DESERET RANCHES OF FLORIDA, INC., APPELLANT,
v.
DOROTHY BOWMAN ET AL., APPELLEES
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Deseret Ranches appealed a trial court judgment granting appellees a prescriptive easement over ranch property for a 30-foot-wide, 9-mile road. The appellate court reversed, finding that appellees failed to prove the use was sufficiently open, continuous, and adverse as required to establish a prescriptive easement.
No. The court reversed the trial judgment, finding that appellees failed to meet the requirements for establishing a prescriptive easement because their use was not proven to be adverse, and even if isolated incidents of cutting chains were sufficient to commence the prescriptive period, the period had not run by January 1, 1965.
[1] A prescriptive easement requires proof of use that is open, continuous, and adverse for the statutory period.
[2] The burden is on the claimant to prove that the use of a roadway is adverse, not permissive.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A continued and uninterrupted use alone for the prescribed period will not establish a prescriptive right without adversity. The burden is on the claimant to prove that the use is adverse.”
Establishes the critical requirement that prescriptive use must be adverse, not merely continuous, shifting the burden to the claimant.
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Join FLexlaw to unlock all legal intelligenceAppellees owned 40 acres located within Deseret Ranches' 365,000-acre property and claimed a prescriptive easement over Old Taylor Creek Road and Shiv…
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FRANK D. UPCHURCH, Jr., Judge.
This is an appeal from a final judgment finding that appellees had established a prescriptive easement over the property of appellant.
The easement which appellees claimed and which the trial court granted was thirty feet in width and nine miles in length, encompassing Old Taylor Creek Road and Shiver Grade. Appellees’ forty acres were located deep within the 365,000 acres comprising the Deseret Ranch.
Appellant questions whether appellees proved their use was sufficiently open, continuous and adverse over the necessary period to establish the prescriptive easement claimed.
We do not think the requirements were met and reverse.
The Old Taylor Creek Road was the only road connecting Fort Christmas and Deer Park until Nova Road was completed and opened to the public on December 18, 1965. The prescriptive period, as found by the court, commenced more than twenty years prior to January, 1965. A continued and uninterrupted use alone for the prescribed period will not establish a prescriptive right without adversity. The burden is on the claimant to prove that the use is adverse. Downing v. Bird, 100 So. 2d 57 (Fla.1958). If the use is not exclusive and is not inconsistent with the rights of the owner of the land to its use and enjoyment, the presumption is that such use is permissive, rather than adverse. J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45 (1936).
While there was some testimony from one witness, Mrs. McDowell, that she had first used this road as early as 1936 or 1937 to visit Charlie Bumby, an owner of the forty-acre property, there is no evidence that the use of the road was adverse. This witness testified that her husband bought the land in 1944 for a hunting camp and used the route to reach it on an average of once or twice a month during hunting season. The first evidence of any adverse use of the road was Mrs. McDowell’s testimony that they cut the lock on a gate a couple of times, but the dates of these incidents were never clearly established. The first time she recalls any fences was “after the war.” Another witness, a game warden; testified there were no fences or gates before 1949. There was no other evidence of any adverse use prior to 1949. Even if the isolated incidents of cutting the chain were sufficient evidence of adversity to commence the prescriptive period, the period had not run by January' 1, 1965.
The record clearly shows that the management of Deseret Ranches was aware that appellees were using the road to reach their land but there is no evidence that it knew appellees were using the road under claim of right. While actual knowledge of such claim is not required, the use must be so open, notorious, and visible that knowledge can be imputed. Downing v. Bird. Here, the road was being used by strangers, game wardens, hunters and ranch employees, any one of which could have cut the lock. There is no evidence that appellees used the road in a manner inconsistent with the use and enjoyment of the road by appellant, or if so, that appellant was aware of such inconsistent use.
In City of Daytona Beach v. Tona Rama, Inc., 294 So. 2d 73, 77 (Fla.1974), the Florida Supreme Court pointed out:
[F]or prescription to be properly effective [there must be] adverse possession inconsistent with the owner’s use and enjoyment of the land.
The facts, interpreted most favorably to appellees, do not reflect the open, adverse, continuous (over twenty years) use necessary to establish a prescriptive right.1 Guerard v. Roper, 385 So. 2d 718 (Fla. 5th DCA 1980).
REVERSED.
DAUKSCH, C. J., and SHARP, J., concur. . Count II of the initial complaint was to establish a statutory way of necessity pursuant to section 704.01(2), Florida Statutes. Appellees, in filing a third amended complaint deleted this count.
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Crigger v. Fla. Power Corp., 436 So. 2d 937 (Fla. 5th DCA 1983)…enant’s possession to become adverse to another coten-ant. See 86 C.J.S. Tenancy in Common § 38; 48A C.J.S. Joint Tenancy § 29. In City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla.1974), and in Deseret Ranches of Florida, Inc. v. Bowman, 389 So. 2d 1072 (Fla. 5th DCA 1980), cert. denied 397 So. 2d 111 (Fla. 1981), J.C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45 (Fla.1936), is cited as authority for the proposition that: If the use is not exclusive and is not inconsistent with the rights of…1 / 2
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Gibson v. Buice, 394 So. 2d 451 (Fla. 5th DCA 1981)…ed to be subordinate to the owner’s title and with the owner’s permission. The burden is on the claimant to show that the use is adverse. City of Daytona Beach v. Tona Rama, Inc., 294 So. 2d 73 (Fla.1974); Deseret Ranches of Florida, Inc. v. Bowman, 389 So. 2d 1072 (Fla. 5th DCA 1980). A prescriptive right-of-way cannot be acquired to pass over a tract of land generally but must be confined to a reasonably definite line and limited to the extent of the actual use. Sunnybrook Groves, Inc. v. Hicks, 113 So. 2d…
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Gary E. Wimberly and his wife v. Lake Weir Yacht Club Ass'n, 480 So. 2d 224 (Fla. 5th DCA 1985)…iption because of the insufficient showing of adverse use for the required twenty year period necessary to establish a prescriptive right. We agree and affirm the judgment as modified. In this case, as in Deseret Ranches of Florida, Inc. v. Bowman, 389 So. 2d 1072 (Fla. 5th DCA 1980), review denied, 397 So. 2d 777 (Fla.1981), the overwhelming evidence was that the Club’s use of the easement commenced with the consent of the servient fee owners. See also Guerard v. Roper, 385 So. 2d 718 (Fla. 5th DCA), review…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lottie Sykes Downing v. Bird, 100 So. 2d 57 (Fla. 1958)
- J. C. Vereen & Sons, Inc. v. Houser, 123 Fla. 641 (Fla. 1936)
- The City OF Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974)
- Maone B. Guerard v. Waldron Roper, 385 So. 2d 718 (Fla. 5th DCA 1980)