Kilgore v. Leary

• Decision Date: 08 March 1938
• Parties: KILGORE v. LEARY.
• Court: Florida Supreme Court

180 So. 35

131 Fla. 715

KILGORE v. LEARY.

Florida Supreme Court

March 8, 1938

Rehearing Denied April 13, 1938.

Suit by T. H. Leary against Barnard Kilgore to enjoin the defendant from trespassing on a strip of land lying between their properties. From a decree permanently enjoining the defendant, the defendant appeals.

Decree reversed.

BROWN J., dissenting. Appeal from Circuit Court Pinellas County; T. Frank Hobson, judge.

COUNSEL

C. E Ware, of Clearwater, and Dickenson & Dickenson, of Tampa, for appellant.

Ralph Richards, of Clearwater, for appellee.

OPINION

CHAPMAN Justice.

This cause is before this court on an appeal from a final decree dated March 23, 1937, entered by the Honorable T. Frank Hobson, a judge of the circuit court of Pinellas county Fla., permanently enjoining appellant from trespassing on plaintiff's property, as described in the bill of complaint. The land in question is a strip extending across an 80-acre tract, being approximately 32 feet wide at the east end, and coming to a point on the west end. The appellee, in the spring of 1924, acquired title to and went into possession of the lands adjacent to and north of the disputed tract, while appellant in 1910 acquired title to and went into possession of the lands adjacent to and on the south side of the disputed tract. The equities of the cause were by the lower court held to be with appellee, who was plaintiff below, and the defendant seeks a review of the final decree of the chancellor in this court.

The evidence shows that appellant here, during the years 1903 or 1904, was the owner of, resided upon, and was in possession of the lands adjacent to and north of the disputed tract, and of which the appellee in the spring of 1924 acquired title to by purchase. Appellant, during the year 1910, acquired title to, resided upon, and went into possession of the lands south of the disputed tract. He constructed a wire fence shortly after going into possession on the north side of his property and has asserted possession and ownership of the lands south of the fence since its construction to the time of filing the suit in the lower court. Trees, brush, and other vegetation were permitted to grow on each side of the wire fence to be used as a wind break and protection of the orange trees of appellant. A picture of the wire fence was offered as evidence by the defendant in the lower court and shows that a pine tree several inches in diameter has grown through the fence and appears to have grown through the fence since it was constructed. The tree likewise contains marks or blazes indicating a land line. Some of the witnesses testified as to the location of a corner post marked by a piece of lightwood and was subsequently supplanted by a concrete marker. The other end of the disputed tract is evidenced by an iron stob and the testimony develops that the wire fence was on a direct line between the concrete marker and the iron stob some several hundred feet in length. Appellant, and other, testified that when the property north of the disputed tract was either bought or sold, the wire fence was recognized as the south boundary by all owners of said property from the time it was sold in 1903 or 1904 by appellant until some time in 1936. The present litigation was precipated when appellant sought to clear some of the lands south of the wire fence and set out orange trees.

The witness Sullivan, offered on the part of plaintiff below, testified to surveying the disputed line when employed by a brother of appellant during the year 1912. The vegetation at the time of the survey in 1912 was rank and thick and it required some time for the crew to cut a line through the timber and underbrush sufficient to establish the true line. He picked up the line from a section line near the property and concluded that the fence was within a few feet of the line so established. He did not recall many improvements, such as buildings, clearings, or orange trees on the tract south of the disputed line when it was surveyed by him during the year 1912. It is possible that the corner posts subsequently replaced were established by the witness Sullivan. The appellant has been closely identified with the tract continuously since the year 1910, as well as the tract north of the disputed line, and the use of the trees or timber as a wind break for fruit trees south thereof, coupled with leaves and other acts of husbandry, conclusively show that the intention of appellant was to claim ownership of the property south of the wire fence.

It is urged that a finding for appellant would be contradictory to the testimony given by Judge O. K. Reaves, attorney for appellee, in taking title to the property. We cannot place such a construction on the testimony of Judge Reaves. He did not testify as to boundaries of the property, but made material investigations in behalf of his client unnecessary to recite in this opinion.

This court has had before it a number of times disputed land boundaries, and in the case of Watrous v. Morrison, 33 Fla. 261, text pages 267, 270, 271, 14 So. 805, 807, 39 Am.St.Rep. 139, said:

'While it is true that the title to real estate cannot be transferred by verbal agreement, yet, where the boundary between contiguous lands is uncertain or disputed, the owners of such lands may agree upon a certain line as the permanent boundary line; and, where the agreement is followed by actual occupation according to such line as the boundary, the line will be binding upon them, and their successors in title, as the boundary. The line becomes binding, not upon the principle that the title to real estate can be passed by parol, but for the reason that the proprietors have by such consent and conduct agreed permanently upon the limits or the extent of their respective lands or property. * * *

'Another principle coming within the discussion of this case is that, in cases of mistake as to the true line between adjoining lands, the real test as to whether or not a title will be acquired by a holding for the period of seven years, is the intention of the person holding beyond the true line.

'If such occupation is by mere mistake, and with no intention upon the part of the occupant to claim as his own land which does not really belong to him, but he intends to claim only to the true line, wherever it may be, the holding is not adverse. If, however, the occupant takes possession, believing the land to be his own up to the mistaken line, and

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