Michigan Trust Co. v. Canada , 65 Fla. 54 ( 1913 )

Whitfield, J.

In an action of ejectment brought by the plaintiffs in error against George Canada there was judgment for the defendant. On writ of error it is contended, among other things, that the verdict is contrary to the evidence.

The defendant “admitted in open court that the plaintiffs had proved a good record title.” Thereupon the defendant testified as follows: “I am the defendant in this case. I am in possession of the tract of land which I suppose is that described by witness Miller. I have lived on that place for 17 years; have built a house, cleared the land and fenced the premises. All the land that is at present occupied by me, has been occupied by me for more than 10 years; I last built a fence about four years ago, and that was to replace a burnt fence and that was on the line of the old fence. I have enclosed no land, not previously enclosed, for about ten years. I have resided there with my wife and children all the time. I am a cattle man.”

This is the only evidence as to the character of the defendant’s actual possession and occupancy of the land, and there is no claim that the possession was under color of title. There is a claim that the possession was adverse.

Title by adverse possession without color of title may be acquired only tvhere the land has for the requisite period of time, under a claim of title exclusive of any other right, been actually and continuously occupied by being protected by a substantial enclosure, or by being cultivated or improved. Sec. 1722 Gen. Stats, of 1906.

The evidence as to possession does not indicate that the fence mentioned was a substantial enclosure or that the land has been cultivated or improved. Testimony that the defendant “built a house, cleared the land and fenced the premises,” does not comply with the requirements of the statute to mature a title by adverse possession without color of title.

The judgment is reversed.

Shackelford, C. J., and Taylor, Cockerel and Hocrcer, J. J., concur.