Hutchins v. Strickland

• Decision Date: 29 May 1996
• Docket Number: No. 95-3361,95-3361
• Citation: Hutchins v. Strickland, 674 So.2d 870 (Fla. App. 1996)
• Parties: 21 Fla. L. Weekly D1286 Calvin T. HUTCHINS and Evangeline B. Hutchins, Appellants, v. Donald STRICKLAND and Nova Jane Strickland, Appellees.
• Court: Florida District Court of Appeals

Page 870

674 So.2d 870

21 Fla. L. Weekly D1286

Calvin T. HUTCHINS and Evangeline B. Hutchins, Appellants, v.Donald STRICKLAND and Nova Jane Strickland, Appellees.

No. 95-3361.

District Court of Appeal of Florida First District.

May 29, 1996.

David W. Green of Green & Green, DeFuniak Springs, for Appellants.

W. Howard LaPorte, Crestview, for Appellees.

LAWRENCE, Judge.

Donald Strickland and Nova Jane Strickland(the Stricklands) sued Calvin T. Hutchins and Evangeline B. Hutchins(the Hutchinses) for trespass on their Okaloosa County property after Mr. Hutchins, at some unspecified time in 1993, removed a fence, alleged by the Stricklands to constitute a common boundary between their properties.The trial court found that a boundary by acquiescence existed between the parties' properties.We reverse.

At trial, the principal issue to be determined was the location of the common boundary line between lands owned by the Stricklands and lands owned by the Hutchinses.The additional issues (trespass, damages, etc.) hinged upon resolution of the boundary issue.

The Stricklands bought thirty-five acres in 1979, described as: SE 1/4 of NW 1/4 of Section 3, Township 5 North, Range 22 West, less five acres square in the northwest corner thereof.The Stricklands sold the south 455 feet of this parcel on December 2, 1983, to Burl Reeves and his wife Bernice Reeves(Hutchinses' parcel).The Reeves subsequently sold this parcel to Lorez Reeves, the date of which is not clear from the record.The Hutchinses acquired this parcel from Lorez Reeves on November 11, 1988.

Burl Reeves, during the time of his ownership, erected a fence somewhere in the vicinity of the northern boundary of the Hutchinses' parcel.He was unaware of any survey having been made, but erected a fence in order to permit cattle to graze on the parcel.The fence was erected as close as possible to where he thought the correct boundary line was located.However, because of the uncertainty, he entered into a written agreement ¹ with the Stricklands, the substance of which was that in the event an accurate survey was subsequently performed, the fence would be moved to a point consistent with the survey.In 1993, Calvin Hutchins removed this fence, procured a survey, and began erecting a new fence along the survey line.There is no evidence in the record reflecting an accurate location of the old fence, which the Stricklands claimed to constitute the boundary line.However, the parties testified as though the survey line was located a short distance north of the old fence, leaving a triangular sliver of land in dispute lying within the record title description of lands owned by the Hutchinses.This sliver of land had been occupied by the Stricklands until removal of the old fence, at which time the Hutchinses attempted to occupy and use the disputed area; this conduct gave rise to the Stricklands' claim of trespass by the Hutchinses.

This court many years ago restated the necessity of proving the location of the lands upon which a trespass is alleged:

It is fundamental that in order for a party to sue and recover for trespass to his land he must prove that he was the owner or in possession of such land at the time of the trespass.Knight v. Empire Land Co., 1908, 55 Fla. 301, 45 So. 1025;Vincent v. Hines, 1920, 79 Fla. 564, 84 So. 614.To prove that his land has been invaded, he must of necessity prove the location of the boundary or boundaries of the land in relation to the location of the acts of trespass complained of.

Okaloosa County Gas Dist. v. Enzor, 101 So.2d 406, 407(Fla. 1st DCA1958).

The rationale in this case is consistent with the holding by the supreme court that one of the elements of proof required to establish an easement or right of way by prescription or adverse possession is that the "limits, location, and extent of his occupation must be definitely and clearly established by affirmative proof."Downing v. Bird, 100 So.2d 57, 64(Fla.1958).

The Hutchinses argue that the Stricklands failed to prove the boundaries of the land in relation to the location of the acts of trespass of which they complain.We agree.

The Stricklands alleged in their...