Dana v. Eilers

• Decision Date: 20 September 2019
• Docket Number: Case No. 2D18-2353
• Citation: 279 So.3d 825
• Parties: Gregory DANA and Jessica S. Dana, as trustees for the Gregory Dana and Jessica S. Dana Revocable Trust u/a/d Dated April 30, 2002, Appellants, v. Lorrie N. EILERS and Mark Eilers, Appellees.
• Court: Florida District Court of Appeals

279 So.3d 825

Gregory DANA and Jessica S. Dana, as trustees for the Gregory Dana and Jessica S. Dana Revocable Trust u/a/d Dated April 30, 2002, Appellants,

v.Lorrie N. EILERS and Mark Eilers, Appellees.

Case No. 2D18-2353

District Court of Appeal of Florida, Second District.

Opinion filed September 20, 2019

Diane H. Tutt of Conroy Simberg, Hollywood; and Nicole F. Soto of Conroy Simberg, Tampa, for Appellants.

Daniel J. Fleming and Daniel A. Hoffman of Johnson, Pope, Bokor, Ruppel & Burns, LLP; and W. Campbell McLean of GrayRobinson, P.A., Tampa, for Appellees.

CASANUEVA, Judge.

Gregory Dana and Jessica S. Dana, as trustees for the Gregory Dana and Jessica S. Dana Revocable Trust u/a/d dated April 30, 2002, appeal a final judgment denying the Danas' action for declaratory judgment and granting Lorrie N. Eilers and Mark Eilers' counterclaim for a prescriptive easement. Because the Eilers failed to establish entitlement to a prescriptive easement, we reverse.

I. FACTS

The parties own adjacent parcels of land on Lake Ellen Drive in Hillsborough County, which parcels were once owned by Gladys D. Braddock as a single ten-acre tract. The Danas own the western five acres, the Eilers own the eastern five acres, and a twenty-foot-wide private driveway extends south from Lake Ellen Drive for 875 feet, centered along the parcels' shared boundary.¹

Since 1938, the parties and their predecessors in title have used the private driveway to access their properties. The trial court found that the owners of the eastern and western parcels used the driveway as their sole means of ingress and egress to their properties. However, the parties seem to agree that this finding does not mean that the driveway provides the only possible means of accessing the property, as with a landlocked property, or that another reasonable means of access could not be developed.²

In 2014, less than a year after purchasing their property, the Danas filed an action for a declaratory judgment seeking to prevent the Eilers from using the portion of the driveway that is within their property boundary. The Eilers, who acquired their property in 1998, responded by filing a counterclaim for a prescriptive easement over the disputed property.

Following a bench trial, the trial court denied the Danas' complaint for declaratory judgment and granted a reciprocal prescriptive easement to both the Eilers and the Danas, each for the ten-foot-wide strip of driveway running along the others' property line.³

II. LAW ON PRESCRIPTIVE EASEMENTS

"In Florida an easement is an incorporeal hereditament and, as such, is an interest in land." Crigger v. Fla. Power Corp., 436 So. 2d 937, 941 (Fla. 5th DCA 1983) (footnote omitted). It "is an intangible right to make a certain use of the lands of another." Id. To establish a prescriptive easement, claimants must prove the following:

(1) actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years; (2) that during the whole prescribed period the use has been either with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner; (3) that the use related to a certain limited and defined area of land or, if for a right-of-way, the use was of a definite route with a reasonably certain line, width, and termini; and (4) that during the whole prescribed period the use has been adverse to the lawful owner; that is, (a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner, (b) the use has been either exclusive of the owner or inconsistent with the rights of the owner of the land to its use and enjoyment, and (c) the use has been such that, during the whole prescribed period, the owner had a cause of action against the user for the use being made.

Dan v. BSJ Realty, LLC, 953 So. 2d 640, 642 (Fla. 3d DCA 2007) ; see also Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958) ; Phelps v. Griffith, 629 So. 2d 304, 305 (Fla. 2d DCA 1993) ; Stackman v. Pope, 28 So. 3d 131, 133 (Fla. 5th DCA 2010).⁴

It has long been recognized that the "[a]cquisition of rights by one in the lands of another, based on possession or use, is not favored in the law and the acquisition of such rights will be restricted." Downing, 100 So. 2d at 65. Thus, the use or possession of the lands of another "is presumed to be in subordination to the title of the true owner, and with his permission and the burden is on the claimant to prove that the use or possession is adverse." Id. at 64 (emphasis added); see also Dan, 953 So. 2d at 642 ("Because the law does not favor the acquisition of prescriptive rights, use or possession of another's land is presumed to be subordinate to the owner's title and with the owner's permission."). Consistent with the presumption of permissive use, "[a]ll doubts as to the adverse character of a claimant's pattern of use must be resolved in favor of the lawful owner of the property." Phelps, 629 So. 2d at 306. This presumption "encourages a neighborly consent and indulgence by owners to the use of their land by others by preventing such permissive use from ripening into a right in favor of the wrongful users as against the title of the friendly, congenial landowner." Crigger, 436 So. 2d at 943.

The claimant must establish adversity, as well as the other elements of a prescriptive easement, by clear and positive proof, and the elements "cannot be established by loose, uncertain testimony which necessitates resort to mere conjecture." Downing, 100 So. 2d at 64. The Fifth District discussed the reasoning for this elevated burden of proof in Crigger:

Because under Downing v. Bird prescriptive rights are gained by an adverse user asserting a right based on his own wrongdoing, the law does not favor the acquisition of prescriptive rights and requires a high burden as to allegations and proof in order to overcome historical and well-founded presumptions against wrongdoing.

436 So. 2d at 943.

The enunciated level of proof is consistent with the jurisprudential definition of clear and convincing evidence. See Goss v. Dunbar, 834 So. 2d 185, 187 (Fla. 2d DCA 2002) ("The plaintiff must prove this [adverse possession] cause of action, not by the greater weight of the evidence, but by ‘clear and positive proof’ or by ‘clear and convincing evidence.’ "); Bentz v. McDaniel, 872 So. 2d 978, 981-82 (Fla. 5th DCA 2004) (applying "clear and positive proof" and "clear and convincing proof" standards interchangeably in reviewing evidence of adverse possession); Lyndes v. Green, 374 Mont. 510, 325 P.3d 1225, 1229 (2014) ("A party seeking to establish a prescriptive easement must prove, by clear and convincing evidence, that there was open, notorious, exclusive, adverse, continuous and uninterrupted use for five years."). Clear and convincing evidence or proof is an intermediate level of proof between the "preponderance of the evidence" standard and the "beyond a reasonable doubt" standard. It "entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." In re Davey, 645 So. 2d 398, 404 (Fla. 1994).

[T]he facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Id. (citing Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ).

III. ANALYSIS

With these rules in mind, we turn to the evidence presented at trial to determine whether the presumption of permissive use was overcome by clear and positive proof. In this case, as in many others, it is the element of adversity that is primarily in dispute, and it is Florida's presumption of permissive use that proves fatal to the Eilers' claim of prescriptive easement.⁵

The evidence shows that the disputed property was used as a common driveway by owners of the eastern and western parcels for over sixty years. However, such continuous and long-term open use is not enough—it must also be either exclusive or inconsistent with the owner's use and enjoyment of the land. See Guerard v. Roper, 385 So. 2d 718, 721 (Fla. 5th DCA 1980). "If the use of an alleged easement is not exclusive and not inconsistent with the rights of the owner of the land to its use and enjoyment, it would be presumed that such use is permissive rather than adverse. Hence, such use will never ripen into easement." City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 76 (Fla. 1974).

Here, there is no dispute that the use of the driveway was shared, not exclusive. Thus, the Eilers were required to prove that their use of the disputed property was inconsistent with the owners' use or enjoyment thereof. See Guerard, 385 So. 2d at 721 ("The use in common with the owner is presumed to be in subordination of the owner's title and with her permission, and the burden is on the claimant to prove that the use is adverse." (citing Downing )); Gibson v. Buice, 394 So. 2d 451, 452 (Fla. 5th DCA 1981) ("Any use in common with the owner is presumed to be subordinate to the owner's title and with the owner's permission. The burden is on the claimant to show that the use is adverse.").

While none of the witnesses could recall prior owners giving express consent to use of their portion of the driveway, the evidence showed that the Danas and their predecessors allowed the Eilers and their predecessors to freely use the disputed property and that the driveway was used by both parties and their predecessors for the same common purpose.⁶ Thus, we find there is evidence...