Sanders v. Thomas, 1D01-2725.
| Decision Date | 26 July 2002 |
| Docket Number | No. 1D01-2725.,1D01-2725. |
| Citation | 821 So.2d 1214 |
| Parties | Robert A. SANDERS and Peggy W. Sanders, Appellants, v. Elizabeth H. THOMAS, Appellee. |
| Court | Florida District Court of Appeals |
Steven G. Mason, Law Offices of Steven G. Mason, Orlando, for Appellants.
John F. Roscow, III, Scruggs & Carmichael, P.A., Gainesville, for Appellee.
The parties in this case dispute ownership over a strip of land, varying in width, to the east of a dirt road. The road is fenced on each side of its right-of-way. Appellee argues that the fence on the road's eastern right-of-way is the boundary of the parcel of land that is on the east side of the road. Appellants argue that the boundary is several feet to the east of that fence, in accordance with the legal description in their deed.
After a bench trial, the trial court entered a final judgment awarding title of the disputed land to Appellee on the basis that (i) various recorded deeds and a mortgage should be reformed to exclude the disputed land, (ii) Appellee is the owner through adverse possession under color of title, (iii) Appellee is the owner through boundary by agreement, and (iv) Appellee is the owner through boundary by acquiescence. We agree with Appellants that the trial court erred, and therefore reverse.
It is undisputed that all of the recorded instruments and surveys show that the boundary of the disputed land is several feet east of the fence on the road's eastern right-of-way. Accordingly, Appellee sought to have those various instruments in the chain of title reformed to exclude the disputed land. We reverse the trial court's ruling in favor of Appellee for reformation because Appellants are bona fide purchasers of the land for value without notice of the alleged mistake. See Burleson v. Brogdon, 364 So.2d 491, 494 (Fla. 1st DCA 1978)( judgment of reformation because of bona fide purchaser for value without notice of incorrect description).
Appellee brought a count for adverse possession under color of title and a count for adverse possession without color of title. The trial court did not rule for Appellee on the basis of adverse possession without color of title, and there is no argument by Appellee that the failure to do so was error.1 However, the trial court ruled that Appellee proved by clear and convincing evidence that she is the owner of the disputed land through adverse possession under color of title, pursuant to section 95.16, Florida Statutes.
The trial court erred because it is undisputed that the cows owned by Appellants' predecessor in title and Appellee's former son-in-law, Mr. Larry R. Johnson, intermingled with the cows owned by Appellee with Appellee's permission. Therefore, the record does not show by clear and convincing evidence that Appellee had adverse possession of the disputed land.
Moreover, Appellee does not have a written instrument containing a legally sufficient description of the property to establish a claim for adverse possession under color of title. See Seton v. Swann, 650 So.2d 35 (Fla.1995)( that defendants did not establish adverse possession by color of title because, under section 95.16, the title to property possessed but not described in a recorded instrument cannot be used to show color of title).
"The essential elements of boundary by agreement are (1) an uncertainty or dispute as to the true boundary; (2) an agreement, either oral or implied, between the adjacent landowners that a certain line will be treated by them as the true line; and (3) subsequent occupation by the parties in accordance with that agreement for a period of time sufficient to show a settled recognition of the line as a permanent boundary." Jones v. Rives, 680 So.2d 450, 451 (Fla. 1st DCA 1996). As in Jones, there is no competent substantial evidence in the instant case to support the trial court's finding that each of the elements of boundary by agreement exists. Id. at 452.
"Establishment of a boundary by acquiescence between adjoining landowners arises from two elements: (1) a dispute between the landowners as to the location of the boundary evidencing that the true boundary is in doubt, and (2) continued occupation and acquiescence in a line other than the true boundary for a period longer tha[n] the statute of limitations." Franklin v. Gibbs, 507 So.2d 690, 691 (Fla. 1st DCA 1987).
Mrs. Franklin and her husband were owners of a 40 acre parcel in Escambia County. Inside the western boundary of the Franklin's property was a road. The disputed property was a narrow strip of land west of the road. It was undisputed that the survey and deeds showed the strip on the western side of the road to be a part of the property owned by the Franklins. The Franklins' neighboring landowners, the Minchews, claimed the disputed strip of land and asserted that the road had been established as the boundary between the two landowners by acquiescence. Id. at 690-91.
The court reversed the trial court's ruling in favor of the Minchews, holding that the evidence fell short of showing that the true boundary...
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...1954); Nall v. Rayborn, 451 So. 2d 921 (Fla. 1st D.C.A. 1984); Roberts v. Hart, 573 So. 2d 12 (Fla. 4th D.C.A. 1990); Sanders v. Thomas, 821 So. 2d 1214 (Fla. 1st D.C.A. (40) Triano v. Triano, 549 So. 2d 1053 (Fla. 5th D.C.A. 1989); Ryan v. Lobo Gonzales, 841 So. 2d 510 (Fla. 4th D.C.A. 200......