HomeMy WebLinkAbout2851 J
r
' ~
. ~
' 1
.
I -
~
- - - _ . _ _ ~
circur.istances. Even though this Court d~~c~s not feel the ]angt~aye
~f l.nis easec~ei~t is arobigi~ous, it is clear that. the c~or~r.~an
grantor of this easerne~~t and the subsequent affect.ed ~~ei-sons did
not perceive a problem because of the aforesa id inforr-~<31 pos i t. ion
normall~- taken by the Third Party Defendant. The Court is aware
that sir,~ilar situations exist throughout the kestern ~~ortion of
St. Lucie Count~-. :~ost likely, the cor,imon grantor created t_his 2U
foot P3ser~ent to provide "technic_al" legal arress in order to
satisfy building ~ffir_ials and mortgagees, whose practices and
policies k~ere more lax at that time.
Finall}~, the Court agrees with Plaintiff's position that:
the~' should not be required to accept Third Party Defendant's
~
tendered easement. \otw,ithstanding the historical use of that
i same property for access, they should not be required to ar_~~ept.
such a r_onditional substitute for what they aiready have
rer_eived. :~evertheless, their prior failures to properly
deterrline and proter_t their rights, cor~bined with th~=•ir pri.or
knokledge and acquiescence, as set forth hereinbefore, factor
into ~he Cou rt t'lpr i c; r.?? ,
This decision is not based upon the classic enuncic~t~-d
doctrine of balanc•ing conveniences, whir_h is premised iipc~n
uninf_entional ter_hnical encroachment versus disproportionate co5t
to renove, .Tohnson v Killian, 27 So. 2d 345 (Ela. 19~6), Monell,
supra. at 4. However, it is basec3 upon general equity
principles, since the Court feels bath parties in this case must.
bear sor:~e burden based upon their afor.esaid knowledqe, 3ctions
andJor acquiescence after it has considered and halanr_ed n»r~erous
SOGK~75 PAGE~S~1
. _ _ _
>er z
~ ~
_ ~ _ . - - _ _ . _ _ ~ ~ ~~c~~~ ~ .~.r~~
4 „ . .
_