City of Pensacola v. Kersey

Per Curiam.

This was an ejectment suit instituted by the City of Pensacola against the defendant in error who was, of course, defendant below.

The City claimed title to the property involved here through an alleged dedication by the former owners and acceptance by the City of such property as a part of a public street.

The defendant claimed title and right of possession by reason of adverse possession and actual occupancy open and notorious for more than seven years preceding the institution of the suit.

The burden was on the City to clearly show a dedication of the property by the owner and acceptance by the City prior to the possession of the defendant. The-plaintiff in *497 an ejectment suit must recover upon the strength of the plaintiff’s title and not upon the weakness of the defendant’s title.

It could serve no useful purpose for us to discuss the evidence. It is sufficient to say that the evidence that the City of Pensacola acquired this property by dedication and acceptance of such dedication is uncertain and far from convincing. If we concede that the evidence shows that title passed by dedication and acceptance of dedication to all the property in that subdivision to which this land is adjacent which was designated on the dedicating map as streets, parks, boulevards, etc., it remains uncertain as to whether or not the lands here involved were within that dedication.

■ A jury having found in favor of the defendant and the learned circuit judge having considered and denied a motion for a new trial, which motion presented the questions which are brought to us for review, we do not feel that the record warrants our disturbing the verdict and judgment rendered. So the judgment should be affirmed. It is so ordered.

Affirmed.

Whitfield, P. J., and Brown, and Buford, J. J., concur.

Davis, C. J., and Terrell, J., concur in the opinion and judgment.