McKinnon v. Johnson

Citations

• 59 Fla. 332

Syllabus

<p>1. Where a party elects to adopt one of several inconsistent remedies he cannot afterwards pursue the others or either of them even though he fails in the remedy elected and used. But where a party has several consistent remedies the mere adoption and use of one will not of itself preclude the use of the others under appropriate circumstances.</p> <p>2. Where the election of a remedy assumes the existence of a particular status or relation of the party to the subject-matter of litigation, the party cannot afterwards pursue another remedy by which he assumes a different and inconsistent status or relation to the subject-matter.</p> <p>3. Restitution proceedings and ejectment are not inconsistent or coextensive proceedings, but they are consistent and cumulative remedies.</p> <p>4. A test of the identity of causes of action, for the purpose of determining the question of res adjudícala, is the identity of the facts essential to the maintenance of the actions. It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment.</p> <p>5. The facts necessary to be established in an action of ejecment are essentially different from those necessary in proceedings of restitution.</p> <p>6. When the proof is not clear and positive of adverse possession and occupation of land for the full statutory period no title by adverse possession can be adjudged.</p> <p>7. Where the only acts of possession shown of wild lands and town lots is in “looking after them” and paying taxes on them, it is not error to direct a verdict against the party claiming title by adverse possession.</p> <p>8. Evidence tending to show adverse possession of lands considered, and after giving every possible probative force to the evidence no title by adverse possession is shown. •</p>