# FILED Oct. 31, 1995 Cecil Crowson, Jr . Appellate Court Clerk DEMPEL EARPS, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9505- CH-00206 VS. ) ) Macon Chancery ) No. 2555 IRENE S. EAR PS, RONNIE EARPS, ) AND GREG EAR PS, ) ) Defendants/Ap pellees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALE D FRO M THE C HANC ERY C OURT O F MAC ON CO UNTY AT LAFAYETTE, TENNES SEE THE HONORABLE C. K. SMITH, CHANCELLOR

CALVIN P. TUR NER 202 E. Gay Str

eet P. O. Box 1100 Lebanon, Tennessee 37087 Attorney for Plaintiff/Appellant JAMES W. CHAMBERLAIN 105 Court Square P. O. Box 98 Lafayette, Tennessee 37083 Attorney for Defendants/Appellees

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: LEW IS, J. KOCH, J.1 A parol gif t of land coupled wit h the r equisi te per iod ofadverse possessio n giv es the possesso r the p rotec tion of the s tatute
. McGam mon v. Brooks , 17 Tenn. App. 339, 67 S.W .2d 173 (1933) . The disc uss ion ab out a dve rse pos ses sion that fo llows is releva nt to the land c laim ed b y the pa rol gift. - 2 - 

## O P I N I O N

The plaintiff in the trial court claimed title to a di sputed area of land by adverse possession. The chancellor found that the disputed property was not within the calls of the pl aintiff's deed and that the p laintiff had failed to e stablish a presc ripti ve ti tle by

twen ty years of adver

se poss essio n. We affirm.

I.

In 1971 Eugene and Irene Ea rps owned a tract of land in Mac on Co unty. On May 31 of that year they conveye d approximatel y 7/10 of an acre to their son Barryan d his wife, Lois. The description in the de ed referred to some ide ntif iabl e boundariesbut some of the distan ces were approximate. When Barry an d Lois later built a house on the land , they ran the drivew ay to the r

oad at a point w h ere they
co uld avoid excavatinga high bank t hat ran in front of the house. T hey als o cons truc ted a fen ce en clos ing th e lan d occ upie d by th e hou se an d the drivewa y.

In 1976 or 1977 Mr . and Mrs. Ea rps made a parol gift to Barry and Lois of an additional strip ofland beyon d the drivewa y. 1 They intended to increase hi s lot size to an acre because they had given another son a n acre of la nd at a nother location. Barry fenced in the additi onal lan d by m oving his fence a short distance beyo nd it s origi nal lo cati on al ong th e drive way.

Barryand Lois divorced in 1980, and as part of the settlement, Lois tran sfe rred her in tere st in t he pr ope rty to Barry.- 3 - Barrymarried the pl aintiff in 1983 and in 1986 he transferred an interest in the house and lot to her. After the conveyance he and the plainti ff held title to the home as tenants by the entireties. The deed contained th e same descript ion as the 1971 deed to Barry and Lois.

BarryEarps died i n 1993 and title to the property conveye d by the 1971 deed passed to theplaintiff by virtue of her right of survivorship. She put the property up for sale and a q uestion arose a bout the exact boun daries. Mrs. Irene Earps employed a survey

or to establi sh the lines called for in the 1971 deed. The surveyor found that the call s in the deed would not close; c onsequently he plotted the l ines using the definite distance along the road call ed for in the deed. The survey line on the south sideof the house cuts ac ross the dri veway about one-thir

d of the way

to the road, le aving the re st of th e driveway and a large triangul ar-shaped part of the front yard outside of the cal ls of the deed. When Mrs. Irene Ear ps, her son R onnie, and BarryEarps' son G reg put up a fencealo ng t he su rv eye d li ne th e pl aint iffobtained a temporary inj unct ion and c lai med t itl e to a ll t he l and e ncl osed by the fe nce B arry Earps erected in 1976 or 1977.

II.

In her complaint the plaint iff relied on two theories. F irst, that t he disputed pro pert

y ha d bee n hel d advers ely unde r co lor

of ti tle fo r more than seven years, and, second, that she held a prescr iptive ti tle to the proper ty by v irtue ofmore than twenty

years adverse possessi on.

With resp ect to the first theory we would note that if the disputed property came withi n the calls of the 1971 deed there would be no need to assert t hat the property had been held adversel y for a ny period of time. Title to th e property would have passed by t he deed and not by adverse pos session.- 4 - Thus, the first quest ion to be answered is w hat the 1971 deed cover ed. The chan cellor found that the survey made in 1994 accur

ately located the line s described in the orig inal deed. While an inference co uld be draw n that the deed covered the entire area of the driveway, we do not think the evidence preponderates against the chancellor's finding. See Rule 13(d) , Ten n. R. App. P. Ther efore, the plaintiff did not hol d the disputed area under color of title.

With respect to the plainti ff's second theory, i t, too, has some flaw s. It is true that a prescriptive title to pr operty may

be perfected by twenty years of adverse possession. Catlett v. Wha ley , 731 S.W.2d 544 (Tenn. App. 1987). But the possession must

of necessity

be adverse, id. , Tidwell v. Van Deventer

, 686 S.W.2d 899 (Tenn. App. 1984), and the adverse possesso r has the burden of establishingthe adverse possession by clear and posi tive proof. Id. at 902; Jones v. Coal Cr ee k Mining & Mfg. Co. , 133 Tenn. 183, 180 S.W . 991 (1915). The burden of proof is even greater when the adverse possession is asserted against familymembers . See 3Am. Jur. 2d Adverse Posses sion § 202, 203.

The chancellor did not make a spec ific findi ng that B arry Earps had possessed the disputed property by permission from his parents; he did, however, in general terms, express d oubts about the adverse nat ure of the possession. In his findings from the be nch, the chancel lor said:

I just find that th e plaintiff here ha s fail ed to carry the burden of proof as set out in the pleadings. She has not established by

the evidence that she ha s a co lor of title, nor has this been a twenty-year adverse use, nor has she established t hat there is a prescripti ve e asem ent, in my opinion. That, I f eel li ke, would require an adverse use. And also, as far as the impli ed easement, I also find thatshe's failed to prove th at, even though it wasn' t in the pleadings. I'm notsatisfied w ith what I 've heard on that. I feel like there may be an awesome burden of proof here. B ut, I think w hen you come to d ealing w ith land and property , p articularly in this situation where it was family mem bers wh o owned this land -- And a lot of times, brothers and sisters

and mothers and chi ldren will let2 For the view th at T enn . Co de A nn. § 28-2-10 3 can be used onl y as a defense, see Moore v. Brannan , 42 Tenn. App. 542, 3 04 S.W .2d 660 ( 1957) and Savely v. Bri dges , 57 Tenn. App. 372, 418 S.W .2d 472 (1967 ). - 5 -

each other use thei r land and bar ns as i f it's all th eirs or any of them withou t any real commitment to that being anyb ody el se's prop erty.

W hile another conclu sion on this point would have been poss ible, when
we consider the heightened burd en of proof on the p laintif f, we cannot say that the chancellor' s findings are against the preponderance of the ev idence.

If the disputed pr

operty was not wit hin the calls of the 1971 d eed and BarryEarps' posse ssion of it was not adver se to his mother

and father, then the plaintiff's case mu st fail.

III.

Althou gh not raised i n the plea dings , the seven year d efe nsive statute, Tenn. Code Ann. § 28-2- 103, has been raise d on appeal. This code section bars the right of the origi nal owner to recover property thathas been adversely held for more than seven years . It do es no t give the a dvers e pos sess or tit le to the p rope rty, but it does give him or her the ri ght to sue for t respass or for an injunction to prevent the repossession. Tuggle v. Souther n Ry. Co. , 140 Tenn. 275, 204 S.W . 857 (1918). 2

As in the ac tion cla iming t itle by adver se possession, however , to establish the defense prov ided in Tenn. Code Ann. § 28-2- 103, the possessi on must be adverse and not permissiv e. Pyron v. Colbert, 46 Tenn. App. 287, 3 2 8 S

. W. 2d 825 (1959). The chancellor's findi ngs are as fatal to this cont ention, as they are to the contention that th e appellant has t itle by ad verse poss ession.

IV.- 6 - One other aspect of the case should be noted. E ven if Barry Earps ha d acquired title to the disputed area by adverse pos session it w ould not have passed to the appellant al one at Barry 's death. The right of s urvivorship creat ed by the deed to the appellant in 1986 covered on ly the property conveyed by the ori ginal d eed in 1971. The calls i n both deeds are i dentical and we have concl uded that the ori ginal deed only co nveye d the prop erty sh own on the 1 994 surve y. Therefore, if Ba rry died intestate, the appellant would take only what the law gives her b y inte state succession. The record show s that Barry

Earps had a chi ld by

his first mar riage. (He is in fact a defendant in this ac tion). Thus, th e appellant would not have inherited the property i n her sole name at Barry' s death.

The judgment of the tr ial court i s affirmed. The cause i s remanded to the Chancery

Court of Macon County for any further proceedi ngs necessar y. Tax t he costs on appeal to the appellant.

_________ ______ _____________

_ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ WILLIAM C. KOCH, JR., J UDGE