Orange Blossom Hills, Inc. v. Kearsley

• Decision Date: 30 July 1974
• Docket Number: No. U--105,U--105
• Citation: 299 So.2d 75
• Parties: ORANGE BLOSSOM HILLS, INC., a Florida corporation, et al., Appellants, v. Donal J. KEARSLEY et al., Appellees.
• Court: Florida District Court of Appeals

Page 75

299 So.2d 75

ORANGE BLOSSOM HILLS, INC., a Florida corporation, et al., Appellants, v. Donal J. KEARSLEY et al., Appellees.

No. U--105.

District Court of Appeal of Florida, First District.

July 30, 1974.

Rehearing Denied Sept. 9, 1974.

Joe N. Unger, of Smith, Mandler, Smith & Parker, Miami Beach, for appellants.

Owen McGovern, Jr., of Denson, McGovern & Scales, Ocala, for appellees.

BOYER, Judge.

We here review a final judgment granting to plaintiffs below, appellees here, a permanent and perpetual easement and right of way across the easterly 32 feet of certain property owned by appellants, defendants below, in Marion County.

Plaintiffs filed suit in the Circuit Court of Marion County seeking a temporary and permanent injunction restraining the defendants from interfering with plaintiffs' use of an alleged prescriptive easement, alleged to have been acquired across certain property owned by defendants. Defendants responded with a general denial. After hearing numerous witnesses and considering extensive evidence the trial judge entered the order now appealed (which is really a final judgment although not so titled) by which he determined that the plaintiffs and their predecessors in title, as well as the public in general, had created a prescriptive easement as a means of egress and ingress over the property of the defendants for a period in excess of sixty years. Accordingly, the trial judge found that plaintiffs had proven that they and the public were owners of a permanent and perpetual easement and right of way across the easterly 32 feet of defendants' property.

The evidence reveals that defendants' property runs generally in a north-south direction, extending from State Road 42 on the north to an intersection with U.S. Highway 441--27 on the south. Plaintiffs own the adjoining property to the east. They claimed a prescriptive easement along the entire easterly boundary of defendants' property from State Road 42 to the intersection of U.S. Highway 441--27, claiming adverse use of a roadway situated thereon for a period in excess of the period of prescription.

Appellants urge as their first point for reversal that the trial court erred in determining the existence of a prescriptive easement over the east 32 feet of defendants' property, claiming that the evidence adduced did not clearly and positively prove adverse use of a specifically identifiable roadway used by plaintiffs, their predecessors in title or the general public.

An easement was long ago defined by the Supreme Court of Florida to be 'a privilege without profit which the owner of one tenement has the right to enjoy in respect to that tenement in and over the tenement of another person, whereof the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.' (Burdine v. Sewell, 92 Fla. 375, 109 So. 648)

An easement may be gained by prescription, which is created by adverse use of the privilege for a period of 20 years. (J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45) In the landmark decision of Downing v. Bird, Fla.Sup.Ct.1958, 100 So.2d 57, the Supreme Court of Florida delineated specific requirements necessary for creation of a prescriptive easement. There it said:

'The establishment of a public highway by prescription, or long user, is based on the presumption of a prior grant. A prescriptive right is an incorporeal hereditament in land.

'The establishment of title by adverse possession is based on the theory that the owner has abandoned the land to the adverse possessor. Title so acquired is a corporeal right, and it is the nature of the right acquired which marks the principal difference between a prescriptive right and title by adverse possession.

'The trend of modern authorities is to abandon the theory that prescriptive rights are based on the presumption of a prior grant, and to treat the acquisition thereof as being rights acquired by methods substantially similar to those by which title is acquired by adverse possession. Bridle Trail Ass'n v. O'Shanick, Mo.App.1956, 290 S.W.2d 401; Plaza v. Flak, 1951, 7 N.J. 215, 81 A.2d 137, 27 A.L.R.2d 324; 17A Am.Jur. 678, Easements, Sec. 66. We agree with these authorities.

'In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition the use must be adverse under claim or right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse...