# FILED
July 1, 1998 Cecil W. Crowson Appellate Cou rt Clerk Lion el L. Lulo w an d wi fe, N ancy ) Appeal No. Lulow, ) 01-A-01-9509-CH-00399 Plaintiffs/Appelle

es, ) v. ) Civil Action No. Earl Poss and Carl Po

ss, ) 90-78 Defendants/App

ellants. )

COURT OF APPEALS OF TENNESSEE
APPEAL FROM TH

E CANNON COUNTY CH ANCERY COURT
AT WOODBURY, TENNESSEE THE HONORABLE ROBERT E. CORLEW, CHANCELL OR

FRANK BUCK LENA ANN BU

CK 124 West Main Street Smithville, Tennessee 37166 ATTORNEYS FOR THE PLAINTIF FS/APPELLEES A. VESTER PARSLEY

, JR. 111 West Main Street Smithville, Tennessee 37166 ATTORNEY FOR THE DEFENDANTS/APPELLANTS

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
WALTER W. BUSSART, JUDGE1 This diagram was constructed using three surv

eys found in

the record. Exhibit 18 is a plat by Larry Knott, the Lulo

ws’ survey

or, and Exhibits 12 an

d 21 are plats by

Richard Puckett

and Sam Den ny, the Posses’ surveyors. The area labeled as “DEVORE AND OTHER LANDOWN ERS” is labeled as such because there is evidence that other landowners own property in this area. 2 Opinion This is an appeal by defendants/appellants, Earl and Carl Poss, from a decision of the chancery court in a bo undar y dispu te. It is the Posses contention that the chancery court erred when it approved the survey entered into evidence by the plaintiffs/appellees, Lionel and Nancy Lulow. The diagram below, while not drawn to scale, d epicts the layout of the relevant tracts of land. 1 Reference to th

is diagram will be

helpful in underst

anding the follow

ing facts.
On July 7, 1978, Glenn, Elea nor, M. Russell, and

RuthDevore (“the Devores”) conveyed by warranty deed a 32.5 acre tract to the L ulows. The deed stated: Bounded on t he N ort h by a 56 acre tract previously convey ed to Lulow; bounded on the East by Mann; bounded on the South by Strange; and on the West by other lands of Devore, and containing 32.5 acres, more or less . . . . It is expressly

un derstood and agreed, and made a part of the consideration hereof, that the grantees herein, their heirs and assigns, arehereby granted a 30-foot right-ofway to the

northeast and we

st boundaries along existing farm roads for ingress and egress to the property herein convey ed. It is f urt her e xpr ess ly understood and agreed, and made a part of the consideration hereof, that the grantees herein, their heirs, and assigns, are hereby g ranted a 40 foot right-of-way

which has been previously dedicated in a deed from Devore t o George Reynolds [Harrison] for the purpose of allowing the grantees herein and their heirs and assigns, ingress and egress to the property herein conveyed. On February 20, 1979, the Devores convey ed by warranty dee

d an 88.6 acr e tract to John and Barbara Howard. The How

ard deed descr

ibed the eastern

and southern boundar ies as follows: “thence southwesterly

along the cente

r of said Right-O

f-Way Road,

to a point marked by

a steel pin located15 ft. west of the center of sai d Road; th ence in a northwardly direction with the lands of Devore to a corner in Floy d Vache line.” E

arl Walls convey

ed twenty a

cres to Ted Self on October 2, 1989. Self’s deed described his southern and eastern boundar

y as follows:“bounded on the Sou th bythe lands of Geor

ge W. Reyno

lds and Chery

l Harrison; bounde

d on the East b

y the lands o

f Devore andToler.” Finally, on September 2, 1990,the Devores conveyed by quitclaim deed a parcel of land to the Posses. A portion of this land is the subject of this appeal. The Posses’ deed stated: Beginning on a s teel pin in the East margin of the Me

lton Hollow Road, this

also being the Self Southwest corner; running thence about East approximately 1800 feet with t he Self line to the Howard line; thence about East and/or Southe as t approximately

1000 feet with the Howard line to the center of a farm road to the intersection with another far m road, this also be

ing the Howard So

utheast corner i

n the Lulow line; thence

about South and Eas

tapproximately 1000 feet with Lulow and withthe meanders f the center of a f arm roa d to the intersection with another farm road, this also being the Lulow Southern corner

in the Strange line; thence continuing about South approximately 120feet with Strange and the center of the Road to the intersection of the farm road to the intersection of the farm

road with a County road, this also being the Broach Western corner in the Strange line; the

nce about Northw

est2 During the trialof this case, the D evores and Posses s executed and had recorded a Deed of Correction. The only difference between the original and

correction dee

d was the descrip

tion in the corr ect ion deed was a me ets and bou nds des cri pti on b ased on P uck ett and Den ny’s sur vey.

3 It appear

from the record the Kings and the Mingles own land north of that depicted in the diagram. 3 andWest approximately 3500 feet with the meanders of the a County Road

and the Broach line to the East

margin of

the Melton Hollow Roa

d; and, thence ab

out North approximately

120 feet with the Melton Hollow Road to the p oint o f beginning, containing 16 acres, moreor less, by e stimation. . . . I

t is agreed and understood that this is a conveyance by

the tract, and in no sense shall it be construed as a conveyance by the acre. It is expressly a

greed and unde

rstood, and ma

de a part of the consideration hereof, that the grantees h

erein, their

heirs and assigns, are hereby gra nted a 30 foot right-ofway to the Eas tern boundary of the property herein along an existing farm road co nnecting with the aforeme ntioned County

Road, which has be

en previously dedicate d in a Deed from Devore to Lionel and Nancy Lulow, connecting with the aforementioned

County Road for the purposes of ingress and egress tot he property herein conveyed. 2
The Lulows filed a complaint on October 27, 1990. They claimed they owned land west of the Troublesome Ridge Road and asked the court to resolve the boundary dispute between them and the Posses. The Lul

ows also allege

d the Posses had ca

used damages to

the disputed prope

rty and to property clearly bel

ongin g to the Lulows. The Lulows, therefore, reque sted a temporary injunction enjoining the Poss es from causing

any furthe

r damage. The t

rial court order

ed that a mutual temporary injunction issue. The Posses filed an answer. The y deni ed all the material allegations of the complaint a nd stated a counte

rclaim. The Posses alleged the Lulows had blocked access to the Troublesome Ridge Road.
Jim andJudy King file

d a motion to interve

ne as defendant

s in order to gain

rights of ingress andegress over the Troublesome Ridge Road. Th e Kings were in volved in a separ

ate property dispute with the Ming

les concerning

the ownership of t

he property

requiring acc

ess. 3 The court filed an order on February 14, 1991 allowing the Posses to use the Troublesome Ridge Road pending further orders of the court. Two months later, the court filed an opinion and determinedthe la

y of th e land entitled the Kings to an easement by necessity . The court did not determine ownership of the disputed area or the compensation to the Lulows from the Ki ngs at that time.
Richardand Phyllis Jones filed a motion to intervene on May 9, 1991. They claimed the Kings by ruling o

f the court h ad taken a portion of the their property, i.e., that portion of the easement running through their property, and that they were entitled to compensation from the Kings for such taking. The

Lulows filed a

motion to amend their

answer to the cou

nter-complaint to inc lud e th e def ens e of c ham pte ry.4

On September 11, 1991, the court determined the controversy between the

Joneses and the K ings was too remote. As a result, the cour

t overruled the Jone

ses motion and dissol

ved th e temporary

restraining order. The court filed an order on November 13, 1991 allowing the Devores to intervene as plaintiffs. The court also granted the Kings’ motion to intervene.
The court filed an opinion on February 7, 1992 and det ermined t he land claimed by the Lulows was rightfully theirs and the boundary lines should be established in accordance with the survey prepared by the Lulows’ survey or, John Knotts. The courtfound the issue of champerty was notestablished. Finally, the court determined it should appoint a jury

of view pursuant to Tennessee Code Annotated title 54, chapter 14 to dete

rmine the location

of th e easement by

necessity,

if different than th

e determination o

f the court, and to

determine damag

es.
The Posses filed a motion pursuant to Rule 52.01 of the Tennessee Rules of Civil Procedure. The Posses also claimed the Lulows waived their right to a jury of view . The Posse s and the Ki ngs filed a motion alleging

the Lulows had

violated the cour

t’s orders of Fe

bruary 14,

1991 and April 9, 1991. The P osses and t he Kings requested the court punish the Lulows for contempt of court and issue a restraini

ng order. The L

ulows filed a coun

ter-motion for co

ntempt.
The Posses and the Kings filed a motion for a new trial on December 4, 1992. The parties claimed the evidence preponderated against the court’s ruling and the trial court failed

to properly tre at the easement issue as an action in rem. The trial court filed an order in which the court: 1 ) restated its conclusions as to the boundary dispute; 2) specifically state d the Posses had no interest in the disputed property and divested them of any interest; 3) found there was no proof sustaining the champtery allegations; 4) he ld the Kings were entitled to an easement by necessity to be used once per week; 5) fou

nd the Lulo

ws w ere entitled to a jury of view to determine compensation as the parties agreed the Troublesome Ridge Road was the most reasonable easement; and 6) ordered that the findings of f

act and conclusio

ns of law filed by

the Lulows on July

30, 1992 be made the findings and conclusions of the court. The court filed a second order dismissing both c ontem pt motions, restraining the Posses from coming upon the property awarded to the Lulows, allowed the Kings to continue using the easement once a week, and

restrained the parties from carrying wea pons onto the easement

.
On December 8, 1994, the Lulows filed a motion to dissolve the easement previously granted the Kings. The Lulows alleged a ruling in a separate case involving the Kings had established the boundary lines in a way which destroyed the need for the easement. The court filed an order on May 2 5, 19 95. The court overruled the motion for a new trial and removed any r ights obtained by the Kings from previous orders of the court. T he or der also stated that a letter written by Chancellor Corlew, dated April 17, 1995 setting out the court’s findings, would be made part of the record.4 The Kings did not file a brief in this case. 5 The Kings filed a “m otio n for written findings of facts and adjudication of all parties and issues.” The court filed an order findin g t hat the Chancellor’s letter and Appellee’s counsel’s statement of the facts

sufficiently satisfied the provisions of Rule 52 and overruled the motion for further written findings . The court also or dered the clerk

to mail copies of the

Final Judgment to a

ll parties who were not previously served.
The Posses and the Kings 4 filed a notice of appeal as to the court’s May 25, 1995 order. The Kings filed a letter wit

h the court s

uggesting the court was confused and mistaken. The Devores filed a notice of voluntary dismissal, and the court filed an or der allow ing the Devores to take a voluntary no

nsuit. Desp ite the compl ex history of this case, there is only one issue presented f or our determination, that is, whether the Lulows have any claim to land west of the Troubleso me Ridge Road. The difficulty

of determining t

his issue, however

, is exacerbated by

a deficient record. The parties have attempted to reconstitute the record, but four exhibits are still missing.
The trial court found: [B]ased upon the ev idence pre sented in t his extre mely lengthy trial , the plain tiff's have shown by the

preponderance

of the evidence they are the owners of the portion of land surveyed by L

arry Knott, and shown in Exhibit 18 of this trial. The evidence clearly establishes the plaintiffs began making open, notori ous, continuous, actual andvisible use of the subject property. Further, the pr oof clearly

establishes this use has continued since their purchase in June, 1978 until Sep tember, 19 90 when the defendants purchased the property by a quitclaim deed.

. . . . For the above reasons, it is the opinion of the court the plaintiffs have clearly establishedthey are the owners of the disputed area, which was set out in the plat labeled Exhibit 18 of

the survey o

f Larry Knott. It is the opinion of this court thatthe trial court correctly concluded that the evidence preponde rated in favor of a findin

g that the Lul

ows adversely

possessed landwest of the Troublesome Ridge Road from June 1978 until September 1990. Other questions, however, mus t be answeredbefore the property of the chancellor's final judgment ca n be determined . The first is the effect of the possession, and the second is the extent of the land acquired through such possession.
A legal or equita

ble title hold

er may not

challenge the

title of a party

who has adverse

ly possessed land for seven years under a recorde d assurance of title without challenge from the legal or equitable title

holder. Tenn. Code Ann. § 28-2-102 (19__). Moreover, any party claiming under the legal or equita

ble title holder is barred

as well. In this case, the Lulows adversely possessed land for more than seven years

beginning in June 1978. The Devores never challenge the L ulows’ title.5 The extent of the land covered will be discussed later in this opinion. For the purposes

of this portion of the discussion, the court is assuming the Lulows’ deed includes a portion of land west of the Troublesome Ridge Road. 6 Fin all y, the Lulows had a recorded ass urance of title in

the form of their d

eed from the Dev

ores. 5 Thus, the Devores and t

hose claiming und

er them, the Posses , are forever b arred from asse

rting title to the land adversely held. See Moore v. Brannan , 42 Tenn. App. 542, 561, 304 S.W.2d 660, 669 (1957).
We now turn to the amou nt of land acquire

d by the L

ulo ws as a result o

f their adverse possession. the various deeds and testimony in this trial reveal the Lulows owned land west of the Troublesome Ridg

e Road, but not all of

the land included i

n the survey

of Larry Knott.

In order to

determine the amount of land a cquired by

the Lulows thro

ugh adverse

possession we must examine the language of the Lulows’ recorded assuranceof title, i.e., their deed from the Devores. Specifically, we must determine the location of the Lulows’ we stern boundary. The Lulows’ deed describes

the Lulows’ pr

operty as be

in g bounded o n the West by “other lands of Devore,” not by the troublesome Ridge Road. This language alone is of little value, howe ver, as the Devores owned land to

the East and West of

the Troublesome Ri

dge Road. Given

this, the Lulows’ Western boundary could have lied any where W est of the Troublesome Ridge Road as long as the line still bordered the Devores’ property. The only other evidence in the deed of t he Lulows ’ Western boundary is

the call which reads “32.5 acres more or less.” This along with the description of the Western boundary is evidence the Lulows’ deed inc luded land West of th e Troubleso me Ridge Road. The Posses argued one could not read the L

ulows’ deed so bro

adly as to inc

lude land west
o f the Tr oublesome Ridge Road. The Possess argued the description of the Lulows’ northern, eastern, andsouthern boundaries limited the Lulows’ western boundary to the Trou blesome Ri dge Road. Specifically, they arg ued that if the Lulows’ land exten ded west of t he Troubles ome Ridge Road, the Lulows’ deed would have called for other lands of Devore on the northern boundary and Harrison on the southern boundary. Second, the Posses point out that the Devores would not have granted the Lulows the thir

ty foot right of wa

y if they had convey

ed land west of the

Troublesome Ridge Road to the Lulows. Finally, the Posses argued Howa rd’s andSelf’s deeds referred to the land of Devore as their southern and eastern boundaries respectively. The Posses contented these dee ds would have referen

ced the Lulow

s’ land had the L

ulows owned land w

est of the Troub lesome Rid ge Road.
It is the opinion of this c

ourt that the chan

cellor's final

judgment decisio

n would result in

a windfall to the Lulows’ as it would grant them far more than the 32.5 acres they bargained for. Thus, it is the opinion of this

court that this cas

e should be remanded to the chancery court to draw a line7

granting the Lulows approximately ten acr es west of the Troublesome Ridge Road.
Th erefore, the decision of the chancery court is affirmed in part and r eversed in pa

rt. Th e case is remanded to the chancery court for the entry of an order granting the

Lulows approxima

tely t en acres w est of the Trouble some Ridge Road. Co

st on appeal are t

axed equally

against plaintiffs/appel

lees, Lionel a

nd Nancy L

ulow, and defend

ants/appellants,

Earl and Carl Poss.

_______________________________________ WALTER W. BUSSART, JUDGE

CONCUR:

________________________________ HENRY F. TOD D, Presidi ng Judge

________________________________ WILLIAM C. KOCH, JR ., Judge