### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 6, 2002

Session BOYD STINSON, ET AL 

### v. BRENDA SUE BOBO Appeal from the Chancery Court for Williamson County No. I-26667 R.E. Lee Davies, Chancellor

No. M2001-02704-COA-R3-CV - Filed - F ebruary 4, 2003
This appeal involves a conflict between neighbors over whether the Stinsons have a right to use a dirtlane that runs across the edge of M rs. Bo bo’s prop erty

and connects the

Stinsons’ p

roperty to a county road. The

trial court found a

prescriptive easement was proved. Mrs. Bobo appeals that judgment to this court on two grounds: (1) that the Stinsons failed to show exclusive use of the easement during the prescriptive period; and (2) that ther e was no acquies cence t

o th e Stinsons’ claim of right to use the easement by the prior owners of what is now Mrs. Bobo’s property during the pres criptive

period. We

affirm t he trial c ourt’s jud

gment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and T HOM AS W. G RAHAM , S P . J., joined. Tony L . Turnbow, Franklin, Tennessee, for the a ppellant Brenda Sue Bobo. M.T. T aylor, Jr., Franklin, Tennessee, for the appellees, B oyd Stinson, George Stinson, Chester Stinson, F ay e Stinson H arris. OPINION I. F acts This case arises from a dispute between two neighbors over the use of a dirt lane which connec ts th e a pp el le es ’ p ro pe rt y t o a public road. The appellees, Boy d Stinson, George Stinson, Chester Stinson and Faye Stinson Harr is (the “Stinsons”) along with several of their siblings own a tract of land on Bice Creek in Williamson County, technically known as Parcel 6. Theappella nt, Brenda Sue Bobo , also own s a trac t o f land on B ice Creek, technically referred to as Parcel 7.01. Mrs. Bobo’s property

is located between

the Stinsons’ property and the Da ugherty -Capley Road, a1 Other parcels lie betwee n the Stinsons’ prop erty and M rs. Bob o’s property, but t he owne rs of tho se pa rcels are no t involve d in this law suit.

2 Th is description appears to rep resen t the lane a t the heigh t of its use, be fore the 194 0's, bec ause a cco rding to a 1953 Unit ed Sta tes Depart ment of the In ter ior geol ogica l s urve y map compi led f rom aeri al ph otogr aphs t aken i n 1947 and spotfi eld s urve ys c onduct ed in 1953, the Bice Cre ek Lane at the time the map was creat ed appears as a n unimproved dirt roa d that e nds a ppr oxim ately at the S tinsons’ p rop erty. -2- county road. 1 The a

rea where the parcels of land in question are located is extremely rural. For many y ears, the Stinsons accessed their property by

way of the dir

t lane whichruns alongside and throu gh Bice Creek. The lane crosses the appellant’s property. The lane is approximately (8) e ight to (10) ten feet wide and is commonly called Bice or

Byson Cree

k Road, Bice Creek L ane or Bice Branch Road. The trial c ourt desc ribed the lane as f ollows: The Bice Creek L ane begins at a point on the Daughe r t y-Capley

Road and follows Bice Creek for approximately two miles, then leaves Bice

Creek a nd recon nects wit h the Daugherty -Capley Road, for ming a shape of a quarter moon. 2 At some point, hard feelings developed betw een the Stinsons and the Bobos, and in 1999, Mrs. Bobo had some of the Stinsons arrested for trespa ssing fo r usi ng the la ne to acc ess their pr op er ty. The Stinsons filed suit on Nove mber 23, 1999, in Williamson County Chancery Court seeking to establish the existence of a public road, a prescriptive easement, an easeme nt by ne ce ss it y, and/or an easement by

implication across Mrs. Bobo’s property . Th e St insons als o sought a temporary

and permanent injunction to allow them to cros s Mrs. Bo bo’s prop erty to acce ss their property without interfe

rence. The trial court denied the temporary inj unction. Mrs. Bobo filed a motion to dismiss the claims for the easement by implication and easement by ne cessity. The trial c ourt denied the motion at that time, but granted the motion as to those two claims when M rs. Bob o renewed it at the beginn ing of th e trial. The trial court heard the matter without a jury on May 24, 2001, and July 18, 2001. The trial cou rt entered a final decree on Septembe r 21, 2001, finding that the Stinsons had not proved t h e existence of a

public road across Mrs. Bobo’s property . The trial court ruled that the Stinsons did, however, establish a prescriptive easement a cross Mrs. Bobo’s property . Mrs. Bobo appealed. II . Background The parties s tipulated

that ther e is no unity of title between the two pa rcels and that none of the deeds for

either parcel makes a refe renceto any road or

easement across Mrs. Bobo’s parce l. The Stinsons acquired their property from their parents, George and Sadie Jewel Stinson, who acquired the property fr

om Sadie’s father, J. H. “Hard” Martin. Mrs. Bobo and her former husband Jack Tanksley pu rc ha se d P ar ce l 7 .0 1 i n 1 97 4 f ro m C lyd e M ayo . M r. Ma yo purchased the property f

rom J. T. Capley, who owne d the property a t about the time that Mr. Martin was living on Parcel 6. The-3-

Stinsons lived on the pr

operty with their

parentsand then t

heir mothe

r from 19 45 to around 1967. During the time the Stinsons l ived on Pa

rcel 6, t hey crossed what is n ow Mrs. B obo’s pro perty to gain access to Daugherty-C apley Ro ad. Daug

herty -Capley

Road was a

dirt road until the 19 40’s. Th e Stinsons thought that the dirt lane across Parcel 7.01 was also a county road, which they

an d everyone else had a right to use. At one time there were several roads leading from public roadsto the Stinsons’ prope rty in addition to the lane over Parcel 7.01. According to testimony at trial, these roads fe ll into disus e over the ye ars, leaving Parcel 6 functionally landlocked. The Stinsons ca

lled many witnesse s to testif

y to the public

use of the lane and that the lane was cons ider

ed to be op en to

the p ublic . Wh en t he Stinsons ’ mother m oved fro m the prop erty sometime between 1965 and 1967, no oneelse lived on the property with the exception of

someone who camped on the property for a few day s and an older woman who lived in the house on the propert y for a short period of time with no running water or e lectricity. The Stinson s vis ited the propert y a few tim

es a year to hunt and r

eminisce after 1967. Duringthese visits they alway s used the lane crossing what is now Mrs. Bobo’s proper ty to acce ss their property. Mrs. Bobo testified that when she moved to the property in 1974, there was no road crossing the property to the S tinsons’ prope rty. Mr. Bobo te stified that there was no road crossing the propert y to the Stinsons’ p ropert y even prior to 1974, when he hunted on the property . After purchasing the property in 1974, Mrs. B obo extended her drivew ay to a bar n at the rear of her property. She be

lieves that it is that driveway that the Stinsons now assert is a r oad. Mrs. Bobo claims that she gave the Stinsons permission to cross her property at times when it was not w et. At some

point, the parties got into a disagreement about ruts in Mrs. Bobo’s ya rd. Mrs. Bobo posted “no trespassing” signs on her property that we

re torn down. In 1994 Wil liamson County paved and improved Da ugherty -Capley Road. The re were guard rails placed across the area cla imed by the Stinsons to be a public road. Mrs. Fay e Stinson H arris convinced

the count y to take down the guard rails after she asser ted that she owned the property and needed accessto it. The county then built a larg e ramp on wh at Mr s. Bo bo cl ai ms is he r p ro pe rt y, withouther permission. According to the testimony of Mr. Randol ph Chapdelaine, a survey or commissioned by t

h e Stinsons in Febru ary

of 2000 to s urvey

the prope

rty where th ey claim the

ir easement is located, this ramp is located entirely on a county rig

ht-of-way

. The lane ac

ross Parc el 7.01 do es not app ear on a ny map as a

dedicated county

road. In fa

ct, the highwa

y su perinte ndent tes tified tha

t the lane is n ot a c ounty road ac cording to all of the documents he has reviewed. The sole is s ue on appeal is whether the trial court erred in finding the existence of a pr es cr ip ti ve ea se me nt ac ro ss Mr s. Bo bo ’s pr op er ty.3 J. H. “Hard” Martin pur chased what is now t he Sti nson propert y around 1900. He sol d the prop erty to his daughter and son-in-law , Geo rge S . Stinson and S adie Jewell Stins on in 1945. Geo rge and Sadie Jewell Stinson are t he pare nts of the ap pellee s in th is ca se. Mrs. Stinson, a widow, transfer red titl e to the property to her ni ne children, including the ap pellee s, as tenan ts in com mon in 1979. T hus, there i s no issue regarding t he rig ht t o tac k use s by prior owners of

the dominan t te nement i n order to es tabli sh twe nty y ears of conti nuous use . -4- II I. Prescriptive Easement An ease ment is an interest

in another’s real property that confers on the easement’s holder an enforceable right to use that rea l property for

a specific purpose. Bradley v. McLeod, 984 S.W.2d 929, 934 (Tenn. Ct. App. 1998). The mo st com mon fo rm of a n easem ent is a right of pas sage across another’s property . A prescriptive easement is an implied easement that is premised on the use of the property r

ather than language in a deed. A prescriptive easement arises when a person, acting under an adverse claim of

right, makes con

tinuous, un

interrupted, open , visible, and exclus ive use of ano t her’s property

for at least twenty

years with the owner’s knowledge and acquiesc ence. 3 Michael v. Jakes , No. M1999-02 257-COA- R3-CV, 200 2 Tenn. A pp. LE XIS 48 9, at *48 (Tenn. Ct. App. Jul. 12, 2002) (no Tenn. R. App. P. 11 application filed ) (cit ing Bradley , 984 S.W.2d at 935; Pevear v. Hunt , 924 S.W.2d 11 4, 115-16 (Tenn. Ct

. App. 1996 ); House v. Close , 48 Tenn. App. 341, 345, 346 S .W.2d 445, 44 7 (1961) (some citations omitted)). The party asserting a claim of prescriptive easement

bears the burden

of proving these

elements by clea

r and convincing evidence. See McCam mon v. Me re dith , 830 S.W.2d 5 77, 580 (Tenn. Ct. Ap p. 1991); Fite v. Gassaway , 27 Tenn. App. 692, 701, 184 S.W.2d 564, 567 (1944). The trial cou

rt found t h at the Stinsons carried their burden of establishing a prescr iptive easeme nt to the la

ne stating that: Before the Stinson family purchased the subjec t property in 1945, the B ice Creek Lane ceased being used

by t he public be ca us e o f t he co ns tr uc ti on of th e D au gh er tyCapley Road in 194 0. In

1945 th e only per sons using the Bice Creek Lane were those property owners al ong the lane and other pe rsons visit

ing those propert y owners. From

1945 to 196 7, the Stins ons lived o n the subject prope rty . During

this periodof time their only meansof accesswas the B ice Cree

k Lan e. Their use of sa id lane was clearly

open, continuous, uninterrupted, adverse and exclusive. There was no evidence t

hat J. T. Cap le y or

Mr. Mayo eve

r attempted to control or restrict accessto the Bic e Creek Lane . Neither

the plain ti ffs nor any

of the other witnesses who testified in this case indicated they ever requested permission from Mr. Capley or Mr. Ma

yo, or any one else before using the lane. Mrs. Bobo who purchased the property in 1971 with her

husb and, left in 1978 and didnot return until 1999. She did admit tha t the barriers erected by Mr. Tanksley were really

meant for trespassers and not the Stinsons.-5-

The pr oo f c on ce rn in g t he re la ti on sh ip be tw ee n t he St in so ns an d t he Ta nk sl eys or the Bobos does not support the conclusion that the Stinsons’ use was permissive. In fact the Court suspe

cts it was the Stinsons’ demanding demeanor which led to their a rrest. The Court concludes that

the use by

the Stinson s until 1967 meets the requ irements of a prescriptiveeaseme

nt in that th

eir use was at least twenty

years. Thus it appe ars the plaintiff

s have de monstrated by

clear a nd positive

proof tha t they did use the Bice Creek Lane

as their e xclusive me

thod of ing

ress and egres s to their residence from 1945 until 1967. Th is co nclusion is underscored by the testimony of Vernon Daughe rty who statedthat

during t he 1970' s he trav eled the

lane and that it wa s still passable by vehicle during

that time. . . . T

his use by the plain tiffs wa s open, a

ctual, continuous and adve

rseto the predecessors holding the property intere st of the land occupied present ly b y Mr s. Bobo. The only othe r persons using the lane would have been the Turma

n family , who live d on up the la ne fro m the Stinsons and persons visiting either one of the two f ami lies. The

refore , the plaintiffs ha

ve carr ied their burden of establishing a prescriptive ease ment for twenty y

ears. Mrs. Bobo ar

gues tha t the tria l court erred in finding that the Stinsons had established a prescriptive easeme

nt to the la ne acro ss her pr

operty . She asse

rts two re lated ba ses for h

er arg ument: (1) that the Stinsons made no exclusive claim of right to use of the lane; and (2) that there was no acquiescence

by her predecessors in title to such an exclusive right in the Stinsons. We will consider each argument in turn. IV. E xclusive Us e With regar

d to the requireme

nt that to e stablish a

prescr iptive ea sement, the adve

rse use must be exclusive, this court has explained: It is true as a general rule, and we have so stated, that the user must be exclusive

in order to result in a presc

riptive e ase ment. H owever , as pointed out in 28 C. J.S. Easemen ts sec. 15, the term “exclusive” d oes not mean that the easement must be used by one

pe rs on on ly, but simply that the right shall not depend for its enjoyment on a simila

r right in others. T

hat is, it must be exc lusive asagains t the commu nity or the public

at large. The use may

be exclusive in th e requi red sen se even thou gh it is participated in by the owne r of the servient tenement or by owners of adjoining land. And, it cann ot be contended that a right of way easement is not exclusive because on occasion the right of way is put to some public use, al l of w hich is in re la ti on to th os e i nd iv id ua ls wh o h av e o r c la im th e r ig ht to us e t he ri gh t o f w ay. House , 48 Tenn. App. at 347, 346 S.W.2d at 448. Mrs. Bobo does not disagree with this definition and, in fact, states that the use mu st be exclusive as aga inst the co mmunity

or the public at large. She asserts, howeve r, that the Stinsons failed to meet the e

xclusive us e requir

ement be cause: ( 1) the Stin sons did not use the path or road-6-

exclusi ve ly; and (2) they

never claimed to have an exclusive right to use it. These a ssertions are basedupon the Stinsons’ testimony that they thought the path or r

oad was a public road and that they didnot assert any r

ight to us e the lane which did not also belong to the genera l public. As stated earlier, the Stinsons proceeded on alternative theories: one being that Bice Creek L ane was a public road and the other that they had a prescriptive easement to use the lane. The trial court

found that the Stinsons failed to meet the burden of provingthat Bice Creek Road was a public road because “although the re was evidence of the use of the lane by the g eneral public . . . there was not c lear and convinc ing evid ence tha t the prior land owne

rs . . . [of what is now the Bobo pro

perty] ever inte

nded to de dicate th

is lane a s a public

road.” T he court also found that “BiceCreek Lane cease d bein g used by the pu bl ic be ca us e o f t he co ns tr uc ti on of th e D au gh er tyCapley Road in 1 94 0. In

1945 the o nly

persons u sing the

Bice Cr eek L ane wer

e those pr

operty owners along the lane and other persons visiting those property owne rs.” As the lang

uage f rom House quoted above illustrates, the term “exclusive” has not been interpreted

by Tenness ee cour

ts to mean that the claimed easement must never have been used by the publ ic, bu t onl y that th e party ass ertin g the easement ha ve a particular purpose for using the easement that is different from that of the genera l public. For example in Stone v. Brickey , 70 S.W.3d 82, 86-87 (T enn. Ct. Ap p. 2001), this cour

t reject ed an ar gument s imilar to th

e one Mr s . Bobo mak

es in this c ase stating that: Another of appellant’s arguments is that the appellee’s use of the creek roa d was not exclusive. They

note that certain members o f the ge

neral public, including

Billy Stewart, used the r

oadway . Howeve

r, the te rm “exclus ive” doe s not m ea n that the easement mu st be us ed by t he claimant only. I t simply means that the claimant’s right does not depend on a similar rig ht in others. House v. Close , 48 Tenn. App. 341, 346 S.W.2d 44 5 (Tenn. Ct. App. 19 61); AM . J UR . 2d Easemen ts and Lice nses, § 71, p. 641. There was no evidence that the road w as widely used by the general p ublic, and such use has to be considered unlikely in view of the fact that the 600 foot long road ended at Mr. Stone’s property . In any case, Mr. Stone’s use of the roadwas not

dependent onthe rights of Mr. Stewart or of any one else, but followed from his status as an abutting landowner. In the present case, th e trial c ourt found that: During the early 1900' s, persons from time to time, would travel the Bice Creek Lane. The mainpurpose of such travel was to visit the Martin family or the Turman family that lived on Bice Creek

Lane; however, it appe ars that one time this lane was used by persons trave

ling north from the Craigfield Community south, into Hickman County. Sometime between 1935 and 1940 t

he Daug herty -Capley

Road was b

uilt. At t hat point in time anyone who wished to trave l from the Craigfield Communit y to Hickman C ounty

was much

more like

ly to use the improved county r oad rather-7-

than the Bice Creek

Lane, which fell into disuse except by persons who owned or visited the property on this lane. The Court recognizes the defendant’s position that the plaintiffs’ pres criptive easement theory should fa il under th

e exclusivity

factor if the pub lic used th

is lane as a public r

oad, but th

e status o f this road changed between 1935 a nd 1940 with the construction of the new Daugherty-Capley Road. U pon its completion, the proof established the general public no longer had reason and in fact

did not use the Bice Creek Lane. The evid ence do es not pre

pondera te agains t these findings. The tria l court’sconclusi on is consiste nt, for e xample, wit

h the testimony

of Mr. Adolph Sulliva

n who testi fied as f

ollows: Q: So are you sa

ying that this [the Bice Creek Lane] was the ma in route to get from Franklin down to Hickman County, down by the John T. Capley house? A: If yo u w en t t o H ic km an Co un ty? Q: Yes, sir. A: Not after they

built the Daugherty -Capley Road it wasn’t . I bu

ilt in ‘39; it

was prob ably ‘40 or ‘41 when they

built this Daugherty- Capley Road down throug h. Q: So you were only

there about a year before they built Daugherty -Capley Road? A: Right. Q: After they

built Daugherty -Capley Road, all the tr af fi c s ta rt ed go in g o n D au gh er tyCap le y Roa d; d idn ’t i t? A: All exce

pt where people li ved in the

re; they still used it. Consequently, we ag

ree withthe trial court which determined that prior use by the general public of the dis puted pas sagew ay didnot preclude the Stinsons fr om establi shing an

exclusive use for a presc riptive pe riod beginning a

fter the public stopped generally

using the lane. Further, even if others sometimes used the road after 1945, it is not exclusive use itself that is the determinative factor. Inste ad, it is a c laim to the right to use which is not dependent upon the rights of the general public which defines the

exclusive

use requirement. As owners of property reached by

Bice Creek Lane, the Stinsons’ use of the lane wa s different from and not dependent upon any one else’s use. Mrs. Bobo also argues that the Stinsons did

not estab lish exclusi ve use because th ey didnot claim such a use but instead believed the lane was a public roa d. The Stinson s’ belief

as to the b asis-8-

for their claim does not change its legal status. The Stinsons and their par ents before them

used the lane and thereby asserte d a righ

t to use it. The use and enjoy

ment which will give rise to an easement by p rescription is substantia

lly the same in qu ality

and cha racter istic s as the p ossession

required to estab lish title by adverse possession, in that both must be open, continuous, exclusive and adverse. House , 48 Tenn. App. at 345, 346 S.W.2d at 447 . T herefore, judicial interpretation of the cha racter of the requirements of adverse possession is relevant to the same requirements in the context of a presc riptive e asement

. In the context of adverse possession, our courts have consiste ntly

held that the inten

t to hold adverse ly to another is not required, Lemm v. Adams , 955 S.W.2d 70, 72 (Tenn. Ct. App. 1997), and that a mistake as to the location of a boundary line does not

make the possession other than adverse, Peoples v. Hagaman , 31 Tenn. App. 398, 403, 215 S.W.2d 827, 8 29 (1948) . The rule in Tennessee is that it is not necessary to show an intention to hold and claim the propert y a dversel y to the inte

rest of the title holder. Gibson v. Shular , 29 Tenn. App. 166, 170-71, 194 S.W.2d 865, 866-67 (1946). “The possession, use, and dominion may be as absolute and exclusive where there is . . . no actual intention to claim adversely to any one, as where such an intention exists. . . .” Id

. Ac co rd in gl y, the Stinson s’ and the ir parents’ open and continuous use of the lane for acc ess to their property is suff

icient. Whether th

ey intended to use the passa geway adverse ly to the inter ests of the owner of Parcel 7.01 or under the mistaken u

ndersta nding tha t the lane was a pub lic road does not affect the legal consequenc e. V. Acquiescence Mrs. Bobo’s second argument is that there was no acquiescence to the Stinsons’ exclusive right to use the lane by M

r. Capley or Mr. Ma

yo, the two pr

evious ow ners of w

hat is now M

rs. Bobo’s property, during

the prescriptive p eriod. Essentially, Mrs. Bobo ar gues that because the Stinsons used the lane under the mistaken belief that it was a public road, they

never put Mr. Capley or Mr. Mayo on notice that the Stinsons were asserting an exclusive adverse right to use t he lane

. Thus, neither prio

r landow ner coul d have a cquiesc ed in the e

xclusive a

dverse r ight. The trial court

found there was no evidence that Mr. Caple

y or Mr. May o ever a ttempted t

o control or restrict access to Bice Cree k Lane and no evidenc e that the Stinson s asked perm ission from them. There is no real dispute the prior owners of M rs. Bobo’ s property we

re aware of the St in so ns ’ u se of

th e l an e t o a cc es s t he ir pr op er ty. We find no requirement that an adverse user put the titl e holder

on notice of the le gal bas is or source o f the cla

imed rig ht to use. I

t i s the use itself tha

t create s the duty

to object . Just as a mistaken belief as to th e underlying claim for the right to use does not make the use other than adverse, it also doe s not invalidate ac quiesce nce to tha

t use. Continuous u se of th e property of another for a long period of time will be presumed to be adve r se, and that presumption may be rebuttedby evidence

of permission of the landowner. Stone , 70 S.W.3d a t 87; Star E

nterprise v

.-9-

Warner , No. 01-A -01-9502 -CH-0003 6, 1995 Te nn. App. L

EXIS 432 *16-* 17, (Ten

n. Ct. App. Jun. 28, 1995) (no Tenn. R. App. P. 11 application filed). VI. Conclusion Becau se we find that the Stinsons pr oved by clear and convincing evidence all of the require ments necessa

ry for a pr escriptive ease

ment, we a

ffirm the decision of the trial court and remandthe case

for fur ther pro ceeding s consiste

nt with thisopinion as may be nece ssary . The cos ts of appeal a re taxed to

the appellant, Brenda Sue Bobo, for whic h execution may issue

if ne ce ss ar y.

___________________________________ PATRICIA J. COTTREL L, JUDGE