Seaboard Air Line R. Co. v. California Chemical Co., 412

• Decision Date: 29 May 1968
• Docket Number: No. 412,412
• Citation: 210 So.2d 757
• Parties: SEABOARD AIR LINE RAILROAD COMPANY, a Virginia corporation, Appellant, v. CALIFORNIA CHEMICAL COMPANY, a Delaware corporation, formerly California Spray Chemical Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 757

210 So.2d 757

SEABOARD AIR LINE RAILROAD COMPANY, a Virginia corporation, Appellant, v. CALIFORNIA CHEMICAL COMPANY, a Delaware corporation, formerly California Spray Chemical Corporation, Appellee.

No. 412.

District Court of Appeal of Florida, Fourth District.

May 29, 1968.

William B. Mesmer, of Akerman, Senterfitt, Eidson, Mesmer & Robbinson, Orlando, for appellant.

Leon Handley and Richard W. Lassiter, of Gurney, Gurney & Handley, Orlando, for appellee.

FARRINGTON, OTIS, Associate Judge.

Plaintiff in ejectment has appealed from a final judgment for defendant based on a directed verdict. The parties will be referred to as they were in the trial court.

Plaintiff is the owner of the record title of the disputed tract. The trial judge determined as a matter of law that defendant had acquired title to the disputed tract by adverse possession.

The disputed tract is contiguous to the west boundary of a tract acquired by defendant by deed in 1947. Negotiations for the purchase of defendant's property were conducted by M. C. Van Horn, who was then defendant's southern manager. In negotiating for the sale to defendant the prior owner of the tract described in defendant's 1947 deed pointed out the boundaries of the property to Van Horn, indicating that the tract being offered for sale to defendant included all land east of an old barbed wire fence then located on the west line of the disputed tract.

Defendant purchased the property described in its 1947 deed, believing that the tract now in dispute was included in the deed description. In fact, the tract in dispute was not included in defendant's 1947 deed description, but is part of a tract to which plaintiff acquired record title by a warranty deed from August T. Champlain and Marie T. Champlain in December 1955.

After completing purchase of the land described in its 1947 deed, defendant through its agents and employees took possession of the entire area which had been pointed out to Van Horn by defendant's vendor prior to purchase, and has since continuously used the disputed tract for the storage of 55-gallon steel drums.

Defendant's regional manager, Douglas B. Maughan, has had supervisory control of the property claimed by defendant under its 1947 deed including the tract in dispute since 1949. In 1953, after obtaining proper corporate approval, Maughan caused a chain link fence to be erected completely enclosing the disputed tract with a major portion of the land described in its deed. The main purpose of the fence was to exclude children from the yard where the steel drums were stacked so as to avoid harm to the children from the dangerous chemicals contained in or contaminating the steel drums. At all times from 1947 until the complaint was filed on May 1, 1964, the disputed tract has been maintained by defendant and used by it as a storage area and hard-surfaced roadway and turning area for defendant's large trucks, and at all times since 1953 the dispute tract has been enclosed by a substantial fence with other land to which defendant has a valid paper title.

The trial judge determined as a matter of law that by protecting the disputed tract for more than seven years by a substantial enclosure with land to which defendant had acquired valid title by its 1947 deed, defendant had acquired fee simple title to the disputed tract by adverse possession. This determination involved the application of F.S. Sections 95.16 and 95.17, F.S.A.1967, ¹ since without benefit of these statutes defendant's possession of the disputed tract would have been without color of title. ²

It is plaintiff-appellant's first contention that defendant's possession of the disputed tract was not under color of title, since the 1947 deed to defendant's land, a major portion of which was enclosed with the disputed tract, was a valid deed conveying good title to the land described therein. In support of this contention plaintiff relies on Blackburn v. Florida West Coast Land & Development Co., ³ wherein the Second District Court of Appeal stated that the enclosure by fence of a contiguous strip of property to which the encloser had no record title along with land to which the encloser had valid title and subsequent possession of the entire enclosed area for more than seven years did not constitute possession under color of title despite the provisions of F.S. Section 95.17(2), F.S.A.1967, for the reason that valid title does not constitute color of title.

We reject this contention of plaintiff-appellant and choose to follow the holding in Kiser v. Howard, ⁴ where in a factual situation similar in principle to the instant case the First District Court of Appeal held that the enclosure by fence under claim of title of a contiguous strip to which the encloser had no paper title with land to which the encloser held valid record title would bring the encloser's claim within the provisions of F.S. Section 95.17(2), F.S.A.1967, with the result that his possession of the disputed contiguous strip would be deemed to have been possessed under color of title. This construction accords with what seems to us the clear intent of F.S. Section 95.17(2), F.S.A.1967, which makes no reference to valid or invalid instruments but by its terms applies to contiguous land enclosed with land to which title is founded upon a written instrument, or a judgment or decree. We are concerned with the possession of the disputed tract, not the possession of the land described in defendant's deed. As to the disputed tract defendant had no paper title but had color of title by operation of the provisions of F.S. Section 95.17(2), F.S.A.1967, to the effect that contiguous land enclosed with the land described in the written instrument under which defendant claimed would be deemed to be premises included within the written instrument.

Plaintiff-appellant's second contention is that there can be no adverse possession in a mistaken boundary case unless there is a subjective intent on the part of the possessor at the time of taking and during the holding to take the property of another. In support of this contention plaintiff cites the cases of Liddon v. Hodnett ⁵ and Bossom v. Gillman. ⁶ This contention of plaintiff is not supported by the cases cited. The Florida rule as stated in the Bossom case at page 366, which tracks headnote eight of the Liddon case, is as follows:

'In cases of mistake as to the true line between adjoining lands, the real test as to whether or not a title will be acquired by a holding for the period of seven years is the intention of the party holding beyond the true line. If such occupation is by mere mistake, and with no intention upon the part of the occupant to claim, as his own, land which does not belong to him, but he intends to claim only to the true line, wherever it may be, the holding is not adverse. If, however, the occupant takes possession, believing the land to be his own, up to the mistaken line, and claiming title to it, and so holds, the holding is adverse. The intent to claim title up to the...