# FILED September 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENNES SEE

AT NASHVILLE

CUMBERLAND BEND ) INVESTORS, L.P., ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9810-CH-00543 VS. ) ) Davidson Chancery ) 95-3303-I AMBROSE PRINTING ) COMPANY, INC., ) ) Defendant/Appel

lant. )
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

NANCY S. JONES MICHAEL G. STEWA

RT WALLER LANSDEN

DORTCH & DAVIS 511 Union Street, Suite 2100 Nashville, Tennessee 37219-8966 Attorneys for Plaintiff/Appellee ANTHONY J. MCFARLAND BASS, BERRY & SIMS PLC 2700 First American Center Nashville, Tennessee 37238-2700 Attorney for D

efendant/Appella

nt

AFFIRMED AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: CAIN, J. COTTRELL , J.-2- 

### O P I N IO N

Ambrose Printing Compan

y, Inc. cla

imed a parking e

asement by prescription or by

implication in a

lot across the street from its offic e building. The owner of the lot, Cumberland Bend Investors, L.P., sought a declaratory judgment on Ambrose’ s claim. The Chancery Cour

t of Davidso n C ounty granted summary j udgme nt to Cumber land Bend. We affi rm.

I.

In 1976 Ambrose le

ased a building in a com

mercial deve

lopment in Nashville called Metr oCenter. T he owner agreed t o furnish 100 parking sp ace s, either adjacent

to the leased building o

r on the owner’s lot across the str eet. T he owner elected to designate a large lot across the street where Ambrose’s employees

could park, along w

ith the customers of other businesses in the area. No particular spaces were designated for Ambrose’s use.

The building leased by Ambrose and the lot across the street were subsequently

transferred to

different owner

s. In 1980, in order

to facilitate

the sale of the parking lot, Ambrose was asked to acknowledge thatits parking needs would thereafter

be filled only on a lot adj acent to its building on t he same side of the street. Mr.Ambrose exec uted a certificat

e acknowledging that

th e landlord had designated anothe r area to fulfill

the obligation

to provide Ambr

ose with 100 parking spaces.-3- Apparently

the new parking spac es never mate

rialized, and Ambrose’s employee s con tinued to share the parking lot across the street. In 1981 Mr. Ambrose wro

te to the owner of th

e parking lot about the

situation. His letter ends with this sentence: “I assume we can continue to pa

rk there until

we hear from you to the contrary.”

In 1982 Ambrose boug

ht its buil ding. The deed does not convey any property other

than the building and the lot uponwhich it stands; it does not mention any additional parking spa ces.

On July 13, 1988, the owner of the parking lot physically prevented Ambrose’s employees

from parking th

ere. The secr

etary of th

e Amb rose Corporation

wrote to the owner’s agent, asserting a right to an unspecified numbe r of parking spaces in the dispu ted lot, based on th e original lease. On September

26 of thesame yea

r, the owner of the lot expres sly granted Ambrose’s employees,

guests, and invitees permission to park on the paved portion of th e lot. The owner rese

rved the right to redesignate

the parking area to anot

her site on five days written notice.

The Ambrose employees continued to park on the lot despite m

inor skirmishes over the right to do so. Finally, in 1994 Cumberland Bend, which had purchase d the parking lot in 1992, filed this action for

a declaratory

judgm en t that Ambrose had

no right or interest i

n the parking

lot. The Chancer

y Court of Davidson County gr

anted Cumberla

nd Bend summ

ary judgm

ent.-4- II. An Easement

by Prescription

Ambrose clai

ms a prescriptive

easement to 100 parking spaces on Cumberlan d Bend’ s lot. Contrary to Cumberland Bend’s argument, which
consumes most of its

brief, Ambrose does not insist that it has acquired its rights by seven years ad

verse possession. A

mbrose concedes that to affirmati vely establish an easement,

the adverse holder m

ust show adverse use

for a period of twenty years. See McCammon

v. Meredith , 830 S.W.2d 577 (Tenn. App. 1991), and t he use must be “

adverse, under cl

aim of right, continuous, uninterr upted, open, visible, exclusive, and with the knowledge and acquiescence of the owner of the servient tenant,

and must contin

ue fo r the full prescripti ve period . . . .” House v. Close , 346 S.W.2d 445 at 447 (Tenn. App. 1961).

Ambrose contends, however, that once the adverse use has started, the owner’s right to stop it will be barred after seven years by T

enn. Code Ann. § 28-2-103. That Cod

e section provides: “

No person

or anyone claiming under him shall hav e an y action, eithe r at law or in equit

y, for the re

covery of any lands, tenements,

or hereditame

nts, but within

seven (7) year

s after the right of action accrued.”

In Shearer v. Vandergr iff , 661 S.W.2d 680

(Tenn. 198 3), ou r Supre me Court applied Tenn. Code Ann. § 28-2-103 to an action to com pel the defendants to remo v e a fence which prevented the plaintiffs from using an easement. In that

case the parties ownedadjoining land with a thirty foot ri ght-5-

of way running between them. The center line of the right of way

ran along the property line. One of the owners erected a fence down the m

iddle of the right of way and more than se

ven years passe

d without any act

ion being taken to have t

he obstruction rem

oved.

The plaintiffs argued t

h at Te nn. Code Ann. § 28- 2-103 did not apply to suits involving easeme nts, since twenty

years of adver

se use was require

d to extinguish the easem

ent as well as to establis h it. See Boyd v. Hunt , 102 Tenn. 495, 52 S.W. 131 (1899). The Supreme Court rejected this contention, however, and said: We think th is reliance also m isconstrues the i nter-relation

of the decisional la

w of prescripti

v e creation and prescriptive exting

uishmentof rights-ofway and thelimiting provisions of T.C.A. § 2 8-2-103 in suits thereon.
* * * Under the holding in Boyd , a right -of-way m ay be extinguished by twenty

(20) years adv

erse use. Under T.C. A. § 28-2-103, a suit to abate this adverse use must be brought within seve

n (7) years f rom the time the cause of action aro s e or the right of act ion is barred. In the interim period of time b etween t he seven (7) years and twenty (20) years , if theadverse holding ceases, the pers on w ho has the right-of-way may resume his use,

as the right-of-w

ay still e xists. On the other hand

he may not br

ing an action to abate th e adverse use during tha t period and if the ad

verse use continues for twenty (20) yea rs , the right-of-way is extinguished. 661 S.W.2d at 682
.

Ambrose argues that Shearer v. Va ndergrif f is authority for

its position: that once seven years has passed, the owner o f the serv ient tenement-6-

cannot interfere with the adver se use, which will ripen into an easement after twenty yea

rs.

We think, however, t

hat Ambrose is

mistaken, for

tw o reas ons. First, subsection (b) of Tenn. Code Ann. § 28-2-103 provides that the ad verse posse ssion shall not be deem ed to extend beyond

the actual possession of th e adverse holder until

some muniment of title is recorded. See Moorev. Brannan , 304 S.W.2d

660 (Tenn. 1957). Since Ambrose has never had actual possession of any particular

part of the parking

lot, the statute doe s not provide a defense to this action.
Second, beyond the obvious la nguage of the statute , this case is the
reverse of Shearer v. Vandergr

iff . In Shearer

the adverse possession co vered a partof an established easement. After seven years, the statute operated to bar an actionto have the obstructio n re moved. Here, the action was brought for a declara ti on that Ambrose did not ha ve an easement (or to prev ent Ambrose’s claim from ripening into an easement). If an act ion for t hat purpose is barred after seven years,

the time required for establishing a prescriptive easement has effectively

been shortened from twenty years to seven y ears. After seven years the adverse user would

be home f

ree, so long as he could hold on for thirteen
moreyears. We

think the distinction w

e make here is

implicit in

the Supre me Court’s language in Shearer , where the court referred to the difference s in “the decisional law of prescripti ve creation and pre scriptive extinguishment of rightsof-way.” 661 S.W.2d at 68 2. Thus, Tenn. Code Ann.§ 28-2-103 is not a bar to this action.-7- The undisputed facts in this ca se show that at least until 198 0 Ambrose was using the parking lot with the permission of the owner. Its lease provided that the owner wou ld furnish the 100

parking spaces. I

n 1980 Ambrose acknowledge d that it did not have any right to park on the lot across the street (apparently

on the promise of

the owner that the addi

tional parking would f

inally be provided next to the buil ding.) Only after t

he additional lots we

re not provided did Ambrose cla im a right

to the continued use of

the parking lot. Therefore, regardless of all the ot h er questions about whether the use was permissive

or uninterrupted, Ambrose cannot show twenty years of adverse use.

II. An Easement

by Implication

When a parcel of proper

ty is divided, an easement b y implic ation preserves “all those conti nuous and apparent ea

sementswhich have in

fact been used by the owner during the unity of ownership and possession.” Powell v. Riley , 83 Tenn. 153 at 159 (1 885). In Allison v. Allison , 193 S.W.2d 476 (T enn. App. 1945), the C ourt out lined the three esse ntial factors for an easement by implication: “First, unity a nd a s eparation of the title;

second, that before the separation takes place , the use w hich giv es rise to the easem ent shall have been so long continued and so obvious a s to sh ow that it was meant to be permanen t ; and third, that the easement shall be [reasonably] necessar y to the beneficial enjoymen tof the land granted or retained.” Rollo v. Nelson , 34 Utah 116, 96

P. 263, 26 L.R.A., N.S. 315, 324. 193 S.W.2d at 478
.We are satisfied that the undisputed facts i n this case show that the first two factors are absent. When Ambrose purc hased its building in 1982, title to the lot across the str

eet had alread y p assed to another owner. Ambrose had disclaimed

any right to park on that lo t in order to facili

tate the sale. Therefore, Ambrose’s vendor

was no longer the ow

ner of the parking lot, and t

he need for the parking spaces on that particular lot were not so obvious as to show that t he right to park there w

ould be permane

nt.

The judgment of the c ourt below is affirmed a nd the cause is remanded to the Chancery

Court of Davidson Co

unty for any further

proceedings that may be

necessary. Tax the costs on appe al to the appellant.

______________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR:

_____________________________ WILLIAM B. CAIN, JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE