### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON September 19,

2000 Session TAYLOR MEHRHOFF COMPANY, ET AL 

### . v. BARBARA A. MCDA NIEL, ET AL 

### . A Direct Appeal from the Chancery Court for Fayette County No. 11926 The Honorable Dewey C. Whitenton, Chancellor

No. W1999-00413-COA-R3-CV - November 21, 2000

Plaintiffs, Landowners, sued adjoining l andowners, seeking a judgment determining the location of a disputed boundary

line. The trial court found that Defendants had: (1) established rec ord title to the disputed property

; (2) established t

he boundary

line in recorded deeds and trust deeds, and by the conduct, implied agreement, acquiescence and recognition of adjoining pr o perty owners; and (3) proven title by adverse possession of the disputed property. Plaintiffs-L andowners have appealed.
Tenn.R.App.P. 3; A

ppeal as of Right; Judgm ent of the Chancery

Court Affirmed and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined.

Lee S. Saunders, Somerville, For Appellants, Taylor Mehrhoff Company , John B. Taylor, and Stan Mehrhoff
Joel Porter, Memphis, For Appellees, Barbara A. McDaniel and Kenneth McDaniel

OPINION

This is a boundary line

dispute tried on complaint and counter-complaint. Plaintiffs, Taylor Mehrhoff Company, John B. Taylor and Stan Mehrhoff, appeal the judgment of the trial court sitting withouta jury in favor of Defen d ants, Barbara A. McDaniel and Kenneth McDaniel. The court found that: (1) Defendants have record title to the disputed property; (2) the disputed boundary line was established by acquiescence; and (3) Defendants established common law adverse possession by their occupation of thedisputed property in conjunction with t

hat of their

predecessors for a total of more than thirty

(30) year s. The land involved is located in Rossville, Tennessee. The area in dispute is a strip of land approximately

twenty-five

(25) feet wideand one-hundred (100) feet long which is situated on the-2-

easternside of Defenda

nts’ property. Plainti ffs claim a lot approximately 50' by 100' in size, whereas Defendants claim the westernmost 25' of that lot is part of their property

.
Because the placement of

the surrounding

properties is esse

ntial to determinin

g ownership of the disputed area, we will attempt to describe the block on which the property is located. The properties referred to below are located on a block of Front Street which is bounded by Second Street to the west and Main St

reet to the east.

All of the lots

have frontage on Front Street. In order from west to east, we will re

fer to the lots as th

e: Reed Property

; McDaniel Proper

ty; T aylor-Mehrho ff Pro pert y; Hu rdl e Gro cery S tor e Pr ope rty; and Ros svi lle Sav ings Bank Pro pert y.
The disputed boundary line was first set out in a d escription contained in a warranty deed datedJanua ry 8, 1901, fro m R.B. Nebhut and wife, Mrs. G.W. Nebhut to W.S. Pearson. That description rea

ds,
Beginningat the northeast co rner of Mrs. Susie Pearson’s lot and running east 118 feet to within 20 feet of R.B. Nebhut store house, his N.W. corner. . . .

Thomas Reed now ow

ns what was Mrs. Pe

arson’s lot.

Prior to 1900, the Nebhuts owned the entire block of property at issue in this case. In 1900, the Nebhuts transferred a lot with 114' of frontage on Front Street to Mrs. Susie Pearson (the Reed Property). In 1901, the Nebhuts transferred 118' of frontage to W.S . Pea rson (the McDaniel Property). Although the Nebhuts transferred property subsequent to the 19 01 transfer, the later transfers are not necessary to the resolution of this case.

Several facts complicate this case. The first is that, with the exception of the 19 90 survey Defendants

had made at the time

they purch

ased their lot,

all of the descrip

tions of their

property are made with reference to the surrounding properties or to a non-existent building. The second is that the descriptions both p

arties use to situa

te their properties are dependent upon where one places the “point of beginning” in the descripti on of the corner lot, now owned by Thomas Reed. The description of the

Reed Property

from the origina

l 1901 deed from the

Nebhuts is as follow

s: Begi nni ng at the N.W. corner of road leading

to Church east 114 f

eet with street, thence 288 feet S. to

Street, thence west 114 feet to road. Thence north to beginning 288 ft.

Plaintiffs argue that the phrase “Beginning at the N.W. corner of road leading to Church east 114 feet with street” means “beginning in the center line of Second Street.” Defe ndants, on the other hand, appear to be claiming that the point of beginning is

located at the curb on the southeast corner of Front and Second Streets and the northwest corner of the described lot. The dispute over where the beginning point should be located is further compounded by the fact that both Second Stree t and Front Street wer

e apparently

widened in the late

1960's.-3-

The trial court

filed an extensive anddetailed trial opinion incorporated in the final decree. It sets forth f

indings of fact and conclusions of law. We quote in pertinent part the trial court’s findings.

This lawsuit was filed on July 21, 1997, and it involves the

ownership

of a 2 5 fee t by 1 00 feet strip of land in the Town of Rossville and includes a request for the determination of the correct boundary line between the parties. Mark Ward, the Property Assessor of Fayette Co

unty, was joi

ned as a party because of

the alleged errors in the maps in his office.

The defendant, Barbara A. M cDani el, acquired title to the house and lot on which sh e and her husband , Kenneth McDani

el, presently reside in the Town of Rossville, by a warranty deed fro m the J. B. Rives heirs, dated July 19, 1990. The prope rty had been conveyed to J. B. Rives by T. W. Bowling on December 8, 1910, and hadbeen occ upied a s a family residence by the Rives fa mily since 1910.

The legal descript ion contained in the

McDaniel deed is a s follows:
Parcel 01400, Map 166J, Group A:
Beginningat a n iron pipe in the south margin of Front Street, being the northeast corner of the Thomas Reedprop ert y, runs thence with the south margin of said street East 118 fee t to an i ron pipe, being the northwest corner of the H. H . Far ley p rop ert y; thence withthe west

boundary lin

e of same South 139 feet to
an iron in the north b oun dary line of the Elizabeth Morrison property; being

the southwest cor

ner of said Farley pro pert y; thence with said north boundary line West 118 feet to

an iron, being th

e southeast

corner of said Reed property; thence

with east boundary

line of said Reed property, Nort

h 139 feet to the point of beginning, co

ntaining 16,402 sq

uare feet.

The plaintiff, Taylor

Mehr hoff Company

, received title t

o their p roperty by

warr ant y deed fro m th e hei rs o f H. H. Fa rle y, Deceased, dated January

7, 1994. The legal description to the lot in question as contai

ned in the Tay

lor Mehrhoff dee

d is as follows:-4- TRACTNO. 1: A certain

lot or parcel of land situated in the T own o f Rossville, Civil District No. 10, Fayette Cou nty, Tennessee, and being bounded on the north by F ron t Street; on the east and south by Morrison and on the

west by Rives

. Map 166J, Group A, parcel 15.00

H. H. Farley

acquired title to a substantial portion of the city block in question between 1927 and 1930. By a deed dated January 1930, H. H. Farley conveye

d to A. W. Morrison a portion of the property he hadpreviously a

cquired. This dee

d contained the fo

llowing call: “Beginning

20 feet east of

J. B. Ri ves northeast cor ner of his residence lot and ru nn ing east 76 feet to a stake.” (Emphasis supplied).

In 1956, Mr. Morrison conveyed back to M r. Fa rle y a

five foot strip which was described as: “Beginning at the northeast corner of the Farley lot

and running thence east five feet. . . .” The de

fendants contendthat Mr. Farley was only lef t with a 2 5 foot l ot which was described by reference to the Rives property on the west and the Morrison propert

y on the eas

t.

On April 24, 1990, the Morrison heirs conveyed their lot to E. J. Hurdle and used th

e same call: “Beginning 20 feet east o f the Rives northeast corner. . . .” (Emphasis supplied).

H. H. Farley

executed a deed o

f trust in 1964 and i n 1968 using the legal descr

iptions of two trac

ts, one with

20 feet of front age andthe second wit

h 5 feet of f

rontage, making a total of 25 feet of frontage, as c

ontended by

the defendants.

The recorded deed of

trust dated March

6, 1968, and executed by H. H. Farley and Nettie P. Fa rle y, contained the following legal descriptions of the strip of property in question:

TRA CT ELEVEN: Situated in the Town o f Ros sville, 10t h Ci vil Dis tri ct o f Faye tte Cou nty, Tennessee, and more particul arly described as follows: Beginning at

a point whic

h is Northeast
corner of a lot the property of H. H. Farley and which is also Northwest corner of lot conve yed to A. W. Mo rrison by H. H. Farley by deed recorded in Book-5- 67, Page 319, in Register’s Office for Fayet te C oun ty, Tennessee, from

said point of beginning East five (5) feet; thence south 142 feet to a stake; thence west five (5) feetto a stake; thence North 142 feet to the beginning.
Being the same property conveye d t o H. H. Farl eyan d wife, Nettie P. Farley, by A. K. Morrison EtAl by deed of record in the Regi ster’s Office of Fayet te C oun ty, Tennessee. Record Book 113, Page 619.

TRACTTWELVE: A cer tainlot of land in the village of Rossville, 10th Civ il District, Fay

ette Cou nty, Tennessee, an d described as follows: on the north by lands of A. V. Warr and Railroad square and
a store lot of R. B. Nebhut; on the east by the Rossville and Mt. Pleasant Road and the Methodist Church lot; extending on north and west and south of said Church lot; on the south by the street, north of Mr. Bowling’s lot; on the west by the lot of Mrs. G. W. Nebhut; save and except a certain lot sold to J. F. Nebhut in 1907, as appears

in Book 32, Page 4, of the Register’s Office of Fayette County , Tennessee, and
save and except a certain lot sold to W. F. Parso n in 1901, being R. B. Nebhut’s store house, as appears in Book 25, Page 485, in the Register’s Office of Fayette Cou nty, Tennessee. The abo v e described lot being the R. B. Nebhut store lot in the Town of Rossv ille, and being a pa rt of the same property convey ed to H. H. Ho nnoll, Trustee, by E. G. Riddick, Trustee, by Trustee’s Deed of date Oc tober 5, 1925, of r

ecord in Book 61, Page 279, of the Register’s Office, to which reference is here made.
Being the same lot of land conveyed to H. H. Farley by H. H. Honnoll, Trustee, by deed recorded in the Regi ste r’s Office of Fayette County , in Book 64, page 140.

EXCLUDING

from the a

bo ve tract is the following described trac

t; Begin ning 20 feet E ast of J. B. Rive s northeast corner of his residence lot and-6- runnin g East 76 feet to a stake; thence South 124 1⁄2 feet to s treet; thence South with st reet to old Methodist Churc h lot, now b elonging to A. W. Morrison; thence West with ch urch lot 56 feet to northwest corn er of church lot; thence South 40 feet to a stake; thence We

st 10 feet to

a st ake; thence North179 feet to the beginning. Same bei n g conveyed to H. H. Farley and

wife, to A. W. Morrison by deed dated January 14, 1 930, a nd recorded in the Register’s Office of Fay ette County,

Tennessee, in Record Book 67, Page 319.

Tracts 11 and 12 constit ute o ne lot in the net size of 25 by 142 feet . (Emphasis supplied).

The evidence indica

ted that a priv et hedge had existed and had been m aintained along the boundary lien recognized by the Rives family and this privet hedge was shown to have existed at that location since the early 1950's and a strip claimed by

the plaintiffs is west of the priv et hedge and is enclosed within the yard as recognized andmaintained since the 1950's, by the J. B. Rives family and now by the defendants, Mr.

and Mrs. McDanie

l. In addition to mowing the grass and maintaining the hedge in the disputed area, the defendants andtheir predeces sors in title have pl anted shrubs and f

lowers, have erected a bird house, and h

ave conti n uously used the area as part of their yard. The

re fore, the defendants contend that the line has been recognized

by all of t he adjoining pro perty owne

rs since the ear

ly 1950's.

The plaintiffs contendthat the starting point in the description of the corner lot owned

by the reeds should be at the center of Second Street rath er than at th e margin of th e street, th at the actua l frontage forthe Reed corner lot should be 90 feet and that the defenda nts ’ boundary lin

e should be moved w

estward 25 feet

. The plaintiffs claim owner ship of a lot in the Town of Rossville, measuring 50 fe et by 100 fe

et. The plaint iffs furthe r allege that the defendants are the owners of property immediately to the west of t he p lai nti ffs ’ pr ope rty, measuring 118 feet by 139 feet. The plaintiffs also contendthat the defenda nts are unlawfull

y occupying
a portion of the plaintiffs’ land; that the size of strip

in dispute is about 20 to 25 feet by 100

feet; and that de

fendants do not hol

d record title to the disputed area. The plaintiffs have further requested-7- that the Court determine and

establish the true boundary line between the properties.

The defendants, Barbara A. M cDanie l and Kent McDanie l, filed their answer an d counter-compla int alleging tha

t the warranty deedby which the y took title in 1990 is evidence of their record ownership of the property in dispute. The defendants further allege that if there is any question

about their reco

rd title, then they

and their p redecessors in title have had such possession under both color of titlefor more than seven (7) yearsand at common law for more than twenty years so as to vest the defendants with a good and indefe

asible titlein fee by adverse possession. The de fendants f

urther filed a
c ounter-complaint

joining Mark Ward, the Assessor of Propert y, o f Fayette Cou nty a s a p art y, and requesting that the records of his office be corrected so as

to remove any

improper dimension

s with regard to the lots of the plain

tiffs and the def

endants.

R. B. Nebhut and wife, Gerandine [sic] Warr Nebhut, wer e the common source of title for the parties, and at one time they owned all of the property along Front Street in Rossville, from Main Street westward to Second Street. In 1901, Mr. and Mrs. Nebhut conveyed the lot now owned by the defendants, and in 1927, the Nebhut storehouse

lot was sold to H. H. Farley by a Trustee’s Deed, after the Nebhut’s ownership was foreclosed.

In January 1930, H. H. Farley sold to A. W. Morrison the easternportion of the Nebhut storehouse lot and retained the western part. Mr. Farley

owned the retain

ed part until his

death in 1984. The H. H. Farley heirs convey ed the property to the plaintiffs in 1994.

Th e d eed by which H. H. Farley took title to the Nebhut Storehouse

Lot in 1927 did not describe the property by metes a nd bounds.

* * *
The trial court’s opinion then concluded:

After reviewing the above legal author ities an d all of the credible eviden

ce in the cause, the Court finds that the claims of the plaintiffs must be dismissed bec ause the defendants

have established: (1) that they ha

ve the record tit

l e; (2) that they have the recognition-8- in recorded deed

s and trust deeds,

an d by the conduct, implied agreement,

acquiescence

, and recogniti

on of adjoining pr

operty owners, of the boundary

line along the privet

hedgerow; and

(3) title by adverse possess

ion by the de

fendants and the

ir predecessor

s in title for more than thirty (30) years. The Court further find s that the beginning pointof the Reed corner lot should be at the margin of the street, and not the center.
On appeal, Plainti

ffs raise three

issues, which they

set out in their brie

f as follows:
(1) Whether the evidence preponderatesagainst the trial court’s findings that the disputed boun dary line is located along the privet hedgerow a nd that Defe nda nts /Ap pel lee s ha ve re cord tit le t o th e di spu ted pro pert y; (2) Whether the defenses of “recognition of boundaries by acquiescence” and “common law adverse poss ession without color

of title ” w ere waived due to the Defendants/Appellees’ failure to assert those defenses by ple adings; and
(3) Whether the Defendants/App ellees carried th e burden of proof to establish titleto the disputed parcel with proof of seven (7) years adver se possession coupled with recorded assurance of title in accordance with T.C.A. § 28-2-101.

Since this case

was tried by the court sitting without a jury, we r eview the case de novo upon the reco rd with a presump tion of correctness of the findings of fact by the trial court. Unle ss the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App. P. 13(d). B ased upon our review of the record in this case, we cannot say that the e vidence preponderates

against the find

ings of the trial c

ourt, and theref

ore, affirm those

findings.

The chancery court

has jurisdiction to resolve disputes regarding property lines under T.C.A. § 16-11-106, whic

h states:
(a) The chancery

court has jurisdiction to hear and determine all cases in which the boundary line or lines of adjoining o r contiguous tracts of land is one, or t he only, question at issue in the
case. (b) In all such ca

ses a c omplete deraignment of title by the complainant

from a state grant or common source of title shall not be required as in ejectment ca

ses, but it shall be su

fficient to e stablish titlein complainant where t h e complainant proves clearly that the compla inant is the true owner of the lands described in the complainant's bi

ll.-9-

T.C.A. § 16-11-106 (1994). Under this section , the party s

eeking to estab

lish title to

property mu

st prove either

that he owns or has become entitled to ownership of the disputed land by clear proof. See Ozment v. Rice , 1986 WL 786 7, at *2 (Ten n. Ct. App. 1986) (cit ing Carr v. Wilbanks , 3 24 S.W.2d 786, 792 (Tenn. Ct. A pp. 1958)). The c

omplainant bears

t he bu rden of proving

his ownership

in disputed property by a prepondera nce of the evidence. See Boyd v. Duckto wn Chemical& Iron Co. , 89 S.W.2d 360, 363-64 (Tenn. Ct. App. 1935). We agree with the trial court that, in the case at bar, Plaintiffs have failed to carry their burde n.
Plaintiffs first attempt to pr o ve that they have record titl

e by showing

that they ha

ve paid taxes on the disputed property and that the property a ssessor’s records showed them to be owners of a parcel measuring 50'

by 100'. Although this Court has held that a tax assessor’s map may serve to e stablish which parcels a party paid taxes on, such a map should not be used a s a means o f establishing boundary lines. See Whitworth v. Hutchinson , 731 S.W.2d 915, 917 (Tenn. Ct. App. 1986).

In his testimony a

t trial, the Fayet

te County Asse

ssor of Property

indicated that the tax map Plaintiffs introduce d at trial incorrectly represented the dimensions of all the parcels on the street block in question. The Assessor further testified that he had re-plot ted the parcels, and that Plaintiffs’ parcel was only 25' wide. When Plaintiffs’ attorney questioned the A ssessor about where h e began pl otting the parcels, the Assessor testified that he started at the curb, rather than in the centerline of th

e street.

Plaintiffs’ witness, Wesley Ashworth, testified that he surveyed the pr operty in question. Mr

. Ashworth testified that he d

ete rmined the location and width of Plaintiffs’ property by revie wing documents

in Plaintiffs’ chain

of title and with reference to surveys and property descriptions of the surrounding properti

es. Howev

er, Mr. As

hworth ad

mitted tha

t the call, “Begin

ning at th e N.W. corner of road” in the deed describing the Reed Property was ambiguous.

Mr. Ashworth testified that, by starting to

measure the Reed Property from the centerline of SecondStreet and then the Defendants’ property, he was able to dete rmine the location and size of Plaintiffs’ lot. He further te sti fied tha t the centerline starting point was correct because it was
common practice to start at the centerline of the ro a d in rural proper ty descript

ions dating back

to the 1900's. On cross examination, however, Mr. Ashworth admitted that the survey his firm made of the Rossville Savings Bank Property at the east corner of the block in question did not start at the centerline of Main Street or Front Street. By effectively moving boththe Defendants’ property and the Reed Property approximately 25 ' west of the historic boundary, Mr. Ashworth’s testimony placed both the driveway serving the Reed Property and the Defendants’ driveway on the De fendants ’ pro pert y. The claimed size of Plai ntiffs’ lot is also not in accord with certain monuments on the undisputed area of the lot. For example, there is a

n old concrete

slab centered on the eastern half of Plaintiffs’ property. P

laintiffs claim this is the “Nebhut storehouse” the Defendants’ deed description refers to. However, there appears to be no clear proof that

the slab is located where the storehouse

on ce stood. Defendants point out that if Plaintiffs’ predecessors in interest owned the-10-

entire 50' width

Plaintiffs claim, it

is unlikely the

y would have

constructed the s

torehouse on only t he eastern half

of the lot. Adding to the confusion is a sizeable privet hedge located at about halfway between what Pla

intiffs claim as the

western and eas

tern borders of t

heir lot. It is conceivable

that Defendants ’ predec essors in interest planted this hedg

e at the boundary

line as a
means of v isu all y scr eeni ng of f th eir pro pert y, since the proof established that they maintained and utilized the property up to the hedge.
Particularly

troubling is the starting point in the deed description of the ReedProperty which purportsto begin at the northwest corner of what is now Second Street. Mr. Ashworth describ ed this
as ambiguous, and Plaintiffs’ witness, Clyde M . Cr utchfield, Esq., d escribed this ca

ll as, “unbelievably

ambiguous.” We a

gree. We see no

“northwest corn

er” at all on the maps which are part of the record, because Front Street appears to dead end at Second Street. We also find it hard to understand how, e

ven if there were a northwest corner, the Reed Property

description would

begin there, across

Second Street fro

m their property

. It is clear t

hat the first

call is east with the street and the description continues to closure.

The trial court found that there is sufficient evidence to support a finding of record ti tle in the Defendants, and we concur in that finding. However, if there is confusion concerning record title, we believe there is clarity as to the Defendants’ alternative claim that they own the property by adverse possession.

Under a theory of adverse possession, Defendants must prove by clear and positive evidence that they ha

ve occupied the d

isputed property

for the requisite

time and in

the requisite manner

so as to bar the real title. See Whitworth , 731 S.W.2d at 917. As to the requirement of “possession”, the party asserting the claim must show actual possession which is adverse, continuous, open and notorious for the prescriptive period. See Wh itworth , 731 S.W.2d at 917. Actual possession depends upon the use to which the property at issue is adapted and may exist even in the absence of actual occupation or cultivation. See Blankenship v. Blank enship , 658 S.W.2d 125, 127 (Tenn. Ct. App. 1983). However, “[t]he acts relied upon must be of such a character as to leave no doubt of claim of ownership by

adverse possess

ion and to give not

ice to the public of the possession and the claim.” Id.

We believe there is substantia l evidence that D

efendants “poss

essed” the dispute

d property
so as to satisfy this first requirement. The record indicates that the Defendants and t

heir predecessors regularly mowed the

grass on the disputed area up to the privet hedge. Defendants also presented evidence that they

planted flower beds on the disputed property and placed a bird bath there , as well. Mr. McDaniel testified that he undertook some landscaping and planting on bo th the west and ea

st side s of his home. Mr. McDaniel explained that, when he wanted to landscape to the west of h i s property line, he asked for the Reeds’ permission before starting work. He then explained t hat, “I didn’t [ask for permission] on the east side ‘cause I bought that.”

There is also ample evidence in the reco rd that other parties treated the disputed area as belonging to the McDaniels or t heir pred eces sor s. T he s ide -by- sid e Re ed an d Mc Dan iel dri vew ays would be incorrectly

placed if Plaintif

fs’ assertions a

re cor rect. The location of the curb cuts for Reeds’ and McDaniels’ driveways is evidence that the Town of Rossville placed the western boundary of t he M cDan iel s’ p rop ert y whe re t he M cDan iel s cl aim it s hou ld b e. A ddi tio nal ly,-11-

Plaintiffs’ witness Clay Saunders testified on cross-examination that, based upon his observations of the use of the property by McDanie ls’ predecessors, he assumed that the disputed area was part of what is now the McDaniel Property. The trial court found that the McDaniels had

title by their adverse possess

ion and that of thei

r predecessors

in title for 30 y

ears.

Tennessee permits “tacking ” between a par

ty and his pre

decessors in title

in order to meet the requisite period of possession. See Arrowoo d v. Wil liams , 586 S.W.2d 131, 135 (Tenn. Ct. App. 1979); Derryberry v. L

edford , 506 S.W.2d 152, 156 (Tenn. Ct. App. 1973). Plaintiffs claim there is no privity

between the Def

endants and their

predecessors in

interest and that D

efendants cannot tack their claim

to the Rives’. We disagree. Defendants presented positive proof that they obtained their title from the Rives , and that the Rives also recognized the privet hedge as the eastern boundary line of their property. See Minor v. Belk , 360 S.W.2d 477, 484 (Tenn. Ct. App. 1962). Based on the fact tha t th e Ri ves had been in c ont inu ous pos ses sio n of the pro pert y sin ce t hey ac quired it in 1910 and that the house served as the Rives’ family residence from that time until the McDaniel s purchased

it, we see no reason

why the McD

aniels may n

ot tack their

adverse possess

ion claim to that of their predecessors. Based upon therecord in this case, we concur with the decision of the trial court that the Defendants have clearly proven the re quirements of adverse possession.

On appeal, Plaint iffs argue tha t the Defendants

failed to proper

ly raise the

affirmative def

ense of c ommon law adverse

possession in their

pleadings and, t

herefore, wai

ved that defense . This argument fails for severa

l reasons. First,

although the Def

endants did not spe

cific all y invoke “common law adverse possession,” Paragraph 10 of Defendants’ an

swer specifica

lly sets out ad

verse possession as a defense. Second, the record establishes that the parties put on extensive p roo f regarding possession and use of the disputed property. Under Rule 15.02 of the Tennessee Rules of Civil Procedure, "when issue s not raise d by the pleadi ngs are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. ” Tenn. R. Civ. P. 15.02 (2000).

From the foregoing, we conclude that the e vidence doe s not prepo nderate again st the find ings of the trial court.

The final decree of

the trial court is a

ffirmed, and this c

ase is rema

nded for su ch further proceedings as may be necessary . Costs of the appeal are assessed against the appellants, Taylor Mehrhoff Company, John B. Taylor and Stan Mehrhoff, ind ivi dua lly, and doing business as Taylor Mehrhoff Company

, and their sureti

es.

__________________________________________ W. FRANK CRAWFORD, PRESIDI NG JUDGE, W.S

.