Cox v. Game

• Decision Date: 15 June 1979
• Docket Number: No. 78-2027,78-2027
• Citation: Cox v. Game, 373 So.2d 364 (Fla. App. 1979)
• Parties: Russell L. COX, Jr., et al., Appellants, v. Paul GAME and Mary E. Game, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 364

373 So.2d 364

Russell L. COX, Jr., et al., Appellants, v.Paul GAME and Mary E. Game, his wife, Appellees.

No. 78-2027.

District Court of Appeal of Florida, Second District.

June 15, 1979.

Rehearing Denied July 27, 1979.

E. O. Palermo of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellants.

Leslie D. Scharf and William G. Scott of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, for appellees.

GRIMES, Chief Judge.

This is an appeal from a final judgment which settled a boundary dispute between the parties in favor of appellees.

The controversy arose because the section of land in question was not of standard size in that it contained less than 640 acres.A careful analysis of the deeds in the two chains of title convinces us that the court properly ruled that appellees are the titleholders of the disputed land.No purpose would be served to further discuss this point.

The other point on appeal, which concerns appellants' adverse possession claim, merits more detailed consideration.In 1951 one of appellants' predecessors in title made a survey and filed a plat of Lake Chapman Subdivision which covered not only his own land but also the disputed property.None of the survey monuments were located within the disputed strip.The Hillsborough County Commission accepted the plat.Thereafter, until 1969, the property was assessed for taxation according to the platted lot numbers, and appellants and their predecessors paid the taxes during that period on those lots which included the disputed land.However, neither appellants nor their predecessors performed any overt physical acts of possession over the disputed strip of property.Appellants contend that the foregoing activities were sufficient acts of adverse possession under color of title to give them title under Section 95.16, Florida Statutes(1977).

In Downing v. Bird, 100 So.2d 57(Fla.1958), our supreme court set out the requisites of adverse possession as follows:

In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period.In addition the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner.In both rights the use or possession must be inconsistent with the owner's use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment.

Apropos to the appellants' claim, 3 American Law of Property§ 15.3(A. J. Casnered. 1952) states:

Mere assertions of...