OKEECHOBEE COMPANY, FOR THE USE AND BENEFIT OF C. M. HIGHSMITH, PLAINTIFF IN ERROR,
v.
NATHAN NORTON, ET AL., DEFENDANTS IN ERROR
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In this ejectment action, the Florida Supreme Court reversed a judgment for defendants who claimed title by adverse possession, holding that defendants failed to establish the essential elements of adverse possession as required by statute.
Defendants failed to establish adverse possession because the record did not clearly identify which part of the real estate was actually occupied by the original grantee at the time of and prior to execution of the color of title document, and the record was vague and indefinite as to defendants' adverse possession of each parcel under the color of title, as required by statute when a tract is divided into lots.
“It is well settled that one relying on the title by adverse possession has the burden of proving the essential facts necessary to establish such title as against the legal title of the true owner.”
Establishes the fundamental burden of proof on adverse possession claimants
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Join FLexlaw to unlock all legal intelligencePlaintiff proved paramount record title to the property. Defendants claimed adverse possession under color of title from August 2, 1932, to April 3, 1…
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Writ of error brings for review judgment in favor of defendants in a suit in ejectment.
Plaintiff proved the paramount record title while defendants relied upon adverse possession for a period of seven (7) years, basing their claim of adverse possession on possession under color of title in them and their predecessors in title from the 2nd day of August, 1932, to the institution of the suit on to-wit, the 3rd day of April, 1939, and tacking such possession to that claimed by the original grantee in spch. color of title who was theretofore in possession of some part of the described land without color of title.
So it was that adverse possession was claimed under the provisions of Section 2935 R. G. S., 4655 C. G. L., from and after the 2nd day of August, 1932, and prior to that time under the provisions of Section 2936 R. G. S., 4656 C. G. L.
Section 4655, supra, provides:
“Adverse Possession Under Color of Title. — 1. Continued occupation for Seven Years Required. Whenever it shall appear that the occupant, or those under whom he claims, entered into possession of premises under the claim' of title exclusive of any other right, founding such claim *419upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment for seven years, the premises so included shall be deemed to have been held adversely; except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.”
Section 4656, supra, provides:
“Adverse Possession Without Color of Title. — To Be Land in Actual Occupation Only. — Where it shall appear that there has been an actual continued occupation for seven years of premises under a claim of title exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.”
It is well settled that one relying on the title by adverse possession has the burden of proving the essential facts necessary to establish such title as against the legal title of the true owner. Douglas v. Aldridge, 90 Fla. 51, 105 Sou. 145; Wilkins v. Pensacola City Co., 36 Fla. 36, 18 Sou. 20; Horton v. Smith-Richardson Investment Co., 81 Fla. 255, 87 Sou. 905. See Seaboard Air Line R. Co. v. Board, 91 Fla. 612, 108 Sou. 689, 46 A. L. R. 870; Adams v. Fryer, 59 Pla. 112, 52 Sou. 611; Berry v. Perdido Realty Co., 84 Pla. 134, 93 Sou. 171; Avery v. Lock, 55 Fla. 612, 46 Sou. 844.
Under the statute, 4656 C. G. L., the claimant under adverse possession can avail himself of that only as to the real estate actually occupied by the claimant or his pre-* decessor.
The record in this case fails to establish, the identity of *420that part of the real estate involved which was in the actual possession of the original grantee in defendants’ chain of title at the date of and prior to the execution of such-, original muniment of title and as that muniment of title was executed within seven years prior to the institution of the suit, the defense of adverse possession of the premises for a period of seven years prior to the institution of the suit fails.
The record is also vague, indefinite and uncertain as to defendants’ adverse possession of each and every parcel of the lands described in the declaration under color of title. This is necessary to be shown because under the provisions of Section 4655 C. G. L. it is required that’ where the premises included in the deed or document relied upon as color of title consists of a tract dividéd into lots the possession of one lot shall not be deemed a possession of any other lot of the same tract.
Having reached this conclusion, it is not necessary for us to discuss other questions presented.
The judgment must be reversed and the cause remanded for a new trial.
It is so ordered.
Reversed and remanded for new trial.
Terrell, C. J., Whitfield and Brown, J. J., concur.
Chapman and Thomas, J. J., dissent.
Adams, J., disqualified.
Cases With Similar Vibessemantic neighbors from the corpus
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Okeechobee Co. v. Norton, 149 Fla. 651 (Fla. 1942)…mon law writ of certiorari to review an order denying a motion for a judgment non obstante veredicto entered by the Circuit Court of Okeechobee County, Florida. The case comes here for the second time. See Okeechobee Company v. Norton, 145 Fla. 419, 199 So. 319. On April 3, 1939, plaintiffs below, petitioners here, instituted an ejectment suit for the purpose of recovering title to certain real estate described in the amended declaration, consisting of 88.09 acres situated in Okeechobee County, Florida. P…
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Horatio Little v. Kendrick, 152 Fla. 720 (Fla. 1943)…q. One claiming title by adverse possession without color of title can recover only that part actually occupied. If the portion actually occupied is not definitely described, no judgment can be entered on the claim. Okeechobee Co. v. Norton, et al., 145 Fla. 417, 199 So. 319. Testing the defendant’s claim by this law it is apparent he must fail. His evidence is insufficient to sustain his claim. Furthermore, he admits that a portion of the property was not inclosed, neither was the uninclosed portion usual…
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Phleany M. Daniels v. Alico Land Dev. Co., 189 So. 2d 540 (Fla. 2d DCA 1966)…the 1918 deed as constituting color of title. The “wild” deed was admitted into evidence as having some bearing upon the extent of plaintiffs’ possession. The Florida Supreme Court in Okeechobee Co. for Use and Benefit of Highsmith v. Norton, 1940, 145 Fla. 417, 199 So. 319, and Little v. Kendrick, 1943, 152 Fla. 720, 12 So. 2d 899, in effect held that the claimant under adverse possession can avail himself of that right only as to the real estate actually occupied by the claimant or his predecessors. If t…
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
- Horton v. Smith-Richardson Inv. Co., 81 Fla. 255 (Fla. 1921)
- Seaboard Air Line Ry. Co. v. Bd. of Bond Trs. of Special Rd. & Bridge Dist. No. 1 of Alachua Cnty., 91 Fla. 612 (Fla. 1926)
- Wilkins v. The Pensacola City Co., 36 Fla. 36 (Fla. 1895)
- Douglass v. Aldridge, 90 Fla. 51 (Fla. 1925)
- Avery v. Dime Lock, 55 Fla. 612 (Fla. 1908)