SEMBLER MARINE PARTNERS, LTD., Appellant,
v.
ROBERT J. SKIDMORE, INC., ANGLER'S OBSESSION COMMERCIAL FISHING CORP., and REASON, LIGHT & TRUTH CHURCH FOUNDATION, Appellees.
CASE NO. 4D01-4718
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
April 16, 2003, Opinion Filed
Christopher J. Coleman of Schillinger &
Coleman, P.A., Melbourne, for appellant.
Neal A. Sivyer and R. J. Haughey, II of Sivyer Barlow & Watson, P.A., Tampa,
for Intervenor Presidential Financial Corporation.
WARNER, J.
By declaratory judgment the trial court established a boundary by acquiescence
between property owned by appellant and appellee. Appellant challenges the trial
court's ruling, claiming that there was insufficient evidence of any mutual
uncertainty of the boundary or any agreement as to a boundary line. We conclude
that the evidence showed both uncertainty and disagreement, as well as
appellant's passive acquiescence to the boundary for the prescriptive period. We
therefore affirm the final judgment.
Charles Sembler ("Sembler") inherited property located in Indian River
County along the west side of the Indian River from his grandfather. He walked
the property with his grandfather who showed him the boundaries. Sembler later
transferred the property to appellant, Sembler Marine Partners, Ltd.
("Sembler, Ltd.").
Robert J. Skidmore, Inc. ("Skidmore") acquired the property adjacent
to Sembler's. Sometime in the 1940's, a structure was constructed on Skidmore's
property. In 1963, a tenant on the Skidmore property constructed an addition to
the structure by adding or extending an outdoor cooler. At the time, Sembler
testified that he told the tenant, a friend, that the addition was "very
close to the [property] line."
In 1983, Sembler, Ltd. obtained a survey of its property in connection with a
loan transaction. The survey, known as the Allen survey, located the boundary
between the Sembler, Ltd. and Skidmore parcels in accordance with monuments
constituting some iron pins. This was consistent with the boundary of the
property as described in its legal descriptions as well as the lines of
occupation, as found by the trial judge. The boundary line established by the
Allen survey was approximately fourteen feet from the structure on Skidmore's
property.
Skidmore did not have a survey conducted prior to the purchase of his parcel
because the Allen survey had recently been prepared. Shortly after he purchased
the property, he walked it with Sembler who pointed out an iron pipe as the
northwest corner of their common boundary. Drawing an imaginary line from the
pins to the river bank, the boundary Sembler pointed out would have been about
ten feet north of the structure, very close to the Allen survey line. Sembler,
Ltd. discussed purchasing Skidmore's property, but instead leased it for five
thousand dollars.
In 1990, while Sembler, Ltd. was leasing Skidmore's property, it obtained
another survey of the property, known as the Jackson survey. This survey placed
the parties' common boundary approximately seventeen feet south of the Allen
survey boundary. According to the Jackson survey, the structure on the Skidmore
property encroached on Sembler, Ltd.'s property. Harry Underhill, the general
partner of Sembler, Ltd., raised the issue of the encroachment with Skidmore who
disagreed with the Jackson boundary. Despite the favorable Jackson survey,
Sembler, Ltd. failed to take any action until filing this suit for declaratory
judgment and to quiet title eight years later.
After hearing the evidence, the trial court found that while the Jackson survey
appeared to be more technically correct than the Allen survey, the parties and
their predecessors had acquiesced in the location of the building and the
assumed boundary in excess of forty years. It therefore declared the Allen
survey of 1983 established the boundary between the Sembler, Ltd. and Skidmore
parcels.
Three essential elements must be proven to establish a boundary by acquiescence:
(1) uncertainty or dispute as to the location of the true boundary; (2) location
of a boundary line by the parties; and (3) acquiescence in the location for the
prescriptive period. See Shaw v. Williams,
50 So. 2d 125, 126 (Fla. 1950); DuBois v. Amestoy, 652 So. 2d 919,
920 (Fla. 4th DCA 1995). Moreover, "uncertainty means actual lack of
knowledge on the part of both owners as to the true boundary" and must be
mutual as to both property owners. Shaw, 50 So. 2d at 127-28. Shaw
explains that the boundary line so agreed becomes binding "for the reason
that the proprietors have by such consent and conduct agreed permanently upon
the limits or the extent of their respective lands." Id. at 127
(quoting Watrous v. Morrison, 33 Fla.
261, 14 So. 805, 807 (Fla. 1894)). It also teaches that "passive
acquiescence may forfeit one's right to dispute a boundary, but to do so, it
must follow knowledge of the location of the line by the adverse party." Id.
at 128.
The evidence presented in this case satisfies the elements of boundary by
acquiescence. Sembler was uncertain as to the location of the boundary as early
as the 1960's when he expressed concern that Skidmore's tenant was constructing
the structural addition very close to the property line. Although appellant
cites Evans v. Forte, 510 So. 2d 327 (Fla. 2d DCA 1987), for the
proposition that a dispute between an owner and tenant as to a boundary line is
insufficient to demonstrate the true owner is also uncertain, this proposition
protects an owner uninvolved in, and unaware of, his tenant's dispute. 510 So.
2d at 330-31. Here, the owner was Sembler, and the testimony regarding his
conversation with the tenant reflects Sembler's uncertainty, not that of the
owner of the other parcel. Moreover, Sembler later showed Skidmore a boundary
line consistent with the Allen survey. Also, Sembler, Ltd. leased the Skidmore
property, including the structure which encroached on the Jackson boundary line,
demonstrating its acceptance of the Allen survey as establishing the correct
line.
Finally, there is also evidence of dispute as to the boundary line. In 1990,
Sembler, Ltd. obtained the Jackson survey and raised the issue of the true
boundary with Skidmore who refused to accept that boundary. This established a
dispute. For a period of eight years, Sembler, Ltd. passively acquiesced to the
Allen boundary recognized as the boundary by both Skidmore and Sembler since the
mid-1980's. Skidmore's building encroached onto the property now claimed by
Sembler, Ltd., yet Sembler, Ltd. took no action for the prescriptive period of
seven years. See § 95.12, Fla. Stat. (1975). Prior to the institution of
these proceedings, Skidmore transferred his property to appellee, Reason, Light
and Truth Church Foundation, which made improvements, including repair to the
riprap along the river's edge of the disputed parcel, without Sembler, Ltd.
indicating that it had any claim to it. We conclude that the trial court
had sufficient evidence to find a boundary by acquiescence at the Allen survey
line, even where it concluded that the Jackson survey was technically more
correct.
Affirmed.
STONE and GROSS, JJ., concur.
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