Flournoy v. Perkins

• Decision Date: 16 November 1995
• Docket Number: No. 95-1029,95-1029
• Citation: Flournoy v. Perkins, 667 So.2d 364 (Fla. App. 1995)
• Parties: 20 Fla. L. Weekly D2532 Vallie Riddle FLOURNOY, Appellant, v. Otis PERKINS and wife, Mildred Perkins, Appellees.
• Court: Florida District Court of Appeals

Page 364

667 So.2d 364

20 Fla. L. Weekly D2532

Vallie Riddle FLOURNOY, Appellant, v.Otis PERKINS and wife, Mildred Perkins, Appellees.

No. 95-1029.

District Court of Appeal of Florida First District.

Nov. 16, 1995.

An appeal from the Circuit Court for Holmes County.Russell Cole, Jr., Judge.

Owen N. Powell, Bonifay, for Appellant.

Bonnie K. Roberts, Bonifay, for Appellees.

PER CURIAM.

This cause is before us on Flournoy's appeal from a final judgment in a boundary dispute in which the trial court found that the Perkinses had adversely possessed the subject property under color of title because, inter alia, they or their predecessors in title had paid taxes on the property and had "been in actual, open and notorious possession of the subject property by virtue of their ordinary use of the property" since 1973.We find insufficient evidence in the record to support the quoted finding, and reverse and remand for further proceedings regarding the "ordinary use" of the subject property.§ 95.16(2)(c),Fla.Stat.(1993);Shultz v. Johnson, 654 So.2d 567, 570(Fla. 1st DCA1995)(each essential element of adverse possession under § 95.16 must be established by clear and positive proof);Cox v. Game, 373 So.2d 364, 365-66(Fla. 2d DCA1979)(in absence of some exercise of physical dominion over property, adverse possession under section 95.16 not shown by platting of property and payment of taxes thereon);Culbertson v. Montanbault, 133 So.2d 772, 774(Fla. 2d DCA1961)("While evidence of the payment of taxes is admissible as one of the circumstances tending to determine the fact and extent of possession, the payment of taxes alone is not...