THADDEUS PETRYNI and AUKJE MARIJKE PETRYNI, Appellants,
v.
TOMMY B. DENTON, JR., and ELOISE K. BARCO, Appellees.
Case No. 2D00-3745
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
807 So. 2d 697
January 18, 2002, Opinion Filed
Rehearing Denied February 27, 2002. Released for Publication March 21, 2002.
Randall O. Reder of Randall O. Reder, P.A., Tampa, for Appellants.
William C. McLean, Jr., of Gray, Harris, Robinson, Shackleford, Farrior, Tampa, for Appellee Tommy B. Denton, Jr.
Julie A. Taylor of Kevin W. Korth & Assoc., St. Petersburg, for Appellee Eloise K. Barco.
STRINGER, Judge.
This case evolves from a dispute as to the boundaries between three lots in a
platted residential subdivision. Appellants, the Petrynis, own lot 4, and
appellees, Tommy Denton and Eloise Barco, own lots 5 and 6 respectively. Each
lot has frontage on a private subdivision road, Sunny Shores Drive. According to the subdivision plat, lots 5 and 6 each have 125 feet of
frontage, and lot 4 has 120 feet of frontage, consisting of two angled sections,
one 55 feet long and the other 65 feet long. The dispute arose when it was
discovered that the actual total road frontage of the three lots, when measured
on the ground, was ten feet less than the measured distances on the plat due to
an error in the original plat.
The subdivision was originally platted in 1958. In 1982, Denton placed four concrete boundary monuments between lots 4 and 5 along what
Denton contends is the true boundary line. Denton's boundary line effectively placed the entire ten-foot
deficiency within the
Petrynis' lot and decreased the Petrynis' frontage from 120 feet to 110 feet.
Moreover, Denton's boundary line encroached within 3.1 feet of the Petrynis' house rendering
their house out of compliance with the county code setback requirements. The
Petrynis filed an ejectment action against Denton seeking removal of the
monuments and shrubbery planted along the Denton-created boundary line, removal
of a water well near the Denton-created boundary line, and removal of a boat
ramp which all the parties agreed was on the Petrynis' property. Denton filed a third- party claim against all of the other lot owners in the
subdivision, each of whom successfully obtained dismissal from the case, except
for Barco. After a trial on the issues, the trial court denied the claim of
ejectment, in effect, attributing the entire ten-foot deficiency to lot 4 and
denied the claim for ejectment for removal of the boat ramp on the ground that
Denton had offered to remove it in a letter he wrote to his attorney
approximately one month before the complaint was filed. We reverse.
We begin by noting that an action for ejectment is the appropriate method for
determining boundary disputes. Stark v. Marshall,
67 So. 2d 235 (Fla.1953). The earliest Florida case discussing the established rule for resolving
discrepancies between the measured distances on a plat and the measured
distances on the actual land was City of
Jacksonville v. Broward, 120 Fla. 841, 163 So. 229 (Fla. 1935), which
stated as follows:
When division lines are run splitting up into parts larger tracts it is
occasionally discovered that the original tract contained either more or less
than the area assigned to it in a plan or prior deed. Questions then arise as to
the proper apportionment of the surplus or deficiency. In such cases the rule is
that no grantee is entitled to any preference over the others, and the excess
should be divided among, or the deficiency borne by, all of the smaller tracts
or lots in proportion to their areas. The causes contributing to the error or
mistakes are presumed to have operated equally on all parts of the original plat
or survey, and for this reason every lot or parcel must bear its proportionate
part of the burden or receive its share of the benefit of a corrected resurvey.
This rule for allotting the deficiency or excess among all the tracts within the
limits of the survey may be applied where the original surveys have been found
to have been erroneous, or where the original corners and lines have become
obliterated or lost.
If the lines of a survey are 'found to be either shorter or longer than stated
in the original plat or field notes, the causes contributing to such mistakes
will be presumed to have operated equally in all parts of the original plat or
survey, and hence every lot or parcel must bear the burden or receive the
benefit of a corrected resurvey, in the proportion which its frontage as stated
in the original plat or field notes bears to the whole frontage as there set
forth.'
Id. at 230 (quoting 4 Ruling Case Law § 115 (1918)) (citations omitted).
This apportionment rule has its exceptions. The rule should not be applied
where it is impractical, where the parties have established a boundary by
agreement, or where a party's surveyor has found the original surveyor's
monuments. Brinson, 574 So. 2d at 1106. As to this latter exception, the
monuments placed on the ground by the original surveyor control over the written
plat. Id. That which the original surveyor actually did rather than what he might have
intended is the primary consideration. Id.; see also Tyson v. Edwards, 433 So. 2d 549 (Fla.
5th DCA 1983). The trial court used this exception as its basis for denying the
Petrynis' ejectment claim.
From our reading of the record, Denton's and Barco's surveyors found several
boundary monuments, but only three seemed likely to have been placed by the
original surveyor. The first was a permanent marker at the northwest corner of
lot 1, the second was an iron pipe at the southeast corner of lot 6, and the
third was a monument at the point of curvature of lot 6. Guided by the testimony
of Denton's and Barco's surveyors, the trial court concluded that these monuments
established that the deficiency was isolated within lot 4. However, even
assuming that these monuments were placed by the original surveyor, we fail to
see how they established that the ten- foot deficiency in this case was isolated
to lot 4. At most, these monuments established that the ten-foot deficiency was
isolated to lots 4, 5, and 6 and not any of the other lots in the subdivision.
There was no competent, substantial evidence presented establishing an original
surveyor's boundary marker along the Sunny Shores Drive frontage delineating the
boundary line between lots 4 and 5. The monument located there was placed by
subsequent surveyors and not the original surveyor. Accordingly, the trial court
should have apportioned the deficiency among lots 4, 5, and 6.
We also mention that the trial court should have ordered removal of the boat
ramp as prayed for by the Petrynis. The parties agreed that the boat ramp
encroached upon the Petrynis' property even using Denton's proposed boundary line. The mere fact that
Denton had previously agreed to remove the boat ramp was not a defense to the action
for ejectment. The record reflects that the boat ramp had not been removed at
the time of the trial. Thus, the Petrynis were entitled to have a judgment
entered ordering the removal of the boat ramp.
We reverse the judgment in this case and remand with instructions to allot the
ten-foot deficiency proportionally among lots 4, 5, and 6. On remand, the trial
court should order the removal of the well, boat ramp, shrubbery, and monuments
if it finds that they encroach upon the Petrynis' property. Reversed and
remanded with instructions.
GREEN and CASANUEVA, JJ., Concur.
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