Seddon v. Harpster

Decision Date11 April 1979
Docket NumberNo. 78-616,78-616
Citation369 So.2d 662
PartiesSara Jane SEDDON et al., Appellants, v. Fred M. HARPSTER and Doris Harpster, his wife, Appellees.
CourtFlorida District Court of Appeals

Sanford A. Minkoff of Ford, Cauthen & Robuck, Tavares, for appellants.

Robert F. Vason, Jr. of Huebsch, Bowen & Vason, Eustis, for appellees.

SCHEB, Judge.

Defendant Sara Jane Seddon appeals a final judgment holding that she was wrongfully occupying land belonging to the plaintiffs Harpster. Seddon attacks the judgment on several grounds. We have examined her arguments in some detail, and reject each of them. However, we think the trial court's rejection of her defense of adverse possession merits discussion.

In 1964 Seddon's parents purchased a twenty-acre tract of rural land in Lake County described as follows:

West 1/2 of the NW1/4 of the NE1/4 of Section 19, Township 17 South, Range 27 East in Lake County, Florida recorded in O.R. Book 259, p. 317.

The new owners promptly had their land surveyed. The survey showed their western boundary, I. e., the north-south midsection line, to be a county-maintained clay road. Accordingly, the elder Seddons erected a fence adjacent to the clay road. Eventually defendant Seddon succeeded her parents as owner of the property.

The Harpsters purchased their property in 1971. According to their legal description the eastern boundary of their land abutted the western boundary of Seddon's property. Thus the north-south midsection line was the common boundary between the two properties. Mr. Harpster, who is a surveyor, had doubts even before he and his wife purchased their property as to whether the north-south midsection line ran along the clay road. He suspected that the true north-south midsection line was somewhere east of the road.

In November 1975 the Harpsters brought an ejectment action against Seddon, alleging that she was wrongfully occupying the eastern portion of their property. Seddon answered, asserting several affirmative defenses, and counterclaimed. She contended, Inter alia, that even if the north-south midsection line was somewhere east of the clay road she nevertheless owned up to the road through adverse possession. See Ss 95.16-.18, Fla.Stat. (1975).

The cause proceeded to nonjury trial in September 1977. Both sides produced expert testimony as to the proper location of the north-south midsection line, as well as testimony relating to the various defenses raised by Seddon.

The final judgment in favor of the Harpsters was rendered on October 10, 1977. The court accepted the survey conducted by the Harpsters' expert, Wayne Dukes, which placed the north-south midsection line some 400 feet east of the clay road. Though the expert testimony was conflicting, we find that the trial court did not err in accepting Dukes' survey. The trial court also rejected each of Seddon's defenses, and found that she was wrongfully occupying the disputed property between the north-south midsection line and the clay road.

As noted, Seddon argues that she was the owner of the disputed property through adverse possession. She first contends that the evidence was sufficient to show that she adversely possessed the disputed property "without color of title" as described in Section 95.18, Florida Statutes (1975). However, this statute requires a showing that the claimant has "made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes . . . levied against the property by the state, county, and municipality." Seddon's legal description, upon which she paid taxes, did not encompass the disputed property. Therefore, the trial court properly rejected this defense. See Peters v. Straley, 306 So.2d 588 (Fla.2d DCA 1975).

The trial court's rejection of Seddon's defense of adverse possession "under color of title" presents a more difficult problem. In rejecting this defense, the court said:

It is perhaps this defense that comes closest to merit inasmuch as the disputed property is, in fact, under fence with the property of the Defendant Seddon thereby giving rise to a claim of adverse possession pursuant to Florida Statute 95.16(2)(b) which states that when the occupant entered into possession of real property under a claim of title founded upon a written instrument (which the Seddons did) and has for seven years been in continued possession of the property included in the instrument (which the Seddons have) the property is held adversely.

Under the present day reading of Section 95.16, Florida Statutes, there can be no doubt that the Defendant has met every requirement of acquiring title to property by adverse possession save and except for one. The Defendant has not held such property according to the provisions of Section 95.16, Florida Statutes For a period of seven years. Such section of the Florida Statutes only became law on January 1, 1975. Prior to that, Section 95.16 and 95.17 as interpreted by the Supreme Court of the State of Florida in Meyer v. Law, 287 So.2d 37 was the law.

To fully comprehend the trial court's holding, a review of the law in this area is necessary.

In Meyer v. Law, 287 So.2d 37 (Fla.1973) the supreme court had occasion to interpret Sections 95.16 and .17, Florida Statutes (1971), which dealt with adverse possession under color of title. At that time Section 95.16 read:

Whenever it appears that the occupant, or those under whom he claims, entered into possession of premises under claim of title exclusive of any other right, Founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment for seven years, the premises so included shall be deemed to have been held adversely, except that, where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract; provided, that adverse possession commencing after December 31, 1945, shall not be deemed to be adverse possession under color of title unless and until the instrument of conveyance of the premises in question upon which such claim of title is founded shall be duly recorded in the office of the clerk of the circuit court of the county in which the premises are situated. (Emphasis added.)

Section 95.17, entitled "Definition of possession and occupation under color of title," then read in pertinent part:

For the purpose of constituting an adverse possession by any person claiming a title Founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in any of the following cases:

(1) Where it has been usually cultivated or improved; or

(2) Where it has been protected by a substantial enclosure. All contiguous land protected by such substantial enclosure shall be deemed to be premises included within the written instrument, judgment, or decree, within the purview of § 95.16 . . . . (Emphasis added.)

Writing for the four-justice majority in Meyer v. Law, Justice Boyd said:

Reading the foregoing subsection (95.17(2)) In pari materia with the other quoted sections, we think its proper construction is that persons who claim land adversely under a paper title relating to a certain area, and who fence in or cultivate an area beyond that which is described in the paper title, but who do not pay any taxes on the additional area, Can secure good title by adverse possession only to the portion of land described by the deed, decree, or other written instrument of record. We believe that, in enacting the foregoing subsection (95.17(2)), the Legislature intended to provide that, where one has color of title to a larger area than is fenced or cultivated, and he pays no taxes on any of the land described in the title, he may acquire title by adverse possession only to that portion of (the) land shown on the paper title which he actually fences or cultivates. (Emphasis added.)

287 So.2d at 40. So under this holding a person could claim property by adverse possession under color of title Only where he had "paper" title correctly describing the disputed property. In the instant case the survey accepted by the trial court showed that Seddon's legal description did not encompass the disputed land. Therefore, under Meyer v. Law Seddon did not have paper title to the disputed land, and she could not have established adverse possession under color of title.

In 1974 the legislature enacted Chapter 74-382, Sections 11 and 12, Laws of Florida, amending the statutes dealing with adverse possession under color of title. Section 95.17 was eliminated, but its language was changed slightly and incorporated into Section 95.16. Section 95.16 now reads in pertinent part as follows:

(1) When the occupant, or those under whom he claims, entered into possession of real property under a claim of title exclusive of any other right, Founding the claim on a written instrument as being a...

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6 cases
  • State v. Lavazzoli
    • United States
    • Florida Supreme Court
    • July 7, 1983
    ...presumed that provisions added by an amendment affecting existing rights are intended to operate prospectively also. Seddon v. Harpster, 369 So.2d 662 (Fla. 2d DCA 1979), ctfd. question answered, approved, 403 So.2d 409 (Fla.1981). Nowhere in either article I, section 12 as amended or in th......
  • Grant v. Strickland, NN-205
    • United States
    • Florida District Court of Appeals
    • June 30, 1980
    ...Thomas, 281 So.2d 410 (Fla. 1st DCA 1973); Meyer v. Law, 287 So.2d 37 (Fla.1973); 1974 Laws of Florida, § 74-382; Seddon v. Harpster, 369 So.2d 662, 665 (Fla. 2d DCA 1979). Surely proof requirements under § 95.18 are no less exacting.9 Webster's Third New International Dictionary (Unab. ed.......
  • Clark v. Cassidy
    • United States
    • Hawaii Supreme Court
    • December 1, 1981
    ...Or. 533, 539 n.7, 577 P.2d 477, 483 n.7 (1978). Accord, State v. Sanchez, 119 Ariz. 64, 66, 579 P.2d 568, 570 (1978); Seddon v. Harpster, 369 So.2d 662, 666 (Fla.1979); McGill v. Muddy Fork of Silver Creek Watershed Conservancy Dist., Ind.App., 370 N.E.2d 365, 370 (1977); Kittilson v. Ford,......
  • Seddon v. Harpster, 83-678
    • United States
    • Florida District Court of Appeals
    • September 22, 1983
    ...properties to be east of where the Seddons contended. In that controversy the Harpsters won and the Seddons lost. Seddon v. Harpster, 369 So.2d 662 (Fla. 2d DCA 1979), affirmed 403 So.2d 409 (Fla.1981). By "cross-claim" in the Harpster v. Seddon action, the Seddons sued their neighbors to t......
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