Jabara, Ronald

Ryan, A. J., Jr.

English

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Easements: Adverse Possession of Streets and Parks in a Platted Area

University of Florida Levin College of Law

Florida Law Review Volume 6 Issue 4 Article 8 December 1953 Easements: Adverse Possession of Streets and Parks in a Platted Area Ronald Jabara A. J. Ryan Jr. Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Ronald Jabara and A. J. Ryan Jr., Easements: Adverse Possession of Streets and Parks in a Platted Area, 6 Fla. L. Rev. 566 (1953). Available at: https://scholarship.law.ufl.edu/flr/vol6/iss4/8 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Thu Sep  8 12:09:09 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                Ronald Jabara & A. J. Ryan Jr., Easements: Adverse Possession of Streets and Parks ina Platted Area, 6 U. FLA. L. REV. 566 (1953).                                        ALWD 7th ed.                                                                         Ronald Jabara & A. J. Ryan Jr., Easements: Adverse Possession of Streets and Parks ina Platted Area, 6 U. Fla. L. Rev. 566 (1953).                                        APA 7th ed.                                                                          Jabara, R., & Ryan, A. (1953). Easements: adverse possession of streets and parks inplatted area. University of Florida Law Review, 6(4), 566-567.                       Chicago 17th ed.                                                                     Ronald Jabara; A. J. Ryan Jr., "Easements: Adverse Possession of Streets and Parks ina Platted Area," University of Florida Law Review 6, no. 4 (Winter 1953): 566-567    McGill Guide 9th ed.                                                                 Ronald Jabara & A. J. Ryan Jr., "Easements: Adverse Possession of Streets and Parksin a Platted Area" (1953) 6:4 U Fla L Rev 566.                                       AGLC 4th ed.                                                                         Ronald Jabara and A. J. Ryan Jr., 'Easements: Adverse Possession of Streets and Parksin a Platted Area' (1953) 6(4) University of Florida Law Review 566                  MLA 9th ed.                                                                          Jabara, Ronald, and A. J. Jr. Ryan. "Easements: Adverse Possession of Streets andParks in a Platted Area." University of Florida Law Review, vol. 6, no. 4, Winter1953, pp. 566-567. HeinOnline.                                                       OSCOLA 4th ed.                                                                       Ronald Jabara & A. J. Ryan Jr., 'Easements: Adverse Possession of Streets and Parksin a Platted Area' (1953) 6 U Fla L Rev 566Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Jabara and Ryan: Easements: Adverse Possession of Streets and Parks in a Platted APublished by UF Law Scholarship Repository, 1953UNIVERSITY OF FLORIDA LAW REVIEWEASEMENTS: ADVERSE POSSESSION OF STREETS ANDPARKS IN A PLATTED AREAMumaw v. Roberson, 60 So.2d 741 (Fla. 1952)Mr. and Mrs. Mumaw and Mr. Shawn, defendants, purchased in1936 and 1939, respectively, acreage outside the limits of any munici-pality in a platted area that was a wild, uncultivated product of theFlorida "land boom." The description in the deed, for convenienceonly, was by reference to the plat as indicated by an accompanyingmemorandum describing the property by metes and bounds. Defend-ants took possession and by 1939 had built a fence inclosing their adja-cent properties, including an area specifically reserved on the originalplat for streets and a park. In 1950 plaintiffs, who had purchased lots inthe same platted area three years previously, sought and obtained adecree directing defendants to remove the fence and restraining themfrom further obstruction of the street easements. On appeal, HELD,the easements were lost by, inter alia, adverse possession. Reversed andremanded.It is well settled that the platting of land and the subsequent saleof lots create between grantor and purchasers a right of easement withregard to street and park areas designated on the plat.' Furthermore,it has been held that an injunction will issue to protect these rightsof easement.2 The action must be timely, as such rights may bedestroyed by adverse possession,3 which possession must be: (a) actual,4(b) continuous for the statutory period with color of titles or incertain cases without color of title,8 (c) open and notorious,7 (d) ex-clusive, and (e) hostile.9'Miami v. Florida E.C. Ry., 79 Fla. 539, 84 So. 726 (1920); Florida E.C. Ry. v.Worley, 49 Fla. 297, 38 So. 618 (1905); Adair v. Spellman Seminary, 13 Ga. App.600, 79 S.E. 589 (1914); Collins v. Land Co., 128 N.C. 563, 39 S.E. 21 (1901); Balti-more & 0. R.R. v. Snyder, 279 Pa. 50, 123 At. 858 (1924).2See McCorquodale v. Keyton, 63 So.2d 906 (Fla. 1953); Huelsman v. Mills, 6Ohio Dec. 1192 (1883).3Price v. Stratton, 45 Fla. 535, 33 So. 644 (1903); Dulaney v. Bishoff, 165 Pa.Super. 207, 67 A.2d 600 (1949).4Seymour v. Creswell, 18 Fla. 29 (1881).5FLA. STAT. §§95.16, 95.17, 95.27 (1951), Coe v. Finlayson, 41 Fla. 169, 26 So.704 (1899).6FLA. STAT. §95.18 (1951).7Watrous v. Morrison, 33 Fla. 261, 14 So. 805 (1894).8Mullen v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931).91bid.2Florida Law Review, Vol. 6, Iss. 4 [1953], Art. 8https://scholarship.law.ufl.edu/flr/vol6/iss4/8CASE COMMENTSThe intention of the modem statutes governing adverse possessionis to protect those who have possessed land for the time specified bythe statute under claim of right or color of title. 0 When one, undercolor of title, has been induced to enter upon and improve land, itwould be unjust to enforce the claim of another who delayed untilafter the statutory period to bring action."Defendants in the present case had been in continuous possessionof the land for the statutory period 12 and had met all other require-ments of adverse possession. Color of title was established by theconveyances purporting to include portions of the streets and park;and defendants had fenced the entire tract, including areas designatedas streets and park. It has been held that fencing of areas in whicheasements exist and holding for the prescriptive periqd are sufficientto constitute adverse possession. 3 Once the element of adverse pos-session is established, by applying the general rule the right of ease-ment is extinguished.'4 It should be noted that the required statutoryperiod had lapsed before conveyance was made to plaintiffs. Since agrantor can convey only the rights he has at the time of the conveyance,plaintiffs received the property subject to defendants' claim of adversepossession.The decision of the Court conforms with the general doctrine;and its practicality rests on public policy, which regards with disfavorlitigation by a plaintiff claiming easements after the defendant hasheld under color of title for the prescriptive period.The effect of this decision is to carry out the philosophy of thedoctrine of adverse possession, even when the party claiming suchadverse possession is not the one who established the right of easement.There still is present the plight of the grantee, uninitiated in the law,who has purchased lots with reference to a plat that is no longer atrue representation of existing rights.RONALD JABARAA. J. RYAN, JR.loStolfa v. Gaines, 140 Okla. 292, 283 Pac. 563 (1929)."Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910).22FLA. STAT. § §95.16, 95.17 (1951)."sFunk v. Whitaker, 314 Ky. 204, 234 S.W.2d 675 (1950); Cummins v. Dumas,147 Miss. 215, 113 So. 332 (1927); Bowen v. Team, 6 Rich. L. 298, 60 Am. Dec. 127(S.C. 1853).'14Price v. Stratton, 45 Fla. 535, 33 So. 644 (1903); Dulany v. Bishoff, 165 Pa.Super. 207, 67 A.2d 600 (1949).3Jabara and Ryan: Easements: Adverse Possession of Streets and Parks in a Platted APublished by UF Law Scholarship Repository, 1953

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Easements: Adverse Possession of Streets and Parks in a Platted Area

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