BOYD v. WALKER (2001)

District Court of Appeal of Florida,Fifth District.

Robert T. BOYD and Patricia A. Boyd, Appellant, v. Alton WALKER and Dorothy L. Walker, et al., Appellee.

No. 5D00-1070.

Decided: February 02, 2001

R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, for Appellant. John F. Sproull, Palatka, for Appellee.

Robert and Patricia Boyd (Boyd) appeal an amended final judgment granting Alton Walker, et al. (the Walkers) a statutory way of necessity over Boyd's real property.

We reverse because the Walkers failed to carry their burden at trial to show that they do not have a common-law way of necessity available to them. See Hancock v. Tipton, 732 So.2d 369, 373 (Fla. 2d DCA 1999) (declaring that section 704.01(1) and (2), Florida Statutes must be read sequentially). A landowner who has a common-law way of necessity under section 704.01(1) is ineligible for a statutory way of necessity under section 704.01(2). See Reyes v. Perez, 284 So.2d 493 (Fla. 4th DCA 1973).

REVERSED.

PER CURIAM.

COBB, PETERSON and PALMER, JJ., concur.

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