I think that ejectment was the proper remedy and that plaintiff could have properly recovered a judgment in ejectment in a proceeding like this had he alleged in his declaration that the defendant was claiming the property adversely. Dallam vs. Sanchez, 56 Fla. 779, 47 So. 871. *Page 602
However, plaintiff alleged in his declaration merely that defendant was "in possession of a certain tract or parcel of land", not that defendant "adversely claimed" title to or right to the possession of said tract of land.
Possession, not the adverse claim, was what was put in issue by the plea denying possession and the verdict was properly directed for defendant when plaintiff failed to meet the burden imposed on him by the plea.
That such a plea is a proper mode of defense in an ejectment case where the issues are as they are here cannot be denied under the authorities controlling such matters. Gill v. Graham,54 Fla. 259, 45 So. 845; Hall v. Florida State Drainage Land Co., 89 Fla. 312, 103 So. 828.
In cases of ejectment, which are peculiarly adapted for testing title, it is highly appropriate always, and absolutely essential to the proper administration of justice in most cases, that the real issues be carefully outlined in the pleadings before trial. This would require a plaintiff to state in his declaration whether he sues because defendant is in possession, or claims adversely, or both stated disjunctives in separate counts so that each can be properly answered.
A mere encroachment by one upon another's property does not necessarily amount to possession. In fact it very frequently does not. Our statute was made to provide for ejectment suits against persons not in possession but who claimed adversely, largely to make ejectment available to test the right of encroachment when claimed to be rightful on the part of defendant. In cases of encroachment all questions of ouster are eliminated since an unauthorized encroachment may be an adverse claim to the extent it is attempted to be justified.
No proceeding is more appropriate than ejectment to try questions arising with reference to disputed encroachments based upon the assertion of legal right by the party encroaching, where plaintiff does not wish to acknowledge *Page 603 defendant's possession of the tract of land on which the encroachment exists, yet wishes to have the legal right, title and interest involved settled on legal principles prevailing in courts of law.
BUFORD, C.J., AND WHITFIELD AND TERRELL, J.J., concur.