ROBERT A. SANDERS and PEGGY W. SANDERS, Appellants,
v.
ELIZABETH H. THOMAS, Appellee.
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
821 So. 2d 1214
July 26, 2002, Opinion Filed
An appeal from the Circuit Court for Columbia County. Honorable E. Vernon Douglas, Judge.
Steven G. Mason, Law Offices of Steven G. Mason,
Orlando, for Appellants.
John F. Roscow, III, Scruggs & Carmichael, P. A., Gainesville, for Appellee.
PER CURIAM.
The parties in this case dispute ownership over a strip of land, varying in
width, to the east of a dirt road. The road is fenced on each side of its
right-of-way. Appellee argues that the fence on the road's eastern right-of-way
is the boundary of the parcel of land that is on the east side of the road.
Appellants argue that the boundary is several feet to the east of that fence, in
accordance with the legal description in their deed.
After a bench trial, the trial court entered a final judgment awarding title of
the disputed land to Appellee on the basis that (i) various recorded deeds and a
mortgage should be reformed to exclude the disputed land, (ii) Appellee is the
owner through adverse possession under color of title, (iii) Appellee is the
owner through boundary by agreement, and (iv) Appellee is the owner through
boundary by acquiescence. We agree with Appellants that the trial court erred,
and therefore reverse.
I. Reformation
It is undisputed that all of the recorded instruments and surveys show that the
boundary of the disputed land is several feet east of the fence on the road's
eastern right-of-way. Accordingly, Appellee sought to have those various
instruments in the chain of title reformed to exclude the disputed land. We
reverse the trial court's ruling in favor of Appellee for reformation because
Appellants are bona fide purchasers of the land for value without notice of the
alleged mistake. See Burleson v. Brogdon, 364 So. 2d 491, 494
(Fla. 1st DCA 1978)(reversing judgment of reformation because of bona fide
purchaser for value without notice of incorrect description).
II. Adverse Possession Under Color of Title
Appellee brought a count for adverse possession under color of title and a count
for adverse possession without color of title. The trial court did not rule for
Appellee on the basis of adverse possession without color of title, and there is
no argument by Appellee that the failure to do so was error. [*1] However, the
trial court ruled that Appellee proved by clear and convincing evidence that she
is the owner of the disputed land through adverse possession under color of
title, pursuant to section 95.16, Florida Statutes.
The trial court erred because it is undisputed that the cows owned by
Appellants' predecessor in title and Appellee's former son-in-law, Mr. Larry R.
Johnson, intermingled with the cows owned by Appellee with Appellee's
permission. Therefore, the record does not show by clear and convincing evidence
that Appellee had adverse possession of the disputed land.
Moreover, Appellee does not have a written instrument containing a legally
sufficient description of the property to establish a claim for adverse
possession under color of title. See Seton v. Swann, 650 So. 2d 35
(Fla. 1995)(holding that defendants did not establish adverse possession by
color of title because, under section 95.16, the title to property possessed but
not described in a recorded instrument cannot be used to show color of title).
III. Boundary By Agreement
"The essential elements of boundary by agreement are (1) an uncertainty or
dispute as to the true boundary; (2) an agreement, either oral or implied,
between the adjacent landowners that a certain line will be treated by them as
the true line; and (3) subsequent occupation by the parties in accordance with
that agreement for a period of time sufficient to show a settled recognition of
the line as a permanent boundary." Jones v.
Rives, 680 So. 2d 450, 451 (Fla. 1st DCA 1996). As in Jones, there is no
competent substantial evidence in the instant case to support the trial court's
finding that each of the elements of boundary by agreement exists. Id. at 452.
IV. Boundary By Acquiescence
"Establishment of a boundary by acquiescence between adjoining landowners
arises from two elements: (1) a dispute between the landowners as to the
location of the boundary evidencing that the true boundary is in doubt, and (2)
continued occupation and acquiescence in a line other than the true boundary for
a period longer than the statute of limitations." Franklin v. Gibbs,
507 So. 2d 690, 691 (Fla. 1st DCA 1987).
Mrs. Franklin and her husband were owners of a 40 acre parcel in Escambia
County. Inside the western boundary of the Franklin's property was a road. The
disputed property was a narrow strip of land west of the road. It was undisputed
that the survey and deeds showed the strip on the western side of the road to be
a part of the property owned by the Franklins. The Franklins' neighboring
landowners, the Minchews, claimed the disputed strip of land and asserted that
the road had been established as the boundary between the two landowners by
acquiescence. Id. at 690-91.
The court reversed the trial court's ruling in favor of the Minchews, holding
that the evidence fell short of showing that the true boundary was in dispute.
The Franklin deeds and survey conclusively showed the Franklins' western
boundary to be beyond the road. The Franklins did not show any acquiescence
because they consistently maintained that the disputed parcel was part of their
property and that the road was not the boundary. Id.
In the instant case, as in Franklin, the evidence falls short of showing that
the true boundary was in dispute. The recorded instruments and surveys
conclusively show Appellants' eastern boundary to be beyond the road. Appellants
and their predecessors in title subsequent to Appellee's ownership did not show
any acquiescence. Because neither of the elements necessary for establishment of
a boundary by acquiescence were proven, we reverse.
Citing McDonald v. Givens, 509 So. 2d
992 (Fla. 1st DCA 1987), Appellee argues that we should affirm because the
existing fence along the parties' common boundary provides the requisite doubt
or uncertainty necessary to establish a boundary by acquiescence. We disagree.
Here, Appellee's property was surveyed in 1969 and on subsequent occasions, and
each survey showed the fence to be west of the actual boundary of Appellee's
lands. Thus, before Appellee conveyed Appellants' lands to their predecessors in
title, she knew or should have known that the actual boundary was not in doubt.
Appellee should have adjusted the metes and bounds description in her conveyance
to Appellants' predecessors in title to show the fence as the actual boundary if
she wished the fence location as her actual west boundary line. Any other
application of McDonald conflicts with public policy as prescribed by section
695.01, Florida Statutes. Accordingly, McDonald, and similar cases cited by
Appellee, are not applicable.
Conclusion
Therefore, we reverse the final judgment by the trial court and remand with
instructions to enter final judgment in favor of Appellants.
BOOTH, BROWNING and POLSTON, JJ., concur
[*1] There is no evidence in the record that Appellee returned the land for taxes to support a claim for adverse possession without color of title. See Lawson v. Murray, 365 So. 2d 744, 746 (Fla. 1st DCA 1978)(ruling that appellees did not state a claim for adverse possession without color of title under section 95.18 because they did not return any lands in dispute for taxes).
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