
    Ruth E. WEIS and Joan A. Weis, Appellants/Cross Appellees, v. HOVNANIAN FLORIDA, INC., etc., et al., Appellees/Cross Appellants.
    No. 80-1125.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Sept. 12, 1983.
    
      Edna L. Caruso, West Palm Beach, for appellants/cross appellees.
    Ronald Sales of Ronald Sales, P.A., West Palm Beach, for appellees/cross appellants.
   BERANEK, Judge.

This case involves a prescriptive easement granted as to one of two parcels of land in question. We reverse the grant of the easement as to Parcel One. Appellants fenced two parcels of land and placed animals on the land. The animals varied over the years from chickens and rabbits to horses. The nature of the use and length of time of each kind of use also changed over a period of approximately twenty years. The trial court found on conflicting evidence that appellants had used the land for animal husbandry for over twenty years and granted a prescriptive easement for animal husbandry purposes in perpetuity. The final judgment provides as follows:

3.That the aforesaid prescriptive easement for animal husbandry and attendant uses and purposes appurtinent [sic] to the above described real property, be and the same is hereby forever quieted and confirmed in Plaintiffs, RUTH E. WEIS and JOAN A. WEIS, their heirs, successors and assigns; and that Defendant HOVNANIAN FLORIDA, INC., a Florida corporation, its successor in interest, John B. Waddell, Trustee, and all persons claiming by, through, under or against them and all persons having or claiming any right, title or interest in or to the aforesaid easement be and they are hereby permanently restrained and enjoined from claiming adverse to, obstructing, destroying, disturbing, or interfering in any manner, directly or indirectly, with said easement or Plaintiffs’, their heirs’, successors’ and/or assigns’ use, possession and occupancy and right to use, possession and occupancy of said easement; and all claims, rights, titles, interests or equities of the Defendants, and all persons claiming by, through, under or against them since the filing of this action on July 24, 1973, be and they are forever cancelled and decreed to be null and void.

The court denied an easement as to another parcel claimed by the plaintiffs. We conclude that the reason for this denial was error but harmless under our ruling herein. The plaintiffs/appellants appeal the denial of the easement on Parcel Two, and the defendant cross appeals the grant of the easement as to Parcel One.

The plaintiffs disavow any desire to acquire title to the property by adverse possession under Chapter 95, Florida Statutes (1981). Plaintiffs admit they did not plead or prove adverse possession and make no claim whatsoever under this theory. The plaintiffs’ sole position is that they acquired an exclusive prescriptive easement which should allow them to fence the property and to totally exclude the true owner from the property. We disagree. Platt v. Pietras, 382 So.2d 414 (Fla. 5th DCA 1980), is closely on point. Under the rationale of Platt, the easement here was improper because it amounts to exclusive use of the property. We conclude that plaintiffs were not entitled to a prescriptive easement for animal husbandry purposes which was so broad as to totally exclude any use by the true owner. Such rights are tantamount to title which can only be acquired through adverse possession which plaintiffs do not claim. The final judgment below as to Parcel One is thus reversed.

Are the plaintiffs entitled to some lesser easement? We are unable to answer because plaintiffs have not raised this question here or below. We cannot anticipate what questions may be presented next so we certainly cannot answer them now.

The matter is remanded for further proceedings in which the court may consider amended claims.

AFFIRMED in part, REVERSED in part and REMANDED.

DOWNEY, J., concurs.

GARRETT, EUGENE S., Associate Judge, dissents with opinion.

GARRETT, EUGENE S., Associate Judge,

dissenting:

The trial court entered judgment by which a prescriptive easement as to parcel one was found in favor of the plaintiffs. I find that that portion of the judgment is supported by both the facts and the law, and since reversible error has not been demonstrated, the same should be affirmed.

Platt, because it involves an attempt to perfect a prescriptive right over the entirety of the lots in question, is distinguishable from the case at bar which involves only a portion of the defendants’ land.

The raising of animals ordinarily necessitates fencing and supportive structures. While it is true that an easement does not involve complete dominion over the premises, limited dominion is permissible depending on the character of the easement when necessary for the utilization of the claimed use.

Further, there is no indication that the intended use cannot be exercised in common with the property rights of the owner which defeats the argument that the defendants are totally excluded from the property.

The trial court further entered judgment by which the defendants’ title to parcel two was quieted against the aforesaid claim of the plaintiffs. The trial judge ruled that no prescriptive easement was established since the plaintiffs never intended to take parcel two away from anyone.

To deny a prescriptive easement solely on the lack of intent on the part of the plaintiffs to deprive the defendants of parcel two is error since such intent is irrelevant. Seaboard Air Line Railroad v. California Chemical Company, 210 So.2d 757 (Fla. 4th DCA 1968).

The facts and law applicable to the trial court finding a prescriptive easement as to parcel one are likewise applicable to finding that a prescriptive easement was established also as to parcel two.

Accordingly, the final judgment as to parcel one should be affirmed and as to parcel two should be reversed and remanded with directions to enter judgment establishing a like prescriptive easement in favor of the plaintiffs.  