

COUNSEL Avery & Avery, for plaintiff in error.

Sulivan & Sulivan, for defendant in error.

OPINION

WHITFIELD C.J.

An action of ejectment in the statutory form was brought in the circuit court for Escambia county, Fla., by O. L. Bass, to recover from John Ramos certain described lands, with mesne profits. A plea of not guilty was filed. At the trial the judge instructed the jury to return a verdict for the defendant, whereupon the plaintiff noted an exception, and before the jury retired the plaintiff took a nonsuit, with a bill of exceptions, as authorized by the statutes. Sections 1490 and 1697, Gen. St. 1906.

The testimony tended to show that before the defendant took possession the plaintiff had posts with one wire between them put on two sides of the space then unoccupied in the waters of the bay several feet deep and opposite to and extending several hundred feet from a designated lot in the city of Pensacola, within which space, several hundred feet out in the water, is the land in controversy; that the south side of the space was open to the bay; that boats passed through or under the wire on the posts erected by the plaintiff; that a person was employed by the plaintiff 'to look after premises which he had inclosed and claimed in the water front of the city of Pensacola'; that the land was located 'as being a part of the water front property of the city of Pensacola'; that the wire was broken by the storm, but had been repaired several times by the man who attended to it for four or five months for the plaintiff; that the one-wire fence was there in a somewhat dilapidated condition when the defendant built a house on the land.

On writ of error taken by the plaintiff to a final judgment for the defendant, it is contended that the trial court erred in directing a verdict for the defendant.

A charge directing a verdict for the defendant should never be given, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiff. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue presented by the plaintiff, it should be submitted to the jury as a question of fact, and not taken from them and passed upon by the judge as a question of law. German American Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740, and authorities cited; Starks v. Sawyer, 56 Fla. 596, 47 So. 513; McKinnon v. Johnson, 57 Fla. 120, 48 So. 910; 46 Am. Dig. 1232.

Where it is apparent that no evidence has been submitted upon which the jury could lawfully find for the plaintiff, the judge may direct a verdict for the defendant. Section 1496, Gen. St. 1906; Wade v. Louisville & N. R. Co., 54 Fla. 277, 45 So. 472; Painter Fertilizer Co. v. Du Pont, 54 Fla. 288, 45 So. 507; American Process Co. v. Florida White Press Brick Co., 56 Fla. 116, 47 So. 942. See, also, Tedder v. Fraleigh-Line-Smith Co., 55 Fla. 496, 46 So. 419; Town of Flora v. American Express Co., 92 Miss. 66, 45 So. 149; 46 Am. Dig. 1239.

If upon the evidence adduced a verdict for the plaintiff could lawfully have been rendered, the charge of the court to find for the defendant is error that necessarily injures the plaintiff.

The material evidence in support of the plaintiff's right to recover possession of the land sued for is that he had one wire strung upon posts on two sides of the space covering the land in controversy, that he employed a person to look after the premises for him, and that the defendant had subsequently built a boathouse on the land.

In connection with this testimony it appears that the land is covered by the waters of Pensacola Bay, a navigable waterway, and that the land was located as being a part of the water front property of the city of Pensacola. Even if the facts stated show a prior actual possession, yet if the circumstances disclosed by the testimony are such as to repel any presumption that might otherwise exist that the prior possession of the plaintiff was lawful, the plaintiff cannot recover, since he has shown no title to the land, and no right of possession other than the meager acts of prior possession already stated.

The general rule, in actions of ejectment, that the claimant must recover upon the...