Brewer v. Flankey

660 So. 2d 761, 1995 WL 502101

• Court: District Court of Appeal of Florida
• Decided: August 25, 1995
• Docket: 94-2478, 95-312
• Status: Published

Opinion

660 So.2d 761 (1995)

Alice Marie BREWER and Barbara J. Brewer, Appellants,
v.
James O. FLANKEY and Camillio O. Flankey, Appellees.

Nos. 94-2478, 95-312.

District Court of Appeal of Florida, Fifth District.

August 25, 1995. Rehearing Denied September 29, 1995.

Marcia K. Lippincott of Marcia K. Lippincott, P.A., Orlando, for appellants.

Charlene D. Kelley, Apopka, for appellees.

EVANDER, K.I., Associate Judge.

This is an appeal from a final judgment establishing a prescriptive easement. We conclude that the Plaintiffs failed to prove the required elements of a prescriptive easement and accordingly, reverse.

To establish a prescriptive easement, a claimant must prove by clear and positive proof, inter alia, that he and/or his predecessors in title have made actual, continuous, and uninterrupted use of the disputed property for the full prescriptive period of twenty (20) years. Supal v. Miller, 455 So.2d 593 (Fla. 5th DCA 1984). In the present case, plaintiffs presented testimony that members of the general public have used the disputed property during the 1970's. However, plaintiffs produced no evidence that their predecessors in title were among those individuals who had utilized the encroachments on defendants' property. A party claiming a private prescriptive easement may only rely on use of the subject property by himself or his predecessors in title in attempting to show continuous use for the prescribed time period. Supal, 455 So.2d at 594. Such lack of evidence is fatal to plaintiffs' case because plaintiffs only owned the adjacent parcel and utilized the encroachments on defendants' property for approximately nine (9) years.

Accordingly, this cause is hereby reversed and remanded with instructions to the trial court to enter a final judgment in favor of the defendants.

REVERSED and REMANDED with instructions.

DAUKSCH and W. SHARP, JJ., concur.