Merrill Stevens Dry Dock Co. v. G & J Investments Corp., Inc., 86-1714

• Decision Date: 14 April 1987
• Docket Number: No. 86-1714,86-1714
• Citation: 506 So.2d 30
• Parties: MERRILL STEVENS DRY DOCK COMPANY, Appellant, v. G & J INVESTMENTS CORPORATION, INC., Appellee.
• Court: Florida District Court of Appeals

Page 30

506 So.2d 30

MERRILL STEVENS DRY DOCK COMPANY, Appellant, v. G & J INVESTMENTS CORPORATION, INC., Appellee.

No. 86-1714.

District Court of Appeal of Florida,

Third District.

April 14, 1987.

Rehearing Denied May 19, 1987.

Smathers & Thompson and Henry H. Bolz, III, Miami, for appellant.

R. Stuart Huff, Coral Gables, and Mark L. Mallios, Miami, for appellee.

Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.

BASKIN, Judge.

Merrill Stevens Dry Dock Company [Stevens], unsuccessful plaintiff in a trespass action against G & J Investments Corporation, Inc. [G & J], seeks reversal of the amended final judgment. The trial court considered whether an addition to G & J's building trespassed on Stevens' adjoining property. Stevens attempted to prove that its former president, Alex Balfe, had granted G & J a revocable license to erect a concrete slab on the Stevens property in order to provide the then-existing nursing home a safe area for patients confined to wheelchairs, and that Stevens subsequently revoked the license in 1981. When the Department of Health & Rehabilitation Services closed the nursing home in 1981, Stevens sent a letter requesting G & J to remove the slab. G & J failed to respond, and Stevens instituted an action to regain exclusive use of its property. At the conclusion of a non-jury trial, the court ruled that Stevens had failed to prove that it granted G & J a license. The court decided that the statute of limitations ran without tolling, not from the date of a license revocation as contended by Stevens, but from the commencement of unauthorized use of the property in the early 1960's. Accordingly the court held that Stevens' claim was barred by the statute of limitations and by laches. The court did not reach G & J's alternate defense that the obvious addition of improvements without objection equitably estopped Stevens from asserting its claim. We reverse.

It is well-settled that "[t]respass to real property is an injury to or use of the land of another by one having no right or authority." Guin v. City of Riviera Beach, 388 So.2d 604, 606 (Fla. 4th DCA 1980). A trespass may also occur where the initial presence of a structure on another's property has been authorized, or placed onto the land with the consent of the landowner, but removal of the structure is not forthcoming after consent has been withdrawn. Anchorage Yacht Haven, Inc. v. Robertson, 264 So.2d 57 (Fla. 4th DCA 1972); Restatement (Second) of Torts, § 160 (1965). An action for trespass does not accrue until the property owner has withdrawn his consent to the privileged use, and the statute of limitations does not run during the period of permitted use. See R. Powell, The Law of Real Property §§ 427-28 (1949 & Supp.1987); §§ 95.031, 95.11(3)(g), Fla.Stat. (1981).

We find error in the trial court's rejection of Stevens' unrebutted testimony that its president granted the nursing home a license which it subsequently revoked. Uncontradicted testimony must be accepted as proof of a contested issue. Howell v. Blackburn, 100 Fla. 114, 129 So. 341 (1930); Levy v. Cox, 22 Fla. 546 (1886); Florida East Coast Ry. v. Michini, 139 So.2d 452 (Fla. 2d DCA 1962); Kinney v. Mosher, 100 So.2d 644 (Fla. 1st DCA 1958). See Rountree v. Davis, 124 Fla. 212, 167 So. 820 (1936). As this court stated in Duncanson v. Service First, Inc., 157 So.2d 696, 699 (Fla. 3d DCA 1963) (footnotes and citations omitted):

We are duty bound not to disturb the findings of fact of a trial judge in a case heard without a jury where such findings are based upon conflicting competent evidence. However, where the testimony on the pivotal issues of fact is not contradicted or impeached in any respect, and no conflicting evidence is introduced, these statements of fact can not be wholly disregarded or arbitrarily rejected. Rather, the testimony should be accepted as proof of the issue for which it is tendered, even though given by an interested party, so long as it consists of fact, as distinguished from opinion, and is not essentially illegal, inherently improbable or unreasonable, contrary to natural laws, opposed to common knowledge, or contradictory within itself.

Despite Stevens' uncontroverted testimony, G & J contends that any license that may have been granted went to G & J's predecessor in title. The trial court determined that, with the exception of Mr. Balfe's testimony, Stevens made "no further attempt to identify [the nursing home representative] nor to show that he was affiliated with [G & J] or with its predecessor in title." However, the evidence discloses that the slab was not constructed until after G & J acquired its property in 1962, and that Stevens' property appraisals of 1963, 1971, and 1975 show that Stevens knew of the improvements. Thus, the trial court's finding is contrary to the legal effect of the evidence. See Eig v. Insurance Co. of N. America, 447 So.2d 377 (Fla. 3d DCA 1984); Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983).

G & J's alternate argument that its construction of improvements equitably estopped Stevens from revoking its license lacks merit. In...