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,
LORRIE N. EILERS and MARK EILERS, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Richard A.
H. Tutt of Conroy Simberg, Hollywood; and Nicole F. Soto of
Conroy Simberg, Tampa, for Appellants.
J. Fleming and Daniel A. Hoffman of Johnson, Pope, Bokor,
Ruppel & Burns, LLP; and W. Campbell McLean of
GrayRobinson, P.A., Tampa, for Appellees.
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.
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.
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.
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
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.
LAW ON PRESCRIPTIVE EASEMENTS
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 ...