Watrous v. Morrison

• Decision Date: 20 February 1894
• Citation: 33 Fla. 261,14 So. 805
• Parties: WATROUS v. MORRISON.
• Court: Florida Supreme Court

14 So. 805

33 Fla. 261

WATROUS v. MORRISON.

Florida Supreme Court

February 20, 1894

Appeal from circuit court, Hillsborough county; G. A. Hanson, Judge.

Action in ejectment by William A. Morrison against James M. Watrous. There was judgment for plaintiff, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. In the sale of land in sections or subdivisions thereof including lots, according to the government survey, the survey as actually made controls. It is the survey as it was actually run on the ground that governs, if the monuments corners, or lines actually established can be located or proved. Courses and distances yield to such corners or lines so long as the latter can be located, and for the reason that the latter are the fact or truth of the survey as it was actually made, while the former are but the description of the act done, and, when inaccurate, they cannot change the fact.

2. While it is true that the title to real estate cannot be transferred by verbal agreement, yet, where the boundary between contiguous lands is uncertain or disputed, the owners of such lands may agree upon a certain line as the permanent boundary line; and, where the agreement is followed by actual occupation according to such line as the boundary, the line will be binding upon them and their successors in title as the boundary. The line becomes binding for the reason that the proprietors have by such consent and conduct agreed permanently upon the limits or extent of their respective lands or property.

3. In cases of mistake as to 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 line is an indispensable element of adverse holding. The claim of right must be as broad as the possession. Simple acquiescence, or lying by, without objection, for the statutory period, in case of such adverse holding, will bind the party so lying by to the line, though not the true line.

4. It is improper to ask a party to an action of ejectment testifying in his own behalf, if he had been in actual, open and notorious possession of the locus in quo. The question calls merely for the opinion of the witness on an issue which it is the province of the jury to settle, subject to any proper instructions from the court as to the law of the case.

5. When an improper question is excluded by the trial judge, any inaccuracy in the objection on which it was excluded imparts no merit to the question, nor any error to the ruling.

6. The exclusion on an erroneous ground of a question asked a witness becomes entirely immaterial when the bill of exceptions shows that he has, without objection, and both before and subsequent to such exclusion, testified fully as to the point covered by the question.

7. It is not error to exclude a question put to a party to an ejectment suit, testifying in his own behalf, to the effect whether or not he had ever admitted to the plaintiff or to any one else that the land in dispute did not belong to him. Whatever in the nature of such an admission may have passed between the defendant and plaintiff, or the former and any one else, was admissible to be proved by either party in the proper way, and whatever may have been testified to by the plaintiff or any other witness as having so passed could have been denied by the defendant, or explained by him according to his recollection of what, if anything, had passed; which course, the record shows, was pursued by the parties.

8. In an action of ejectment the defendant had testified that the plaintiff purchased the lot claimed by the latter from Mrs T., and that he (the witness) knew her husband, and was then asked if he had ever had a conversation with the husband in reference to the boundary line between plaintiff's and defendant's lots, and, on objection being made by the plaintiff on the ground that Mrs. T. could not be bound by a conversation between her husband and another, the court excluded the question. Held error, as the conversation may have tended to show an intention upon the part of defendant to claim as his own the land up to the line to which he held, exclusive of any other right, and independent of such line being the true line.

9. A party to an action of ejectment may, in testifying, simply answer whether or not he has any knowledge that any objection was made by a deceased predecessor in title of the opposite party to a stated line as the boundary line between adjoining lots. Whether or not, or under what circumstances, he can do more, not presented for decision.

10. The expression, 'under claim of title, exclusive of all other rights,' used in a charge in an action of ejectment, is tantamount to that of 'under claim of title, exclusive of any other right,' to be found in sections 1290 and 1291, Rev. St.

11. The expression, 'the plaintiff having first established his title by sufficient record evidence,' used in a charge to the jury, held, in view of the connection in which it appeared, not to have been intended by the judge to declare that the plaintiff had as a matter of fact so established his title, but that the judge's purpose and meaning were that the onus of proving adverse possession as a defense would not arise until the plaintiff had established his title in the manner mentioned. The expression, being calculated, under some circumstances, to mislead, is not commended.

12. Where two parties to an action of ejectment had become the owners in fee of adjoining lots of land, and when they came into possession there had not been established a true boundary between them, and there had not been such an adverse holding by the defendant as was necessary to perfect his right under the statute, and they then agree to have the true boundary established by a survey, and to abide by such survey, it may be inferred by the jury that the defendant's claim or holding was only intended to be to the true line, wherever it might be, when legally established by proper methods.

13. The term 'notorious,' sometimes used in defining adverse possession, means that the possession or character of the holding must, in its nature, possess such elements of notoriety that the owner may be presumed to have notice of it and of its extent. To charge a jury that the adverse holding must be asserted at all times and in all places wherever necessary to make such claim known and understood, is at least calculated to mislead a jury by leaving it to them to decide at what times and places it is necessary to make such claim generally known and understood, and is improper.

14. A nonconsenting owner will not be bound by the agreement of other owners as to a boundary line between coterminous tracts of land, nor will any stranger thereto who may claim under such nonconsenting owner. However, should a consenting owner afterwards become the sole owner of the entire tract in which he was interested, or of a distinct part thereof, and continue to recognize the boundary line previously agreed to and acted upon by him and the owner of the adjoining tract, such line would be binding on him to the extent of his several ownership.

15. It is not necessary that an agreement to settle an uncertain or disputed boundary shall be made after the line has been fixed. Parties may agree orally to have an uncertain or disputed line run, and that it shall be the controlling line; and if they afterwards treat it as the permanent dividing line by improving up to it, or otherwise, they will be confined to that line.

16. An intimation by the trial judge, in charging the jury, that the conversations of the defendant, as to his possession being adverse, have not been consistent, is improper.

17. A mere agreement between owners of contiguous lands to employ a common agent or surveyor to run a line and set up boundaries between two adjoining properties, where the dividing line is susceptible of being correctly located, will not estop either party, or the grantees of either, from showing an error in such line.

18. A possession by one coterminous owner may have been taken purely by mistake, but may have been held afterwards adversely to any right of the adjoining proprietor, or any other person, intentionally, avowedly, openly, and continuously. Where, at the time of a conveyance, the holding or possession was by mistake, and without intention to claim independently of the correctness or error of the line held up to, the conveyance will not be void, and for the reason that the holding is not adverse. Where the holding is with the intention to claim the land adversely, independent of the correctness or error of the boundary line, and the claim of title and the possession are of a character to render the possession adverse to the true title, within the meaning of the statute of limitations, (ss 1290, 1291, Rev. St.,) a conveyance by the disseisee would be void as against the disseisor as to such of the land as was so occupied at the time of the conveyance.

19. Where the refusal of the trial judge to give instructions requested is assigned as error, the statement in a motion for a new trial, as embodied in the bill of exceptions, to the effect that the court erred in refusing to give such instructions, is not proper evidence...