Meyer v. Law
| Decision Date | 05 July 1973 |
| Docket Number | No. 42788,42788 |
| Citation | 287 So.2d 37 |
| Parties | John E. MEYER and L. Leona Meyer, his wife, Petitioners, v. Neil F. LAW, Jr., and Lucille W. Law, his wife, Respondents. |
| Court | Florida Supreme Court |
William L. Penrose, of Harris, Barrett & Dew, St. Petersburg, for petitioners.
Law Offices of Joseph E. Johnston, Jr., Brooksville, for respondents.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 265 So.2d 737. Our jurisdiction is based on conflict between the decision sought to be reviewed and Blackburn v. Florida West Coast Land and Development Company, 1 Van Meter v. Kelsey, 2 Holley v. May, 3 and Palmer v. Greene. 4
Petitioners owned land contiguous to the property of respondents. Relying upon an incorrect survey, respondents built and maintained a fence for twenty-five years, enclosing a portion of petitioners' land, in the belief that it was part of their own. Both petitioners and respondents had deeds of record reflecting the true boundary; both parties returned their lands for taxes according to the record titles, and paid taxes only on their respective properties as shown by such record titles. Respondents apparently thought the fence was on the true line, and petitioners took no action for legal determination to the contrary.
The District Court held that the respondents acquired valid title to the enclosed lands of petitioners under 'color of title', although there was neither a decree nor a written instrument of any kind in the public records to show color of title in respondents, and although there had been no return of the encroached lands for taxes or payment thereof by respondents.
The foregoing cases, cited for conflict, clearly hold that without color of title or payment of taxes, as prescribed by Sections 95.16, 95.17, 95.18, and 95.19, Florida Statutes, 5 and without seven years of actual In Palmer v. Greene, Supra, decided by this court in 1947, the appellants sought to perfect title to a part of appellees' land, contiguous to their own, by adverse possession. Appellants had cultivated the land from 1936, through the time the case arose, and until final disposition of the case in 1947. This Court held that, since 1939, either return and payment of taxes or color of title to the land in question, coupled with seven years of 'adverse' possession, was required. Although the appellants had record title to their adjoining property, there was no claim or finding that the paper title to their own property constituted color of title to the land held adversely. In Holley v. May, Supra, decided by this In light of these cases, we now turn to the essence of the issue upon which this Court must reverse the District Court in the instant case. Relying upon cases cited in the opinion, and other legal writings, both the Circuit Court and the District Court concluded that subsection (2) of Section 95.17 should be construed to mean that when a person claims certain specific lands under color of title, such claimant may enclose or cultivate the properties of contiguous owners for seven years, without returning or paying taxes, and without having paper title to the land upon which he has encroached, and thus perfect his claims to the property of adjoining owners, who return and pay their taxes, and who have ownership of record by deed, decree, or other written instrument. In this fashion, all owners of real property described in the statute would be subject to losing parts of their yards, farms, ranches, or other lands, to contiguous owners who happen to plant flowers, vegetables, or fences thereon. Surely, the Legislature did not intent such a result.
adverse, open, hostile, and continuous enclosure or cultivation, or adverse claim cannot ripen into a valid legal title. Court in 1954, appellants claimed title by adverse possession to a portion of land, of a contiguous owner, on which their house encroached. Although they, like the appellants in Palmer, and the respondents in the instant case, had record title to the adjoining property, this Court held that title by adverse possession had not been legally established because there was no color of title or return and payment of taxes for seven years.
Reading the foregoing subsection In pari materia with the other quoted sections, we think its proper construction is that persons who claim land adversely under a paper title relating to a certain area, and who fence in or cultivate an area beyond that which is described in the paper title, but who do not pay any taxes on the additional area, can secure good title by adverse possession only to the portion of land described by the deed, decree, or other written instrument of record. We believe that, in enacting the foregoing subsection, the Legislature intended to provide that, where on has color of title to a larger area than is fenced or cultivated, and he pays no taxes on any of the land described in the title, he may acquire title by adverse possession only to that portion of land shown on the paper title which he actually fences or cultivates. It requires little imagination to realize that one who holds an uncertain or doubtful color of title, by deed, decree, or other recorded written instrument, to a large piece of property which may likely be claimed by others, might wisely fence, cultivate, or pay taxes on a portion of the same, in order to avoid controversy, for seven years, and then reach out in like manner for another piece. Obviously, in such circumstances, only the part occupied adversely could be included, regardless of the lands shown on the color of title, or the taxes paid.
In the case before us, we hold that the respondents' color of title was limited to the property shown in the public records, and no color of title extended from that ownership to the contiguous lands of the petitioners.
In Florida, there are only two ways to acquire land by adverse possession. First, without color of title, the claimant must show seven years of open, continuous, actual possession, hostile to all who would challenge such possession, must both pay all taxes for the seven year period, returning said land for taxes during the first year of occupation, and enclose or cultivate said lands for the seven year period. Second, with color of title, the claimant must show he entered into possession of the premises under a claim based upon a written instrument of conveyance of the premises in question, or deed, or judgment of a competent court, and there has been a continued occupation and possession of the premises, as defined by Section 95.17, Florida Statutes, F.S.A. (and, of course, including the above criteria of openness, etc.), for a period of seven years. It should be noted that Section 95.16, Florida Statutes, F.S.A., provides that adverse possession The concept of adverse possession is an ancient and, perhaps, somewhat outdated one. It stems from a time when an ever-increasing use of land was to be, and was, encouraged. Today, however, faced, as we are, with problems of unchecked over-development, depletion of precious natural resources, and pollution of our environment, the policy reasons that once supported the idea of adverse possession may well be succumbing to new priorities. A man who owns some virgin land, who refrains from despoling that land, even to the extent of erecting a fence to mark its boundaries, and who makes no greater use of that land than an occasional rejuvenating walk in the woods, can hardly be faulted in today's increasingly 'modern' world. Public policy and stability of our society, therefore, require strict compliance with the appropriate statutes by those seeking ownership through adverse possession. In this case, respondents have not demonstrated sufficient compliance with the requirements of the law to perfect their claim by adverse possession.
commencing after December 31, 1945, shall not be deemed to be adverse possession under color of title unless the instrument purporting to convey the premises is recorded. One who enters into possession of realty is presumed to do so subordinately to the legal titleholder, and not adversely thereto. One who claims adversely has the burden of overcoming this presumption.
Accordingly, the opinion of the District Court is quashed and the cause remanded for further proceedings consistent herewith.
It is so ordered.
Respectfully, I must dissent. To reach the conclusion set forth in the majority opinion requires that one totally ignore the language of Fla.Stat. § 95.17(2), F.S.A., which provides:
'All contiguous land protected by such substantial enclosure shall be deemed to be premises included within the written instrument, judgment, or decree, within the purview of § 95.16.'
Fla.Stat. § 95.16, F.S.A., deals with adverse possession under color of title, so that, to be given any meaning at all, the language of Fla.Stat. § 95.17(2), F.S.A., must be interpreted as an extension of the applicability of the color of title doctrine. As set forth in the majority opinion, holding property adversely under color of title negates the necessity of filing a legal description of the land with the tax assessor and paying taxes on the land thus possessed.
The majority opinion would limit the application of the doctrine to those situations wherein the land sought to be claimed is actually described in some form of conveyance, which is the traditional test for whether or not land is held under color of title. 1 Fla.Jur., Adverse Possession, § 9.
In 1939, the Legislature revised the adverse possession statutes of the State so that the requirement of payment of taxes in order to claim adversely without color of title (Fla.Stat. §§ 95.18, 95.19...
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