Wadsworth v. Myers
| Decision Date | 28 August 1991 |
| Docket Number | No. 90-01734,90-01734 |
| Citation | 585 So.2d 409 |
| Parties | 16 Fla. L. Weekly D2262 Donald H. WADSWORTH and Laura Wadsworth, Appellants/Cross-Appellees, v. Barney L. MYERS and Myrtice Myers, Appellees/Cross-Appellants. |
| Court | Florida District Court of Appeals |
George Zadorozny of George Zadorozny, P.A., Oldsmar, for appellants/cross-appellees.
Walter O. Hobbs of Harry M. Hobbs, P.A., Tampa, for appellees/cross-appellants.
This is a boundary line dispute between appellants, the Wadsworths, and appellees, the Myerses. The trial court found in favor of appellees. We affirm.
The dispute arose when appellants had the property surveyed in 1988, and discovered that the boundary line that they and appellees had observed for approximately eleven years was incorrect and that appellees, in fact, encroached on appellants' property by several feet in some places.
In 1963, appellees had purchased, by recorded agreement for deed, a triangular piece of property, Parcel A, from William and Irene Byrd. The Byrds retained land to the north and west of Parcel A for themselves, Parcel B. At that time, Byrd showed appellee the boundary line between the two parcels based on a 1963 survey. Soon after, appellees built a barbecue pit and a carport on the boundary line.
In 1977, appellant, Dr. Wadsworth, met with Byrd to discuss purchasing Parcel B from the Byrds. Although Byrd, who was ill at the time, was unable to show appellant the boundary between the parcels, at closing he provided appellant with a copy of a 1977 survey performed by Clarence Wade showing the boundary line to be located where the 1963 survey had placed it and where appellees believed it to be.
In order to facilitate appellants' building plans at the time that appellants purchased Parcel B, appellees deeded to appellants a triangular piece out of Parcel A (Parcel B-1) and, in return, appellants deeded to appellees a rectangular parcel out of Parcel B (Parcel A-1). The dimensions and description of these parcels were determined by surveyor Clarence Wade who, in making the 1977 survey given to appellants, essentially retraced the 1963 survey.
In 1979, appellants built a fence along a portion of the boundary. Two or three years later, appellees built a fence along an additional portion of the boundary and connected it to appellants' fence. Appellants also placed concrete car stops along the same boundary south of the fence.
In 1988, in anticipation of additional development, appellants had the property resurveyed by William Rowledge, who determined that the 1963 and 1977 surveys had incorrectly placed the boundary anywhere from a few inches to a few feet to the east and north, with the result that appellees' barbecue pit, carport and garage eaves encroached on appellants' property. In addition an ingress/egress easement in favor of appellees failed to reach appellees' property.
Appellants sought a declaratory judgment that the 1988 survey should control. Appellants also sought reformation of the deeds and ejectment of appellees from appellants' property. The trial court, apparently persuaded by appellees' argument that they had established boundary by parol, found against appellants and fixed the boundary lines in accord with the 1963 and 1977 survey lines that the parties had observed for eleven years.
Appellants now ask us to find that the trial court incorrectly found that appellees established boundary by parol. We agree with appellants that appellees did not establish boundary by acquiescence, agreement or estoppel because there is no evidence of an actual boundary dispute as is required by Evans v. Forte, 510 So.2d 327, 330 (Fla. 2d DCA), rev. denied, 518 So.2d 1274 (Fla.1987). We do believe, however, that appellees established that the 1963 survey lines became binding under the common grantor theory. DeRoche v. Winski, 409 So.2d 41 (Fla. 2d DCA 1981).
Under this approach:
[W]hen the common grantor of adjacent parcels of property has established a dividing line between them with the...
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