SUWANNEE RIVER WATER MANAGEMENT DISTRICT, Appellant, 

v. 

PATRICK W. PRICE, Appellee. 

CASE No. 94-1188 

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT 

651 So. 2d 749; 1995 Fla. App. LEXIS 2124; 20 Fla. L. Weekly D 605 

March 6, 1995, Filed 


Chance H. Deason of Brannon, Brown, Haley, Robinson & Cole, P.A., Lake City, for Appellant. 

Robert A. Routa, Tallahassee, for Appellee. 


WEBSTER, J. 

Appellant seeks review of a summary final judgment establishing a prescriptive easement over lands owned by appellant in favor of appellee and "his guests and invitees." Because we conclude that appellee failed to demonstrate conclusively that no genuine issue exists as to any material fact, we reverse. 

To establish entitlement to a prescriptive easement, one must prove (1) that he or she and any predecessors in title have made actual, continuous and uninterrupted use of the lands of another for the prescriptive period (twenty years); (2) that (when the claim is to a right-of-way) the use has entailed a definite route with a reasonably certain line, width and termini; (3) that the use has been either with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use must be imputed to the owner; and (4) that the use has been adverse to the owner -- that is, without permission (express or implied) from the owner, under some claim of right, inconsistent with the rights of the owner and such that, for the entire period, the owner could have sued to prevent further use. E.g., Downing v. Bird, 100 So. 2d 57 (Fla. 1958); Cook v. Proctor & Gamble Cellulose Co. 599 So. 2d 688 (Fla. 1st DCA 1992); Supal v. Miller, 455 So. 2d 593 (Fla. 5th DCA 1984); Crigger v. Florida Power Corp., 436 So. 2d 937 (Fla. 5th DCA 1983).  Because the law does not favor the acquisition of prescriptive rights, use or possession of another's land is presumed to be subordinate to 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 prescriptive easement, even after all reasonable inferences had been drawn in favor of appellant; and that, based upon the undisputed facts, he was entitled to a judgment as a matter of law. See, e.g., Moore v. Morris, 475 So. 2d 666 (Fla. 1985); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); American Crime Prevention Corp. v. Computerized Monitoring Service, Inc., 539 So. 2d 1175 (Fla. 5th DCA 1989). Until appellee had met that initial burden, appellant was not obliged to present anything to contradict appellee's assertions. E.g., Clark v. Gochenaur, 623 So. 2d 561 (Fla. 1st DCA 1993); Spradley v. Stick, 622 So. 2d 610 (Fla. 1st DCA 1993). 

Based upon our review of the record, we hold that appellee failed conclusively to establish that he and any predecessors in title had made actual, continuous and uninterrupted use of the claimed easement for the prescriptive period. In addition, appellee failed conclusively to establish that any such use was adverse to the owners of the land during that period -- that is, without their permission, under some claim of right, inconsistent with their rights and such that, for the entire period, they could have sued to prevent further use. Accordingly, the summary final judgment is reversed; and the case is remanded for further proceedings consistent with this opinion. 

REVERSED and REMANDED, with directions. 

MINER and BENTON, JJ., CONCUR. 



SUWANNEE RIVER WATER MANAGEMENT DISTRICT, Appellant/Cross-Appellee, 

v. 

PATRICK W. PRICE, Appellee/Cross-Appellant.

CASE NO. 98-865

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

740 So. 2d 46

March 30, 1999, Opinion Filed


 

Petition for Review Denied August 19, 1999, Reported at: 1999 Fla. LEXIS 1495. Released for Publication October 21, 1999.

An appeal from the Circuit Court for Madison County. John W. Peach, Judge.

Reversed in part and affirmed in part.

William J. Haley, and David M. Robertson, of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellant/Cross-Appellee.

Robert A. Routa of Robert A. Routa, P.A., Tallahassee, for Appellee/Cross-Appellant.


PER CURIAM.

The Suwannee River Water Management District (District) appeals from a final judgment that granted appellee a private prescriptive easement and, alternatively, a statutory way of necessity across the District's land. In addition appellee cross-appeals from the court's denial of his equal protection claim. We reverse with regard to the trial court's grant of the prescriptive easement and statutory way of necessity as explained below, but we affirm with regard to the cross-appeal without further discussion.

This case previously appeared before us when the District appealed from a final summary judgment granting appellee a prescriptive easement across its land. Suwannee River Water Management Dist. v. Price, 651 So. 2d 749 (Fla. 1st DCA 1995). We reversed for further proceedings because appellee failed to establish two of the elements he was required to prove: actual, continuous and uninterrupted use for the prescriptive period and adverse use for that period. In the instant appeal, we reverse the trial court's grant of the prescriptive easement on these same grounds.

As we have previously stated, to establish a prescriptive easement, the proponent must prove, among other elements, that he or she and, if necessary, any predecessors in title have made actual, continuous and uninterrupted use of the lands of another for the prescriptive period of twenty years. Id. at 750. In the instant case, because appellee had only owned the land for 14 years at the time the District prevented his use of a narrow woods road on its property, he necessarily had to "tack" his use onto that of his predecessors in title to establish use for the requisite period. The record simply does not support the claim of actual, continuous and uninterrupted use by his predecessors in title. Thus, appellee failed to carry this burden.

Second, because appellee's use "is presumed to be in subordination to the title of the true owner, and with his permission," Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958), appellee also had the burden to demonstrate that his use and that of his predecessors in title was adverse to the owner, i.e., "without permission (express or implied) from the owner, under some claim of right, inconsistent with the rights of the owner and such that, for the entire period, the owner could have sued to prevent further use." Price, 651 So. 2d at 750. In the instant case, the trial court thus erred in placing the burden on the District to prove that appellee's use of the District's road was permissive. In addition, appellee failed to carry his burden to demonstrate adverse use. No competent record evidence rebuts the presumption of permissive use. In fact, the record clearly demonstrates that appellee's own use before the District purchased the land was with the express permission of the District's predecessor in title.

Finally, the trial court erred in alternatively granting appellee a statutory way of necessity across the District's land. In Parham v. Reddick, 537 So. 2d 132, 134 (Fla. 1st DCA 1988), this court acknowledged the well settled principle that there can be no statutory way of necessity unless there is no other access by common law application. The proponent of the statutory way of necessity has the burden to prove that there is no common law way of necessity. Id.; Faison v. Smith, 510 So. 2d 928, 929 (Fla. 5th DCA 1987). In the instant case, appellee did not produce any evidence that a common law way of necessity was not available. Accordingly, the trial court erred in granting a statutory way of necessity.

JOANOS, MINER and DAVIS, JJ., CONCUR.


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