## IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 15, 2003 Se ssion CORDELL C. TAYLOR, ET AL ., v. DONNIE H.AND VICK WILLIAM S

Direct Appeal from the Chancery Court for Morgan County No. 99-161 Hon. Frank V. Williams, III., Judge

FILED JANUARY 16, 2004 No. E2003-00199-COA-R3-CV

In this dispute over the boundary line between the parties’ property , the Trial Court established the line and d eclared an ease

ment. Def

endants h ave app ealed. We affirm.
Tenn. R. App.P.3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed.

H ERSCHEL 

### P ICK

ENS 

### F RANKS 

### , J. delivered the opinion of the court, in which D. M ICHAEL 

### S WINEY 

### , J., and William H. Inman, Sr., J., joined. Johnny V. Dunaw ay , LaF

ollette, Tennessee, for A

ppellant

. James W. Br

ooks, Jr., Wa

rtburg , Tennes see, for

Appellee s.

OPINION

In this action the Tria

l Judge es tablished

a bounda

ry line betw een the p arties’ pr op er ti es , a nd de cl ar ed an ea se me nt ac ro ss de fe nd an ts ’ p ro pe rt y.

This is the third law su it involving the property in que stion between these parties and/or their predecessors in ti tl e. In the 1950's a lawsuit was filed between Elias Tay lor and the defenda nts’ predec essor-in -ti tle (McGhee) t o determine the rights to proceeds from the sale of timber cut on the same 10 acre tract which now forms the subject of the present litigation. The Trial Court ruledin favor

of Elias T aylor beca

use plain tiff McG hee could not loca

te his boundary line nor pr ove a claim by adverse possession. The timber proceeds were awarded to Taylor and the Ta ylors primaril y now use their

land for hunting. The Court of Appeals affirmed the Judgment in that case.

### -2- Elias Taylor conve

yed all of his land to his son Ke

nneth in 19 57, and wh

en Kenne th died in 1998 the property pa ssed to the plaintiffs.

The Complaintalleges that plaintiffs are the rig htful owners of the10 acre tract, and that plaintiffs have acquired an easement by prescr iption res ulting f

rom the us e of the road bed for accessto their property f or the pa st 50 y ears. I

n 1999 pla

intiffs c ommissioned a surve y of their propert y by L ackey & Associates, Inc ., registered land survey ors, which the Tria

l Court refers to in his Opinion. Following an evidentiary hearing, the Trial Court ruled:

. . . We simply have to determine the line that

separa tes these two parti es. And, b oth of them – both

sides adm

it that the

ir land a djoins and

they ’re subs tanti ally

in agreement

as to whe

re that a djoining line is fr om Point “A”

down to Poin

t “B” on Exhibit Number Three, but it’s from “B” on that they differ. I think Mr. Lackey

nailed it. I

think his survey is accura te, his distances are accurate. He’s found thecorrect corners and that the ar ea outlined by the

lines from Point“B” to “C” to “D” and to “E” are a portion of that prope rty described as the First Tract . . . in the War

ranty Deed fr om Wanda Sus ack to Donnie Har oldWilliams andVick S. Williams, and that the evidenc e is clea rly in favor of the Pla intiffs in this regard. The issue of the road also, . . . I think this is a longstanding road that’s existed outthere, all of the evidence supports that. It g oes back to the 1940's, at least, and probably before that. It is not a timber roa d or logging road as ha s been described, butwas used for other purpo ses a s well, for ingress and egre ss. And, this being mountainous land, woodland, the uses that were made of it are c on sis tent with the nature of the land. In other words, beca use the land is different

from residential land or land around a municipality or something, you would expe ct the use of that road to be different as well, and that’s what the proof he re makes out. It hasn’t been used much in rece nt yea

rs to the point that it’s grown up and the point that Mr. D. Williams was abl e to pl ow u p hi s fi eld and ess ent ial ly ob li ter ate it . Bu t, I f ind no reasonto hold tha

t the Plaint

iffs don’ t still h ave a right to come and go across that land. As to the boundary dispute, L ackey testified as an expert that he located and followed the undist

urbed marker s as t

hey are consi dere d the best available evidence of a line, in prefer ence to courses an d distances that the defenda nts focus up on. Essen tiall y, Lac ke y’ s te sti mony s tands unref uted. Defendan ts conce ded t hey did not know where the boun dary line was. Their primary evidence is e ssential ly that the northwest point

of t heir prope rty begi ns at the old Aytes/Potter co rner, and not at point A-2 . Howev er, if the marker they claim is a proper starting poin t, then the record demonstrates that all other clearunmistak able markin gs for all the other points on the su rvey would n ot harmoni ze as Lac key found them, and t he vis ible monuments on the prope rty would not

### -3-

harmonize with the de ed. Defendan ts presented n o coun tervailing evidenc e to the survey or exp ert test imony in support of their assertions. The evidence does not preponderate against t he Trial Court’s finding. Tenn. R. App. P. 13(d). We affi rm the Trial Judge on this i ssue.

Tennessee law recognizes severaltypes of easement, including prescription (also referred to as ad verse poss essio n). Pevear v. Hun t, 924 S.W .2d 1 14 (T enn . Ct. Ap p. 199 6). Id. at 116. Also s ee, Cole v . Dyc h, 535 S.W .2d 3 15, 3 18 (T enn . 197 6).

A prescriptive easem ent is created wh en a party engages in the use and enj oyme nt of the property underan adve rse cla im of ri ght that is c onti nuous, unint errupted, visi ble, and wit h the kno wled ge and acqui esce nce of the o wner of

the ser vient

tene ment, and t he use must c onti nue f or the full presc riptive period of 20 years

. Peavea r ; Callaha n v. Town of Mid dleton, 292 S. W.2d 501 (Tenn. Ct. App. 1956) . De fe ndant s ar gue and we agree t hat permissive use is insuff icient to est ablish an easem ent by p rescrip tion. See F ite v. Ga ssaw ay, 184 S .W.2d 564, 56 7 (T enn. Ct. App. 1944 ). The defendants testif

ied that they gave permi ssio n to use the right-of-way. Obvio usly the Trial Court rejected this testimony, and the T rial Court is the judge of the credibili ty of

the witnesses on factual issues. The re is evidence of the l ong existence of the r oadway and its occasional use. The Trial Judge’s ex pla na tio n o f the infr eq ue nt u se i s so un d. A cco rdi ngl y, we affi rm the Trial Cou rt’s findin gs on this issue . Tenn. R. Ap p. P. 13(d).

Fin ally, def

endant s ar gue t

hat i t was reve rsi ble e rro r on the part of t he Court no t to join an indispe nsable pa rty because, they contend , “even thou gh Samu el D. William s testified at trial, he shou ld h ave been ma de a party due t o his inte res t i n the exis tenc e of the e asemen t i n question, which interes t was a ffected by the Cou rt’s decl aration .” They further contend that the Trial Cou rt determined the e xist ence a nd loc ati on of the easement, an extension of which is acr oss Samue l D. Wi lliams ’ prop erty. Henc e, he w as an in disp ensa ble pa rty.

Wh ile this is a w ell-s ettle d ru le of l aw in this j urisdiction, the failure to join all aff ect ed pro perty owne rs doe s notmake the proceeding void, but ratherthe petitioner w ill acquire no rights with respect to tho se own ers who are no t joine d. Swiceg ood v. Fee zell, 196 S.W.2d 713 (Tenn. Ct. App . 1946); Brady v. Correll , 97 S. W.2d 448, 451-452 (Tenn. Ct. App. 1936 ). We fi nd this issue to be wit

hout mer it and af fi rm th e Judg ment of

the Trial Court and remand, with the cost of the appeal assessed to def endants, Donnie H. and Vick W illiams.



### _________________________ H ERSCHEL 

### P ICKENS 

### F RANKS 

### , J.