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Dana v. Eilers

Florida Court of Appeals, Second District

September 20, 2019

GREGORY DANA and JESSICA S. DANA, as trustees for the Gregory Dana and Jessica S. Dana Revocable Trust U/A/D DATED April 30, 2002, Appellants,
v.
LORRIE N. EILERS and MARK EILERS, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Richard A. Nielsen, Judge.

          Diane H. Tutt of Conroy Simberg, Hollywood; and Nicole F. Soto of Conroy Simberg, Tampa, for Appellants.

          Daniel J. Fleming and Daniel A. Hoffman of Johnson, Pope, Bokor, Ruppel & Burns, LLP; and W. Campbell McLean of GrayRobinson, P.A., Tampa, for Appellees.

          CASANUEVA, Judge.

         Gregory Dana and Jessica S. Dana, as trustees for the Gregory Dana and Jessica S. Dana Revocable Trust u/a/d dated April 30, 2002, appeal a final judgment denying the Danas' action for declaratory judgment and granting Lorrie N. Eilers and Mark Eilers' counterclaim for a prescriptive easement. Because the Eilers failed to establish entitlement to a prescriptive easement, we reverse.

         I. FACTS

         The parties own adjacent parcels of land on Lake Ellen Drive in Hillsborough County, which parcels were once owned by Gladys D. Braddock as a single ten-acre tract. The Danas own the western five acres, the Eilers own the eastern five acres, and a twenty-foot-wide private driveway extends south from Lake Ellen Drive for 875 feet, centered along the parcels' shared boundary.[1]

         Since 1938, the parties and their predecessors in title have used the private driveway to access their properties. The trial court found that the owners of the eastern and western parcels used the driveway as their sole means of ingress and egress to their properties. However, the parties seem to agree that this finding does not mean that the driveway provides the only possible means of accessing the property, as with a landlocked property, or that another reasonable means of access could not be developed.[2]

         In 2014, less than a year after purchasing their property, the Danas filed an action for a declaratory judgment seeking to prevent the Eilers from using the portion of the driveway that is within their property boundary. The Eilers, who acquired their property in 1998, responded by filing a counterclaim for a prescriptive easement over the disputed property.

         Following a bench trial, the trial court denied the Danas' complaint for declaratory judgment and granted a reciprocal prescriptive easement to both the Eilers and the Danas, each for the ten-foot-wide strip of driveway running along the others' property line.[3]

         II. LAW ON PRESCRIPTIVE EASEMENTS

         "In Florida an easement is an incorporeal hereditament and, as such, is an interest in land." Crigger v. Fla. Power Corp., 436 So.2d 937, 941 (Fla. 5th DCA 1983) (footnote omitted). It "is an intangible right to make a certain use of the lands of another." Id. To establish a prescriptive easement, claimants must prove the following:

(1) actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years; (2) that during the whole prescribed period the use has been either with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner; (3) that the use related to a certain limited and defined area of land or, if for a right-of-way, the use was of a definite route with a reasonably certain line, width, and termini; and (4) that during the whole prescribed period the use has been adverse to the lawful owner; that is, (a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner, (b) the use has been either exclusive of the owner or inconsistent with the ...

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