Wilson v. Tanner
Decision Date | 10 June 1977 |
Docket Number | No. BB-258,BB-258 |
Citation | 346 So.2d 1077 |
Parties | John R. WILSON, Genevieve Wilson, Esther Wilson and Carl Wilson, Appellants, v. Jackson B. TANNER and Pearl E. Tanner, Appellees. |
Court | Florida District Court of Appeals |
Charles Vocelle, Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellants.
William Randall Slaughter, Slaughter & Slaughter, Live Oak, for appellees.
The Wilsons brought an ejectment action against the Tanners as to a tract of land containing approximately 25 acres lying south of the Wilsons' fence line. The Tanners counterclaimed seeking title quieted to the property by reason of adverse possession. A jury returned a verdict for the Wilsons and, upon the Tanners' motion for new trial, the court set aside the jury verdict, directed a verdict in favor of the Tanners and entered final judgment in their favor. The Wilsons appeal. We reverse.
The Wilsons have legal title to the disputed tract of land and they or their predecessors have paid taxes on it for many years. However since 1905 a fence has been in existence which marks the northern boundary of the disputed property. The tract was open to the Tanners but closed to the Wilsons, although not so sufficiently as to restrict them from hunting and fishing on the property. In 1970, appellant Carl Wilson advised Jackson Tanner that since the fence was in poor condition it would be necessary to replace it and have the property line surveyed so that the new fence would be placed on the true line. The survey revealed that the fence line was not the true property line. Hence this action.
Only a portion of the property involved here is susceptible to cultivation. The tract includes a deep natural gorge, trees, waste areas, seepage and springs as well as a large pond. The Tanners sufficiently showed that they adversely possessed portions of the disputed tract by farming it for the required statutory period subsequent to the time it was conveyed to them, i. e., from 1942 through 1975. Since, however, it is undisputed that the Tanners did not claim the property either under color of title nor did they return it for taxes at any time subsequent to 1942, when they acquired title to their property adjoining the disputed tract, they may not claim title by adverse possession unless they can prove that the possession of their predecessors for seven years prior to July 1, 1939 1 was open, notorious, hostile and continuous to the rights of the Wilsons and their predecessors. 2 Moreover it was necessary that proof of such possession be clear and convincing. Hyer v. Griffin, 55 Fla. 560, 46 So. 635 (1908).
Turning to the two elements relating to proof of occupancy, i. e., substantial enclosure or cultivation or other improvements, the evidence shows that the property was fenced for the statutory period of time prior to the amendment of the statute on July 1, 1939. Whether the fence was indeed a substantial enclosure, however, is a question of fact to be determined by the jury. Wicker v. Williams, 137 Fla. 752, 189 So. 30 (1930). In Adams v. Fryer, 59 Fla. 112, 52 So. 611 (1910), the court stated that where the enclosure was such that the cattle of the neighborhood roamed through and over it at will, it was not substantial as required by the statute. In Baugher v. Boley, 63 Fla. 75, 58 So. 980 (1912), a jury's verdict finding for one who relied upon title by adverse possession was upheld when the evidence at trial showed that care was taken to keep in good order the fence enclosing the property involved. In the case before us there was no evidence concerning the condition of the fence during the statutory period of time claimed. We know from this record only that the fence was in such disrepair in 1970 that the Wilsons took it upon themselves to have a new survey prepared so that another fence could be established on the correct property line. The jury was instructed by the court on the requirement of a substantial enclosure. We may only conclude that the jury, having been appropriately instructed, decided that the Tanners had not met their burden of establishing that the fence was such a substantial enclosure. We see no reason to disturb its verdict in this regard.
Concerning the second element that the land be cultivated or improved, we also believe it was error to disregard the jury verdict. In the absence of adequate proof that the property be substantially enclosed, it was necessary for the Tanners to show that their predecessors continuously and without interruption cultivated or improved the acreage for seven years. Such continuity of possession must be shown clearly, definitely and with accuracy. E. g., Atlantic Coast Line R. Co. v. Seward, 112 Fla. 326, 150 So. 257 (1933); Dallam v. Sanchez, 56 Fla. 779, 47 So. 871 (1908). Thus the moment possession is broken it ceases to be effectual for then the law restores constructive possession to the owner. 1 Fla.Jur., Adverse Possession, section 25.
In the case before us, after the verdict of the jury had been returned, motion for new trial was filed wherein it was alleged, inter alia, that the court erred when it failed to grant defendants' motion for directed verdict. The relief requested however was only for new trial. The court's order on the motion not only set aside the verdict, it also directed a verdict for defendant, stating it "does hereby enter up a judgment in favor of the defendants."
Aside from the problem inherent in the court's order directing verdict against the Wilsons when they were not on notice that such relief was sought, even had notice been afforded we are of the opinion that the order was incorrectly entered. What the court did, although not called upon to do, was to enter judgment in accordance with motion for directed verdict. This, if properly moved for, would have been pursuant to Fla.R.Civ.P. 1.480(b).
Since, under the present Florida practice, there is no procedure relating to judgments notwithstanding verdicts, the order entered by the court will be treated by us as a judgment in accordance with motion for directed verdict. See Hall v. Ricardo, 331 So.2d 375 (Fla. 3rd DCA 1976). Nevertheless it is helpful to consult those cases in which judgments notwithstanding verdicts were formerly entered to determine an appellate court's responsibility on review of such orders. The rules governing motions for judgments n. o. v. are substantially the same as those relating to the disposition of motions for directed verdict. The trial judge is authorized to grant a motion for...
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Grant v. Strickland, NN-205
...supra, at 984.13 The question of whether a fence constitutes a substantial enclosure is normally one for the jury. Wilson v. Tanner, 346 So.2d 1077, 1078 (Fla. 1st DCA 1977).14 Section 95.13.1 Florida Statutes § 95.19 (now § 95.18), as it provided at all times pertinent here:For the purpose......
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Behar v. Root, 80-155
...any evidence or reasonable inference to support the opposing position. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st DCA 1977). For the foregoing reasons, we find that the trial court erroneously entered a judgment non obstante veredicto or a judg......
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...the other party. Laird v. Potter; Wheaton v. Bohnert Roofing & Supply Co., Inc., 369 So.2d 1016 (Fla. 3d DCA 1979); Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st DCA 1977); Brown v. Walker, 306 So.2d 209 (Fla. 1st DCA 1975). A judgment notwithstanding the verdict was clearly inappropriate in t......
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Yates v. Bass Ranch, Inc., 79-696
...of Revised General Statutes of 1920. What constitutes a substantial enclosure is a question for the trier of fact. Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st DCA 1977). The record is devoid of evidence of any enclosure except the small fence on the two-acre parcel. The same may be said of c......