Meyer v. Law

• Decision Date: 23 August 1972
• Docket Number: No. 71--894,71--894
• Citation: 265 So.2d 737
• Parties: John E. MEYER and L. Leona Meyer, his wife, Appellants, v. Neil F. LAW, Jr. and Lucille W. Law, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 737

265 So.2d 737

John E. MEYER and L. Leona Meyer, his wife, Appellants, v. Neil F. LAW, Jr. and Lucille W. Law, his wife, Appellees.

No. 71--894.

District Court of Appeal of Florida, Second District.

Aug. 23, 1972.

William L. Penrose, of Harris, Barrett & Dew, St. Petersburg, for appellants.

Joseph E. Johnston, Jr., Brooksville, for appellees.

MANN, Judge.

Appellants ask us to hold that the record owner of real property may not acquire title to a fence which he has erected, enclosing adjacent land, under color of title pursuant to Fla.Stat. § 95.17, F.S.A. ¹ Dictum in Blackburn v. Florida West Coast Land & Develop. Co. ² would seem to require reversal. There the holding is founded on a determination of the trial court that the fence was erected and maintained as a line of convenience, and that there was, in fact, no adverse holding. But the court said, 'The result of appellant's construction' (that holding to an enclosure beyond land to which record title is held) 'of the statutes relating to adverse possession would seem to circumvent the legislative intent in this area. . . . If appellants' contention was sustained it would mean a property owner could encroach upon adjacent land, and acquire it by adverse possession without recording any new instrument or paying any taxes on it.' ³

Since Blackburn, the decisions of other courts have indicated that the legislative intent was, in fact, to allow the settlement of potential title disputes in favor of the possessor wherever he holds record title to adjoining land, has enclosed the disputed strip and held it for seven years. These cases ⁴ involve possession to fences erected Prior to the taking of title by the claimant. The present case involves a fence erected Since the claimant took title. The claimant here contends that the fence was erected pursuant to a survey, but in the view we take of the statute, this seems irrelevant.

We are now persuaded by Judge Wigginton's analysis of the problem in Kiser v. Howard and Professor James W. Day's illuminating article ⁵ that the legislative purpose was indeed to substitute the readily provable fact of enclosure or cultivation for the unpredictable outcome of cases like Bossom v. Gillman, ⁶ in which the subjective intent of the possessor is put in issue. As Professor Day points out, the honest party who claims nothing except what belongs to him loses, while an agressive party--perhaps coached in advance of trial--who claims adversely all the land possessed wins. As he states: 'Many cases hold, too, that possession to a fence or line erroneously located beyond the true boundary is adverse regardless of whether the possessor has a consciously formulated intention to claim if necessary beyond his true line. This view is consistent with the rule that prevails in other instances of possession under a mistaken belief of ownership; and there is no reason why the same rule should not be applied to a possession to a fence or line erroneously located beyond the true boundary. The better view and weight of authority is that it should.' ⁷

In short, one whose neighbor encloses land or regularly cultivates it is on notice that he should check his boundaries. He cannot relax in the belief that the encroaching neighbor must either return the land for taxes or convey it to...