Opinion
April 6, 1951. Rehearing Denied May 22, 1951.
Appeal from the Circuit Court for Bay County, E. Clay Lewis, J.
Thomas Sale, Panama City, for appellants.
James N. Daniel, Chipley, and Mathis Mathis, Panama City, for appellee.
Appellee as plaintiff sued appellants as defendants in ejectment, the declaration being in statutory form. After much pleading the case was tried on the plea of not guilty and a plea of equitable estoppel. The jury returned a verdict for the plaintiff and final judgment was entered accordingly. The defendants have appealed.
The purpose of the litigation was to settle the title and secure possession of two parcels of land in the Southwest quarter of the Southwest quarter, Section 21, Township 3 South, Range 16 West, Bay County, the description being more fully delineated in the pleadings and by plaintiff's exhibit 13, made a part of the record in the cause. The controversy was concentrated on the question — which of two lines indicated on said plat, one defined as the Van Horn survey and the other as the Hathaway and Coleman survey, was the true boundary of the lands in dispute. The Van Horn survey was made in 1938. It was the basis of a subdivision of which many lots have been sold, houses built and valuable improvements made by defendants and others. The Hathaway and Coleman survey was made in 1949, it established a line parallel with but south of that established by the Van Horn survey, the result of which is to relocate and confuse the lines and claims of the parties to this suit and others.
At the outset defendants proferred evidence to show that the lands in question had been held by them in adverse possession for more than seven years. The evidence was in the nature of tax receipts and other documents designed to show color of title and the payment of taxes on said lands by defendants for that period, but the Court refused the introduction of said evidence.
We think this was error and not only that but the reasons announced for doing so shunted the trial of the case off on a wrong theory. Proof of a claim of title by adverse possession has been a part of the law of this state for more than one hundred years and the fact of one being permitted to prove it is so academic that citations to support it would be superfluous. Whether the lands claimed by defendants are of the north or south side of the line in controversy must be determined by the evidence. If they can show title to the lands in controversy by adverse possession in the manner required by law, regardless of which side they are on, they are entitled to judgment in their favor.
We are also of the view that the trial court committed error in refusing to admit evidence proffered by defendants to support the plea of equitable estoppel against the plaintiff. If she in fact sat by and watched defendants and their predecessors in title construct valuable improvements on the lands in question on the assumption that they owned them, and she fails to give a satisfactory explanation for her silence, she is not now in position to complain.
In addition to the contention that the lands claimed by defendants are located in a subdivision based on the Van Horn survey, it is alleged that several other Gulf beaches to the east of this one, are also tied to the Van Horn survey, that extensive and expensive improvements have been made in all these subdivisions, that the reference monuments set up by the Van Horn survey have been recognized and relied on for ten years or more, and that it would now be inequitable and unjust to overthrow them.
At the trial and in his charge to the jury, the trial court rejected evidence in support of these allegations and consideration of these facts apparently on the theory that the Hathaway and Coleman survey was correct and binding on all concerned and that the lands in question must be located accordingly. We think this evidence was pertinent and should have been admitted because it had a very distinct bearing on the issues made by the pleadings. If it can be shown as alleged that subdivisions have been laid out and marketed and extensive property rights accrued in reliance on the Van Horn survey it should not be disturbed. Under the law, the purpose of a second survey is not to pick flaws in the first one, but to establish proof of its verity and make such corrections as will do this.
For the reasons so stated the judgment appealed from is reversed and a new trial is awarded.
Reversed.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.