### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 19, 2003 Session
GINGER SWEETON v. ANGEL A ORANGE, ET AL 

### . A Direct Appeal from the Chancery Court for G rundy County No. 5032 The Honorable Jeffrey F. Stewart, Chancellor

No. M2002-00211-COA-R3-CV - Filed April 25, 2003

This is a dispute

betwee n two adjo ining pr

operty owners concerning the location of the
common boundary between their respective properties. A survey of the line indicates that the land in question is property of Appe llees. Appellant contends that, due to actions taken by her predecessors in interest, she has claim to the proper ty b y vi rtue of a dverse possession. The trial court found that the land in question, with the ex ception of certain buildings used for storag e, is the propert y of Appellee s. Appella

nt appea ls. We aff

irm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in whichA LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. Marshall A. Raines, Jr., Jasper, For Appellant, Ginger Sweeton

James S. St ep he ns , T ra cy C it y, For Appellee s, Ange

la Orange, James Or

ange, and Davi d Caldwell

OPINION

This is a dispute between two adjoining property owner s conce rning the location of the
common boundar

y be tween the ir respective pr

opertie s. The disp

ute involv es the owner ship of a s trip of la nd (t he “La nd ”) ap pr ox im at el y n in et y- five (95) feet wide and two hundred twenty -five (225) feet deep. The famil ies of the parties have lived next to one another since 1970 without realizing that there were conflicting claims of ownership. The conflict

began when James Orange ( “Mr. Orange”)
an d his wife, Angela Orang e (“Ms. Orange”) hired David Caldwell (Mr. Caldwell,” and together withMr. Orange and Ms. Orange, “Defe ndants,” or “Appellees”) to clear trees and underbrush from the Land in April 2000.

On September 15, 2000, Ginger Sweeton (“Ms. Sweeton,” “Plaintiff,” or “Appellant”) filed
an ejectment suit against Defendants. The Def endants answered on October 11, 2000. Prior to the1 W e note that Ms. Oliver wa s never

name d as a Plaintiff in this ac tion. D ue to h er age and in firmity, she d id not testify at t

rial. The issue of the incorre ct prope rty description on the q uitclaim deed was never cu red and Ms. Sweeton proceede d to trial relyi ng on adverse possession, although t he real party i n interest is Ms. Oliver.
-2- scheduledhearing, a problem arose conc erning Ms. Sweeton’s claim of title t o the Land. Sp ec if ic al ly, Ms. Sweet

on claime d that she

gained ownersh ip of the L

and by quitclaim

deed from Bessie Oliver, and that the quitclaim deed contained the wrong property

description. On March 7, 2001, Ms. Sweeton filed a Motion to Substitute Real Party in I nterest. An Order of Continuance was granted on March 19, 2001, allowing Plaintiff time to cure

. 1

The trial was held on September 4, 2001 and October 17, 2001. On December 21, 2001, the trial cou rt issued i ts Order , which r

eads, in p ertinen

t part, a s follows:

This cause came on

before me on the 17 th day of October, 2001, based upon the two hearings had before this court on September 4, 2001 and October 17, 2001, t

he court makes the

following

finding s: 1. The Plaintiff alleged in her pleadings that she had legal interest in property on which the Defendants had

trespas s ed. The court find s that there is no overlap in the legal description of the prop erty owned by the re spective parties as described in the
co mplain t. The court finds that the Defendant’s activities complained
o f occurred on property

[for] which Defendant had a deed . Th e Plaintiff alleged at trial and moved this court for permission to amend her complain

t to alleg e presc

riptive r ights in th

e subjec t proper

ty pursuant to adverse possession. T he court finds that the Plaintiff should be allowed

to amend its co mplai nt to confo rm the plead ings with the pr

oof offe red at tr ial. 2. The court finds that

the Plaintiff has failed to show that she has adversely

possessed any prope

rty own ed by

the Defe ndant Ang ela Orange with the exception of t he ar ea around the “Existing Bu ildin gs” identified on the April 14, 2000 survey prepared by Charles Sc h aerer , a modified copy of which is attach ed as Exhibi

t “A” to this Order. 3. The court finds further that the Plaintiff has no rig

ht, title and interest to any ot

her port ion of the Defendant Angela Ora nge’s propert y described in Deed Book 130 Page 495 e xcept as described hereaf ter in thisorder a

nd establ ished in the attachment. 4. The court finds that the Plaintiff has failed to demonstr

ate by the preponderance of the evidenc e tha t s he ha s o pe nl y, co nt in uo us ly, actually and notoriously occupied the Defendant’s propert y (apart from

that identified hereafter) for the requisite 20-y ear periodof time preceding the filing of this action, and that any e arlier such occupation of

the land which may ha

ve occurred has long since-3- fallen in to dis use and has been abandoned by the Plaintiff or her predecessors thereto. WHEREFORE

PREMISES CONSIDERED, the court finds that: 1. The Plaintiff is hereb y declar ed to be the owner of that propert y de scribed

as follow s:
BEGINNI

NG at a point located

north 46 deg. 11 min. 00 sec. west 5 fee t from t he western edge of the building identified as building “A” on attachment “A” to this order, the same being locat ed on the northern boundary of Oran ge (Deed Book 130 Page 495); thence south and east and parallel with the wes tern edge of shedand continuin g 5 fee t bey ond the le

ngth of the shed to a

point; thence continuing in a direction parallel to the southern side of this sheda nd 5 feet from the same and continuing with the course of that line to its intersec tion wit h the eastern margin of the Orange prope rty; then ce nort h 43 de g. 49 min. 00 sec. east with the Orange property line to a corner; thence withthe O range line north 46 deg. 11 min. 00 sec. west throu gh an existing building identified as “B” on the at tached order, t

o the point

of beg inning. S aid portion id entified

hereina bove being the no

rtheast
corner of the Orange property

described in Deed Book 130 Page 495.

2. The court

hereby de

clares that the Plaintiff, her heirs and assigns have no interest in any other property c ontained within the .86
acre tract of Angela Ora

nge and de scrib ed in D eed Boo k 130 P age 459 and as identified on Exhibit “A” to this order.

Ms. Sweeton a

ppeals from the December 21, 2001 Order and raises the following issues for our review as stated in her brief:

I. Whether the Trial Court erred in finding that if not obtained under color of title, A

ppellant had not ac quired th

e subjec t p roper ty by prescription or adverse possession.

II. Whether the Trial Court erred in finding that if the subject propert y had in fact been acquired adver sely or by prescription that the subject property

had subsequently bee

n abandoned.2 We note that mos t of the witness es marked t heir recol lect

ion of the propert

y l ine on a dry -er ase boa rd, on which was drawn the Oliver/Sweeton and Orange lan d. Thi s dry -er ase boa rd was not preserved for the record. There is als o a vi deotape , Exhi bit 17 at t ria l, whi ch was not ma de part of t he re cord.
-4- In order to

properl y a ddress the Appella

nt’s iss u es, we must first give a sy nopsis of the evidence presented at

trial . Befor e givin g a

synopsi s of e ach witnes s’ te stimo ny , we f irst s ummar

ize the claims of

each pa rty . Ms. Swee

ton’s cla ims of adverse possession arise from the actions of her husband’s step-grandfather, Emmet Oliver, and he r husband’s grandm othe r, Bessie Oliver. Mr. Oliver al le ge dl y u sed the Land as a farmstead on which he kept chickens, a horse, and a cow. Alth ough Mr. Oliver died some twenty years pr ior to the com

menceme nt of this action, he had not actively farmed the Land since

the mid 1960s. The Appellant contends that Mr. Oliver built a fence in the 1940s a

nd mainta ined the e nclosed s ection, w

hich incl uded the L

and in que sti on , as part of his farm. In contrast, the Appellees assert that the fence was built in the 1970s as a “cross-f ence” to subdi vide t he Oran ge property a nd to serve as an erosion control. The fence is no longer stand ing, having been destroy ed either by the 2000 bulldozing or at some time prior. The Land in question had been overgrown with underbrush by the time James an d Angela Orange moved onto the property.
The central factual issue before t he trial c ourt was what, if any , portion of the Land was actually used by Mr. Oliver. Becau se Mr. Oli ver died over twe nty ye ars prio

r to the tr ial and because his widow, Bessie

Oliver, was unable to testify , Ms. Sweeton relied upon the testimony of witnesse s who remembe

red the L and from the time Mr . Oli ver alle gedly occupied it. The testimony off ered by Plaintiff is summarized as follows 2 :
Helen Sweeton

–Ms. Helen Sweeton is the 75-y ear-old daughter of Bessie Oliver. She is the step-daughter

of Emmet

Oliver, and the mother-in-law of Ginger Sweeton. Helen Sweeton testified from her recollection of the

Land during her childhood in the 1940s and from several photog raphs from the 1940s, 1950s and 1960s. Her testimony conce rned alleged improvements that Mr. Oliver made to the Land. Helen Sweeton also testified that she and her son had planted some rose of sharon bushes on the Land approximately two years pr

ior to trial. Thes e bushes, she testified, were destroyed when the Oranges had the land bulldozed in 2000. Helen Sweeton testified that shehad nothad the Land

surveyed but that she kne w where the property

line was from her memory of where Mr. Oliver had erected the fence

. Garnet Ann Shafer : Ms. Shafe

r was 62- ye ars-old

at the time

of th e trial . She is the owner of the prope rty that abuts the Oliver/Sweeton property on the south. Although Ms. Shafer has owned her property since

1994, she had only lived on the proper ty two y ears at the time of

trial. However, the propert y has been in Ms. Shafe r’s family for

many y ears and she testified from her childhood recollections. Ms. Shafe

r testified that Mr. Oliver ha d used the Land as rang e for hiscows and

goats. Ms. Shafer further testified that Mr. Oliver had erected a wire fe nce along the property

line between his land andthe Orange land. She stated that the fence had been there a s long as she could remember (at least sinc e Ms. Shaf

er was six or seven years old, a ccording to her testimony ) and that the fence-5-

was still there in 1994 when she moved ont o her property . She testified that Mr. Oliver kept the fence in good repair. Billy Sweeton –Mr. Billy Sweeton wa s fifty-three years old a

t the time of

the trial . He is the grandson of Bess ie Oliver, and the son of Helen Sweeton. Billy Sweeton testified that he would stay withhis grandmother dur i ng his summer breaks when he was about twelve or thirteen ye ars old. During these summer visits, Billy Sweeton recalled that Mr. Oliver ha d wire fe ncing a round his pr op er ty. Billy Sweeton indicated tha t he had walked the fence-row approximately four y

ears prior to trial and that, at that time, the fence was still in place. While on the stand, B illy

Sweeton drew a diagram of where he r

emembers the fencing; this diagra m was introduced as Exhibit 5. Jerry Sweeton : Mr. Jerry Sweeton is the younge

r brother of Billy

Sweeton. He is the brotherin-law of Ginger Sweeton. He, like his brother, spent summers with his g randmother, Bessie Oliver, aroundthe time he was ten or twelve. At the time of the trial, Jerry Sweeton wa s 48-year s-old. Jerry Sweeton us ed to mo w t he pr op er ty b etween the Oliver land and the Orange land but he had not mowed tha

t land for approxima

tely five y ears pr ior to tria l. At the time he was mowing this land, Jerry Sweeton testified that there was a wire fence in place.

The Def endants o ffere d the follo wing pr oof at tri al:

James Dougla s Oran ge : Mr. Douglas Orange and his wife , Angela, are the curre nt owner s of the Orange pro

perty . Dougla s Orang e’s fath er boug ht the pro perty in or around 1970. Douglas and Angela Orange

have owned theproperty since 1997. After taking possession of the pr op er ty, Douglas Orange had the land survey ed. The survey

clearly show s that the Land in question is part of the Orange property

. Douglas Orange testified that, whe n he hadthe land cleared in 2000, he tore down a “cross-fence” that his father had erected in the 1970s on the property butthat the wire fence that was allegedly

built by Mr. Oliver was still standing. According to Douglas Orange, the Oliver fence never contai ned the Land in question. Douglas Orange also testified that his fathe r, James Orange, Sr., had a ga

rden on the Land beg

inning in 1970 or 1971.

James Orange : Mr. James Orange is the father o f Douglas Or ange. He owned the Or ange propert y from 1970 unti l 199 7. Ja mes Or ange testifie d that an outhouse th at is still on the L and in question was there when he moved onto the property in 1970. James Orange stated that therewas a path from the “Lawson house”–the “Lawson house” wa s a brick house on the Orang e proper ty– to the outhouse but no path from the Oliver/Sweeton property to the outhouse. James Orange further testified that he hadput a garden on the Land in question from 1970s on and that neither the Olivers
nor the Sweetons had ever contested his use of the Land. As to the other buildings that we re on the edge of the Land and alleg edly built by Mr. Oliver, James Orange stated that those buildings were “dilapidated” when he moved onto his property in 1970 and were definitely not in use by Mr. Oliver at that time. James Orange also testified that he built a “cross-fenc e” on the Land and that he ran a water line over the L and in que stion and, hitting r ock abou t twenty feet into the property, wired the pipe to a fence running parallel with the hig hway. Ag ain, there was no testimony c oncerning any objection from Mr. Oliver over these uses of the L and.-6-

Edward Ray Orange : Mr. Ray

Orange is the son of James Orange a nd the brother

of Douglas Orange. Ray Orange’s te stimo ny w as similar to that g iven by

his brothe

r and fa ther. He also testified th at hi s f am il y had kept a garde n on the Land in question from the 1970s through the present. He did not recall any rose of sharon bushes or other nursery plantings on the Land.

Ed Shaerer : Mr. Shaerer performed a survey for Mr. Jam

es Oran ge in Ap

ril of 2000. T

his survey was ente red into e vidence as trial E xhibit 15. The

survey , conduc ted by

th e u sual mea

ns, shows th at the L and in que stion is Or ange p roperty and that s ome of the

old buildin gs, alle gedly build by Mr. Oliver, ar

e encroaching on the edg e of that Land. Mr. Shaere r also t estified

th at he venturedinto someof these old buildin gs and f

ound cer tain prop erty , includin g old signs and tool s.
At the clo se of all t

estimony , the tria

l court ma

de the fo llowing r

elevant statemen ts:
...when Mr. Shaerer performed the only surv ey in this case a nd he locatedthe line, the line w ould fall squarely within the

area that Mr. Orange was operating

his bulldozer. Bu tlet’s go further because ther e are some issues now the n withregard to adverse possession and I want to address those. There
seems to be n o dis pute t hat a ce rtain numb er of ex isti ng b u ildi ngs were built and used and still contained artifacts and items that belong to [Plaintiffs] in this case, and had been the re for ma ny, many ye ars. In fact, their exact original date of o rigin is not clea

rly defined , but it certain ly would go back into more than 30 or 40 yea

rs ago, and they have, altho ugh not been ac tivel y used, th ey still act as s torage buildings for the benefit of the Plaintiffs in this case.... What’s unc ertai n is about the use of the rest of the land, because there were a number of fenc es that wer e built, some that were referred to as cross fences and some that were r efe rred [to] as line fences.... And so I think the evidence is fairly clear that in this case at best the adverse possession of property would be

establish ed by these buil dings and the cont inu ed use of these buildings, although there wa s sometestimony about putting out some bushes in an area that was grownup, that’s notan act that is open and notorious that would put
someone on notice of a claim in a grown up area. And I think that certain ly there’ s enough testimony on behalf

of Mr. Or

ange a nd his pred ece ssors in title, they used some

of this ar

ea thems elves, inclu ding, I think they

both said they used the outhouse, and I think it was last u sed in 1970

or 1971 by

any one, sothe use of

that has been long since abandoned and any other claim or use, I

think that it hasn’t even be en mowed

by Pl aintiffsin this cas e in over six ye ars. So under the circumstances, I think any claim that

might have ripenedinto a use by adver se possession has been aban doned, because-7- the testi mony wa s clear that Mr. Oliver, who was the one that ran cattle and used that area has been dead f or over 20 ye ars and it was probably a yea r before his death, according to the testimony, that was last used by him for

livestock or chickens or any thing else like that,
so it’d been 21 ye ars or more...after his death that it had be e n abandoned

and not used, so I

find then

that there h as been an abandonment

of any claim, any cla

im that could have been asserted to adverse

possessio n would

have had to have been asserted without the benefit of a claim to title, because there is no leg al title in t h e names of the Plaintiffs to this area in question. But I do f ind that a continue d use

has existed with

regar d to these buildings...and the area would have to inc lude sufficient territory to allow the Plai nt iffs to be able to gain access to that building from all sides and also to be able to conduct repairs, so I would say that with reg ard to that there ought

to be at least a five foot barrier around that region to g ain access and do repairs...

Bef ore turning

to Appella

nt’s issue s, we fir st observ e that sinc e this ca se was tried by th e court sitting without a jury, we r eview the cas e de novo upon the record with a presumption of
correctness of

the findings of fact by

the trial court. Unless the evidence prepondera tes against the findings, we must affirm, absent error or law

. See Tenn. R. App. P. 13(d).

Whether the Trial Court erred in finding that if not obtained under colo r of title , Appellant had not acquir

ed the subj ect prop erty by prescription or adverse poss ession.

To establish title by adverse posse ssion, there must be an occupation of the property under a claim of right or title which is open, actual, continuous, exclusive, adverse a nd notorious for the prescriptive period of 20 ye ars. Catlett v. Whaley , 731 S.W.2d 5 44, 546 (Tenn. Ct. App.1987). See also Tidwell

v. Van Deventer , 686 S.W.2d 899 (Tenn. Ct. App.1984). Adverse possession must be just that–adverse. This Court has held that, in orde r to be adverse, possession “must be of such a character as to leave no doubt

of claim of ownership by adverse possessionand to give notice to the public of the possession and the claim.” Blankenship v. Blankenship , 658 S.W.2d 125, 127 (Tenn. Ct. App.1983 ). We have

also held that the p arty

claiming ownersh ip by adverse possessio n “must sustain the proposition that the possession was in fact adverse to the true owner.” Bynu m v . Hollowell , 6 56 S.W.2d 400, 403 (Tenn. Ct. App.1983). Under Tennessee law, the burden o f establishing by clear

and positive pro of such adverse possession is on the adverse possessor. See Whitworth v. Hutchison , 731 S.W.2d 915, 917 (Tenn. Ct. App.1986) (citing Jones v. Coal Creek Mining and Mfg. Co. , 180 S.W. 991 (Tenn. 1915); Davis v. Louisville & N.R. Co.. , 244 S.W. 483 (Tenn. 1922)). This rule applies to both the length of time an d the character of possession. Id

. Evidence of adverse possession is strictly c onstrued and any pre sumption is in favorof the holder of the legal title. Moore v. Brannan , 304 S.W.2d 660, 667 (Tenn. Ct. App.1959).-8-

In the instan

t case, t he evide nce cle arly

shows tha

t the Ora nges a re the ho lders of

legal t itle to the Land in question. The burd en of pro ving ad

verse po ssession is , theref ore, on th e Sweeto ns. There was conflicting testimony concerning the location and origin of the fence, as w ell as the use and occupancy

of the disputed properties. The trialcourt was able to observe the manner and demeanor of the wit

nesses a s they

testifie d and ga

ve to eac h witness’ s testimony

th e c re di bi li ty it deserved. The tria

l court’sdetermin ation of c redibilit y isgivengreat

weight by t he appellate cou

rt. See Haverlah v

. Memphi s Avia tion, Inc. , 674 S.W.2d 297, 302 (Tenn. Ct. App. 1986). Having reviewed t he entire record in this case, we find that the e vidence concerning adver se possession supports the trial court’s findings. Specifically , the Sweeton’s havemet their burden of proof on the issue of adver se posses sion only to the exten

t that the old b uild ings, encroa ching o n the O range propert y line, have been

used as storage for the

prescr ibed per iod of 20 y

ears. Th e trial c ourt was, therefore, correct in awarding the Swee tons these buildings as well as five feet around them for ingres s and egress. Consequently , we affirm the Order of the trial cour t on the issue of a dve rse possession. Whether the Trial Court erred in finding that

if the subje ct prope rty had in fac t been ac quired adversely or by prescription that the subject propert y had subsequently been a bandoned.

From our review of the record, the evidence does not support th

e Sweeto n claim of

adverse possession to the entirety of the Land in question. The evidence does not preponderate against the trial court’s finding that only the portions of the Land containing the old stora ge buildings and the five feet surrounding thos e buil dings was obtained by the Sweetons through adverse possession, see discussion supra . Any other portions of the L and in question are clearly the Oranges by

virtue of title. Bec aus e th ere is no fin di ng t hat th e re mai ni ng p ort io ns o f th e La nd were obt ained throu gh adverse possession, the issue of whether theSw ee to ns su bs eq ue nt ly a ba nd on ed pr op er ty, which they
never adverse ly possessed, is moot. However, even if we allow arguendo that Mr. Oliver’s use of the Land as rang e for hisanimals met the criteria for adverse possession, from the evidence before us, we must nonetheless find with the trial court tha t any such use was abandoned over twenty years ago when Mr. Oliver became inf irmed and unable to use the Land.

For the fo regoing reasons, we affirm the Order of the trial court. Costs of this appeal are assessed to the Appellant, Ginger Sweeton, and her surety.

__________________________________________ W. FRANK CRA

WFORD, PRESIDING JUD GE, W.S

.