Grant v. Strickland, NN-205

• Citation: 385 So.2d 1123
• Decision Date: 30 June 1980
• Docket Number: No. NN-205,NN-205
• Parties: James P. GRANT and Audrey S. Grant, Appellants, v. Bobby STRICKLAND et al., Appellees.
• Court: Florida District Court of Appeals

Page 1123

385 So.2d 1123

James P. GRANT and Audrey S. Grant, Appellants, v. Bobby STRICKLAND et al., Appellees.

No. NN-205.

District Court of Appeal of Florida, First District.

June 30, 1980.

W. J. Oven, Jr., Tallahassee, for appellants.

John H. Cotten of Cotten, Shivers, Gwynn, Daniel, Kelley & Arrington, Tallahassee, for appellee.

ERVIN, Judge.

Plaintiffs-appellants appeal from a final judgment following a non-jury trial denying their claim that they had acquired by adverse possession without color of title a certain strip of land located in Wakulla County, Florida. We affirm.

Because appellants' claim is not under color of title, it was necessary that they establish continuous, unbroken adverse possession for a period of seven years ¹ by clear and convincing evidence ² showing either that the boundary strip they claim was substantially enclosed or usually cultivated or improved. ³ Additionally, since appellants did not show that they returned the disputed land for taxes, it was necessary that their adverse claim mature seven years before June 5, 1939, the date the statute was amended requiring the land to be so returned. ⁴

Although appellants argued the disputed strip was cultivated for the required seven years, evidence on that point was conflicting, at best, and, as it was a question for the trier of facts, we do not disturb the trial court's finding. ⁵ One claiming adverse possession must prove each essential element of the claim "by clear and positive proof . . . ." ⁶ The claim cannot be "established by loose, uncertain testimony which necessitates resort to mere conjecture." ⁷ Appellants' claim is based primarily upon the fact that a substantial fence ran along the property's northern boundary for more than seven years. While their evidence clearly and convincingly showed that the fence ran north of the true boundary separating the parties' properties for the requisite seven-year period, there was no showing by clear and convincing proof that either appellants' property or the disputed strip was protected by a substantial enclosure on all sides during the period. ⁸ Appellants' witnesses testified without contradiction that their predecessors' fence ran along the south edge of a county road as far back as 1912 and until 1921; yet their testimony conflicted on whether the fence was joined by fences or natural barriers on other sides of the disputed property.

To enclose is variously defined as "a: to close in . . .: surround . . .; specif.: to fence off or in (common land) in order to appropriate to individual use . . ." ⁹ The statute's requirement that land claimed adversely be substantially enclosed is not complied with when it is fenced on only one of its borders. ¹⁰ Natural barriers, such as navigable water, may suffice to provide part of a substantial enclosure. ¹¹ There may also be gaps in the enclosure; such interruptions however do not dissipate the substantial character of the enclosure so long as "there was for the full statutory period a conspicuous effort to maintain a fence around the land . . . for the obvious purpose of exercising rights of ownership" to the exclusion of all others (e. s.). ¹² The evidence here was lacking that appellants or their predecessors made a "conspicuous effort" to enclose the disputed land so as to provide notice that their possession was to the exclusion of the rights of all others.

From this record we cannot say that the trial judge, acting as trier of fact, ¹³ erred in concluding that appellants had not overcome the statutory presumption that one holding "legal title to the property shall be presumed to have been possessed of it within the time prescribed by law." ¹⁴

LARRY G. SMITH, J., specially concurs.

BOOTH, J., dissents.

LARRY G. SMITH, J., specially concurring.

Although I agree, to some extent, with the discussion and application of the law as stated in the dissenting opinion, after a careful review of the record I am compelled to concur in the affirmance of the decision of the lower court. The conclusion reached by the trier of facts is always entitled to great weight; and this principle is especially applicable in a case of this kind. Here, the trial judge was required to sift through the testimony of the parties and a great many witnesses, whose testimony covered conditions and events spanning more than half a century and whose bias or interest in the outcome of this case were in some instances obvious, and in other instances perhaps not quite so obvious. Furthermore, in addition to those reasons for affirmance expressed by Judge Ervin, I find the record lacking in "clear and positive proof" that the purported possession by appellants' predecessor in title prior to 1939 was adverse and hostile to the legal titleholder so as to compel a different result, even if the other requirements of adverse possession were met by proof meeting the test of certainty required in such cases.

BOOTH, J., dissenting:

I do not agree that the law requires fencing of plaintiffs' 50-acre tract of land, title to which is not in dispute, in order to establish title by adverse possession to a disputed boundary strip on the northern perimeter of the tract. Equally unacceptable is the alternative proposed of fencing "on all four sides" of the disputed boundary strip. There is no law in Florida supporting these interpretations of Florida Statutes § 95.18. ¹ That statute, derived ² from a New York statute, ³ requires, as to fencing that the disputed property be "protected by substantial enclosure." New York cases hold that this language requires, in a boundary dispute, that the protective enclosure be one which incorporates the disputed strip of land into the larger tract.

In Knowles v. Miskela, 11 A.D.2d 589, 200 N.Y.S.2d 713 (1960), where the disputed boundary line was protected by wire fence, there was a lake on the west side, a fence on the south, and other land of the claimed adverse occupant to the north, the statutory requirement was met. In Post v. Irons, 36 A.D.2d 630, 353 N.Y.S.2d 572 (1974), the court ruled that the statute was complied with where the strip in dispute "was available only from plaintiff's lot" by reason of fences. Thus, where the disputed strip is only accessible by scaling fences or trespassing over land of the plaintiffs, the statutory requirements are met. In McCosker v. Rollie Estates, Inc., 7 A.D.2d 865, 182 N.Y.S.2d 35 (1959), the court ruled plaintiff had obtained title by adverse possession without color of title, holding:

The entire 50-foot strip was enclosed as part of the main property by a hedge wall, which is sufficient to constitute an enclosure within the meaning of Section 40 of the Civil Practice Act.

At common law and in Florida, the term "enclosure" is not limited to a fence, but includes other barriers, both natural and manmade. What is required to constitute a substantial enclosure depends on the nature of land claimed and the particular facts of each case. The enclosure must be "commensurate with the attending circumstances," as was held in Baugher v. Boley, 63 Fla. 75, 58 So. 980, 984 (1912):

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.

. . . (I)t 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.

The rule of Baugher v. Boley, supra, requires consideration of the circumstances of each case and common sense application of the "substantial enclosure requirement." It would violate that rule to require that a boundary strip be completely and separately fenced off, because, unlike possession of an entire tract of land, possession of a boundary area is invariably an adjunct to the possession of a larger adjoining tract. Separate fencing would here, and in most instances, be inconsistent with normal use. It is not required under the statute.

A requirement that there be a fence around the entire tract in order that a disputed boundary strip be "protected by substantial enclosure" is equally contrary to the rule, since it takes no consideration of the differences between possession of a boundary and of an entire tract, and because it requires enclosure of large acreages not in dispute.

The dispute in the instant case arose from a recent survey which the trial court found established a "jog" in the section line dividing the lands of the plaintiffs and those of the defendants and located the true line some 194 feet further south. Plaintiffs' predecessors have been in actual possession of the property since the last century. Adverse possession without color of title is claimed to that portion of the boundary strip which was cultivated and maintained under fence for a seven-year period ⁴ prior to the 1939 requirement of payment of taxes. Plaintiffs' predecessors' good-faith reliance on the regular section lines, both in payment of taxes and deeding of the property from generation to generation, prevents their claim from being under color of title. Due to the jog in the section line, the disputed strip is not included in the description used for deeds and payment of taxes. ⁵

William Spears, ancestor of Audrey Spears Grant, took title on January 15, 1863, to 60 acres of land located in the northeast quadrant of Section 13, Township 3 South, Range 2 West. Adjoining immediately to the north and described as located in Section 12 of the same township and range is the land owned, since 1871, by members of the Strickland family. Both families resided on their respective properties and farmed their land. A country road, described as a "wagon trail" originally, has, for time...