IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 2000 Session

BETTY HOLLEY v. CLAYTON HAEHL, ET AL.

A Direct Appeal from the Circuit Court for Giles County

No. 9936 The Honorable Jim T. Hamilton, Judge

No. M1999-02105-COA-R3-CV - Filed September 14, 2000

Landowner sued adjoining landowner and timber cutter in general sessions court for trespass and the

cutting of timber on her land. From an adverse judgment, landowner appealed to the circuit court.

After a trial de novo, the trial court held that adjoining landowner owned the land involved by adverse

possession and entered judgment for defendants. Landowner has appealed.

Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER,

J. and HOLLY KIRBY LILLARD, J., joined.

Robert D. Massey, Pulaski, For Appellant, Betty Holley

Henry, Henry & Speer, P.C., Pulaski, For Appellees, Clayton Haehl and Charles Butch Stubblefield

OPINION

Plaintiff, Betty Holley, filed suit in general sessions court on January 30, 1998, against

defendants, Clayton Haehl and Charles Butch Stubblefield, for trespass and the wrongful cutting of

her timber. After judgment for defendants in general sessions court, plaintiff appealed, and the case

was tried de novo without a jury in circuit court. The circuit court held that Haehl was the owner of

the property by adverse possession and entered judgment for both defendants. Plaintiff has appealed

and presents two issues for review. 

The first issue for review is whether the trial court erred in holding that defendant Haehl was

the owner of the property by adverse possession.

The disputed area of land is a 3.5 acre tract formerly owed by Z. O. Derryberry and his wife
1

 All of the deeds of conveyance referred to in this opinion were duly recorded in the Register’s Office of Giles

County, Tennessee.

2

 Mr. Holley is now deceased.

as a part of a 150 acre tract. By warranty deed1 dated May 28, 1987, Derryberry and his wife

conveyed 100 acres of this tract to defendant Haehl and his wife, describing the property by calls and

distances. By warranty deed dated April 18, 1994, Derryberry conveyed the 3.5 acre tract to plaintiff,

Betty Holley and her husband2, who owned an adjacent tract. Although the record does not contain

a survey of the disputed property and the surrounding areas, the parties introduced a plat from the

Tennessee Board of Equalization which is helpful for a general description of the area in dispute. A

copy of the plat is attached as an addendum to this opinion. We have marked the plat to show the

Haehl property, the disputed area, and the adjoining Holley property.

As the plat shows, the property in dispute is triangular in shape, and along the southern edge

there are remnants of an old fence. There is a fence on the east side of the disputed property for

bordering pasture land owned by Ms. Holley, and according to Ms. Holley’s testimony, her tenant,

Dennis Archer, used the fence for cattle enclosure. The property in dispute is wooded and not suited

for any farming purposes, but Ms.Holley testified that she permitted various parties to hunt on the

property. In July of 1997, Ms. Holley’s tenant, Dennis Archer, discovered that timber was being cut

in the disputed tract and informed Ms. Holley. Mr. Archer contacted defendant Haehl and told him

that the property belonged to Ms. Holley. Upon confirming duplicate ownership of the property,

Mr.Haehl instructed Mr. Stubblefield to cease logging. Ms. Holley testified that Mr. Haehl admitted

to her that he had cut timber off of her land, but that there was minimal damage and he had offered

to clean up the property.

Ms. Holley further testified that Dennis Archer maintained the fence between the pasture land

and wooded area in order to run his cattle, and that it was not intended to be a boundary line fence.

Mr. Haehl testified that when he purchased the property from Mr. Derryberry, Mr. Derryberry walked

the boundary lines with him and told him that his deed included the property in dispute. He testified

that he let cattle graze in the wooded area and that he walked the fences and made such repairs as

necessary to maintain the fences that enclosed the disputed area. Mr. Haehl stipulated, however, that

the description in his warranty deed from Derryberry did not include the property in dispute. At the

conclusion of the bench trial, the court held that Mr. Haehl had acquired title to the property by

adverse possession and entered judgment for the defendants.

Since this case was tried by the court sitting without a jury, we review the case de novo upon

the record with a presumption of correctness of the findings of fact by the trial court. Unless the

evidence preponderates against the findings, we must affirm, absent error of law. Tenn. R. App. P.

13(d).

It is undisputed that the description in the Haehl deed does not include the disputed area. It

is likewise undisputed that Mr. Haehl’s claim to the property dates back approximately ten to eleven

years. The trial court’s order finding adverse possession did not designate any length of time for the

possession, but in view of the length of Mr. Haehl’s possession, it appears that the trial court was
initially relying upon the seven-year period set out in T.C.A. § 28-2-101 (1980), which provides:

28-2-101. Adverse possession - State conveyance. - (a) Any person

having had, by himself or those through whom he claims, seven (7)

years’ adverse possession of any lands, tenements, or hereditaments,

granted by this state or the state of North Carolina, holding by

conveyance, devise, grant, or other assurance of title, purporting to

convey an estate in fee, without any claim by action at law or in equity

commenced within that time and effectually prosecuted against him,

is vested with a good and indefeasible title in fee to the land described

in his assurance of title.

(b) No title shall be vested by virtue of such adverse possession,

unless such conveyance, devise, grant, or other assurance of title shall

have been recorded in the register’s office for the county or counties

in which the land lies during the full term of said seven (7) years’

adverse possession. 

T.C.A. § 28-2-101 (1980)(emphasis added).

If, in fact, the trial court was relying on T.C.A. § 28-2-101 as the basis for its holding, we

must respectfully disagree. As previously noted, Mr. Haehl stipulated that the description in his deed

did not include the disputed area; thus, he did not have registered assurance of title necessary to

perfect title by seven years of adverse possession. See Ragsdale v. McFall, 145 Tenn. 684, 691

(1921); Burks v. Boles, 934 S.W.2d 653, 655 (Tenn. Ct. App. 1996); Fingar v. Beard, 12 Tenn.

App. 604, 608 (1930).

After the court entered its final order, Ms. Holley filed a motion to alter or amend, which the

court denied. The order denying Ms. Holley’s motion states in part:

* * *

In awarding title to the Defendant, Haehl, the Court was fully

aware that in Tennessee to establish title by adverse possession, there

must be an occupation of the property under a claim of right or title

which is open, actual, continuous, exclusive, adverse and notorious

for the prescriptive [period] of twenty (20) years. The Defendant

bought this property from Mr. and Mrs. Zollie Derryberry in May,

1987. Prior to purchasing the property the Defendant walked the

boundary line with Mr. Derryberry on two occasions and each time

they walked the fence in question as being the boundary and one

occasion the surveyor’s ribbons were on the fence; the Defendant

obtained a map from First National Bank where he financed this

purchase and it also showed the property in question to be included in

the property being finances by the bank; the tax assessor’s map also

showed this property to be included in the Derryberry tract; the
Defendant maintained the fence during the twelve (12) years since he

purchased this tract as did the Plaintiff’s agent, treating this as a line

fence.

The Court therefore finds that the twenty (20) year

prescriptive period was clearly established not only by Defendant

Haehl, but his predecessors in title Mr. and Mrs. Derryberry and that

this case fits the type of fact situation which would allow the times to

be “stacked” [sic] between title owners. The Defendant also allowed

his cattle to run on the property at issue and never had one complaint

about who owned this small triangular tract until he began to cut

timber. 

* * *

Z. O. Derryberry owned in fee simple both the property deeded to Mr. Haehl and the disputed

area deeded to Ms. Holley. In the order denying the motion to alter or amend, the trial court found

that prior to Mr. Haehl’s purchase of the property, he and Mr. Derryberry walked the boundary of

the property and that it included the disputed area. This finding was premised on the testimony of

Mr. Haehl that Mr. Derryberry told him the disputed property was included in the conveyance. This

type of oral testimony should not be admitted to vary the terms of a clear and unambiguous deed

description. See Minor v. Belk, 360 S.W.2d 477, 483 (Tenn. Ct. App. 1962). Such testimony is a

violation of the parol evidence rule. The parol evidence rule is a rule of substantive law which this

Court may consider even though there was no objection made in the trial court, and the issue was not

raised on appeal. See Maddox v. Webb Const. Co., 562 S.W.2d 198, 201 (Tenn. 1978); First

Tennessee Bank Nat’l Assoc. v. Wilson, 713 S.W.2d 907, 909 (Tenn. Ct. App. 1985). We therefore

hold that the trial court erred in admitting the testimony of Mr. Haehl that prior to the conveyance

from Derryberry, Derryberry told him that the disputed property was included in his deed. Therefore,

this evidence should not be considered. 

On April 18, 1994, less than seven years from the date of Mr. Haehl’s deed, Mr. Derryberry

conveyed by warranty deed the 3.5 acre tract to the plaintiff and her husband. We should not

presume that Mr. Derryberry intended to execute a champertous deed. His actions in conveying the

property to Ms. Holley belie any inference that he intended to give possession of the property to Mr.

Haehl.

Additionally, in the order denying Ms. Holley’s motion to alter or amend, the trial court found

that defendant Haehl had established the required twenty-year period required for adverse possession

without colorable title. The trial court found that the period in which Mr. Haehl claims to have

adversely possessed the property in dispute could be “tacked” to that of the Derryberry’s. We

disagree. “Tacking” is defined as, “[t]hat doctrine which permits an adverse possessor to add his

period of possession to that of a prior adverse possessor in order to establish a continuous possession

for the statutory period.” Black’s Law Dictionary 1452 (6th ed. 1990)(emphasis added). Adverse

possession must be just that: adverse. This Court has held that, in order to be adverse, possession

“must be of such a character as to leave no doubt of claim of ownership by adverse possession and

to give notice to the public of the possession and the claim.” Blankenship v. Blankenship, 658
S.W.2d 125, 127 (Tenn. Ct. App. 1983). We have also held that the party claiming ownership by

adverse possession “must sustain the proposition that the possession was in fact adverse to the true

owner. Bynum v. Hollowell, 656 S.W.2d 400, 403 (Tenn. Ct. App. 1983). The rightful and legal

owner of property cannot adversely possess against his own interest in the land.

Under Tennessee, the burden of establishing by clear and positive proof such adverse

possession is on the adverse possessor. See Whitworth v. Hutchison, 731 S.W.2d 915, 917 (Tenn.

Ct. App. 1986)(citing Jones v. Coal Creek Mining and Mfg. Co., 133 Tenn. 183, 180 S.W. 991

(1915); Davis v. Louisville & N.R.R., 147 Tenn. 1, 244 S.W. 483 (1921)). This rule applies to both

the length of time and the character of possession. Id. Evidence of adverse possession is strictly

construed and any presumption is in favor of the holder of the legal title. Moore v. Brannon, 304

S.W.2d 660, 667 (Tenn. Ct. App. 1959). 

In the instant case, there is simply no proof to support the trial court’s holding of adverse

possession under color of title and the evidence preponderates against a finding of adverse possession

for twenty years. 

The appellant’s second issue for review concerns the failure of the trial court to award

damages based on the defendant’s negligent cutting of timber pursuant to T.C.A. § 43-28-312. In

view of the trial court’s holding concerning ownership of the disputed tract, the trial court did not

consider the question of Ms. Holley’s damages. Accordingly, we remand this case must to the trial

court for consideration of the damage award, if any, to the appellant.

The order of the trial court is reversed, and the case is remanded to the trial court for such

further proceedings as may be consistent with this opinion. Costs of the appeal are assessed against

the appellees, Clayton Haehl and Charles Butch Stubblefield, and their sureties.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.