70 Fla. 13 | Fla. | 1915
The plaintiff in error instituted an action of ejectment in the Circuit Court for Escambia County against the defendants in error to' recover the north twenty-seven feet of the south half of block two hundred and two- in the corporate limits of the City of Pensacola as per plan of Lee and Harding.
The defendants below pleaded the general issue, and denied possession of the premises. The plaintiff joined issue upon these two pleas, and upon a trial there was a verdict and judgment for the defendants.
There have been two trials of this case. At the first trial there was a verdict for the plaintiff, but the verdict was set aside by the trial court, and that order was affirmed by this court. Acosta v. Gingles, 65 Fla. 507, 62 South. Rep. 582.
At the second trial the court directed a verdict for the defendants. The testimony upon the two trials was in all respects the same, so the attorneys for the plaintiff in error assert in their brief.
Block two' hundred and, two in the City of Pensacola according to a map of the Lee and Harding survey is a plot of ground lying between thirteenth street on the so'uth and fourteenth street on the north, tenth avenue on the west and eleventh avenue on the east. There is nothing in the record to' show when this survey was made. Prior to> the Lee and Harding survey, however, the tract of land of which block two hundred and two now form-s a part, had been divided into Arpent Lots according- to
In May, 1879, Peter Knowles conveyed, by deed to T. W. Hutchinson the “Northern half of a certain parcel designated in a plan known as Shackleford plan of Shackleford tract as Arpent number two hundred and eleven, two hundred and twelve, two hundred and. seventeen, two hundred and eighteen, two hundred and twenty-seven and two hundred and twenty-eight, the other half of said six arpents having been released to Pensacola City Company by. George G. McWhorter, said parcel of land now conveyed being further described as follows: Begin at a point about forty feet southwest of the southwest corner of square two hundred and two, according- to plan of New City made by Lee & Harding and extending ea-stwardly on a line parallel with the south line of said square two hundred and two to a point about forty feet southwest of- the southeast corner of square two hundred and two, thence north on a line parallel with the east line of square two hundred and two to a point about forty feet southwest of northeast corner'of said square two hundred and two, thence west on a line parallel with the north line
There has been no change in the south line of this enclosure; the -west line fence is still in the same place. Prior to the date of the above mentioned deed, on March 31st, 1879, T. W. Hutchinson and wife conveyed to Sallie Acosta a parcel of land in the southwest corner of the said enclosure fronting ninety feet on the west by one hundred and fifty feet on the south particularly described as follows : “Begin at southwest corner of enclosure now
owned and occupied by T. W. Hutchinson, said corner being near southwest corner block two hundred and two, New City Tract, according to' survey Lee & Harding, running thence north ninety feet, thence east one hundred and fifty feet, thence south ninety feet, thence west one hundred and fifty feet to beginning.”
The south line of fence forming part of the Hutchinson enclosure is the true middle line of the Arpent or Shackleford plan, and part of which formed the southern line of the lot conveyed by Mr. Hutchinson and wife to Mrs. Acosta.
Mrs. Mary F. Gingles, Mrs. Hattie A. Roberts and Mrs. Sallie A. Acosta are daughters of Mr. T. W. Hutchinson, who- on the 14th day of October, 1887, conveyed to- them his land in this locality according to the following description: “Parcel in Limits New City as per plan Lee & Harding Block two hundred and two less therefrom ninety feet by one hundred and fifty feet of the southwest
(Signed) William. Tate
Oct. 15th, 1887.
A. V. Clubbs
Wm, F. Lee.”
The daug-hters agreed among themselves that Mrs. Acosta should take the south -side vacant lot, Mrs. Gingles the north side and Mrs. Roberts to receive her portion in money. Accordingly Mrs. Gingles and her husband paid to Mrs. Roberts $1083.33 and to Mrs. Acosta $583.33, making a total of $1666.66, which represented the excess over her one-third interest which she received by taking the north side of the lot.
After the division of the property was made Mr. T. W. Hutchinson located the division fence dividing the north side from the south side, and on October 17, 1887, Mrs.
The court below instructed the jury to return a verdict for the. defendant, and in so- instructing the jury we think there was no error. The evidence as shown by the record in this case- would not have sustained' any other verdict than that which the court directed the jury to return. There is nothing to show that there was any mistake in the location of the dividing line by Captain Hutchinson, 'even if he merely stepped-it off, his measuring o-f the distance was as accurate as if he had used a tape measure. According-to the witness Mr. Stephen Lee, a civil engineer, the fence line i-s for all practical purposes half way between the north and south lines of the Shackleford survey. The south fence of the ’Hutchinson enclosure, which is now the south fence of Mrs. Acosta’s enclosure is on the line -dividing the north half from the south half of the Arpent lots according to the Shackleford survey. Mrs. Acosta’s enclosure has remained the same so far as the northern and southern lines thereof are concerned, since the division between her and her sisters, twenty-five years before the institution of this suit.
The testimony of Mrs. Gingles to the effect that the property ’was a gift from her father to her and her two sisters is concurred in by Mrs. Acosta; The further testimony of Mrs. Gingles that Mrs. Acosta was to; get half of the original lot, and Mrs. Roberts was to take her portion in money; that they selected Mr. Tate, Mr. Clubbs and
It is not a question of mistaken boundary, nor adverse possession. The facts establish clearly, unmistakably, that Captain Hutchinson presented to his daughters the parcel of land embraced within his enclosure, the south line of which was the dividing line between the north and south halves of the Arpent lots, the north line of his enclosure being about twenty feet south of the south side of fourteenth street. This enclosure was divided by running an east and west line from' the middle point of the western line and running parallel with the northern and southern line. Valuations were placed upon the northern and southern sides of the enclosure as divided by that line, a settlement was made on the basis of that valuation, deeds were exchanged between the sisters, a fence was erected on the middle line and all concerned acquiesced in and were satisfied with the division, the
Here was a case where the survey, or a dividing line was actually run on the ground actually established by the person giving the property, practically in the presence of the beneficiaries of that gift, two of whom are now parties to this suit, certainly with their knowledge and consent, a valuation of the two parts respectively into- which the property was divided by that line and a settlement between the parties according to such valuation; the line so- established is easily located and proved. We think the evidence establishes most clearly that the line was actually agreed upon between the parties as the permanent boundary line between them; that it was established by acquiescense and recognition. Mrs. Acosta and M'rs. Gingles 'each knew and understood that the portion she was receiving of her father’s enclosed premises was the portion lying south, or the portion lying north, as the case may have been, of that dividing line, a line located by him, who under the circumstances, may be regarded as their common grantor. That being true, the line is binding between.the parties. Watrous v. Morrison, 33 Fla. 261, 14 South. Rep. 805; Hess v. Rudder, 117 Ala. 525, 23 South. Rep. 136; Chicago, M. & St. P. R. Co. v. Hanken, 140 Iowa 372, 118 N. W. Rep. 527; Wolf Brick Co. v. Lonyo, 132 Mich. 162, 93 N. W. Rep. 251; Husted v. Willoughby, 117 Mich. 56, 75 N. W. Rep. 279; Bradley v. Burkhart, 139 Iowa 323, 115 N. W. Rep. 597; Meyer v. Perkins, 89 Neb. 59, 130 N. W. 986.
On the question of estoppel the parties may be precluded from disputing the line as established. The valuation of the two parts of the original enclosure into which it was divided by the line, the settlement between the
The view which we take of the case renders it tinnecessary to discuss the second and third assignments of 'error, which are based upon the ruling of the court sustaining defendant’s objection to a question propounded on redirect examination by the plaintiff’s counsel to the witness A. V. Clubbs, as to which plan was used “out there in conveying property at the time of this division of the Hutchinson property,” and the refusal of the court to permit Mrs. Gingles to be asked on cross-examination if during all these years she intended to claim the land in dispute if it was her sister’s.
There is no question of mistaken boundary nor adverse possession involved. The line was located by the father of these ladies, the property valued and divided between them according- to that line and settlement made on such valuation and the line afterwards recognized and acquiesced in for such a great period of time, is binding upon the parties without reference to the calls of the deeds.
The judgment is affirmed.
Taylor, C. J., and Shackleford, Cockrell and Whitfield, JJ., concur. •