DOMINICK TELESCO AND ROSE TELESCO, HIS WIFE, APPELLANTS,
v.
NOONER AND NEAL COMPANY, INC., A FLORIDA CORPORATION AND WALLACE E. GRAICHEN AND EVA M. GRAICHEN, HIS WIFE, APPELLEES
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The Telescos appealed a final judgment establishing a prescriptive easement for road purposes across their property. The First District Court of Appeal reversed, finding that the trial court failed to establish the essential element of adverse use required for a prescriptive easement.
The court reversed the judgment establishing the prescriptive easement because there was no evidence overcoming the presumption of permissive use. Under Florida law, use of land by someone other than the owner is presumed to be with the owner's permission unless the presumption is overcome by clear and convincing evidence of adverse use.
[1] An easement by prescription requires a showing of twenty years of adverse use.
[2] Under Florida law, the use or possession of land by someone other than the owner is presumed to be with the owner's permission.
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“an easement by prescription is established upon a showing of twenty years of adverse use”
States the basic requirement for establishing a prescriptive easement under Florida law
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Join FLexlaw to unlock all legal intelligenceThe Telescos purchased their property in 1982. In 1989, Nooner and Neal Company, Inc. and the Graichens filed suit seeking establishment of a prescrip…
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PER CURIAM.
Appellants seek reversal of a final judgment which established a prescriptive easement for road purposes across a portion of the eastern boundary of their property. We reverse.
Appellants raise several issues in this appeal, but only one merits discussion. Appellants correctly note that an easement by prescription is established upon a showing of twenty years of adverse use. Down ing v. Bird, 100 So. 2d 57 (Fla.1958); Turner v. Wheeler, 498 So. 2d 1039 (Fla.. 1st DCA 1986). It is clear, however, that under Florida law, the use or possession of land by someone other than the owner is subordinate to the title of the true owner and is presumed to be with the owner’s permission. Guerard v. Roper, 385 So. 2d 718 (Fla. 5th DCA), rev. denied, 392 So. 2d 1378 (Fla.1980); Crigger v. Florida Power Corp., 436 So. 2d 937 (Fla. 5th DCA 1983); Anderson v. Toole, 329 So. 2d 33 (Fla. 2d DCA 1976).
Appellants purchased their property in 1982, seven years before appellees filed suit seeking establishment of a prescriptive easement. There is no basis in the stipulated statement of evidence (submitted by the parties in lieu of a transcript) for concluding that the use of the easement area prior to appellants’ purchase of the property was adverse. The stipulated statement is silent on the issue of whether use of the roadway was permissive during the period of time required to establish a prescriptive right. There is no finding of fact contained in the final judgment on this essential element of adverse use. Guerard v. Roper, supra, quoting, Downing v. Bird, supra. Because there is no evidence from which it may be determined whether appellants’ predecessors permitted or sought to deny use of the property by appellees and their predecessors, the presumption of permissive use has not been overcome, and the final judgment must be reversed. The assessment of costs against the appellants must necessarily be reversed as well. In reaching this decision, we have not considered portions of the record which were improperly received by this court.1
REVERSED.
ERVIN, SMITH and KAHN, JJ., concur. . Upon motion of appellants, improvidently granted by this court, appellants were allowed to supplement the record with depositions not shown to have been received in evidence by the trial court. Although appellees failed to object to this supplementation initially, they later filed their motion to strike appellants' statement of facts and other portions of appellants’ initial brief containing references to these depositions. We grant appellees’ motion to strike all references to the improperly included depositions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Suwannee River Water Mgmt. Dist. v. Price, 651 So. 2d 749 (Fla. 1st DCA 1995)…the owner’s title, and with the owner’s permission; and the burden is on the claimant to prove that such use or possession is adverse to the owner. E.g., Downing; 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. To establish his entitlement to a summary judgment, appellee was obliged to demonstrate conclusively that no genuine issue of material fact existed as to any of the foregoing elements of his cause of action for a presc…
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Hancock v. Tipton, 732 So. 2d 369 (Fla. 2d DCA 1999)…In its [*373] final judgment the trial court noted that the evidence failed to establish a prescriptive easement, and we agree. A prescriptive easement is established upon a showing of twenty years of adverse use. See Telesco v. Nooner and Neal Co., 600 So. 2d 1291 (Fla. 1st DCA 1992). Tipton Road was constructed by the Hancocks in 1987, and the plaintiffs did not acquire their property until 1990. Moreover, the permissive use of the road by the postal service and others has not been adverse. See Cook v. Proct…
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Foster Burgess v. Edgar F. Burd and wife, 654 So. 2d 1028 (Fla. 1st DCA 1995)…d v. Roper, 385 So. 2d 718, 720-21 (Fla. 5th DCA), rev. den., 392 So. 2d 1378 (Fla.1980); J.C. Vereen & Sons, Inc. v. Houser, 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. Shoret…
Authorities Cited
- Lottie Sykes Downing v. Bird, 100 So. 2d 57 (Fla. 1958)
- Crigger v. Fla. Power Corp., 436 So. 2d 937 (Fla. 5th DCA 1983)
- Maone B. Guerard v. Waldron Roper, 385 So. 2d 718 (Fla. 5th DCA 1980)
- Lucile J. Turner v. Idell C. Wheeler, 498 So. 2d 1039 (Fla. 1st DCA 1986)
- Anderson v. Toole, 329 So. 2d 33 (Fla. 2d DCA 1976)