Opinion
No. 87-902.
November 25, 1987.
Appeal from the Circuit Court, Orange County, Victor O. Wehle, J., Retired.
C. Allen Watts, of Cobb Cole, Daytona Beach, for appellants.
Stephen P. Kanar, Orlando, and William F. Simonet, Orlando, for appellee.
We reverse the final summary judgment of the Circuit Court for Orange County, probate division, imposing a constructive trust in favor of appellee over a mineral interest in property located in Volusia County. We find that the lower court lacked subject matter jurisdiction because: (1) the mineral interest, unlike the surface estate, was not owned by the decedent and thus was not an asset of the decedent's estate but rather was a separate and distinct property interest which was not in a legal sense a cloud on appellee's title to the surface estate as contended by appellee, see section 733.608, Florida Statutes (1985); Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521 (Fla. 1973), and (2) the appellee's action, which in reality was an action to quiet title to an interest in land, is subject to the local action rule and was required to be brought in Volusia County. See Publix Super Markets v. Cheesbro Roofing, 502 So.2d 484 (Fla. 5th DCA 1987). No petition for rehearing shall be entertained.
REVERSED.
COBB and SHARP, JJ., concur.