DeRoche v. Winski
| Decision Date | 16 December 1981 |
| Docket Number | No. 80-1959,80-1959 |
| Citation | 409 So.2d 41 |
| Parties | James T. DeROCHE and Ruth M. DeRoche, Appellants, v. Walter J. WINSKI and Patricia S. Winski, Appellees. |
| Court | Florida District Court of Appeals |
William F. Brewton of Brewton & Council, P. A., Dade City, for appellants.
Marc B. Cohen of Wendel & Chritton, Lakeland, for appellees.
Appellees brought this action to enjoin appellants from maintaining a fence barring access to the 15-foot driveway previously used by appellees for ingress into their adjacent property. The trial court entered judgment in favor of appellees, on a finding that they had acquired title to the strip of land in question by adverse possession. On this appeal appellants argue that the doctrine of adverse possession was not applicable to the facts of this case; appellees argue, with equal fervor, that it was. We agree with appellants, but affirm the judgment because it was correct for an unmentioned reason.
When the Zephyrhills Colony Company originally subdivided section 9 of township 26 south, range 21 east, in Pasco County, a 15-foot strip inside the perimeter of the entire section was reserved as a right of way. In 1948 one Benjamin Allen acquired title to tracts 112 and 113, lying in the easterly tier of tracts in section 9, with tract 113 lying southerly of tract 112. Allen operated a trailer park on portions of the two tracts and in 1954 began efforts to sell the southeasterly portion of tract 113. He erected posts to delineate the boundaries of the parcel he wanted to sell. As staked out, the parcel was 170 feet wide and 162.5 feet deep. However, he set the posts for the northeasterly and southeasterly corners of the parcel on the section line instead of on the actual tract line, which lay 15 feet west of the section line. Allen showed that parcel to various prospective purchasers and eventually sold it to one Smith in 1957.
At or about the time of the sale to Smith, Allen had his property surveyed by one Higginbotham. In making his survey, Higginbotham made the same mistake Allen had made in marking the corners of the parcel he wished to sell. As a consequence, Higginbotham drove iron stakes on the section line to mark the northeasterly and southeasterly corners of the Smith parcel, and showed the north and south boundaries of the parcel to be 170 feet in length. The deed executed by Allen in favor of Smith described the parcel as "the south 162.5 feet of the east 170 feet of tract 113, ...."
Smith erected a fence, a hedge and a garage along the line marked by Allen and Higginbotham as the west boundary of the parcel. Allen, and later his successors in interest, first Koch and later appellees, used a 15-foot strip running parallel to and just west of that line as a driveway for entry into the trailer park.
In 1978 Smith sold most of his parcel to appellants. Prior to purchasing, they had the property re-surveyed and discovered the error that had been made by Allen and Higginbotham. Nevertheless, they proceeded to purchase the property and immediately moved their west boundary 15 feet west, in the process erecting a fence that barricaded appellees' driveway. Appellees then brought this action.
Appellants are quite correct in their contention that those facts do not support the finding that appellees acquired title to their driveway by adverse possession. There are two methods of acquiring title by adverse possession: a claimant with color of title can qualify under section 95.16, Florida Statutes, by continuous possession for a period of seven years; a claimant without color of title can qualify under section 95.18, Florida Statutes, by showing open, continuous, actual hostile possession, and payment of all taxes, for a period of seven years, with a return of said land for taxes during the first year of occupation and the enclosure or cultivation of the land for the seven-year period. Meyer v. Law, 287 So.2d 37 (Fla.1973). The instrument relied upon to show color of title must be recorded (§ 95.16, Fla.Stat.) and it must purport to convey the land in question by a legally sufficient description. Mitchell v. Moore, 152 Fla. 843, 13 So.2d 314 (1943); Armstrong Cork Co. v. Crook, 227 So.2d 64 (Fla. 1st DCA 1969).
Appellees could not qualify under either of the two methods for establishing adverse possession. They did not have paper title to the strip in question and, as a consequence, they had not paid taxes on it. The court below erred in finding that adverse possession had been established.
Appellees argue that they do in fact have paper title to...
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Bailey v. Hagler, 90-1291
...the land for taxes during the first year of occupation, and the enclosure or cultivation of the land for seven years. 2 DeRoche v. Winski, 409 So.2d 41 (Fla. 2d DCA 1981). However, if title to the disputed area vested by adverse possession without color of title prior to 1939 when the statu......
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Grappo v. Mauch
...modifications initiated by a common grantor even when the modified boundary does not reflect deed descriptions. See DeRoche v. Winski, 409 So.2d 41, 44 (Fla.Dist.Ct.App.1981); Schultz v. Plate, 48 Wash.App. 312, 739 P.2d 95, 97 Finally, with respect to the Mauchs' failure to request reforma......
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Wadsworth v. Myers
...believe, however, that appellees established that the 1963 survey lines became binding under the common grantor theory. DeRoche v. Winski, 409 So.2d 41 (Fla. 2d DCA 1981). Under this approach: [W]hen the common grantor of adjacent parcels of property has established a dividing line between ......
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McDonald v. O'Steen, AN-483
...specific location, evidence the requisite doubt or uncertainty necessary to establish a boundary by acquiescence. See DeRoche v. Winski, 409 So.2d 41 (Fla. 3d DCA 1982); Williams v. Johntry, 214 So.2d 62 (Fla. 1st DCA 1968). Since the boundary was established by acquiescence prior to 1940, ......
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A Primer on Adverse Possession
...Scarbrough v. Smith, 445 So. 2 553,556 (Ala. 1984); Merwin v. Backer, 80 Conn. 338, 345, 68 A. 373, 376-77 (1907); De Roche v. Winski, 409 So. 2d 41, 43 (Fla. App., 2d Dist., 1981); Smith v. Matthews, 662 S.W. 2d 150,154 (Tex. App., 2d Dist., 1983); Neeley v. Kelsch, 600 P.2d 979, 982 (Utah......