       Third District Court of Appeal
                               State of Florida

                         Opinion filed September 9, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-3044
                           Consolidated: 3D13-3036
                         Lower Tribunal No. 10-1233-K
                             ________________


                                Ann M. Dadd,
                                    Appellant,

                                        vs.

                               Richard Houde,
                                    Appellee.



      Appeals from the Circuit Court for Monroe County, David Audlin, Jr.,
Judge.

     Horan, Wallace & Higgins and R. Bruce Wallace (Key West), for appellant.

     Wayne LaRue Smith and Brett Tyler Smith (Key West), for appellee.


Before SHEPHERD, LAGOA and LOGUE , JJ.

     SHEPHERD, J.,
      This is a boundary dispute involving a strip of land approximately six and

one-half feet wide and seventy-nine and one-half feet long. The strip is contiguous

to the parcel containing Ann Dadd’s home and has been enclosed, along with the

rest of the Dadd property, by a substantial fence since 1976 or earlier. However,

the strip is within the legal description of the property owned by her next-door

neighbor, Richard Houde. The Dadd property is located at 701 Catherine Street,

Key West, Florida, and the Houde property is located at 703 Catherine Street.

Dadd acquired the property in 1989 by warranty deed from the Estate of one

Richard Wood. Houde acquired his property by warranty deed in 2001.

      In 2010, as Dadd undertook improvements on the fence, Houde contested

the placement of the fence and the location of the property line. Dadd then filed

suit to quiet title of the disputed strip by adverse possession up to the fence line,

pursuant to the 1974 version of section 95.16 of the Florida Statutes. Houde

counterclaimed to eject Dadd from the disputed strip on the strength of the written

conveyance of the property he received from his predecessor in interest in 2001,

which included the disputed strip within the legal description. After a bench trial,

the court held in favor of Houde on the strength of his long-standing title, and

entered an order of ejectment of Dadd from the disputed property. We find the

trial court misapplied the statute.

                                      ANALYSIS



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      Section 95.16, as it appears today in the Florida Statutes, would compel

affirmance. See Seton v. Swann, 650 So. 2d 35, 37-38 (Fla. 1995) (holding that

the “first step” necessary to prove a claim of adverse possession without payment

of taxes on the land is “an instrument upon which the claim of title is founded . . .

recorded in the official county records [which] describe[s] the disputed property.”).

Dadd does not dispute that principle. Rather, she redirects us to the earlier version

of section 95.16, pursuant to which she contended below and continues to contend

here that title to the disputed strip vested in Wood and subsequently passed to her.

That version, adopted by the state legislature as Chapter 74-382, §§ 11-12, at 1212-

13, Laws of Florida (1974), effective January 1, 1975, appeared in consolidated

form in the 1974 Supplement to the Florida Statutes.1          The chapter law, as

consolidated in 1974, read as follows:

      95.16 Real property actions; adverse possession under color of title. –

      (1) When the occupant, or those under whom he claims, entered into
      possession of real property under a claim of title exclusive of any
      other right, founding the claim on a written instrument as being a
      conveyance of the property, or on a decree or judgment, and has for
      seven years been in continued possession of the property included in
      the instrument, decree, or judgment, the property is held adversely. If

1 Section 95.17, Florida Statutes (1974 Supplement), states that the section was
“Transferred to s. 95.16 and amended by s. 12, ch. 74-382, effective January 1,
1975." The consolidation was not dictated by the state legislature. It appears the
consolidation was done by the Statutory Revision and Indexing Division of the
Joint Legislative Management Committee, a legislatively created committee
empowered at the time to “transfer” any “section, chapter or law . . . from one
location to another.” See § 11.242(5)(e), Fla. Stat. (1973).

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      the property is divided into lots, the possession of one lot shall not be
      deemed a possession of any other lot of the same tract. Adverse
      possession commencing after December 31, 1945 shall not be deemed
      adverse possession under color of title until the instrument upon
      which the claim of title is founded is recorded in the office of the clerk
      of the circuit court of the county where the property is located.
      (2) For the purpose of this section, property is deemed possessed in
      any of the following cases:
      (a) When it has been usually cultivated or improved.
      (b) When it has been protected by a substantial enclosure. All
      contiguous land protected by the enclosure shall be property included
      within the written instrument, judgment, or decree, within the purview
      of this section. . . .

Ch. 74-382, §§ 11-12, at 1212-13, Laws of Fla. (1974). Although one might be

forgiven for concluding otherwise based upon a plain reading of the consolidated

statute, the Florida Supreme Court, after 1974, construed the statute to mean “one

does not have to have paper title correctly describing the disputed property as long

as that area is contiguous to the described land and ‘protected by a substantial

enclosure.’” Seddon v. Harpster, 403 So. 2d 409, 411 (Fla. 1981) (citing § 95.16,

Fla. Stat. (Supp. 1974)).

      Unrebutted testimony shows that the fence enclosed the disputed strip of

land as far back as 1976, during Richard Wood’s ownership of 701 Catherine

Street. The fence continued in place after Dadd acquired her title in 1989. Section

95.16 did not require a written instrument describing the disputed property to

establish color of title until 1987. See Ch. 87-194, § 1, at 1255, Laws of Fla.

(1974); Seton, 650 So. 2d at 37-38. By 1983, and certainly well before 1987,



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Richard Wood had met all of the requirements of section 95.16 as construed by the

Florida Supreme Court. Wood held lawful title to the property against all the

world by adverse possession, just as if it had been described and included in the

deed he received from his predecessor. This was so even if, as alleged by Houde,

Dadd knew at the time she purchased the property that Wood did not have paper

title to the strip. Similarly, Dadd’s efforts after purchase to “cure” the paper title

deficiency by a series of corrective quitclaim deeds from Wood are irrelevant to

the outcome of the case.

      The reason is that the possessor’s burden in an adverse possession case,

albeit by a heightened clear and convincing standard, is to prove only that the

property was possessed “under claim of right or color of title, and must have been

actual, open, visible, notorious, continuous and hostile to the true owner and to the

world at large.” See Douglass v. Aldridge, 105 So. 145, 146 (Fla. 1925). If

proven, then title to the disputed parcel vests as a matter of law in the possessor

and his successors. See Birtley v. Fernandez Co., 392 So. 2d 29, 291-92 (Fla.

1980) (“[W]here an occupant of property under color of title openly and

notoriously is in continuous actual possession of property in opposition to the

rights of the true owner for a period greater than seven years, then he is holding the

property adversely. [internal citation omitted]. Such adverse possession of real

property causes real title of the property to vest in the possessor and his



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successors.”    .) (emphasis added).     Being the lawful successor to Wood by

warranty deed in 1989, Dadd succeeded to Wood’s title in the disputed property as

of the date of delivery of that deed as a matter of law. The 1987 amendment to

section 95.16 of the Florida Statutes does not change this result. See Weingrad v.

Miles, 29 So. 3d 406, 411 (Fla. 3d DCA 2010) (“Even where the Legislature has

stated its intent for retroactive application [of a statute], the Florida Supreme Court

has refused to apply the statute retroactively if it impairs vested rights.…”).

        For these reasons, we reverse and remand the final judgment of the trial

court with directions to enter judgment quieting title to the disputed parcel in

Dadd.

        Reversed and remanded with directions.




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