County Civil Court: PROPERTY – easement by prescription – adverse possession – presumption of permissive use may be overcome by the land owner’s imputed knowledge that the party claiming the prescriptive right is using the subject property in a manner inconsistent with the land owner’s use – evidence supported trial court’s finding that driveway had been used since 1950 in a manner inconsistent with land owner’s use – Final Judgment affirmed. Seckler, et. al. v. Johnson, et. al., Appeal No. 05-0084AP-88A (Fla. 6th Cir. App. Ct. Nov. 3, 2006).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

GREGORY H. SECKLER and

PETER M. SPOTO, d/b/a

MOJO SCOOTERS,

Appellants,

vs. Appeal No. 05-0084AP-88A

UCN522005AP000084XXXXCV

CHARLES JOHNSON and

JOYCE C. SIEGEL,

Appellees.

____________________________________________/

Appeal from Final Judgment

Pinellas County Court

Judge Myra Scott McNary

Jane H. Grossman, Esquire

Attorney for Appellant

Jawdet I. Rubaii, Esquire

Attorneys for Appellee

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Gregory H. Seckler and Peter M. Spoto, d/b/a Mojo Scooters, from the Final Judgment Declaring Easement for Plaintiffs, entered October 7, 2005, in favor of Charles Johnson and Joyce C. Siegel. Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the Final Judgment.

The record shows that Johnson and Siegel, brother and sister, are the owners of property located at 161 First Street Southwest. Johnson and Siegel inherited the property in 1992 and Siegel resides in a home located on the property. The property has been in the Johnson family since the early 1900’s. Almost the entire time the Johnson family has owned the property, or over 50 years, the family has traversed a strip of land, a grass driveway 11 feet wide, on the west edge of the property. Half of the width of the driveway is owned by GTE/Verizon and the other half is owned by Seckler, who leases the property to Spoto. The driveway runs from the back of the Johnson’s yard to First Avenue South.

When Seckler purchased his property in 1997, located at 101 First Avenue Southwest, the driveway had been in use for over 40 years. One of Seckler’s first tenants, William Coll, used the property for a business named “Jeepsters.” Coll was instructed by Seckler to not block the Johnson’s driveway and complied with Johnson’s request to ensure that customers did not block the driveway. During Coll’s tenancy, Seckler fenced off the property demarcating the edge of the driveway. In 2004, Seckler and his new tenant, Spoto, began blocking the Johnson’s use of the driveway, first by parking a storage container in the driveway (which was removed as a code violation), then by parking a large box truck. Seckler also installed a locked gate across the driveway entrance that attached to the existing GTE/Verizon chain-link fence.

On September 3, 2004, Johnson and Siegel filed suit against Seckler and Spoto seeking injunctive relief and a declaration that the driveway is an established easement. The trial court granted a temporary injunction and the matter came before the trial court for a non-jury trial on May 9, 2005. The trial court viewed the subject driveway the day of trial. After considering the testimony of several witnesses and the evidence presented, the trial court orally ruled that the use of the strip of land as a driveway by the Johnson family was inconsistent with the use of the property by Seckler and Spoto and that the strip of land had been used as a driveway in an open, continuous, and notorious manner since at least 1950. On October 7, 2005, the trial court entered its Final Judgment Declaring Easement for Plaintiffs, finding that clear and convincing evidence established a prescriptive easement in favor of Johnson and Siegel.

Before this Court, the primary argument raised by Seckler and Spoto is that the trial court erred as a matter of law in finding a prescriptive easement in favor of Johnson and Siegel when there was no testimony presented that the possession of the driveway was “adverse” to past or present owners. Seckler and Spoto also argue that the trial court erred as a matter of law in entering a final judgment prepared by counsel for Johnson and Siegel that contained findings never made during the trial court’s oral ruling.

This Court must determine whether Johnson and Siegel, as the claimants seeking an easement by prescription, met their burden that they used the driveway in a manner adverse to the land owner for at least twenty years. See Downing v. Bird, 100 So.2d 57, 64 (Fla. 1958); see also Farley v. Hiers, 668 So.2d 248, 250 (Fla. 1st DCA 1996); Phelps v. Griffith, 629 So.2d 304, 305-05 (Fla. 2d DCA 1993); Hunt Land Holding Company v. Schramm, 121 So.2d 697, 700 (Fla. 2d DCA 1960). While the Court must view the evidence in favor of sustaining the judgment below, doubts as to the existence of a prescriptive easement are to be resolved in favor of the landowner. See Farley, 668 So.2d at 250. In order to acquire a prescriptive easement the Johnsons had to prove that: (1) they had actual, continuous and uninterrupted use of the land for twenty years; (2) that the use of the driveway has entailed a definite route; (3) that the use of the driveway has been either with the actual knowledge of the land owner or so open, notorious and visible that knowledge of the use could be imputed; and, (4) that the use has been adverse to the land owner or is inconsistent with the rights of the land owner such that the land owner could have sued to prevent further use. See Farley, supra.

Seckler and Spoto do not dispute that the Johnsons met the first three criteria, but

argue that the Johnson’s failed to prove their use of the driveway was adverse. The Court finds that the record clearly supports the position that, from the point Seckler purchased his property in 1997, the use of the driveway was adverse. Coll was instructed not to block the driveway and complied with the request to ensure that the driveway was not blocked by his customers. A chain link fence was then installed by Seckler to demarcate the driveway which recognized that the Johnson’s use of the property was inconsistent with the use of Seckler or Coll. As testified by Coll, “. . . I needed every bit of area I could because the property was so small, and that’s what we did, we put the fence up and used every inch of the property, including all the way to the front.” In addressing the period before Seckler’s purchase, Johnson testified that GTE/Verizon erected a chain link fence sometime in the late 1960’s recognizing the driveway. Johnson further testified that sometime around 1968, the curb was lowered at the entrance to the driveway on First Avenue South in recognition of the Johnson’s use of the driveway.

The Court finds that this unrebutted testimony was sufficient to establish that the Johnson’s use of the driveway was adverse. As held by the Second District Court of Appeal in Hunt Land Holding Company, the presumption of permissive use may be overcome by the land owner’s imputed knowledge that the party claiming the prescriptive right is using the subject property in a manner inconsistent with the land owner’s use. See Hunt Land Holding Company 121 So.2d at 700-01. The Second District explained:

However, the presumption of permissive use or possession is not conclusive and is ineffectual in the face of facts which cause its dissipation.

Declarations or assertions by the claimant are not essential to possession or use under claim of right; rather, the adverse character of possession or use is a question discoverable and determinable from all the circumstances of the case. (citations omitted).

Thus we see that the presumption of permissive use may be overcome by knowledge imputed to the owner of adverse use by the party claiming the prescriptive right, that it is not necessary that this be done by declarations or assertions but it may be effectuated by use inconsistent with the owner’s use and enjoyment of his lands, and, further, that the use need not be exclusive but may be in common with the owner or the public. Id.

Hence, under all the facts and surrounding circumstances presented by this case, the Court concludes that the finding of a prescriptive easement in favor of Johnson and Siegel must be affirmed.

In addressing the remaining issue, the Court finds that, while the Final Judgment may have contained findings not specifically pronounced by the trial court at the conclusion of the trial, the Final Judgment is not inconsistent with the trial court’s oral ruling. Importantly, the trial court gave each party the opportunity to file his/her own final order and also directed the parties to file any objections there may be to a submitted proposed order. See Bryan v. Bryan, 930 So.2d 693, 696 (Fla. 3d DCA 2006)(finding that opposing party must be given the opportunity to comment or object prior to the entry of an order to be fair to both parties and to avoid the appearance that the trial court is not exercising his or her independent judgment). The record shows that counsel for Seckler and Spoto did file objections to the proposed order submitted by counsel for Johnson and Siegel, as well as submit its own proposed order with the trial court. The trial court made changes to the submitted Final Judgment indicating that the objections were considered and that the trial court was exercising its independent judgment in the case. See id.

Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment Declaring Easement for Plaintiffs is affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of October 2006.

________________________________

JOHN A. SCHAEFER

Circuit Judge, Appellate Division

______________________________ ______________________________

LAUREN LAUGHLIN BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Judge Myra Scott McNary

Jane H. Grossman, Esquire

132 - 24th Avenue North

St. Petersburg, FL 33704

Jawdet I. Rubaii, Esquire

1358 South Missouri Avenue

Clearwater, FL 33756