### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON AUGU ST 27, 20 01 Session STATE OF TENN ESSEE, ON RELA TION OF THE COMM ISSIONER OF THE DEPARTME NT OF TRANS PORTATION, F OR AND ON BEH ALF OF SAID DEPARTMENT v. FRANCES H. PATRICK and FRANK DUNCAN Direct Appeal from the Circuit Court for Har din County No. 3231; The Honorable C. Creed McGinley, Judge

No. W2001-00397-COA-R3-CV - Filed December 27, 2001

This appe al involves the owner of an undivided five-sixths interest in property acquiring th e remaining one-sixth interest from her co-tenants under the doct rine of ti tle by prescription. The circuit court made finding of facts indicating that the prescriptive hol der of th e property held the propert y exclusively and uninterrupted for more than a twenty yea r period. Further, the circuit court found that no co-tenants were under a disability to assert their rights during the twenty year period and that no pe

rmission w as given t

o the pre scriptive

holder to possess the property. Based onthese findings of fact , the cir

cuit cour t ruled tha t under the doctri ne of title by prescription, the prescriptive holder had acquired full title in the property. For the following reasons, we affirm the decision of the circuit court.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the co urt, in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined. Dennis W . Plunk, Sav annah, T N, for Ap pellants Coburn Dewees Berry, Kristin J. Hazelwood, Nashville, TN, f or Appellee

OPINION1 The foll owing ten hei rs of Fr ank Dunca n joi ned i n the ans wer: Pol ly N. Cloud , Maxi ne Dunca n, Rut h R. Bril ey, Mary E. Wilke rson, Pats y Ann Caperton, Betty D. Coleman, Bert ha Rhea Tobey, Mary L. Je rrol ds, Dorthy Jean Klin e, and San dra S ue S abo urin . For c larity, the y sha ll be ref erred to join tly as D unc an’s h eirs. -2- Facts and Procedural History
On December 10, 1 999, the Stat e of Tennessee, on relation of the Commissioner of the Department

of Transportation (the State ), petitio ned the Cir cuit Court of Hard in County, T ennesse for condemnation of

certain real property to be used for constructing a highway. The petition listed the record owners of the property as Franc es H. Patrick and Frank Duncan. Not knowing the current addresses of the record owners, the State published notice of the petition in a local newspaper.
On April 14, 2000, Ms. Patrick filed an answer to the State’s p etition. I n her ans wer, Ms. Patrick indicated that Mr. Duncan died in 1958. In addition, Ms. Patrick alleged that she was the sole owner of the property at issue. On April 17, 2000, ten heirs of Mr. Duncan (Duncan’s heirs) 1 als o filed an answer to the petition. Duncan’s heirs alleged in their a nswer that a d eed to th e property, dated November 10, 1945, acknowledged Frank Dunc an as the owner of an undivided onesixth interest in the property. Appellants further asserted that through descent and distribution eighteen heirs of Frank Duncan owned his one-sixth interest.
Pursuant to the State ’s power

of emine

nt domain, the circuit court e nte red a n order of condemnation and appropriation on April 18, 2000, which vested title to the property in the State. The co urt, how ever, failed to determine the true previous owne rs of the property. Accordingly, a hearing in circuit court was held on December 19, 2000 to make that determination.
At the hearing to determine ownership, Ms. Patrick initially argued that she had ac quired sole ownersh ip of the property through the doctrines of both adverse possession and title by prescription. Being unable to prove actual “ouster” as requir ed under the theory of

adverse possession, however, Ms. Patrick conceded at trial that a dverse possession was inapplicable. Accordingly, Ms. Patrick proceeded solely under the doctrine of title by presc ription. The circuit court determined Ms. Patrick to be the sole previous own er of the prope

rty through application of the doctrine of title by prescription and thus, she was entitled to receive the entire condemnation award. In the final judgment, the circuit court indicated its finding of facts and conclusi ons of law . The cou rt made th

e following finding

of fact s: 1. By deed dated November 10, 1945 . . . Frances H. Patrick a cqui red a five s ixths undivided interest in and to the subject property. The remaining one-sixth undivided interest was then owned by Frank Duncan.
2. Since the date of said deed, Fra nces H. Patrick has been in exclusive and uninterruptedpossession of the subject property. Frances H. Patrick has exercised all incidents of ownership. She - or her husband and son on her behalf - have farmed said propert y, collected rent s, made r epairs, paid taxe s, sold

t imber, applied for-3- government

programs, and sold off parcels. Frances H. Patrick ha s exercised all such incident s of ownership without any accounting to or permission from Frank Duncan or those c laiming und

er him.
3. The Court is not satisfied thatFrank Duncan was mentally competent. Neverth eless, the proof does establish that since Frank Duncan’s death in 1958 there has been a period of twenty years or more during which no co-tenant of Frances H. Patrick was under a disability to assert his or her rights in and to said property. Based on these f

indings o f fact, t he court indicated its conclusions of law. Specifically, the court held that Ms. Patric

k had ac quired so le owner ship in the subject p roperty under the doctrine of title by prescription. Issue Duncan’s heirs raise the following issue for review : Whether the trial court er red in hol ding that M s. Patrick acquir ed the one -sixth und

ivided inte

rest in the subject property originally owned by Mr. Duncan under the doctrine of title by prescription.

Standard of Review When a civil action is heard by a trial judge sitting without a jury, our review of the matter is de novo on the record, accompanied by a pre sumption of correctness of the findings below. Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988); T.R.A.P. 13(d). We may not reverse the findings of fact made by the trial judge unless they are contrary to the preponderanc e of the evidence. Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). This presumption of correctness, however, does not attach to the trial judge’s legal determinations or the trial court’s conclusions that are based on undisputed facts. NCNB Nat’ l Bank v. Th railkill , 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). Law and Analy sis The recogni

tion of the doctrine of title by prescription in Tennessee can be traced to an often cited opinion issued by the TennesseeSupreme Court in 1860. In Marr v. Gilliam , 41 Tenn. 488, 501 (Tenn. 1860), the supreme court stated:
It is, however, well settled that the exclusiv e and unin

terrupted possessi on by one t enant in common of land for a great number of year s - say for twenty or more - claiming the same as his own, without any accoun t with his c o-tenan

ts, or cla imon their part, - they being under no disability

to assert th

eir right s, - beco mes evide nce of a title to suc

h sole possession, and the jury are authorized

to presum

e a rele ase, an o

uster, or other thing necess ary to protect the possessor, and the action of ejectment by his co-tenants, in such, case , is barred.-4-

This presumption is an inference of fact to be dra wn by the jury, to whomthe evide nce is to be submitted. Tennessee courts, relying on Marr and its pr og en y, have stated two requirements necessary for application of the doctrine of prescription. We feel compelled to note at the outset, that actual “oust er” is not

one of the requirements that need be proven by the pr escriptive holder as with the doctrine of adver se possession. Morgan v. Dillard , 456 S.W.2d 359, 362-63 (Tenn. Ct. App. 1970). Instead, the co-t

enant allegin g t it le by prescription must first show exclusive and uninterrupted possession of the land in question for a continuous period of twenty years or more. Id. at 363 (citations omitted). The prescriptive holder can show such possession by proving no accounting was made to the other co-tenants. Id. Second, t he party must also show that none of the co-tenants were under a disability to assert their rig hts to the property. Levesay v. Keaton , 611 S.W.2d 581, 584 (Tenn. Ct. App. 1980). By showing that these elements are present, the party promoting application of the doctr ine of titl e by

prescr iption is entitled t

o a presu mption of title in th e p ro pe rt y. The finder of fact can then

rely on that pre sumption in granting the prescriptive holder full title to the pr op er ty. The presumption created under the doctrine of pre scription, however, may be rebutted by a showing that either actual or implied permissio n to posses s the prop erty wasgiven tothe prescriptive holder by the other co-tenants. Morgan , 456 S.W.2d at 363. Such permission, either actual or implied, would neg ate the r equirem ent that th

e presc riptive ho lder’s p ossession was actu ally in opposition to his fellow c o-tenants’ rights in the property. Accordingly, although actual “ouster” does not have to be proven, a showing that permission was given causes the presumption in favor of the prescriptive holder to fall. Here, both parties agree that Ms. Patrick maintained exclusive and uninterrupted possession of the property at issue for more than twent y years. (

Appellan t’s Brief , p. 7) Dun

can’s he irs, however , raise

two potentia

l points of e

rror wit h regar d to the fa

ctual findings made

by the cir

cuit court. First, Duncan’s heirs assert that Ms. Patrick failed to prove at trial tha t none of t he co-te nants were under a

disability to assert their rights. Second, Duncan’s heirs assert that implied permission was given to Ms. Patrick by her co-tenants to use the property to her sole a dvantage. With regard to Duncan’s heirs first alleged point of er ror, we hold thatthe circuit court d id noterr in finding that adequate proof was offe red to show that none of the co-tenants were under a disability to assert their rights. Sworn responses to interrogatories were e ntered into evidence indicating that none of Duncan’s heirs were under a disability. The interrogatories provided the birth dates of all Duncan’s heirs and a statement indicating that non e of the h

eirs wer e mentall y incompetent.
One interrogatory alleged that Mr. Duncan himself suffer ed from mental deficien cies . In ac cordancewith this allegation, the circuit court made a finding of fact that Mr. Dunca n was no t competent

at the times relevant to this appeal. Duncan’s heirs have a rgued that this finding of fact pr ecluded the cour t from det

ermining t

hat all el ements necessar y for the doctrine of titl e b y prescription were present. This finding of fact , howeve r, has no c onseque

nce to the circuit court’s ruling. Given the

sworn pr oof offe red, the circuit c ourt also

found tha t since Fr ank Dunc an’s dea

th there had bee

n a perio d of twen

ty years or moreduring which none of Duncan’s heirs were unde r-5-

a disability to assert their rights to the property. Duncan’s heirs offered no pr o of to con test this evidence and we find no evidence in the record indica ting otherwise. Thus, because the pr eponderance

of evidence is not contrary to the court’s findings, we hold Dunca n’s heirs ’ firs t alleged point of error to be without merit. With regard to Duncan’s heirs second allege d point of error, we hold that the circuit court didnot err in finding that no permission, actual or impl ied, was given t o Ms. Patrick by her cotenants to possess or exercise incidents of ownership of the propert y. Both parties agree that no actual permission was given to Ms. Patrick. Accord ingly, the focus of our revi ew will ex

tend only to deter mining the i ssue of imp lied cons ent. The only evidence offered in support of Duncan’s heirs’ contention that implied permission was given concerned negotiations made at the time Ms. Patrick purchased her five-six th intere st in the propert

y. In a sw orn resp onse to an interrog atory fil ed in

the matter, Ms. Patrick

indicated that oral promises were ma

de at the time of pur

chase by the sibling s of Mr. Du

ncan tha t they would make no claim on th

e proper ty in the fu

ture. Fur ther, Ms. Patrick s tated tha t they indic ated a de sire to se ll any rights they had in the property. This evidence, however, does not amount to the prepon derance required to find that the circuit court erred in its finding of fact when looking at the entire record. When t aken in c ontext, Ms. Patrick, in her response to the interrogatory, also indicated that she made it cle ar to all involved that she would claim sole ownership of the prop erty. Further, Ms. Patrick’s son, Herb Patrick, testified that Ms. Pa

trick never receiv ed permi ssion to co llect re nts, sell c rops, sell off tra

cts, sell timber on the property, or participate in government programs. Ac cording to Her b Patrick’s testimony, the lack

of permis sion cent

ered ar ound all the signific ant incid ents of ownership concerning the prope

rty. Acc ordingly, when vie wing the e ntire re cord, we

hold that the trial court didnot err in

finding th at no implie d permissi on was giv en to Ms. Pa t rick to po ssess or e

xercise incidents of ownership of the property.

Conclusion For the fo regoing r easons, t he decis ion of the

circuit c ourt is af

firmed. C osts of this appeal are taxed against the Appellants, Dunca n’s heirs, and their surety, for which execution may issue if necessary.-6- ___________________________________ ALAN E. HIGHERS, JUDGE