Hyer v. Griffin

• Citation: 55 Fla. 560,46 So. 635
• Parties: HYER v. GRIFFIN et al.
• Decision Date: 14 May 1908
• Court: Florida Supreme Court

46 So. 635

55 Fla. 560

HYER v. GRIFFIN et al.

Florida Supreme Court, Division A.

May 14, 1908

Error to Cirtuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by J. Whiting Hyer against Mary A. Griffin and another. Verdict and judgment for defendants, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

An assignment of error to the effect that the trial court erred in denying the motion for a new trial is not too general to merit consideration by an appellate court; but the plaintiff in error will be confined to the grounds specifically stated in such motion, and an appellate court will refuse to consider any grounds thereof except such as are argued before it, treating the other grounds as abandoned.

In an action of ejectment, where the defendant relies upon adverse possession under the statute, in the nature of things, every case must stand largely upon its own merits, depending entirely upon the testimony.

In an action of ejectment, where the defendant claims under color of title and the land in dispute has not been inclosed, the taking of dead timber therefrom at the rate of about two one-horse wagon loads a week, even though during the entire statutory period of seven years, for use as fuel at another place or for sale, no trees being felled for that purpose and the occasional cutting of fence posts from the land together do not constitute such adverse possession as to bar an action by the owner.

The possession necessary to confer title under an adverse holding must be actual, continuous, and adverse to the legal title for the full statutory period, and such possession must be established by clear and positive proof.

COUNSEL

Blount & Blount & Carter, for plaintiff in error.

Sullivan & Sullivan, for defendants in error.

OPINION

SHACKLEFORD C.J.

The plaintiff in error brought an action of ejectment against the defendants in error in the circuit court for Escambia county which resulted in a verdict and judgment for the defendants, which the plaintiff seeks to have reviewed here upon writ of error.

No error is assigned in connection with the pleadings; the declaration being in the usual form, to which the defendants interposed a plea of not guilty. The sole assignment presented to us for consideration is the denial of the motion for a new trial. The defendants contend that this assignment is too general to merit consideration, and, in support thereof, rely upon Stearns & Culver Lumber Co. v. Adams, 55 Fla. ----, 45 So. 847. The cited case does not bear out this contention. What we held there was that 'an assignment of error that 'the court erred in rendering judgment for th plaintiff in said cause' is too general to be considered by this court.' In fact, the contention of the defendants has been decided adversely to them by this court in a line of decisions. We have frequently considered an assignment of error to the effect that the court erred in denying the motion for a new trial; but we have refused to consider any grounds thereof except such as are urged before us, which grounds must be specifically stated in the motion, treating the other grounds as abandoned. See Ross Johnson v. State (decided here at the present term) 46 So. 174, and authorities there cited; Goode v. State, 50 Fla. 45, text 54, 39 So. 461, text 464; Williams v. State, 53 Fla. 89, 43 So. 428; Atlantic Coast Line R. Co. v. Beazley, 54 Fla. ----, 45 So. 761, text 796; Cross v. Aby, 55 Fla. ----, 45 So. 820, text 825; McCall v. State (decided here at the present term) 46 So. 321.

Such motion in the instant case contains five grounds, all of which, however, question the sufficiency of the evidence to sustain the verdict, and we now take up that point for consideration.

We find that the plaintiff introduced in evidence a complete chain of title from the government down to himself, while the defendants introduced a tax deed and subsequent conveyances based thereon, showing a prima facie title in one of them, Mary A. Griffin. By the introduction, however, by the plaintiff, of a certified copy of the assessment roll for the year for which the land in dispute was sold for taxes, such assessment was shown to be invalid, and in the general charge to the jury the court so instructed, stating that the tax deed conveyed no title. This left the defense resting upon adverse possession, based upon the deed to Mary A. Griffin as color of title. The land in dispute consisted of a 40-acre and a 10-acre tract. The date of the deed to the defendant is the 27th day of Cotober, 1899.

Ethan A. Griffin testified on behalf of the defendants as follows: 'I am a defendant the husband of Mary A. Griffin. At the time I received the deed made to my wife by Carlton and Lind, dated October 27, 1899, we were living in Pensacola. Soon after receiving the deed I began to cut firewood from the land in dispute, and continued to cut it pretty regularly. I paid taxes on the land from the time I bought it up to the present time.' Witness here produced, and the defendants read in evidence, tax receipts from the tax collector of Escambia county showing payment of state and county taxes upon the land in dispute and other lands as follows: By Mary A. Griffin for 1899; by E. A. Griffin for 1900, 1901, 1902, 1903, and 1904. The witness continued: 'I used part of the firewood at my home in Pensacola while I lived there, and part at my home about half a mile from this land, after I moved from Pensacola. The rest I sold in Pensacola. I would get about two loads a week. I began to get wood the next month after I bought the land, and continued this up until now. I let Flem Brooks burn some charcoal on the land after the storm of 1906. I had Flem Brooks' boys cut wood for me on this land. I got some posts to put up a wire fence around that part of the land which had formerly been under fence of Travis Waters; also some posts to repair the fence on some other lands that I was living on when I moved out in that neighborhood. .first got my deed I asked Dime Lock, who cut off the land last mentioned; not very many, but a few at different times. When I first bought the land, part of Mr. Travis Waters' fence ran over on it, inclosing about two acres. I had an arrangement with him that he could use this two acres. He cultivated it under this arrangement. When I first got my deed I asked Dime Lock, who lived on the quarter section west of this land, to look out for it and keep trespassers off for me. I moved from Pensacola to within about half a mile of this land, I think, about the year after I got my deed. Before I moved there, the wood I got was burned at my home in Pensacola, or sold by the load in that city. The same thing occurred after I moved. The wood which I got was either used at my home or sold in Pensacola. The wire fence around the little piece of land that used to be inclosed by Mr. Waters' fence was a two-wire fence, built about a year ago, in the late fall or winter of 1906. I never cut down a tree on any of the land. I simply used the dead wood for fuel and posts. The storm of 1906 was about September 26, 1906. I did not rent the inclosed land to Travis Waters. I simply let him cultivate it, as his fence was upon it. We had no particular understanding or agreement about it at all. I simply did not forbid his using it. I got an average of about two loads of wood a week from this land ever since I bought it every year. By load I mean a one-horse wagon load. I got wood most all over the lower 40; but the 10-acre piece I cannot say I cut so regularly from that. I may have gotten as many as a dozen loads, all told, from the 10-acre piece. I cannot say I ever got more than that off the 10-acre piece. I got wood wherever convenient on the 50 acres. I never made any improvements on any of the land; never cut or sold logs from it; never inclosed, rented, improved, or cultivated any part of it, except I built the small wire fence already mentioned. I never got any wood or posts, except from timber that was down; never cut a standing tree. I generally got the wood near the road, where it was convenient. Dime Lock never made any reports to me after I asked him to look out for the lands. I cannot say how many posts I cut off the land to use on the place I was living at. I know I cut some occasionally to repair fences where I lived. We owned 200 acres in that neighborhood, all conveyed by the deed of Carlton & Lind.'

Dime Lock testified on behalf of the defendants as follows 'Mr. Griffin asked me to look out for the land in dispute--for me to keep trespassers off it. I do not know how long ago this was, but it has been a good while. I never did anything about it, as there was nothing to do. I saw nobody trespassing upon the land, nor did I make any reports to Mr. Griffin.' And the defendants, further to maintain the issues on their behalf, produced as a witness Flem Brooks, who, being sworn, testified as follows: 'I burnt charcoal on the land in dispute. I got permission from Mr. Griffin to do so. My boy also cut wood on the land for Mr. Griffin. Charcoal was burnt after the storm of 1906 from timber that was blown down by the storm. I do not know what part of...