Baugher v. Boley
| Decision Date | 01 June 1912 |
| Parties | BAUGHER et al. v. BOLEY. |
| Court | Florida Supreme Court |
On Rehearing, July 2, 1912.
Error to Circuit Court, Escambia County; J. Emmett Wolfe, Judge.
Action by A. K. Baugher and others, for the use of J. Whiting Hyer against Louis Boley. Judgment for defendant, and plaintiffs bring error. Affirmed.
Syllabus by the Court
Section 33 of article 3 of the Constitution forbids the Legislature to lessen the time within which a civil action may be commenced on an existing cause of action to recover the possession of land.
To acquire title to real estate by adverse possession without color of title, the premises actually occupied must have 'been protected by a substantial inclosure' or have 'been usually cultivated or improved' for the full statutory period.
While the digging of holes on land and the placing of posts therein on which a wire fence is put may be a trespass, the land is not actually occupied so as to start the running of the statute by which the occupant may acquire a title by adverse possession without color of title until the land is 'protected by a substantial inclosure,' by the completion of a proper fence, where the land is not 'usually cultivated or improved.'
Great latitude is to be allowed in the reception of indirect or circumstantial evidence. It includes all evidence of an indirect nature, whether the inferences afforded by it be drawn from prior experience, or be a deduction of reason from the circumstances of the particular case, or of reason aided by experience. The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth.
Where evidence that is admitted is merely cumulative and favorable to or not harmful to the complaining party and is not forbidden by law, reversible error cannot be based thereon.
Receipts for labor performed in constructing a fence and bearing particular dates may be relevant to the issue as to when the fence was built.
When there is evidence that title by adverse possession to land was acquired by a defendant in ejectment under the seven-year statute of limitations that became effective August 1, 1901 by an actual occupancy beginning after the seven-year statute was in force and extending for the requisite period, it is not error to refuse to direct a verdict for the plaintiff, or to charge that the possession must have continued for 20 years, as required by the statute when the possession began prior to August 1, 1901.
The requirement of the statute that the land shall be 'protected by substantial inclosure,' to acquire title by adverse possession without color of title, should be applied with reference to the facts and circumstances of each case as it arises for adjudication.
Where lands are wild and uncultivated, and they are used for pasturage or for obtaining timber or fuel therefrom, or some such similar use, a 'substantial inclosure' might consist in a wire fence sufficient to indicate a purpose to claim the ownership and use of the land to the exclusion of all others and to protect the land from trespassing vehicles riders, or stock.
Although there may be occasional breaks for roads and standing water in a fence inclosing land, yet the fence may be a 'substantial inclosure' when it is manifest that there was for the full statutory period a conspicuous effort to maintain a fence around the land commensurate with the attending circumstances for the obvious purpose of exercising rights of ownership of the land and to use the land in a way to which it was suited.
Blount & Blount & Carter, of Pensacola, for plaintiffs in error.
E. C. Maxwell, of Pensacola, for defendant in error.
In an action of ejectment the defendant obtained a verdict and judgment, and the plaintiffs took writ of error. To a statutory declaration the plea of not guilty was interposed and trial had thereon.
The plaintiffs proved title by conveyances, and the defendant relied on title acquired by adverse possession without color of title for the statutory period. The possession shown was the inclosure of the land by a wire fence consisting of two or three wires on posts and in one place on trees.
Primarily the issues presented were whether the possession and occupation of the land by the defendant began prior or subsequent to August 1, 1901, and whether the possession and occupation of the land by the defendant was of the character required by the statute to mature a title by adverse possession.
Section 33 of article 3 of the Constitution provides that 'no statute shall be passed lessening the time within which a civil action may be commenced on any cause of action existing at the time of its passage.'
Chapter 4916, Acts of 1901 (section 1722, General Statutes of 1906), enacts as follows:
This statute took effect August 1, 1901. Prior to that time, under chapter 4412, Acts of 1895, the period of possession without color of title required to ripen into title to land by adverse possession was 20 years.
If this cause of action existed prior to August 1, 1901, i. e., if the defendant was in possession of the land prior to August 1, 1901, so that an action of ejectment could have been brought against him for the recovery of the possession by the owner, such owner had 20 years from the beginning of such possession within which to bring an action of ejectment before the possession of the defendant would ripen into a title by adverse possession; and under the constitutional provision above quoted, the statute which became effective August 1, 1901, could not lessen the time within which the action may be brought. See Green v. Camp, 61 Fla. 256, 54 So. 363.
There was no claim that the possession of the land consisted in its being 'usually cultivated or improved,' as provided by the statute. But evidence was offered to show that the land had been 'protected by a substantial inclosure,' by the defendant under the statute for the full period of seven years beginning subsequent to August 1, 1901, when the occupancy and possession began by the completion of the fence constituting the 'substantial inclosure.' The evidence tended to show that the construction of the fence was begun prior to August 1, 1901, by the placing of posts on which the wires were put perhaps partly before August 1, 1901, and that the inclosure was completed subsequent to August 1, 1901, by the running of the wire fence entirely around the land, except perhaps for one or more breaks caused by water or roads. Under these circumstances, while the owner of the land had a right of action for a trespass before the completion of the inclosure, he did not have a right to an action of ejectment against the defendant, since the defendant was not living upon the land, was not cultivating or improving it, and was not in actual possession or occupancy of the land without color of title until the land was 'protected by a substantial inclosure,' by the completion of a fence to meet the requirement of the law under the facts.
As the evidence is sufficient to sustain the finding involved in the verdict that the actual occupancy and possession of the land by the defendant began subsequent to August 1, 1901, the seven-year limitation was applicable.
Over the objection of the plaintiffs that they were irrelevant, the court admitted in evidence written receipts showing that the defendant had between April and July, 1901, paid for labor in constructing the possessory fence around the land in controversy. Under the issue as to when the actual occupancy of the land was begun by the defendant, these receipts were not wholly irrelevant. They in fact tended to sustain the contention of the plaintiffs that the fence was constructed prior to August 1, 1901.
Great latitude is to be allowed in the reception of indirect, or circumstantial, evidence....
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