1 The possible applicat ion of Tenn. C ode Ann . § 54-14 -101, et seq., the st atutory procedure f

or petiti oning for a private road f

rom landlocked parcels , was not rai sed in the court below. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE July 6, 2000 Sessi

on CARL D. CLARK, et al. v. ROGER D. LEMLEY, ET UX 

### . Appeal from the Chancery Court for Lincoln County No. 11,113 Charles Lee, Sitting as Chancellor by Interchange

No. M1999-01271-COA-R3-CV - Filed November 9, 2000

This cas e arises from a dispute between neighbors over the use of an old road which connected App ellant’s landlocked farm to a public roadwa

y. The road

crossed Appelle

es’ property. Afte

r Appellees erect ed a lock ed gate acros s the old road, Appe llant sought injunc

tive relief to per

mit accessto the old road. After a trial, the court found that the old road was never a public road and that no prescriptive easement existed. Thecourt declined to provide the requested relief. Because the evidence does no

t preponderate a

gainst the trial c

ourt’s findings,

we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded to the Chancery Court for Lincoln County
P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.
R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the a ppellants, Carl D. Clark and Richard Whittle.
Barbara G. Medley, Lewisburg, Tennesse e, for the appellees, Roger D. Lemley and Brenda

Dianne Leml ey. OPINION
This case a rises from a dispute between neighbors over the use of an old road connecting Appellant Carl D. Clark’s lan dlo cked farm to a pub lic road way. 1 The road crosses property owned by Appellees Roger D. Lemley a nd Brenda Dianne Lemley. Af ter the Leml eys erected a locke d gate across the old road, Mr. Clark sued for injunctive relief to permit his access to the old road.-2-

Mr. Carl Clark purcha

sed his 132 acre, landlocked farm from his uncle, Yale Clark, in 1986. During this litigation, Mr. Clark transferred his interest in the property to Richard Whittle, who was then addedas a party to t his action. The deed transferring the property from Mr. Clark to Mr. Whittle was recorded on April 20, 1999.
The Lemley

s bought their ad

joining tract in 1 991. Their deed contai ns no mention of an easement.
The road at iss ue origi nates where Wise Road, a public h ighway, me

ets the Lemley

s’ pro pert y. It crosses the Lemley s’ land, runs throu

gh to the Clark proper

ty, and term

inates at a house there. As it runs across the Lemleys’ land, the o ld roa d is un paved and ov ergrow n with brush . It crosses over at l east one streambed. I t is the only ro

ad connecting t

he Clark propert

y to a public high way. Ho wever, the Clark farm may also be accessed by crossing land on another neighbor’s property.
At the time he purchased theproperty, Mr. Clark was working in the oil fields of Africa and returned home only once a year. H is schedule changed in 1990 and he visited more frequently. He usedthe old road to access his land and to move farm equipment. After his retirement in 1994, Mr. Clark spent more ti

me on the farm. In 1995, Mr. Clark discovered that a gate on the

Lemley s’ property

which blocked the

old roadwas locked. He asked Mr. Lemley f or a key to the gate, an d Mr. Lemley obliged. Several weeks later, Mr. Lemley changed the lock. When Mr. Clar k asked about

it, Mr. Lemley responded that “he wasn ’t allowed back there.” Mr. Clark offered to buy a r ight-of-way, but Mr. Lemley refused.
Mr. Clark then commenced the underlying action, seeking an injun

ction toallow him access to the old road. The complaint alleged that the old road was simply an extension of Wise Hollow Road, a public roadway, and that erection of the gate violated Tenn. Code Ann. § 54-10-110, which prohibitsthe obstruction of public highways.

Mr. Clark also claimed that he possessed an easement allowing him to use the old road anda right to use the road through adverse possession. As noted, after Mr. Whittle purchased the property, he joined in this action.
The case was tried

to the court. The first witness was Sue Barnes, who had resided on the Clark tract from

1938 to 1948. She testified that vehicles, such a

s grocery delivery tr

ucks, visitors’ vehicles, and milk trucks, use d the old road to

acces s her family ’s farm. She state d that these vehicles used the

road across wha

t is now the Lemleys’ property and she never sought permission for the delivery truck or the milk truck to use the road, but she did not know if her father ha d.
Mr. Clark andMr. Whittle also called Mrs. Barnes’ sister, Josie Tally, who testified that she too had lived on what is now the Clark pr operty for 13 or 14 year s beginning in 1937 and saw vehicles coming and going from her family’s far m on the old r oad. She testified that there was alw ays a wire running a

cross the road, which would beunhooked and refastened for vehicles passing2 David Clark was P laintiff Carl Clark’s c ousin.
3 Mr. Clark also tes tified that he did n ot live wit h his f ather afte r his mother’ s death, but l ived with an u

ncle, “Sti nk” Cla rk, wh o resi ded on an a

djoini ng far m. -3- through. She stated that her family did not own a car or truck at the time, but the old road was the only way motor vehicles co

uld reach the fa

rm. David Roscoe Clark, son of Yale Clark, who sold Plaintiff Clark his pro pert y, 2 testified that his father bought the land in 1951. David Clark testified that he lived on the property from age 1 to 5, when his paren

ts divorced, and off and on from age 14, when his mother died, to 1986. 3 David Cl ark testified th at he, his father, and others used the old road to access the property and that he never had to have permission to use the road. He also recalled that the County had maintained

the roadthrough what is

now the Lemleys’ property and his father helped

to maintain the portion of the road crossing th

e Clark property

by filling in

ruts and clearin

g bushes. Carl Clark testified that prior owners of the Lemleys’ land loc ked the gate and blocked the road, but Mr. Clark had always managed to get a key. Mr. Clark testified that the Lemleys had given him a key, but then changed the lock, and refused to g ive him another key. Mr. Clark claimed that this shut down his farming operation.
Mr. Whittle testified that he could reach his land by crossing an adjoining farm “with great difficulty.” He stated, “if it’s drier weather you can get in with a truck, if you’re very careful,” but the only way

to get a hay

baler to his property was over the old road. He claimed that he intended to make the tract his home. Mr. Whittle stated that the purpose of his lawsuit was to get access to his pro pert y thr ough any ro adw ay. The Lemleys called Florence Ha mlin, who had lived on the Lemleys’ property from 1951 to 1984. She testified that her husband gave Mr. Clark’s uncle pe rmission to

use the road. She a

lso testified that

she did not recall seeing any milk trucks or cars driven by David Clark on the old road.
The defense next cal led Tully Beavers, who rented what is now the L emleys’ property for over a year at some unspecified time before the Lemleys boug ht it. He testified that he kept cattle on the property and strengthened the gate with barbed

wire and locked it after someone failed to latch it back and his cows got loose. He did not remember giving Mr. Clark a key and did not live on the land.
Mr. Lemley testified that he first met M r. Clark whe n one of Mr. C lark’s dogs came onto his p rop ert y. H e caught it and called Mr. Clark, who retrieved it. Two yea rs later, Mr. Clark purportedly

asked for a key

to open the gate so

a member of his fa

mily from Florida who owned the property could view it. Mr. Lemley testified that Mr. Clark never returned the key, and three weeks later, while hauling hay on the old road, Mr. Clark got stuck in Mr. L emley’s front yard

and made a mess. When M r. Le mley learned t hat Mr. Clark, rather than the lady from Florida, owned the4 Tenn. C ode Ann . § 54-10 -110 states in p ertinent part: (a) Any perso n who plac es, or causes to be placed, on any public highway, any brush, briers, or any other materia

l or thi ng which ma

y obstru ct or damage

such hig

hway, or render i t inconv enient or hurtfu l to th e travel ing publi c, or who may en croach up on the same in constructing any fence, wall, or like impro vement, co mmits a Class C misdem eanor. -4- pro pert y, it angered

him and he changed the lock shortly thereafter. H e explained that Mr. Clark “hadlied about the whole situation and he wasn’t going back there . . . he wanted to k now why I changed the lock and I told him what he had done to my y ard and what

he had done to my driveway and about him lying and I told him he wasn’t coming throug h.”
After hearing the evidence, the trial court denied the request for an injunction. The trial court determined that the portion of the old road which crossed the Lemley’s pr operty had

never been a p ublic road, which mean

t that there was no

private easeme

nt. The trial cour

t also found that n o prescriptive easement arose because the prior use of the road was not adverse, but permissive. This appeal ensued.
I. Standard of Review
As a preliminary

matter, we turn to

th e applicable standard of review. Because this is an appeal from a decision made by the court following a bench trial, the standard set for

th in Tenn. R. App. P. 13(d) governs our review. Thus, we must examine the record de novo and presume that the findings of fact

are correct "unless the prepon derance of the

evidence is other

wise." Tenn. R.

App. P. 13(d). Furthermore, great weight must be given to the factual findings made by the trial court that rest on determinations of cr edi bil ity. See Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996). The pres um ption of correctness requires us to accept the trial court's findings of fact unless the aggregate weight of the evidence demonstrates that a finding of fact other than the one found by the trial court is more probably true. See Estate of Haynes v. Braden , 835 S.W.2d 19, 20 (Tenn. Ct. App. 1992) (holding that an a ppellate court is b

ound to respect a trial court's findings if it cannot determine that the evidence preponderates otherwise). For the evidence t o prepon derate again

st a trial court's finding of fact, it must support another finding of fact with greater convincing effect. See The Realty Shop, Inc. v. RR Westminster Holding, Inc. , 7 S. W.3d 581, 596 (Tenn.Ct.App. 1999). Questions of law receive plenary review. See Malone & Hyde Food Servs. v. Parson , 642 S.W.2d 157, 159 (Tenn. Ct. App. 1982) II. Dedication by Implication
Mr. Clark and Mr. Whittle argue that the section o f t he old road cross ing the Lemle

ys’ property became a public roadway under the doctrine of dedication by implication, and blocking it was illegal. 4 They maintain that the trial court erred in finding that the old road had never been a public roadway, asserting that the court failed to properly consider David Clark’s testimony that he usedthe road off and on from 1951 to 1968 and that the county mai ntai ned the road through the Lemley s’ property. They assert that the f act that the road ended

at the Clark property is immaterial-5-

to whether it was a public road as it ran through the Lemley proper ty and argue that

the testimony th at gro cery vans and milk trucks used the road unimpeded for an extended period is proof of a dedication (as a public road) by implication.
To establish that

an owner of property impliedly dedica ted a roadway thereon to the public, "theremust be proof of facts from which it positively and unequivocally appear s that the owner intendedto permanently part with his property and vest it in the public, and that there can be no other reasonab le explanat ion of his conduct." McKinney v. Duncan, 121 Tenn. 265, 271, 118 S.W. 683, 684 (Tenn. 1909). Under Tennessee law: "[W]hen a road runs across private property, and is used by the public as a

common road, without interruption for 50 years, the owner acquiescing in such use, th e law will presume a dedication for such purpose." [ Woolard v. Clymer], 35 S.W. at 1088. "Indeed, from long use, without objection of theown er, it may be inferred or presumedthat such use and enjoyment had a legal origin." Cole v. Dych , 535 S.W.2d at 319. An implied dedication does n ot depend on use

by the public

for any de

finite periodof time; " but it

ought to be for su

ch a length of tim

e that the public accommodation and private rig hts might be materially affected by

an interruption of the enjoyment." Scott v. State , 33 Tenn. 629 at 633 (1854).
Sanders v. Mansfield

, No. 01A01-9705-

CH-00222, 1998 WL

57532 at * 2 (Tenn. Ct. App. Feb. 13, 1998) (no Tenn. R. App. P. 11 application filed). Apublic road has generally been defined to be a way open to all people, without distinction, for passage and repassage at their pleasure. See Cole v. Dych , 535 S.W.2 d 315, 318 ( Tenn. 1976 ) (citing Sumn er Cou nty v. Interurban Transp. Co ., 141 T enn. 493, 213 S.W. 412 (1918)). Factors to be considered in determining that a ded ication b y implication has occurred

include showings

that the landowne

r opened the roa

d to public travel and acquiesced

in the use of the road as a public road, and that the public used the road for an extended period of time. See Town of Benton v. Peoples Bank of Polk County, 904 S.W.2d 598, 602 (Tenn. Ct. App. 1995). Having reviewed the record, we cannot say that the

evidence prepo

nderates aga

inst the trial court’s finding that the old road was never a public road. We find no evidence that the Lemleys or their predecessors intended to dedicate the land to a public use, the paramount question on the issue of ded ica tio n by i mplication. Although David Cla rk testified that h

e recalled that

the county maintainedthe old road “onup into” the Lemley’s property , the woman who lived on t hat property from 1951 to 1984 testified that “wehad all the gates fastened from our house plumb back to that hollow.” She a lso testified that she did not see vehicles use the old road without her husband’s permission. The trial judge c learly accorded more weight to the

neighbor’s test

imony than to D

avid Clark’s. "Where thetrial judge has seen and heard witnesses, especially whe re issues of

credibility andweight of

oral testimony

are involved, on r

eview considera

ble deference

must still be accorded to those cir cumstances." Humphrey v. David Witherspoon, Inc. , 734 S.W.2d 315, 315-16 (Tenn. 1987). Further, theuse of the road by delivery a

nd milk trucks to ac

cess one family’s house was not-6-

sufficient to show t hat the owner intended to dedicate the roa

d to a public use; suc

h vehicles use private drivewa

ys as well as

public roads. III. Prescriptive Ease

ment
Mr. Clark and Mr. Whittle argue that even if the old road was never a public thoroughfare, a prescriptive easement

was created by the open, adverse, and continuous use of the road from 1937 until at least 1968 by

the Clark family

and its predeces sor in interest, which was suffic

ient to create a prescriptive easement. They assert that such use, for twenty y ears, creates

a prescriptive e

asement.
A prescriptive easement is an implied easement that is premised on the use of theproperty rather than language in a deed. A prescriptive easement arises when a pe rson, act ing und er an adverse claim of right, makes continuous, uninterrupted, open, visible and exclusive use of anoth er's property for at lea st twenty years with the owner's knowledge and acquiescence. See Bradley v. McLeod , 9 84 S .W.2d 929, 935 (Tenn. Ct. App.1998); Pevear v. Hunt , 924 S.W.2d 114, 115-116 (Tenn. Ct. App.1996). The party asserting a claim of pre script ive easement bears the burden of proving these elements. See McCammon v. Meredith, 830 S.W.2d 577, 580 (Tenn.Ct. App.1991); Fite v. Gassaway, 27 Tenn.App. 692, 701, 184 S.W.2d 564, 567 (1944). Continuity of use for the requisite twenty-year period

may be esta

blished by ta

cking from the us

e of predecessors in title. See Star Enterprise v. Warner, No. 01A01-9502-CH-00036, 1995 WL 38165 2 at * 6 (Te nn. Ct. App. June 28, 1995) (no Tenn. R. App. P. 11 application filed).
The undisputed testimony of Mrs. Hamlin

demonstrates tha

t from 1951 until 1984, the use of the old road wa

s permissive and no

t adverse as is required to e

stablish a prescriptive e

asement. Mrs. Hamlin denied

that “traffic c

ame in and out by

her house to go ba

ck into” the Clark p

roperty while she resided on the

Lemley property. S

he specificall

y tes tified that her husband gave permission to use the road to Mr. Clark’s predecessor in title. Mr. Clark and Mr. Whittle bore the burden of proving the existence of a prescriptive easement by cl ear andpositive proof. See McCammon v. Meredith , 830 S.W.2d at 580. In light of Mrs. Hamlin’s testimony and the standard of revi ew, whi ch fa vor s th e tr ial cou rt’ s fa ctu al f ind ings , we cann ot s ay t hat the evidence preponderates against the tria l court’s implicit de

termination that th

ey did not sat

isf y that bu rden.
IV. Conclusion
Acco rdi ngly, the judgment of the trial c ourt is affirmed. This case is remanded for any further proceedings which may be necessary . Cos ts of this appeal are taxed to Mr. Clark and Mr. Whi ttl e, fo r wh ich exe cut ion may i ssu e ifnece ssa ry.

_________________________________ PATRICIA J. COTTRELL, JUDGE