Wednesday, August 26, 2009

En Banc First District On Proving A Claim Of Boundary By Acquiescence

In Hearn Properties, Inc. v. Cruce (1D07-1538) (en banc), the First District reminded that "the supreme court’s decisions, not our own, control, and must be given effect...Because the supreme court decisions we now follow antedate the First District decisions that we are constrained to disavow, proceeding en banc is necessary, even though we are receding from our decisions only in order to give effect to binding decisions handed down by a higher court."

Specifically relating to the dispute at issue, the court stated:

The trial court entered judgment against Hearn and quieted title in Mr. Cruce and the other heirs, ruling that the evidence established each of the three elements of boundary by acquiescence:

(1) Uncertainty or dispute as to the location of the true boundary. (2) location of a boundary line by the parties. (3) Acquiescence in such location for the prescriptive period.

Shaw v. Williams, 50 So. 2d 125, 126 (Fla. 1950). But the trial court found that Mr. Cruce had offered no "direct evidence" of any uncertainty or dispute as to the location of the boundary—the only element Hearn had contested. Instead, relying on cases we had decided, the trial court ruled that "the placement and duration of the fence itself, absent another explanation for its specific location, is sufficient evidence of the requisite doubt or uncertainty to establish a boundary by acquiescence."

In any event, our supreme court has expressly held that, in proving a claim of boundary by acquiescence, the existence of a fence is alone insufficient to establish any dispute or uncertainty as to the location of the boundary.


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