IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER 17, 2008 Session

DALE ANTHONY SCOTT, ET AL. v. MARION YARBRO, ET AL.

Direct Appeal from the Chancery Court for Decatur County

No. 3325 Ron E. Harmon, Chancellor 

No. W2008-00090-COA-R3-CV - Filed October 15, 2008

This is the third appeal of this property case involving the ownership of three parcels of real property

held by tenants-in-common. We dismissed the first two appeals for lack of jurisdiction, finding that

the trial court's order did not constitute a final judgment. Plaintiffs/Appellants claim ownership of

the disputed tract by three modes: (1) title by prescription, (2) title by adverse possession, and (3)

title by payment of property taxes pursuant to Tenn. Code Ann. §§ 28-2-109 and 29-2-110. Finding

that Plaintiffs/Appellants have failed to meet their burden to prove ownership based upon any of the

three theories, we affirm.

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

J. STEVEN STAFFORD, J., delivered the opinion of the court, in which DAVID R. FARMER, J., and

HOLLY M. KIRBY, J., joined.

J. Michael Ivey, Parsons, TN, for Appellants

Lloyd R. Tatum, Henderson, TN, for Appellees

Tommy E. Doyle, Linden, TN, for Appellees

OPINION

This property case is on appeal to this Court for the third time. See Scott v. Yarbro, No.

W2004-00746-COA-R3-CV, 2005 WL 1412128 (Tenn Ct. App. June 15, 2005) (“Scott I”); Scott

v. Yarbro, No. W2005-02830-COA-R3-CV, 2007 WL 121425 (Tenn. Ct. App. Jan. 19, 2007)

(“Scott II”). The underlying facts and pertinent procedural history were set forth in Scott I, and are

as follows:

This [case] concerns the ownership of a parcel of real property (“the

Farm”) located in Decaturville, Decatur County, Tennessee. Dover

Scott (“Decedent”) was one ofsix children who inherited a one-sixth

(1/6th) interest in the Farm following his father's death. Thereafter,
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Decedent purchased the interests of other relatives in the Farm giving

him title to a significant portion of the Farm at his death. Decedent

died on May 27, 1999, survived by his four sons (collectively referred

to as the “Decedent's Children” or “[Plaintiff/] Appellants”). At issue

in the trial court below were three parcels of real property

encompassing the Farm; a 1.2 acre tract, a 3.1 acre tract, and a 188

acre tract. The Decedent's Children inherited the Decedent's interest

in the Farm, represented by deeds he obtained during his lifetime,

however, they contend that they also obtained title to the remaining

land encompassing the Farm. Numerous relatives of the Decedent's

Children are co-tenants (hereinafter “Defendants” or “Appellees”) in

the remainder of the Farm and assert their interest to the property as

well. 

The facts are largely undisputed, and they are set forth in a

“Stipulation of Facts” entered into between the parties. From 1953

until his death in 1999, Decedent lived on the Farm with the

Appellants in a house built in the 1930's, farmed the land and retained

the profits therefrom, rented portions of the Farm to other tenants and

retained the rent proceeds, paid the expenses for the Farm, made

improvements to the Farm, and paid the property taxes on the Farm

since 1966. After Decedent and his family took possession of the

Farm in 1953, none of the other co-tenants lived on the Farm, paid for

any of the expenses related to maintaining the Farm, shared in the

profits generated by the Farm, or contributed to the payment of the

property taxes. During the course of his occupancy, Decedent

executed three mortgages identifying his interest in the Farm as a

“5/12ths interest.” Decedent never discussed the status of the Farm

with the other co-tenants, and he never expressly stated that he

considered himself to be the sole owner of the Farm. 

On April 5, 2002, the Decedent's Children filed a complaint in the

Chancery Court of Decatur County against the other co-tenants. In the

complaint, the Decedent's Children requested a judgment allowing

them to “recover from Defendants jointly and severely [sic] damages

which may be shown by proof to have been sustained by the Plaintiffs

for Defendants' wrongfully [sic] and intentional trespassing.”

Additionally, the Decedent's Children asserted that they obtained title

to the Farm by adverse possession pursuant to section 28-2-101 et

seq. of the Tennessee Code and/or the co-tenants' failure to pay the

property taxes due on the Farm pursuant to section 28-2-109 and

section 28-2-110 of the Tennessee Code. The co-tenants subsequently
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answered the complaint and filed their counterclaims against the

Decedent's Children and cross-claims against each other asserting a

right to partition the property pursuant to section 29-27-101 and

section 29-27-201 of the Tennessee Code. Thereafter, each party

submitted a “Memorandum of Law” to the trial court. In their

“Memorandum of Law,” the Decedent's Children, in addition to the

adverse possession and property tax theories of ownership asserted in

their complaint, also asserted ownership of the Farm based on

common law prescription. 

Scott I, 2005 WL 1412128 at *1 (footnotes omitted).

The procedural history of the case prior to the instant appeal is set out in Scott II:

Prior to the first appeal, the trial court entered a “Decree” in which

the trial court found that the Plaintiffs/Appellants Decedent's Children

had proven an ouster as to the 1.2 acre and 3.1 acre tracts, but not as

to the 188 acre tract. The trial court ordered that the 188 acre tract be

sold for partition and that the proceeds be distributed among the

parties according to their respective interests. The Decedent's

Children filed an appeal from this order, asking this Court to

determine whether they obtained title to the 188 acre tract by adverse

possession, common law prescription, or pursuant to Tennessee Code

Annotated §§ 28-2-109 and 28-2-110.

On June 15, 2005, this Court filed a “Memorandum Opinion”

dismissing the first appeal for lack of appellate jurisdiction and

remanding the case to the trial court for further proceedings. We

determined that the original decree was not a final judgment.... We

noted as well that the trial court, in determining that the Decedent's

Children did not gain title to the 188 acre tract, made no findings of

fact or conclusions of law, and did not address any particular theory

of achieving title, finding only that the Decedent's Children failed to

prove an “ouster.” Id. at *4 n. 8. Further, we observed that, while the

common law prescription theory of ownership was not alleged in the

original or amended complaints, it had likely been tried by express or

implied consent under Rule 15.02 of the Tennessee Rules of Civil

Procedure. Id. at *4 n. 7. The cause was remanded to the trial court.

Following the remand in Scott I, the trial court entered a

“Supplemental Final Decree” on November 18, 2005. In Scott II, this

Court determined that the November 18, 2005 Order did not

constitute a final judgment as to the issue of common-law

prescription on the 188-acre tract and the case was again remanded.
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Scott II, 2007 WL 121425, at *5. Upon remand, the trial court

entered a third decree, which was filed on December 6, 2007. The

Final Decree reads, in relevant part, as follows:

6. There is no proof in the Stipulations of Fact or in the record that

Dover Scott’s occupancy of the property in question was without the

actual or implied permission of the other co-tenants. To the

contrary...the Stipulations of Fact state[] “that Dover Scott, or his

children, the Plaintiffs herein, never mentioned anything about the

status of the farm to the other co-tenants owners.”

* * *

Because there is no proof in the Stipulations of Fact or in the

record that Dover Scott’s occupancy of the property in question was

without the actual or implied permission of the other co-tenants, the

Court finds that the Plaintiffsfail[] to satisfy that part of the elements

necessary to establish title by prescription....

Also, because there is no proof in the Stipulations of Fact or

in the record on the issue of disability in general and in particular no

proof that all of these Defendants were under no disability to assert

their rights, the Plaintiffs also fail to prove this element necessary to

establish title by prescription.

* * *

Therefore, the Plaintiffs failed to prove the elements necessary

to establish a claim under the doctrine of title by prescription.

This is declared a Final Judgment within the meaning of rule

54.02 of the Tennessee Rules of Civil Procedure and the Court makes

an expressed determination that there is no just reason for delay.

The children of Dover Scott appeal this (now) final decree and raise two issues for review

as stated in their brief:

I. Whether the Plaintiffs have acquired title to the remaining interest

of the property by prescription or adverse possession.

II. Whether the Plaintiffs have acquired title to the remaining interest

of the property through T.C.A. §28-2-110 and/or T.C.A. §28-2-109.
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Because this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court. Unless

the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn.

R.App. P. 13(d). Furthermore, when the resolution of the issues in a case depends upon the

truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses and their

manner and demeanor while testifying is in a far better position than this Court to decide those

issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker,

957 S.W.2d 834, 837 (Tenn.Ct.App.1997). The weight, faith, and credit to be given to any witness'

testimony lies in the first instance with the trier of fact, and the credibility accorded will be given

great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959

(Tenn.1997).

In this case, we are only concerned with the ownership of the 188-acre tract. Dover Scott’s

children claim title to this tract by three modes: (1) title by prescription, (2) title by adverse

possession, and/or (3) title pursuant to Tenn. Code Ann. §§ 28-2-109 and 28-2-110. We will address

each of these methods of obtaining title in order to determine whether Dover Scott’s children have

provided evidence sufficient to prove their claim.

Title by Prescription

The law of title by prescription was recently discussed by this Court in Amos v. Taylor, No.

M2006-02170-COA-R3-CV, 2008 WL 1891443 (Tenn. Ct. App. April 28, 2008):

“Title by prescription” is a mode of acquiring title to real

property by “immemorial or long-continued enjoyment.” Zetrouer v.

Zetrouer, 89 Fla. 253, 256, 103 So. 625, 627 (Fla.1925). The term

“prescription” derives from the term “prescribe,” which in the

non-medical sense means to “assert a right or title to the enjoyment

of a thing, on the ground of having hitherto had the uninterrupted and

immemorial enjoyment of it.” Black's Law Dictionary 4th Ed. Rev.

(1968), p. 1345.

The original theory underlying the right of title by prescription

was that “the right claimed must have been enjoyed beyond the period

of the memory of man, which for a long time in England went back

to the time of Richard I.” Zetrouer, 103 So. at 627. Because proving

“continued enjoyment” of the property back to the time of Richard I

was becoming more problematic with the passage of time, a custom

arose of “allowing a presumption of a grant” on proof of “usage for

a long term of years.” Id.
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The doctrine of title by prescription in Tennessee can be

traced to the 1860 case of Marr's Heirs v. Gilliam, 41 Tenn. 488

(Tenn.1860). In that matter the Tennessee Supreme Court stated:

It is ... well settled that the exclusive and

uninterrupted possession by one tenant in common of

land for a great number of years-say for twenty or

more-claiming the same as his own, without any

account with his co-tenants, or claim on their

part,-they being under no disability to assert their

rights,-becomes evidence of a title to such sole

possession, and the [fact finder is] authorized to

presume a release, an ouster, or other thing necessary

to protect the possessor....

Marr's Heirs, 41 Tenn. at 501. As the Court of Appeals explained

110 years later, possession of land is prima-facie evidence of title and

“the law supposes that it had a legal origin.” Morgan v. Dillard, 456

S.W.2d 359, 362 (Tenn.Ct.App.1970). In Tennessee, such possession

must remain “undisturbed for the period of twenty years,” and if it

does, the undisturbed possession becomes “an assurance of title of no

less force or efficacy than the actual grant whose place it supplies.”

Id.

If a plaintiff can prove the requisite “long-continued use and

enjoyment” of the property, a presumption of title by prescription

arises. Morgan v. Dillard, 456 S.W.2d 359, 362 (Tenn.Ct.App.1970)

(citing Cannon v. Phillips, 34 Tenn. 211, 214 (1854)) (emphasis

added); Brown v. Daly, 83 S.W.3d 153, 159 (Tenn.Ct.App.2001)

(quoting Livesay v. Keaton, 611 S.W.2d 581, 583

(Tenn.Ct.App.1980) (holding that if the party asserting title has

proven both essential elements, “a presumption of title may arise in

favor of the possessor of the land”). The “presumption” of title rests

upon the simple fact of long-continued use and enjoyment. Morgan,

456 S.W.2d at 362. The presumption that results from the

long-continued possession and use is not founded upon the idea that

as a matter of fact a grant once existed, “it rests alone upon a

principle of public policy, to quiet the title of those who can show no

other title than long-continued possession and use.” Id. (quoting

Cannon v. Phillips, 34 Tenn. 211, 214 (Tenn.1854)).

The presumption of title, however, may be rebutted by

evidence that the possession was by the permission or indulgence of
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the other co-tenants. Walker v. Moore, 745 S.W.2d 292, 295

(Tenn.Ct.App.1987); Morgan, 456 S.W.2d at 363. It may also be

rebutted by the fact one or more of the co-tenants were under a

disability, such as the disability of minority during the requisite

twenty year period. Walker, 745 S.W.2d at 298. Moreover,

“disabilities may accumulate to rebut the presumption, which is

unlike the statute of limitations (the doctrine of adverse possession).”

Id. (citing Marr's Heirs v. Gilliam, 41 Tenn. 488 (Tenn.1860)....

To establish title by prescription between or among

co-tenants, the parties asserting titlemust prove two elements. Brown

v. Daly, 83 S.W.3d 153, 157 (Tenn.Ct.App.2001); Livesay, 611

S.W.2d at 583; Morgan, 456 S.W.2d at 361. First, the prescriptive

holder must show exclusive and uninterrupted possession of the land

in question for more than twenty years, during which time he must

claim the same as his own without any accounting to his co-tenants

or claim on their part. Livesay, 611 S.W.2d at 583 (citing Morgan,

456 S.W.2d at 361). Second, the party asserting title must also show

that none of the co-tenants were under a disability to assert their

rights to the property. Id. ... Both elements must be proven for the

doctrine of title by prescription to apply. Brown, 83 S.W.3d at 157

(quoting Livesay, 611 S.W.2d at 583).... If one of the elements is not

proven, then the doctrine is not applicable to the case. Livesay, 611

S.W.2d at 584.

Amos v. Taylor, 2008 WL 1891443, at *4-5 (footnotes omitted).

The record contains no evidence that Dover Scott made any statements, or took any actions

toward the other heirs indicating that he claimed full ownership ofthe disputed tract. Although there

is no evidence that the Yarbros ever attempted to use the tract, the children of Dover Scott stipulate

that they have no knowledge of the Yarbros ever being barred from going onto or otherwise using

the disputed tract. In fact, in the three deeds of trust that Dover Scott executed, he asserts that he

only owns an undivided 5/12thsinterest in the farm: “This being the land owned by my father, Will

Scott, at the time of his death, and which I inherited a 1/6th undivided interest by my sister...and

which I was conveyed a 1/12 undivided interest by Paul Scott....” Furthermore, there is no proof in

either the Stipulations of Fact, or in the record, on the issue of any disability of the Defendants.

Based upon the evidence in record, we conclude that the children of Dover Scott have not met their

burden to prove ownership of the 188-acre tract by prescription. Specifically, they have failed to

show exclusive possession of the land, and have provided no evidence concerning the disability

criterion. Livesay, 611 S.W.2d at 583.

Title by Adverse Possession
 The record contains deeds from Velora Scott Fisher (dated January 3, 1962), Marva Scott Jackson and Doris 1

Scott (dated March 13, 1963), and Paul Scott (dated August 17, 1965).

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To establish title by adverse possession, there must be an occupation of the property under a

claim of right or title which is open, actual, continuous, exclusive, adverse and notorious for the

prescriptive period of 20 years. Catlett v. Whaley, 731 S.W .2d 544, 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 order to be adverse, possession “must be of such a character

as to leave no doubt of claim of ownership by adverse possession and 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 party claiming ownership by adverse possession

“must sustain the proposition that the possession was in fact adverse to the true owner.” Bynum v.

Hollowell, 656 S.W.2d 400, 403 (Tenn.Ct.App.1983). Under Tennessee law, the burden of

establishing by clear and positive proof 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 and the character of possession. Id.

Evidence of adverse possession is strictly construed and any presumption is in favor of the holder of

the legal title. Moore v. Brannan, 304 S.W.2d 660, 667 (Tenn.Ct.App.1959).

Much of the evidence (or lack thereof) discussed in the prescription section above is equally

applicable to Plaintiffs/Appellants’ claim of ownership through adverse possession. Specifically,

there is no proof that the Yarbros were excluded from the farm, or that Dover Scott held this property

in contravention of the rights of any other co-tenant. In fact, Dover Scott purchased the undivided

interests of three of the co-tenants. One claiming title by adverse possession would not purchase the 1

interests of his or her co-tenants; rather, the doctrine dictates that the person claiming adverse

possession has exercised his or her claim to the land in a manner that is actually adverse to the rights

and interests of the other tenants. Perhaps more important than Dover Scott’s purchase of the

interests of some of his co-tenants is the fact that he never claimed full ownership of the tract. In

three separate deeds of trust executed by Dover Scott and his wife in favor of Decatur County Bank,

the Scotts’ interest in the disputed tract is described as an “undivided 5/12th interest.” From the

record, we conclude that the children of Dover Scott have failed to meet their burden to show title by

adverse possession.

Title based on payment of real estate taxes

Tenn. Code Ann. § 28-2-109 provides:

Any person holding any real estate or land of any kind, or any legal or

equitable interest therein, who has paid, or who and those through

whom such person claims have paid, the state and county taxes on the

same for more then twenty (20) years continuously prior to the date

when any question arises in any of the courts of this state concerning
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the same, and who has had or who and those through whom such

person claims have had, such person's deed, conveyance, grant or other

assurance of title recorded in the register's office of the county in

which the land lies, for such period of more than twenty (20) years,

shall be presumed prima facie to be the legal owner of such land.

Tenn. Code Ann. § 28-2-110 provides, in relevant part:

(a) Any person having any claim to real estate or land of any kind, or

to any legal or equitable interest therein, the same having been subject

to assessment for state and county taxes, who and those through whom

such person claims have failed to have the same assessed and to pay

any state and county taxes thereon for a period of more than twenty

(20) years, shall be forever barred from bringing any action in law or

in equity to recover the same, or to recover any rents or profits

therefrom in any of the courts of this state.

Although Tenn. Code Ann. §§ 28-2-109 and 28-2-110 provide the basis for a prima facia case

of ownership, the presumption is rebuttable. In Phillips v. Pittsburgh Consolidated Coal, 541

S.W.2d 411 (Tenn 1976), our Supreme Court made it clear that Tenn. Code Ann. § 28-2-110 “does

not bar a suit by one tenant in common against another tenant in common who has paid such taxes

unless the plaintiff has been disseised or ousted by the defendant.” Id. at 413. In Burress v.

Woodward, 665 S.W.2d 707 (Tenn. 1984) (upon which Plaintiffs/Appellants rely), the Court stated

that “nothing in § 28-2-110 prevents Defendants from defending their title. The failure to pay taxes

for twenty years does not automatically cause Defendants to be ejected....T.C.A. § 28-2-110 does not

affect title or destroy rights....” Id. at 709. Although we may concede that Plaintiffs/Appellants have

satisfied Tenn. Code Ann. § 28-2-109 by showing the payment of property taxes for the statutory

period, this showing creates only a rebuttable presumption of ownership. Here, the Yarbros have,

indeed, rebutted the presumption in defending their alleged ownership interest. Consequently, the

burden shifts back to the Scotts to show that the Yarbros have otherwise been “disseised or ousted”

from the property. Phillips, 541 S.W.2d at 413. The evidence in the record does not support such

a finding in this case. Consequently, the Scotts failed to satisfy their burden once the Yarbros

rebutted the Scotts’ claimed ownership.

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are

assessed equally to the Appellants, Dale Anthony Scott, Michael Ronnell Scott, Danny Ray Scott,

Terry Eugene Scott, and their respective sureties.

___________________________________ 

J. STEVEN STAFFORD, J.