Porter v. Lorene Inv. Co., T--259

• Decision Date: 25 June 1974
• Docket Number: No. T--259,T--259
• Citation: 297 So.2d 622
• Parties: Eugene B. PORTER, Appellant, v. LORENE INVESTMENT COMPANY, a corporation under the laws of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 622

297 So.2d 622

Eugene B. PORTER, Appellant, v. LORENE INVESTMENT COMPANY, a corporation under the laws of Florida, Appellee.

No. T--259.

District Court of Appeal of Florida, First District.

June 25, 1974.

Rehearing Denied Aug. 7, 1974.

Jackson Bryan of Bryan & Middleton, Palatka, for appellant.

J. Robert McClure, Jr., and John Ronald Storey of McClure & Wigginton, Tallahassee, and Joe C. Miller, II, Palatka, for appellee.

RAWLS, Chief Judge.

Appellant-Porter is before this Court challenging a final judgment quieting, in Appellee-Lorene Investment Co., title to approximately 750 acres of land located in Putnam County, Florida. The pertinent point posed by Porter is whether Lorene Investment Co. had prior to 1939 obtained title to the land in question by adverse possession without color of title.

The parties are in agreement that sometime prior to 1920 P. D. Watkins, a land surveyor, conveyed to Angus Alderman record title to land which is contiguous to the approximately 750-acre disputed tract. At the time of the conveyance Angus and Watkins walked the land with Watkins pointing out the boundaries. The boundaries which were pointed out to Angus by Watkins included the land in dispute. Angus then went to Palatka to Tillman's Hardware Store, purchased five miles of fence wire and proceeded to erect a hog fence along the boundaries pointed out to him by Watkins. ¹ This fencing resulted in the disputed area being completely enclosed. ² Angus kept cows, hogs and horses on the property and grew crops of corn, peanuts and chufa. He also built a cattle dipping vat on the subject property.

In 1929, Angus conveyed to B. J. Alderman his good record title to the land adjacent to the disputed tract. At the time of the conveyance B. J. and Angus walked the fenceline with Angus telling B. J. that the fenceline was the boundary of the property. B. J. testified that in 1929 the disputed land was fenced with a fence sufficient to turn hogs and cows and that crops of corn and peanuts were growing on the land. After the purchase, B. J. placed his hogs and cows on the disputed tract. From 1932 until his death ³ B. J. lived within a mile of the disputed property and visited it every day or so. He testified that he was the only person in possession and that no one challenged his right of possession.

From the early 20's to the 1930's, Warren Brantly and C. C. Watkins, two 'old timers' to the area, 'coon hunted on the land. They testified that they only hunted on the land with the permission of either Angus or B. J. Alderman. Watkins remembered that in the summar of 1929 Angus had planted fields of either peanuts or chufa. Brantly recalled that in 1927 and land was enclosed with a full height, American wire fence with one or two strands of barbed wife. As to more recent times, Mr. Sapps, B. J. Alderman's foreman from 1956 to 1969, testified that his duties were to round up B. J.'s cattle which were located on the disputed tract, repair fences and keep out trespassers. According to Sapps, from 1956 to 1969 the fence was in good order and would turn cattle. B. J. had cattle on the land and there were two chufa pastures under cultivation, and the land was posted.

From 1920 to the present, Porter testified that he or his father and mother had record title to the land, ⁴ and had returned the land for taxes. ⁵ During this fifty-year period, Eugene's father had once gone onto the land to obtain a peat sample. Eugene stated that since about 1935 he had visited the land several times and admitted that during at least some of these visits he had observed cattle on the land.

The first matter which must be decided is, for purposes of adverse possession, who had possession of the disputed land. The possession requires that it be open, actual, continuous and hostile. ⁶ From before 1920 until the present time, Lorene's predecessors in title actually used the land for raising peanuts and chufa and for grazing cattle and hogs. Their possession was open for it was known and recognized by various members of the community and was even observed by the Porter family. The possession was hostile in that it was contrary to the rights of ownership of the Porters and all the world. In contrast, the Porters' use of the land for some 50 years was no greater than that of a casual visitor or trespasser. The trial judge correctly found that possession of the disputed tract during all applicable times was clearly under the control of Lorene Investment Co. and its predecessors in title.

The facts present a clear picture for determination of ownership of the parcel on the basis of adverse possession without color of title. From 1924, possession of the land was under the control of Lorene Investment Co. and its predecessors in title while record title was vested in the Porters who returned the land for taxes. The pertinent time for determining the ownership of the disputed parcel commences when Lorene's predecessor in title, Angus Alderman, reduced the disputed land to his possession and control. The record reveals that this was done, at the latest, between 1920 and 1923 when Angus completely enclosed the land with a fence. ⁷ Then in effect Section 2936(1) of the Revised General Statues of Florida set forth the requirements of adverse possession without color of title as being a continuous occupancy for seven years. ⁸ The required occupancy is defined in Section 2936(2) of the Revised General Statutes of Florida, 1920, as substantially enclosing the land or cultivating or improving the land. ⁹ The facts clearly show that sometime between 1920 and 1923 Lorene's predecessor in title, Angus Alderman, commenced meeting the requirements for obtaining title to the land by adverse possession without color of title when he substantially enclosed the disputed land with a fence. In addition, he cultivated a part of the land. The applicable laws also required that the occupancy by continuous for seven years. Angus held the land until 1929 when he turned possession over to B. J. Alderman who held the land until the late 60's wnen he deeded it to Lorene Investment Co. Both men testified that their possession and occupancy was to the exclusion of all others and continuous. Members of the...