# FILED

September 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT O

F APPEALS AT KNO XVILLE

EVA L. MILES ) JEFFERSON COUNTY ) 03A01-9711-CH-00500 Plaintiff-Appellant ) ) ) v. ) HON. C. S. RAINWATER, JR., ) CHANCELLOR ) ) MARJORIE M. NELSON ) ) Defendant-Appellee ) AFFIRMED AND REMANDED

WILLIA M A. ZIERER OF MORRISTOWN FOR APPELL ANT JAMES D. HUTCHINS OF DANDRIDGE FOR APPELL EE

O P I N I O N

Goddard, P.J.

In this case Plaintiff Eva L. Miles sues Defendant Marjorie M. Nelson to have decreed to her a triangular strip of land which is not encompassed in the deed to her and her husband. It is, however, included in the deed to Mrs. Nelson and her husband. The Plaintiff asserts that bec

ause she has adve

rsely posse

ssed the disputed a

rea for a perio

d of almost 39 y

ears, she is entitled to pr

evail.

The Trial Court found that the Plaintiff did not prove her claim by clear and positive proof and

, consequently

, dismissed her suit.1 The plat do es not show the calls for the sid e lot lines. 2 Her appeal in sists tha t the evide nce prepond erates agains t the Trial Court's determination that she did not meet her burden of proof.

The parties own adjoining lots in the Cherokee Lakes Subdivision in Jefferson County. The Plaintiff owns Lot 9 and the Defendant owns lot 10. The descriptions in the deeds to both lots refer t

o a recorded pla

t and also describ

es the lots by

metes and bounds wh

ich, as to the length of all lot lines and as to the calls as to the front and rear lines, is in conformity with the recorded plat. 1 The Plaintiff and her husband acquired her property from the de veloper of the subdivision by deed dated August 13, 1958, and the Plaintiff succeeded to the ownership of the property up

on the death of he

r husband. The De

fendant and her

husband acquire

d the property by deed dated December 27, 1967, and she also succee ded to the ownership upon the death of her husband.

Apparently the parties lived side by side in har mony from the date the Nelsons purchased the property until May 1997, whe n, because of the illness of the Defendant, her daughter and her son-in-law decided to move into the basement of her house so that they might be in a position to better care for her and see after her needs. I ncident to this planned move they decided to construct a driveway on the property to serve the basement apartment. When a survey was made of the Defendant's property, it was discove red that a triangular strip of land fronting approximately 5.8 feet on the road and extending back some 160 feet was in fac t a part of lot 10, although both the Plaintiff and the Defendant had always thought it was a pa rt of lot 9.

The Defendant and her husband through the yea rs evidenced ownership of the area in question by planting flowers, shrubs and trees, both fruit and flower ing. They had mowed the area, place

d their mailbox on it, a

nd dug a drainag

e ditch near the r

oad. Mr. Miles had a

lso cut a tree which was on the boundary line of the property the Plaintiff claims. The restrictions as2 The ca se of Hanes v. Peck's Lessee , 8 Tenn. 227 (1827), is one of

the first T enness ee cases to enun ciate the rule of "p resum ing a los s grant" (which is the pre decesso r of presu ming a lost deed ) by pos sessing p roperty adversely for aperiod of 20 years. 3 to the subdivision prevented lot owners from erecting a fence higher than two feet, but no fe nce was ever erected by the Mileses. During their ow nership, the Mileses had never prevented anyone from crossing the property in dispute.

As already noted, the Trial Court found that the above facts of ownership shown, which were undisputed, did not meet the requirements for adverse possession.

The Chancellor was correct in finding the Plaintiff bore the burden of proving by clear and positive proof, McCammon v. Mered ith , 830 S.W.2d 577 (Tenn.App.1991); Tidwell v.
Van Deventer , 686 S.W.2d 899 (Tenn.App.1984), that s he met the requir

ements necessar

y to establish title by adverse possession. 2 These requirements are set out in Catlett v. Whaley , 731 S.W.2d 544, 546 (Tenn.App.1987), a re cent opinion of this

Court, as follows:

To establish title by adverse possession, there must be an occupation of the property un

der a claim of rig

ht or title which is op

en, actual, cont

inuous, exclusive, adverse and notorious for the prescriptive period of 20 years. Tidwell v. Van Deventer , 686 S.W.2d 899 (Tenn.App.1984); Smith v. Adkison , 622 S.W.2d 545 (Tenn.App.1981); and Preston v. Smith , 41 Tenn.App. 222, 293 S.W.2d 51 (1955). The nature and c

haracter of the

land is taken into c

onsideration in determining whe

ther the claimant

's possession has

been sufficient

to establish ownership. (Citations omitted.)

Our research has disclosed cases which hold that as to mountain land and the like, Panter v. Miller , 698 S.W.2d 634 (Tenn.App.1985), or wh ere the erecti

ng of a fence w

ould destroy the principal utility of a particular piec e of property, Lamons v. Mathes , 33 Tenn.App. 609, 232 S.W.2d 558 (1950), a fence is not required.4 Beginning as early as 1878, in Pullen v. Hopkins , 69 Tenn. 741 (1878), our Supreme Court, when addressing adverse possession as it relates to our color of title defensive statute states the general rule, notes exceptions, and concludes that the general rule requiring enclosure should not be extended (at page 744):

It is generally recog

nized as the law in this State that actual possession for seven years is necessary

to give the younger grantee the better title under our act of 1819, and actual possession is generally understood to mean an enclosure by building fences, or other similar improvements. This goes upon the theory that the possession must b

e continuous, and o

pen, and notorious ; that is, by su ch acts of possession as give notice to the public that the party is holding possession under a claim of title, and in general nothing short of actual enclosure will be regarded as sufficient evidence of the continuous occupation of the land as to give notice to the public of the adverse holding. See the subject discussed in Angell on Lim., sec. 396 . Some exceptions ha ve been made to th

is rule, and the exte

nt to which these exceptions have gone, or ought to go, is the question now presented.
In West v. L

anier, 9 Hum., 762, it appeared tha t the land was only

valuable for the timber and iron ore upon it, and Lanier placed slaves upon the land who cut timber and removed iron ore therefrom from time to time to supply a factory near by, but did not reside upon the land, build houses for the slaves, or make any enclosures; his possession, however, we held equivalent to actual possession. The court adopted the language used in Ewing v. Burnett, 11 Peters, as follows: "An entry by one man upon the land of anothe r is an ouster of the legal possession arisi ng fro m the t itle o r not, accor ding t o the i ntent ion wi th whi ch it i s done . If made under claim or color of right, it is an ouster; otherwise, it is a mere trespass. In legal language, the intention guides the entry and fixes its character." Again, "neither actual cultivation or residence is necessary to constitute actual possession when the property is so situated as not to admit of any per manent useful improvement, and t

he continued cla

im of the party

has been evidenc

ed by public acts of ownership such as he would exercise over property he cla imed in his own right, and would not claim over property he did not claim." I n that case the possession consiste

d of digging a

nd removing sand

from a lot in Cincinn

ati, and it was held sufficient, the lot not being susceptible of any useful permanent improvement. The court uses approvingly the language of Judge Gaston in Williams v. Buchanan, 1 I

re. L. R., 540: “

Possession of land is

denoted by t

he exercise of ac

ts of dominion over it, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in the character of owner, a nd not of an occasional trespasser.” The possession in that case was of a fish trap and dam in a sluice of an unnavigabl e stream, an d having been continuou s, was held sufficient . Judge Green concludes, “From these cases it will be seen that an inclosure or residence on land is not necessary in order to constitute possession, but that such use and occupation of it as from its nature and character is susceptible under a claim of ownership, will be an actual possession.”5 In the case of Cass v. Richardson, 2 Col., 28, it was held that the erection and use of a wash place to wash iron ore was not sufficient, the court say ing that in general a building or inclosure of some sort is necessary , but that exceptions existed where the land is unfitted for residence or cultivation as, for example, an ore bank, a coal ravine, a sand pit, a stone quarry, or a meadow below tide water. The case of Cope

land v. Murphey

, 2 Col., 64, seems to c

arry the pr

inciple still farther, as in that case, although it was said that the timber constituted the principal source

of value of the la

nd, it did not appea

r that it was not susc

eptible of cultivation. However, in that case, although the continued cutting and using of the timber in the sight and hearing of the plaintiff was a strong consideration, y et it further appeared that the defendant claimed the land under a lost deed, and had the line surveyed and run out when the plaintiff was along, and it was appa rent that the latter was fully informed that the land was being claimed and held by the defendant as part of his home tract of land upon which he lived. Cases may arise where the acts of domain and ownership over unimprove d lands may be of such a character as to leave no doubt of the party’s claim of ownership, althou

gh the land be sus

ceptible of inclosure or cultivatio n, and in such case the cla

im of possession, it w

ould seem, ought t

o be recognized

. But in general, the rule that the possession must be by inclosure, if the land be susceptible of it, is so well understood and recognized that it is better not to depart from it. Whatever may have been the rule as to an ouster of the possession which attaches to the legal title, such as would have authorized ejectment by the true owner, yet it is generally

conceded that under our statute of limitations the possession must be at the time continuous and actual to perfect an inferior title, and ordinarily the use of timber from uninclosed land is not sufficient, as such acts are not regarded as giving notice to the public of the party ’s possession and claim. The exception, as stated, is where the other acts of possession have been such as the land is susceptible of from its nature and character. The ore bank, the sand bank, the fish trap, the stone quarry and coal ravine, have been instanced. Will it do to establish the rule that the use of timber will amount to actual possession in all cases where the land, or the greater part of it, is not fertile or level enough to be profitably cultivated in the present state of population? For this is wh at the defen dant’s tes timony amoun ts to, alt hough he uses the language used by the c

ourt in the case of

Ewing v. Burne

tt, that the land is no

t susceptible of any usef

ul permanent impro

vement. Yet from h

is description and

the facts stated, we s ee simply that at present i t would not be profitab le to culti vate a large portion of this land

, but how it may

be when the count

ry becomes

more densely populated we can not say. He concedes that part of it may be cultivated, and a small part in fact

has since been in

closed. His testimo

ny does not sh

ow absolutely that the land is not susceptible of cultivation or residence. If this rule be established it would introduce in a great number of cases the question whether the land or the greater part of it, be valuable enough to clear and cultivate; if not, then it would be claimed that the use of timber would be sufficient evidence of possession; but if suitable land to cultivate, then a different rule of possession would prevail. This would introduce a rule of uncertainty, and one that practic

ably it would b

e difficult to follo

w, whereas the o

ther rule is generally understood, and of easy application, and we think it better to exend the exceptions to the ru

le requiring ac

tual inclosure no f

arther. See 2 Smith

, L. cases, 6 Am. Ed., Marg., p. 561, et seq
.6 We conclude that the possession in this case was not of a character to give the defendant the better title, and the judgment will be affirmed.

In the present case the Plaintiff insists that shrubbery planted along the line she claims near the front of the tract served to meet the requirement of a fence. One of the photographs introduced, exhibit four, would, at the angle it was taken, seem to support her contention. However, her own surveyor testified that the shrubbery was not a hedge and not restrictive.

Upon our de novo review of the record we conclude the evidence does not preponderate against the Trial Court's findings that the Plaintiff has not borne the burden required when asserting ownership by adverse possession.

In reaching the foregoing conc lusion, we are not unmindful of the case of Hallmark v. Tidwe

ll , 849 S.W.2d 787 (Tenn.App.1992). In that case it appears that the plaintiff and her husband had cleared property not included in their deed and "fenced a part of the nonowned cleared p

roperty an

d created a ga

rden on the remai

nder." The issue

on appeal as to this case, however, was not whether the plaintiff's possession was sufficiently adverse, but whether Mrs. Hallmark was required to show that the non-possessory holder of the leg al title was not "under any disability at any time during the period of adverse possession."

In conclusion, we have not overlooked the alternative relief sought in the Plaintiff's brief, to-wit, that she was entitled "to a perpetual exclusive prescriptive easement for all encompassing

surface uses, su

ch as planting, g

ardening, mowin

g, leisure acti

vities, etc." Thi

s is a theory that was not advanced below and cannot be considere d for the first time on appeal. Simpson v. Frontier Community Credit Union , 810 S.W.2d 147 (Tenn.1991); Brookside Mills, Inc. v. Moulton , 55 Tenn.App. 643, 404 S.W.2d 258 (1965).7 One additional matter needs to be considered. It appears that a stay order was entered by this Court pending disposition of this appeal, and thereafter a motion for contempt was filed by the Plaintiff for acts committed by an a gent of the Defendant affecting the disputed strip of land. Be

cause it is neces sary that pr oof be introduce

d as to this issue, upo

n remand it is appropriate for the Trial Court to address the issues raised by the Plaintiff's motion in respec t thereto.

Finally, in o rder to maintain th

e status quo, the sta

y heretofo

re issued will rema

in in effect until our judgment becomes final or an application for appeal is accepted by the Supreme Court and t

he propriety

of the stay r

esolved by it

.

For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remande

d for such furthe

r proceedings , including dispos ition of the motion fo

r contempt,

as m ay be n eces sar y. Co sts of ap peal are a dju dged agai nst the Pla int iffand her s uret y.

_______________________________ Houston M. Goddard, P.J.

CONCUR:

________________________________ Don T. M cMurr ay, J.

________________________________ Charle s D. Sus ano, Jr

., J.