CITY OF PENSACOLA
v.
MARY KERSEY
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The City of Pensacola sought to eject a defendant from property, claiming title through dedication and acceptance as a public street. The defendant prevailed based on adverse possession and open occupation for over seven years. The Florida Supreme Court affirmed the jury verdict and judgment for the defendant, finding the City's evidence of dedication and acceptance uncertain and unconvincing.
The court affirmed the jury verdict and judgment for the defendant, holding that the City failed to clearly establish its claimed title through dedication and acceptance. The evidence was uncertain and far from convincing, and the burden rested on the City as plaintiff in ejectment to recover on the strength of its own title rather than the weakness of the defendant's title.
“The plaintiff in an ejectment suit must recover upon the strength of the plaintiff's title and not upon the weakness of the defendant's title.”
Establishes the governing burden of proof standard in ejectment actions, requiring the plaintiff to affirmatively establish its own title.
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Join FLexlaw to unlock all legal intelligenceThe City of Pensacola sued to eject the defendant from disputed property, claiming title through alleged dedication by former owners and the City's ac…
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This was an ejectment suit instituted by the City of Pensacola against the defendant in error who was, of course, defendant below.
The City claimed title to the property involved here through an alleged dedication by the former owners and acceptance by the City of such property as a part of a public street.
The defendant claimed title and right of possession by reason of adverse possession and actual occupancy open and notorious for more than seven years preceding the institution of the suit.
The burden was on the City to clearly show a dedication of the property by the owner and acceptance by the City prior to the possession of the defendant. The-plaintiff in *497an ejectment suit must recover upon the strength of the plaintiff’s title and not upon the weakness of the defendant’s title.
It could serve no useful purpose for us to discuss the evidence. It is sufficient to say that the evidence that the City of Pensacola acquired this property by dedication and acceptance of such dedication is uncertain and far from convincing. If we concede that the evidence shows that title passed by dedication and acceptance of dedication to all the property in that subdivision to which this land is adjacent which was designated on the dedicating map as streets, parks, boulevards, etc., it remains uncertain as to whether or not the lands here involved were within that dedication.
■ A jury having found in favor of the defendant and the learned circuit judge having considered and denied a motion for a new trial, which motion presented the questions which are brought to us for review, we do not feel that the record warrants our disturbing the verdict and judgment rendered. So the judgment should be affirmed. It is so ordered.
Affirmed.
Whitfield, P. J., and Brown, and Buford, J. J., concur.
Davis, C. J., and Terrell, J., concur in the opinion and judgment.
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Citator
Cited By
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City OF Miami Beach v. The Miami Beach Improvement Co., 153 Fla. 107 (Fla. 1943)…ation in an answer constitutes new matter and becomes an affirmative' defense, and the burden rests upon the city to prove such dedication. See McGourin v. Town of DeFuniak Springs, 51 Fla. 502, 41 So. 541; City of Pensacola v. Kersey; 115 Fla. 480, 155 So. 730. Many of the principles of law supra have been recognized with approval in the recent case of Twenty-Third Street Realty Corp. v. City of Miami Beach, 140 Fla. 257, 191 So. 464. Counsel of record, generally speaking, are in accord on the principles…
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Robinson v. THE Town OF Riviera, 157 Fla. 194 (Fla. 1946)…. City of Miami v. F.E.C. Ry. Co., supra; City of Palmetto v. Katsch, supra; Burns v. McDaniel, supra; 23rd St. Realty Corp. v. City of Miami Beach, supra; Kirkland v. City of Tampa, 75 Fla. 271, 78 So. 17; City of Pensacola v. Kersey, 115 Fla. 496, 155 So. 730; Miller v. Bay-to-Gulf, Inc., 141 Fla. 452, 193 So. 425; Roe v. Kendrick, 146 Fla. 119, 200 So. 394. When ;the charge that was requested by the plaintiff is considere^ in connection with the charge that was given when the jury returned to the court…
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Twenty-Third St. Realty Corp. v. City of Miami Beach, 140 Fla. 257 (Fla. 1939)…rkland v. City of Tampa, 75 Fla. 271, 78 Sou. 17. See aiso City of Miami v. F. E. C. Ry.. 79 Fla. 539, 84 So. 726; City of Palmetto v. Katsch,et al., 86 Fla. 506, 98 So. 352; Burns v. McDaniel, 140 So. 314, 104 Fla. 526; City of Pensacola v. Kersey, 155 So. 730. 115 Fla. 496. In City of Miami v. F. E. C. Ry., 79 Fla. 539, 84 So. 726, it was held: “To constitute a dedication at common law there must' be an intention on the part of the proprietor of the land to dedicate the same to public use; there must b…
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