Jones v. Rives, 95-1346

• Decision Date: 19 January 1996
• Docket Number: No. 95-1346,95-1346
• Citation: 680 So.2d 450
• Parties: 21 Fla. L. Weekly D236 Chana JONES, Appellant, v. Sam RIVES and Barry Cook, Appellees.
• Court: Florida District Court of Appeals

Page 450

680 So.2d 450

21 Fla. L. Weekly D236

Chana JONES, Appellant, v. Sam RIVES and Barry Cook, Appellees.

No. 95-1346.

District Court of Appeal of Florida First District.

Jan. 19, 1996.

John E. Norris and Guy W. Norris of Norris, Koberlein & Anderson, P.A., Lake City, for Appellant.

Andrew J. Decker, III, of Law Office of Andrew J. Decker, III, P.A., Live Oak., for Appellees.

PER CURIAM.

The final judgment in this boundary dispute case established a boundary between adjacent property owners with a jury finding of boundary by agreement. Because there is a complete absence of competent substantial evidence to support this verdict, we reverse.

In February, 1988, Rives and Cook (appellees) purchased land adjacent to appellant's land, and in the fall of that year appellees had timber cut from a swath of land extending southward from an old fence in the area. A survey made at appellant's request in May, 1989, revealed that appellant's property boundary ran some 100 feet south of the old fence, and that appellees had cut trees from this area. A subsequent survey made for appellees confirmed appellant's survey. Consequently, appellant filed suit in county court against appellees for cutting timber on her property and in her amended complaint alleged damages and trespass. Appellees answered and counterclaimed asserting several claims of title to the relevant portion of appellant's land. A partial summary judgment was granted in favor of appellant on all issues concerning title, ownership, and right of possession of the lands in dispute prior to June 18, 1985. The case proceeded to jury trial on the sole issue of appellees' counterclaim of boundary by agreement. Under this theory, appellees claim that the old fence line marks the true boundary between the properties under an agreement between the parties. Judgment was entered establishing this boundary line in accordance with the jury verdict. The trial court denied appellant's motion for judgment in accordance with her motion for directed verdict and alternative motion for new trial.

In review of the denial of a motion for judgment in accordance with the motion for directed verdict, an appellate court must view the evidence in the light most favorable to the non-moving party, Floyd v. Video Barn, Inc., 538 So.2d 1322, 1325 (Fla. 1st DCA 1989), and "must take into account all the facts adduced both before and after the initial motion." McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992). The judgment must be sustained if it is supported by competent substantial evidence. Helman v. Seaboard Coast Line R.R., 349 So.2d 1187 (Fla.1977).

The essential elements of boundary by agreement are (1) an uncertainty or dispute as to the true boundary; (2) an agreement, either oral or implied, between the adjacent landowners that a certain line will be treated by them as the true line; and (3) subsequent occupation by the parties in accordance with that agreement for a period of time sufficient to show a settled recognition of the line as a permanent boundary. Watrous v. Morrison, 33 Fla. 261, 14 So. 805 (1894); Florida Real Property Litigation § 2.17 (The Florida Bar CLE 1993). This occupation does not have to exceed the statute of limitations, but must be long enough to indicate a "settled recognition" of the boundary. Id. Appellees were required to adduce evidence to support each of these three elements to demonstrate that a boundary by agreement was made between appellant and appellees after appellees' property purchase in 1988.

As to the first element of a boundary by agreement, the parties' uncertainty as to the true boundary, appellant testified that although she did not know the exact location of the line, she knew her property extended south of the old fence because her father who gave her the land and who was a surveyor told her. Appellees testified that they were told that the fence was the line by the seller. Even so, one of the appellees claimed he was uncertain about the true line when he purchased the property. No testimony, however, suggested that...