# FILED
February 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk KEVIN SANDERS and wife, ) PATRICI A SANDERS , Propert y ) Owners and Citize ns of Lincoln ) County, Tennessee, ) ) Plaintiffs/Appellants, ) Appeal No. ) 01-A-01-9705-CH-00222 VS. ) ) Lincoln Chancery JERRY MANSFIELD, C ounty ) No. 10,743 Executive, and DONNY RAY HUDSON, ) Road Superintendent, Both of ) Lincoln County, Tennessee, ) ) Defendants/Appellees. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CHAN CERY COUR T OF LINCOLN

COUNTY AT FAYETTEVILLE, TENNESSEE THE HONORABLE LEE RUSSELL, SI TTING BY INTERCHANGE

WILLIAM W. BURTON P. O Box 960 401 West Main Street Murfreesboro, TN 37133-0960 Attorney for Plaintiffs/Appellants ROBERT W. SIMMS P. O. Box 53 104 North Main Street Fayetteville, Tennessee 37334 Attorney for Defendants/Appellees

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - The primary question in this appeal is whether a road that splits the appellants’ farm is a public road. Kevin Sanders and his wife fi led suit a gainst two Lincoln County of ficials, to enjoin enforce ment of a county r esolution that required them to remove stock gaps on a road that crossed their farm. The trial court dismissed the complaint and grante d the defendants’ countercl aim to e njoin the plainti ffs from willfully all owing their cattle to roam at large along the road. We affirm the trial court.

I.

Mr. and Mrs. Sanders own a 316 acre farm in Lincoln County. Accor ding to Mr. Sanders’ testimony, he and h is family have had a cattle-raising oper

ation on the land for 25-30 years. Marti n Hollow Road, whi ch crosses their proper ty, provides

the sole access to the Sanders’ home and t o a trailer for their tenant , as well as to the five homes currently beyond the farm. The testimony of seventy-seven year old Howard Martin, who ha s lived in the area all his life, was that the road was named for his great-grandfather, and that it had always been a public road for as long as he could remember.

Lincoln County has maintained Mar tin Hollow Road at

least since 1975. Th e Co unty brought in grav el as needed, graded the road on a monthly basis, and built culverts and a twel ve foot concrete bridge ov er a creek on t h e Sanders’ land. According to the tes timony of de fendant Donny Hudson, Martin Hollow Road was included on the county list as a “4th Class County Road” w hen Mr. Hudson acquired the list, upon becoming Linc oln County Road Superintende nt in 1982. At the time this suit was filed, the plainti ffs maintained stock gaps (or cattle guards as they are al so known) at the two points where Martin H ollow Road crossed their property lines . The stock gaps and the fencing around the propert y prevented Mr. Sanders’ cattle from w andering onto his neighbor s’ land. Butbecause- 3 -

the pastures on both sides of the road were unfenced, the cattle crossed the road at wil l, especially when the y were fed near the road. This situation led to man y complaintsby the oth er users o f Martin H ollow Road , and to se ve ral a ccidents and near-accidents with s

choolbuses and private automobi les using the road.

The problem of ca ttle roaming o n L incoln County roads becau se of inadequate f encing is ap parently not confined to Mar tin Hollow Road. On J uly 22, 1996, the County Highw ay Committee, under the leadership of Donny Ray Hudson, recommended the removal of stock gaps on al l county roads as a way to deal w

ith the problem. The Lincoln County Board of Commissioner s did notadopt the Committee’s recommendation at that time, but apparently agreed with the need t o address the problem. The Board instructed Jerry Mansfield, the defendant County Executiv e, to send letters asking landowners who allowed their livestock to run at large to properly fence th eir prope rty.

Such letters were sent to Mr. Sanders and to three other landowners. Mr. Hudson followed-up by talking to the recipients of the letters. The other landowners agreed to comply, by fencing their land, o r by otherwise taking st eps to keep their cattle off theroad s. Mr. Sanders was not willing or able to fence his property off from Martin Hollow Road b ecause of the considerable expense involved, and he was unwill ing to rem ove his stock gaps. After consulting with the Office of the Attorney General about the County’s authority to remove stock gaps from its roads, the Legislative Body

of Lincoln County

passed a resolution on Mar ch 17, 1997 tohave the stock gaps on Martin Hollow Road removed

.
On April 4, 1997, the plaintiffs filed a complaint in th e Chancery Court of Lincoln County to enjoin enforcement of the County’s resoluti on. The defendants filed an answer

and counterclaim, in whi ch they stated that Marti n Hollow Roadwas a public road, and they asked the court to order Mr. Sanders to erect fences on both1 W e have noted th at the appel lants admitt ed in thei r answer to t he coun tercla im that th e road was a public r

oad. While that would ordi narily conclude the i nquiry,we think th e proof also sh ows it was a public r

oad. - 4 - sides of the road, and/or to take other nec essary steps to prev

ent his cattle f rom roaming at large on

the road. The

Sanders’ r

esponse to th e countercl aim admi tt ed that the road was public, but denied that they allow

ed their cattle to “roam

at large” or that the presence of the stock gaps had ever been the source of any problems.

After an extensi ve hearing, involvi ng the testimony of eighteen witnesses, the court found there to be a dangerous situation on Martin Hollow R

oad, and dismissed the plaintiffs’ suit. The court further found that it di d not have the power to order a mandatory inju nction to compel Mr. Sanders to erect fences on his land, but it did order him to refrain from willfully allowing his cattle to roam at large on or across Martin Hol low Road. This appeal follow ed.
II. County Road or Private Road?

As the trial court noted, there was very little dispute as to the facts of this
case. There is also very little dispute

as to the county’s right to remove obstructions from its roads, including gates and cattle guards. See T enn. Code Ann. §§ 54-10- 108, 110 and AG Opinion U97-003 (January 27, 1997) . The court also has the rig ht to enjoin owners of livestock from willfully allowing their animals to run at large. Tenn. Code Ann. § 44-8-401.

The appellants’ chief

argument on appeal is that M artin Hollow Road is a private road, and that the County therefore has no right to order the m to remo ve stockgaps from their own p roperty. 1 They also argue that the Board’s resolution of March 17, 1997 was unconstitution al, an d t herefore void, because it w as directed against them personally in violation of

the equal protection clause. We will examine the question of the status of the road first.- 5 - The appellants note that they have a good title deed to all the acreage within theirboundaries, and that there is no record of them (or their prede cessors in interest) ever explicitly dedicating a portion of theirland for a public road. They also contend that the other inhabitants of Martin Hollow Road cr oss th eir land by permission, thereby excluding the possibility of

a claim based upon any adverse r ights whatsoever.

A public road may be created “. . . by an act of the public authorities, or the express dedication by the owner, or animplied dedication by means of the use by the public and acceptance by them with the in tentionof the owner that the use becomepublic, or by adverse user for a period of 20 years conti nuously creating a prescrip tive right . . .” Standard Life Insurance Co. v . Hughes , 315 S.W.2d 239 at 242 (Tenn. 1958). There is no proof in this case that the county condemned a right of way
across the appe llants ’ fa rm o r that the appellants expr essly dedicated the road t o public use. We do think, how ever, th at the facts support an implied dedi cation and acceptance by the county and/or a prescriptive right obtained by adverse use for more than twenty years.

a. Dedication

To establish a dedication by implication “there must be proof of facts from which i t po sitively and unequ ivocally appears that the owner intended to permanently part with his proper ty and vest it in the public, and that there canbe no other reasonable explanation of his conduct.” McKinney v. Duncan , 1 18 S. W. 683 at 684, 121 Tenn. 265 at 271 (Tenn. 1908). Th e Supreme Court relied on this rule i n Cole v. Dy ch , 53 5 S.W.2d 315 (Tenn. 1976), and added the following q uote from- 6 -

Woolard v. Clymer

, 35 S.W. 1086 (Tenn . Ch. App. 1895): “[W]hen a roa d runs across privateproperty, and is used by the public as a common road, without interruption for 50 years , the owner acquiesci ng in such use, the law will presume a dedication for such purpose.” 35 S. W. at 1088 . “Indeed, from long use, w ithout objection of the owner, it may be inferred or presu med that such use and enjoyment had a legal origin.” Cole v. Dych , 535 S.W.2d at 319 (Tenn. 1976). An implied dedi cation does not depend on use by the public for any definite period of time; “but it ought to be for such a lengt h of time that the public accommodation an d private rights mi ght be materiallyaffected by an interruption of the enjoyment.” Scott v. State , 33 Tenn. 629 at 633 (1854).

T he Sanders acquired their far m in 1989. Although the recor d is not clear on this point, the farm ha d apparently been in the Sander s family since the 1960s; therefore Mr. and Mrs. Sanders were aware when they acquired the property t hat the road had been used by the publ ic for many years. As we have pointe d ou t a seventy-seven

year old man, who gr

ew up in the area and at one time owned one of the farms beyond the Sanders place, testified that the public had used the road for
as long as he could r emember. The road has been carried o n the Lincoln County recordsas a county

road at le ast since 1982. The County has for many years maintained the road, graveled it, and built culver

ts and a bridge on the porti on of the road crossing the Sanders’ land.

We think the record shows that the road had become a public road by implied dedication and acceptance by the public.
b. Prescriptive Easement

T he re quirements for establishing a prescriptive easement are substantially the same as those required t o establish title to real

estate by advers e- 7 -

pos sessi on. House v. Close , 346 S.W.2d 445 (Te nn. App. 1961). The adverse possessor

must carr y the burde n of esta blishing a dve rse p ossession by clear and positive proof. McCammon v. Mer edith , 830 S.W.2d 577 (Tenn. App. 1991). The elements required t o establi sh a presc riptive ea sement h ave been stated by this court
as follows: “[t]o create a presc ripti ve easement, the use and enjoy ment of the property must be adverse, under a cl aim of right, continuous, uninterrupt ed, op en, visible, exclusive, with the knowledge and acqui escence of the owner of the serv ient tene ment, and must continue for the full prescriptive period.” Pevear v. Hunt , 9 2 4 S.W.2d 114, 116 (Tenn. App. 1996). Twenty years of adverse use is the prescript ive period required to establis h a right-of-way in either the public or in private persons. German v. Graham , 497 S.W.2d 245 (Tenn. App. 1972). Town of Benton v. Peo ple’s Bank, 904 S.W.2d 598 (Ten n. App. 1995).

The record co ntains ample evidence of twenty years of continuous, open, visible anduninterrup ted use of Martin Hollow Road by the public and by the
e mp loyeesand agent s of Linc oln Count y. Since th e term “exc lusive” in t he conte xt of adverse possession means that the use must be exclusi ve as against the community

or the public at large,see House v. Close , 346 S.W.2d at 448, we believe the requirement

of exclusive use to be ei ther meaningless or in need of some sort of fresh definition when we are speaking of an easement of way claimed by the County on behalf of the general public.

Finally, we believe that the requirement

that possession be advers e and the requirement that the ow ner of the servient tenement know and acquiesce to the use of easement do not contradict each other. Rather, it directs us t o the true meaning of adverse in this context -- it is sufficient if the claim of r ightunder which the complainantoperates is adverse to the t itle or int erest of the owner of the serv ient tenement. The owner is not requi red to actively r esist t he us e of the easement in- 8 -

order for the u se to be ad ve rse. See 4 Words and Phrases Adverse pp. 157-161 (1955).

The case of German v. Graham , supra, is very i nstructive on the issue s raised by the plaintiff in the case at bar. Mr. and M rs. German and their tenant had used a right-of-way

over theland of Mr. Graham and his predecessors in title for well
over twenty years , thou gh they had no deed or other official title to the easement. When Mr. Graham blocked t he road , the Germans brought suit t o enjoin him from doing so. The chancellor held that the court had no right to enj oin Mr. Graham in the
use o f his own land, because the Ger mans’ use of the road was permi ssive rath e r than adverse.

This court reversed the chancellor. We held that to claim adver se use, it was not necessary t

o show actual hostility betw

een the adverse user and the ow ner of the servient estate. All that was necessar y was for the

use to be under a claim of right inconsistent with or contrary to the interest of the owner.

The evidence showed that w hen Mr. Graham bo ught his property, he had actual knowledge that the Germans were using the road for access t

o their farm. He never asked them by w hat authority

they were using the road, and never made any complaintsor objections to that use.The court found that such conduct indicated that Mr. Graham understood the Germans to be using the road under a claim of right , and it held that their long usage under such a claim entitled them to a prescrip tive easement in the right of way

.

In the present case, Mr. Sa nd ers purchased his property with the knowledge that Martin Hollow Road had long been freely used by his nei ghbors to
access their lan d. But eve n if we consider that use to be perm issive only, we believe the expenditure of public monies on the maintenance of Martin Holl ow Road forover- 9 -

twenty years should have al erted Mr. Sanders that the County was operating under
a claim of right. The fact that Mr. Sanders acquie sced to the improvements on the road does not eliminate the adverse nature of the claim, any more than Mr. Graham’s failure to make any complaints or objections to the Germans made their use merely permissive.
III. The Extent of the Right

The fact that the public has acquired an easement across the Sanders’ property does not necessarily mean that the public may requi re the Sanders tokeep theircattle off th e road. An easement may be for many purposes, but it usually involves only a right to ing ress and egress and, in the absence of a provision to th e contrary, the owner of the servie nt tenement may install gat es or stock gaps to

suit his
own convenience. Luster v. Garner , 128 Tenn. 160, 159 S.W. 604 (1913); Long v. Garrison , 1 Tenn. App. 211 (1925). The owner of the right-of-way “may use it for any purpose that does not interfere with the easement .” Luster v. Garner , 128 Tenn. at 162, 159 S.W. at 604.

A similar rule has been r ecog nized in t he case of a common law dedication. See Cole

v. Dych , 535 S.W.2d 315 (Tenn. 1976). In Burkitt v. Battle , 59 S. W. 429 (Tenn. Ch. Ap p. 1900), t he Court of Chancery Appeals recognized that there may be a restricted dedication, as where the owner dedicates a pathway to the public for “foot passengers.” The cour t, however, concluded that the way in question was a public road and issued an i njunction against the de fen dants to “remove and abate the obstruction now on the road.” 59 S.W. at 438.

We think that, nothing e lse appearing, once an implied or common law dedication has taken place and has been accepted by the public, the statutes gi ving the county certain authority over public roads come into full force and eff ect. These- 10 -

statutes give thecounty officials the power to prev ent obstruction of the road, Tenn. Code Ann. § 54-10-110, or to allow gates across roads of the third and fourth class when it will not materially prejudice the public. Tenn. Code Ann. § 54-10-108. Implicit in this scheme

is the powe r to preven t the use of gates if they would materially prejudice the public. Our Supreme Cour t has said, “ we are of the opinion that this statute is the only method by w hich a gate or obstructi on may be erec ted or pla ced on a public road.” Harkins v. Ramsey , 273 S.W.2d 1 at 2 (Tenn. 1954). Therefore, we hold that the County may prevent an abutting landowner from allowing his cattle to obstruct the road.
IV. Equal Protection

The appellants also argue that theBoard’s resolution of Marc h 17 was unconstitutional and void because it w as partial in its operation, and wasonly intended to affect them. If the Board were applying a different standard or a different policy to them than to other

resident s of the c ounty, th en they mi ght be corr ect. But we think the chancellor got it r

ight when he wrote the following in his M emorandum Opinion: “If the resolution

of M a rch 17, 1997, were viewed in isolation, it might appear to sing le out and discriminate against the Plaintiffs. The evide nce in the case, however, makes it clear that the actual situation was tha

t the Plaintiffs were the lone offenders against a more gene ral policy of the county. Other stock gaps which s till exist elsew here in the county are either in the proce ss of bei ng removed, are at points beyond which no one lives , or no one other than the party who maintains the gaps, or in areas where there is no problem with cattle having access to the road. The Plaintiffs’ situation is unique in that removing the stock gaps on Martin Hollow Road wi ll discourage the running of cattle on a publiclymaintained road which is used by the general public. The policy is not discriminatory and is imminently (sic) reasonable. Removal of the stock gaps will not be enjoined.”

V.The judgment of the trial court is affirmed . Remand t his cause to the

ChanceryCourt ofLincoln County for further proceedings consistent w ith this opinion. Tax the costs on appeal to the appe llant.

________________________________ BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE