Hanna v. Means, 74--504
| Decision Date | 08 August 1975 |
| Docket Number | No. 74--504,74--504 |
| Parties | Linette HANNA et al., Appellants, v. Estelle Shivers MEANS et al., Appellees. |
| Court | Florida District Court of Appeals |
John N. Jenkins, Tampa, for appellant Hanna.
John P. Griffin, Tampa, for appellants McDonald.
E. C. Watkins, Jr., of Hobbs, de la Parte & Liles, Tampa, for appellees Means.
Maynard Ramsey of Bucklew, Ramsey, Ott & Gardner, Tampa, for appellees Severson and Newberger.
Appellants Hanna and McDonald appeal from an order declaring an easement of necessity astride the property line dividing their separate lands in favor of appellees Means. The Means cross-appeal a provision of that order requiring that they pay compensation therefor. We affirm in all respects.
The problem is sketched here:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
On January 6, 1947, one Powell and wife acquired title to a parcel of land directly south of appellants' properties. On March 6, 1947, they deeded the northern half of their parcel to the appellees Means. Title to the southern half descended to Severson and Newberger as the Powells' successors in interest. At the time of the Means' conveyance neither parcel had access to any road. In 1973, Severson and Newberger acquired title from one O'Connor to a strip of land giving them access to Duque Road on the south. The Means received permission from appellant Hanna to cross the latter's land to reach DeBuele Road on the north shortly after they purchased their parcel in 1947. Thereafter, they crossed to DeBeule Road over both the Hanna and McDonald properties, roughly at their dividing line, until 1972 when appellants' lands were fenced denying the Means access.
The Means filed this action shortly thereafter claiming, alternatively, either a common way of necessity or an easement by prescription over appellants' lands. Severson and Newberger were added as parties later under the initial belief that they may be necessary parties.
After trial, the trial judge issued an order declaring: (1) That the Means acquired no prescriptive right of way across appellants' lands because their use was not adverse but was with consent; (2) that the Means failed to establish the unity of title from a common grantor entitling them to a common law easement of necessity over said lands; (3) that the only practicable and reasonable means of ingress and egress to and from Means' land is across the common dividing line between appellants' properties over which the Means are entitled, if they choose, to a statutory way of necessity pursuant to § 704.01(2), F.S.1971, upon payment of just compensation therefor as required by § 704.04, F.S.1971 (); and (4) that the complaint as against Severson and Newberger be dismissed.
Appellants first contend that the court erred in finding that the Means were not entitled to a common law way of necessity over the Severson-Newberger property to the south. They argue that there was indeed a common law easement of necessity over that land since Powell was their common grantor. Therefore, they say, it was improper for the trial judge to award a statutory way of necessity across their (strangers') lands notwithstanding that such way may be more reasonable or practical. Their argument falls of its own weight, however, because a common law way of necessity cannot exist across retained land which has no access to a public road; 1 and it is clear here that the Severson-Newberger land, i.e., that retained by the Powells at the time of the grant to the Means, had...
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