Shultz v. Johnson, 93-3764
Decision Date | 14 March 1995 |
Docket Number | No. 93-3764,93-3764 |
Citation | 654 So.2d 567 |
Parties | 20 Fla. L. Weekly D691 Janice SHULTZ, Appellant, v. Barbara F. JOHNSON, Appellee. |
Court | Florida District Court of Appeals |
David G. White, Pensacola, for appellant.
Michael Gibson of Johnson, Green & Locklin, P.A., Milton, for appellee.
This cause is before us on appeal following a jury trial in a suit to establish a boundary between lands owned by the parties. The issues presented are (1) whether the trial court erred in directing verdicts in favor of the defendant on plaintiff's claims of boundary by acquiescence and boundary by agreement; (2) whether the trial court erred in vacating the jury verdict in favor of plaintiff on the claim of adverse possession and in ordering a new trial; and (3) whether the trial court erred in allowing testimony regarding statements made by defendant's deceased father. We affirm in part, reverse in part, and remand.
Janice Shultz filed a complaint in circuit court seeking primarily the ascertainment of a boundary line. She alleged essentially that a fence placed along the northern portion of her property by her predecessors in title had continuously been recognized and acknowledged as the boundary line between her property and Barbara Johnson's adjacent property to the north, and that Johnson was unlawfully encroaching onto a portion of Shultz's property south of this boundary line. Shultz sought recovery under the theories of boundary by agreement, boundary by acquiescence, and/or adverse possession (between 1975-1987). Johnson denied the essential allegations of the complaint and the cause proceeded to jury trial.
At the conclusion of the trial, Johnson moved for a directed verdict as to all theories of recovery. The trial court granted the motion with regard to the theories of boundary by acquiescence and boundary by agreement, concluding there was insufficient evidence of a dispute or mutual agreement, respectively. The court ruled, however, that there was sufficient evidence to submit the claim of adverse possession to the jury. The jury returned a verdict in favor of Shultz on the adverse possession claim.
Johnson filed a motion to vacate the jury verdict and for entry of a judgment in accordance with her earlier motion for directed verdict, as well as a motion for new trial. In support thereof, Johnson argued in part that Shultz had failed to prove the elements of adverse possession and that the verdict was contrary to the manifest weight of the evidence. Upon consideration, the trial court granted the motion, set aside the jury verdict, and ordered a new trial. As grounds, the court found that Shultz had failed to introduce clear and convincing evidence that the disputed property was protected by continuous substantial enclosure for seven years between 1975-1987.
We address first the entry of the directed verdicts on the theories of boundary by acquiescence and agreement. Lands may be acquired through the conduct of adjacent property owners through equitable estoppel, under the principles of boundary by agreement and boundary by acquiescence. King v. Carden, 237 So.2d 26 (Fla. 1st DCA 1970). The following elements are necessary to establish boundary by acquiescence: (1) a dispute or uncertainty as to the location of the true boundary, implying a cognizance by both parties that the true boundary is in doubt; (2) location of a boundary line by the parties; and (3) the continued occupancy of, and acquiescence to, a line other than the true boundary line for a period of more than seven years. Horizon South Master Home Owners v. West, 591 So.2d 665 (Fla. 1st DCA 1991); McDonald v. Givens, 509 So.2d 992 (Fla. 1st DCA 1987); Mark IX, Inc. v. Surette, 492 So.2d 745 (Fla. 1st DCA 1986); McDonald v. O'Steen, 429 So.2d 407 (Fla. 1st DCA 1983). In Shaw v. Williams, 50 So.2d 125 (Fla.1950), the court defined "uncertainty" as an actual lack of knowledge on the part of both landowners of the true boundary. Id. at 128.
Johnson contends that the testimony of her witnesses clearly established there was no uncertainty as to the true boundary. We cannot agree with this view of the evidence. None of Johnson's witnesses testified with certainty regarding the location of the true boundary. Although several of her family members testified they knew the fence did not constitute the boundary, they could not pinpoint the true boundary. The Shultz family members testified that the fence in dispute had been constructed when the property was acquired by Lee Napoleon Shultz in 1936 and that it had been recognized since that date as the boundary between the two parcels. The Shultz family members conducted various activities (gardening, livestock, hunting) on the disputed property through the years. There was no evidence of any feud with regard to the disputed area up until the time of the instant action.
In reviewing the propriety of a directed verdict, an appellate court must view the facts and inferences to be drawn therefrom in the light most favorable to the non-moving party. A...
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