ROBERT M. GIBSON AND MARTHA J. GIBSON, HIS WIFE, APPELLANTS,
v.
SAM D. BUICE AND EDNA L. BUICE, HUSBAND AND WIFE, AND ROBERT L. CHEEZEM AND KATHLEEN M. CHEEZEM, HUSBAND AND WIFE, APPELLEES
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Appellants Gibson challenged a judgment granting appellees Buice and Cheezem a prescriptive easement over 20 feet of the Gibsons' land. The appellate court reversed, finding that the appellees failed to establish the elements necessary for a prescriptive easement, particularly because the survey showed most of the road lay outside the Gibsons' property.
The court reversed the judgment granting the prescriptive easement, finding that appellees failed to establish their right to the easement. Even if appellees had proven other necessary elements, they failed to show by clear and positive proof that appellants owned the land traversed by the entire road.
[1] To establish an easement by prescription, a claimant must prove actual, continuous, and uninterrupted use for the prescribed period, which must be adverse under a claim o…
[2] A use in common with the owner is presumed to be subordinate to the owner's title and permissive, and the burden is on the claimant to show the use is adverse.
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Join FLexlaw to unlock all legal intelligence“To establish an easement by prescription, a claimant must prove actual, continuous and uninterrupted use for the prescribed period of twenty years.”
Establishes the basic statutory requirement for prescriptive easements in Florida.
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Join FLexlaw to unlock all legal intelligenceThe Gibsons owned land in Section 34 and the Buices and Cheezems owned land in Section 35. The appellees sought a prescriptive easement based on an ex…
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FRANK D. UPCHURCH, Jr., Judge.
Appellants appeal from a judgment granting appellees a prescriptive easement over the east twenty feet of land owned by the appellants.
We find that appellees failed to establish their right to the easement and reverse.
To establish an easement by prescription, a claimant must prove actual, continuous and uninterrupted use for the prescribed period of twenty years. Downing v. Bird, 100 So. 2d 57 (Fla.1958); Hunt Land Holding Co. v. Schramm, 121 So. 2d 697 (Fla. 2d DCA 1960). The use must be adverse under a claim of right with the knowledge of the owner or must be so open, notorious, visible and uninterrupted that knowledge of the use is imputed to the owner. Downing v. Bird; Guerard v. Roper, 385 So. 2d 718 (Fla. 5th DCA 1980). Further, the use must be inconsistent with the owner’s use and enjoyment and must not be a permissive use. Any use in common with the owner is presumed 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 239 (Fla. 2d DCA 1959). Thus, to claim a prescriptive easement, one must allege and prove its route, termini and width. Deseret Ranches of Florida, Inc. v. Bowman, 340 So. 2d 1232 (Fla. 4th DCA 1976).
The amended complaint in the case before us recites that appellees are the owners of certain real property all in Section 35 and that appellants are the owners of lands all in Section 34. The survey furnished by appellees shows that except for a small portion of the road, the existing dirt road, which is the basis for the easement, lies east of Section 34 and therefore not on appellants’ property. Even if appellees had established the other elements necessary for a prescriptive easement, they failed to show appellants’ ownership of the land traversed by the entire road by clear and positive proof. Furthermore, the portion of the existing dirt road shown by the survey to be on appellants’ property appears to have been developed or used only when the original road was impassable due to heavy rains.
REVERSED.
COBB and COWART, JJ., concur.
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Foster Burgess v. Edgar F. Burd and wife, 654 So. 2d 1028 (Fla. 1st DCA 1995)…er, 123 Fla. 641, 167 So. 45, 47 (1936); Phelps v. Griffith, 629 So. 2d 304 (Fla. 2d DCA 1993); Telesco v. Nooner and Neal Co., 600 So. 2d 1291 (Fla. 1st DCA 1992); Crigger v. Florida Power Corp., 436 So. 2d 937 (Fla. 5th DCA 1983); Gibson v. Buice, 394 So. 2d 451 (Fla. 5th DCA 1981); Suwannee River Water Management District v. Price, 651 So. 2d 749 (Fla. 1st DCA 1995); State ex rel. Shorett v. Blue Ridge Club, Inc., 22 Wash.2d 487, 156 P. 2d 667 (1945). REVERSED. WEBSTER, MICKLE and VAN NORTWICK, JJ., co…
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Osceola Cnty. v. Castelli, 435 So. 2d 417 (Fla. 5th DCA 1983)…more than twenty years is likewise unavailing. First, the county failed to show by clear and positive proof that the use was continuous and uninterrupted for the full twenty-ye period. Downing v. Bird, 100 So. 2d 57, 64 (Fla.1958); Gibson v. Buice, 394 So. 2d 451 (Fla. 5th DCA 1981); Guerard v. Roper, 385 So. 2d 718 (Fla. 5th DCA 1980). Second, there is no evidence that the use was adverse under claim of right. Downing v. Bird, 100 So. 2d at 64; Guerard v. Roper, 385 So. 2d at 720. If anything, the evidence…
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Dana v. Lorrie N. Eilers, 279 So. 3d 825 (Fla. 2d DCA 2019)…uerard, 385 So. 2d at 721 ("The use in common with the owner is presumed to be in subordination of the owner's title and with her permission, and the burden is on the claimant to prove that the use is adverse." (citing Downing)); Gibson v. Buice, 394 So. 2d 451, 452 (Fla. 5th DCA 1981) ("Any use in common with the owner is presumed 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."). While none of the witnesses could…
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)
- 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)
- Deseret Ranches OF Fla., Inc. v. Bowman, 340 So. 2d 1232 (Fla. 4th DCA 1976)
- Hunt Land Holding Co. v. Schramm, 121 So. 2d 697 (Fla. 2d DCA 1960)
- Deseret Ranches OF Fla., Inc. v. Bowman, 389 So. 2d 1072 (Fla. 5th DCA 1980)
- McALPIN v. Newton, 113 So. 2d 239 (Fla. 2d DCA 1959)
- Sunnybrook Groves, Inc. v. Alice L. Hicks and her husband, 113 So. 2d 239 (Fla. 2d DCA 1959)