IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 6, 2013 Session

BRYANT COLEY, SR. ET AL. v. MIKE DI SORBO ET AL.

Appeal from the Chancery Court for Cumberland County

No. 2008-CH-164 Ronald Thurman, Chancellor

No. E2012-01347-COA-R3-CV-FILED-MAY 30, 2013

Property owners, Bryant Coley, Sr., his son, Bryant Coley, Jr., and their wives, filed a

declaratory judgment action against fiduciaries, Mike Di Sorbo and Michelle Di Sorbo, after

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the Di Sorbos refused the Coleys access to a road that crossed their ward’s property. The

Coleys requested that the court declare the road a public road and enjoin the interference of

its use. Following a bench trial, the court found that the “route” in question was not a

dedicated public road. Consequently, it dismissed the complaint. The Coleys appeal. We

affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Michael Savage, Livingston, Tennessee, for the appellants, Bryant Coley, Sr., Bryant Coley,

Jr., Etta Coley and Eleisha Coley.

C. Douglas Fields, Crossville, Tennessee, for the appellee, Cumberland Lakes POA.

S. Roger York, Crossville, Tennessee, for the appellees, Mike Di Sorbo and Michelle Di

Sorbo, as trustees and natural parents and next friends of Aldo Michael Di Sorbo, a child

under 18 years of age.

The Di Sorbos were sued in their fiduciary capacity as trustees for and natural parents and next

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friends of Aldo Michael Di Sorbo, a minor. Their ward owns the property. Additional defendants include

Cumberland County, Cumberland Lakes POA, and the Cumberland County Planning Commission. The

defendants have filed a joint brief. 
Randal R. Boston, Crossville, Tennessee, for the appellees, Cumberland County and

Cumberland County Planning Commission.

OPINION

I.

At issue is a “road” that, for clarity and ease of reference, we will refer to as the “Old

Road.” The Coleys contend that the Old Road, in its entire length, extends from Plateau

Road in Cumberland County to Jim Garrett Road in Putnam County. In October 2008, the

Coleys filed a complaint seeking, in part, a declaration of the parties’ rights and

responsibilities with respect to the Old Road. They asserted in their complaint that the Old

Road is a “county road by implied dedication and/or a public road” that crosses the Di

Sorbos’ abutting property and “eventually leads to and through a portion of” the Coleys’

property. Before trial, however, the parties agreed that the Old Road was not a “county

road.” The Coleys further asserted that the Old Road provided “the only viable means to

access the westernmost portion of [the Coleys’] property.”

After a day-long hearing, the trial court held that “[t]here was no dedication of the

route as a public road.” The court found, in relevant part, as follows:

The route in question is not currently in use by the public.

[Although] the route in question[] [was] used by various persons

for a number of years, the Plaintiffs failed to carry their burden

to show the road was dedicated to public use as a public

roadway by the landowner(s) where it was located.

If the route was not dedicated, it never became a public road

through which [the Coleys] could derive rights to its use

presently.

Alternatively, if the Court is in error as to the issue of dedication

and the route was a public road, then the Court would find [the

Coleys] have an easement across the Subdivision as a result of

[the Coleys] being abutting land owners.

The trial court dismissed the complaint. The Coleys filed a timely notice of appeal.

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II.

The Coleys raise a single issue for our review:

Whether the road at issue was dedicated to the public as a public

road.

III.

Our review of findings of fact by a trial court is de novo upon the record of the trial

court. That record comes to us accompanied by a presumption of correctness as to the

court’s factual findings, unless the preponderance of the evidence is otherwise. Tenn. R.

App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). “The weight, faith, and

credit to be given to any witness’s testimony lies in the first instance with the trier of fact,

and the credibility accorded will be given great weight by the appellate court.” Mach. Sales

Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn. App. 2002).

Review of questions of law is de novo, with no presumption of correctness. See Nelson v.

Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

IV.

A.

Certain facts are not in dispute. The Di Sorbos are the fiduciary owners of property

in a subdivision called Cumberland Lakes at Cumberland Cove (the “Subdivision”). Their

property fronts Mountain Ash Drive, a two-lane paved county road within the Subdivision.

The Di Sorbos purchased their property, Lot 9, in 2008 for nearly $22,000; they plan to build

a house on it. Earlier, in 1995, the Coleys had purchased a 530-acre tract that abuts a portion

of the Subdivision. Specifically, the westernmost boundary of the Coleys’ land runs along

the easternmost, or back property lines, of several Subdivision lots, including the Di Sorbos’

Lot 9. In all, the Coleys own some 1,000 acres in the area. To place the dispute in context,

the Old Road, as claimed by the Coleys, is an unimproved road that starts at Mountain Ash

Drive to the west and goes eastward across the northern portion of the Di Sorbos’ lot (a

distance of 200 feet) and into the westernmost portion of the Coleys’ property and beyond

into another adjoining property.

The Coleys contend that the evidence overwhelmingly shows that the Old Road was

and is a public road by implied dedication. Further, even if part of the road has been

abandoned, they have a continuing, private right as abutting landowners to use it to access

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a portion of their land. The Di Sorbos respond that when all the of the proof is considered,

it shows not a road dedicated for public use, but, at most, the permissive use of a route

through unimproved woodlands that the servient landowners could end at will.

B.

We concur with the trial court that the dispositive question in this case is whether

there was an implied dedication of the Old Road as a public road. Recently, this Court

discussed at length the considerations relevant to this determination. In Lay v. Wallace,

W2011-02285-COA-R3-CV, 2013 WL 654360 (Tenn. Ct. App. W.S., filed Feb. 21, 2013),

we stated, in relevant part:

A public road may be created by [among other methods] . . . an

implied dedication by means of the use by the public and

acceptance by them with the intention of the owner that the use

become public . . . . Dedication arises from an owner’s offer of

land for public use, and a public acceptance of the offer. The

offer and acceptance may be express or implied.

* * *

When an implied dedication is claimed, the focus of the inquiry

is whether the landowner intended to dedicate the land to a

public use. To establish a dedication by implication there must

be proof of facts from which it positively and unequivocally

appears that the owner intended to permanently part with his

property and vest it in the public, and that there can be no other

reasonable explanation of his conduct.

Among the factors that indicate an intent to dedicate are: (1) the

landowner opens a road to public travel; (2) acquiescence in the

use of the road as a public road; and (3) the fact that the public

has used the road for an extended period of time. Implied

dedication may be inferred [i]f the acts are such as would fairly

and reasonably lead an ordinarily prudent man to infer an intent

to dedicate[.] While dedication is not dependent on duration of

the use, extended use is a circumstance tending to show an

intent to dedicate. An intent to dedicate is inferrable when the

roadway is repaired and maintained by the public. Finally, [a]n

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implication of public acceptance arises from a general and

long-continued use by the public as of right.

Id. at *2-3 (internal citations and quotation marks omitted).

The Coleys, as the parties asserting that the Old Road is a public road by implied

dedication, have the burden of proving, by clear and convincing evidence, “an intention on

the part of the landowner to dedicate the road to the public, and that the road was either

expressly or impliedly accepted by the public.” Hargrove v. Carlton, M2000-00250-COAR3-CV, 2001 WL 120732 at *2 (citing Jackson v. Byrn, 216 Tenn. 537, 393 S.W.2d 137,

140 (Tenn. 1965)). We now turn to the proof in the record.

C.

At trial, the court heard testimony from the Coleys and their witnesses regarding the

history of the Old Road. They referred to the road, or portions thereof, by a various names,

including Baisley Road, Bartley Road, and Sidwell Road. Others testified the road had no

name or was simply an “old road.” As to its use, there was testimony that, in the early 1900s,

the land over which the Old Road ran consisted mostly of hundreds of acres of open

woodlands. In more recent years, some large areas were sold for development, including the

Subdivision property. The Subdivision plat was recorded in 1988 and the lot lines were

painted and visible when the Coleys purchased their acreage. As to the Coleys’ chain of title,

the testimony indicated that the Baisleys owned the land until 1933, when they sold it to the

Sprankles. The Sprankles owned it from 1933 until 1995 when it was sold at a bankruptcy

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auction. The purchasers later sold it to the Coleys. The Di Sorbos’ property, on the other

hand, was originally a part of the land owned by the Harrisons who sold it to the Subdivision

developers.

Bryant Coley, Sr., lived in the area since 1966. He said the Old Road “had always

been there” and he “knew people were using it,” but he did not use it very often until he

purchased his property in 1995. He never saw any “fancy cars” on the road but had seen

some pickup trucks. He named five persons who took the Old Road to access hunting areas.

He said that the Baisleys used part of the Old Road, the “Baisley Road,” to get to their

property. He testified that they “used it to go through there. Some would hang back there.

Some . . . were back there digging herbs and some . . . of their relatives, to get in and out for

business purposes.” Coley, Sr., testified that at one time a Castro Pugh owned a sawmill

down from the Old Road and used it “going both ways.”

The transcript also reflects the name as “Sprinkles.” 

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After purchasing his property, Coley Sr., immediately placed a hot wire fence around

it and went on the Old Road several times a week to check his cattle. Later, he replaced the

fence with a barbed wire fence with a metal gate. He testified he locked the gate to keep the

cattle in, not to keep people out, and because he “didn’t figure anyone needed to go down

[the Old Road].” He gave a key “to anybody that wanted . . . to get in there.” Coley, Sr.,

maintained that all of the Old Road was a public road even though both he and the adjoining

property owner on the other side, Jimmy Davis, had placed gates across it on their respective

properties. Coley, Sr., never asked permission to use the Old Road across the Di Sorbos’ lot

because “it was a public road. You don’t ask permission.” He did ask the property owner’s

association for the Subdivision for permission to carry materials across the various lots,

including the Di Sorbos’, when he installed his permanent fence.

Around 2008, Coley, Sr., found the Old Road blocked with stumps at the entrance

from Mountain Ash Drive to the Di Sorbo lot. He received calls from persons representing

the Subdivision who advised him that the land over which he contended Old Road ran was

private. Asked why he believed the road was public, Coley, Sr., said “because the public

always used it. That was the only way the Baisleys had of getting through there. . . .” He

was aware that the Sprankles also used a portion of the Old Road because he went with a Mr.

Rose on it to check the timber on their property. Without naming others, he repeatedly

asserted that the Old Road was a public road because “everybody used it.”

Coley, Sr., conceded that no right-of-way for the Old Road was ever reflected in any

of the relevant deeds. Furthermore, he acknowledged that he never claimed one in

connection with the bankruptcy proceedings concerning his tract. According to Coley, Sr.,

the Harrisons, about once a year, had “cleaned out . . . the brush and stuff” on all of the roads

in the area – on their own property and everyone else’s – including the sections of the Old

Road across the property of the present-day owners. They last did so in around 1969. Coley,

Sr., agreed that when he purchased his property, the land was open woodlands that people

mainly used for timber, to haul out rock and to get to their own property. Coley, Sr.,

introduced a state topographical map. He testified that an “unimproved road” marked on the

map depicted the Old Road between Plateau Road and Jim Garrett Road. He admitted that,

while it did identify many of the public roads in the area, it did not name or identify the Old

Road as a public road.

The Di Sorbos did not testify, but the parties stipulated to the testimony they would

have given, including that the Di Sorbos never received notice from any source, including

the recorded subdivision plat, of any purported road going through their lot. Further, the Di

Sorbos walked around the lot before purchasing it and did not notice any road on the

property.

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Phillip Choate grew up in the area and moved to the Subdivision in 1998. As a boy,

he hunted on what became the Coley property, but not on the Di Sorbo property. He recalled

the Old Road as “an old logging road” that became “very grown over.” He had seen ruts in

it from logging trucks. Choate was a local mail carrier and served on the original board of

directors for the Subdivision. Mountain Ash Drive was finished around 2006. He recalled

that before the property was subdivided into lots for sale, Bryant Coley, Sr., ask the

association board for permission to put up a gate just off Mountain Ash Drive at what became

the entrance to the Di Sorbos’ lot. Coley wanted “to block that access road [i.e., the Old

Road] to keep the four-wheelers . . . off his property because they would cut his fence and the

cattle would get out. . . . And he also wanted permission to come across [the Old Road]”

himself from his property to the back of the Di Sorbos’ lot. Choate never saw a gate there,

but recalled that Coley piled up brush to make the Old Road impassable at that point. When

Mountain Ash Road was cleared, “the banks were put up and there was a pretty good ditch

there, [and] it was difficult to see [the Old Road]. . . . If you didn’t know it was there, you’d

have a hard time seeing it.” Choate testified that in the last ten years, since the Subdivision

was developed, no one in the community had ever asked to use the Old Road again.

Dallas Cox, age 92, testified that he last used the Old Road or “Sidwell Road,”as he

called it, in 1946. In later testimony, he said the Old Road “never had a name that [he]

[knew] of.” It started on Clear Creek Road, went into the Jim Garrett Road, it would “spring

off and you could come down and cross Clear Creek way up there and you’d go into

Plateau.” He also testified that a section of the Old Road was called Baisley Road, and “it’d

go to Henry’s house but nobody would use it but him.” Cox’s father and Henry Baisley ran

cattle and hogs down the Old Road and turned them loose on the land. Cox described the Old

Road as a more or less “wagon road” or trail. He saw no one drive a car or buggy on the Old

Road, but had seen some horse riders. He recalled a sawmill was located south of the Old

Road at one point but never saw the owner haul anything out. On further questioning, Cox

agreed he was not sure exactly which road the case concerned. He testified that he was

describing the log roads and trails that the public used in the 1930s. At that time, the

property in the area was all woodlands. According to Cox, all the trails in the area were

owned by the Harrisons, and “they never did say nothing.” He was aware that the public used

a “trail” that crossed the Subdivision but didn’t know where the Di Sorbo lot was or whether

the trail in question went through that land.

David Sells, a registered land surveyor, surveyed the Old Road at the Coleys’ request.

Mr. Coley, Sr., identified the center of the Old Road. Sells said the Old Road, although

grown over, was visible, and assumed it to be “an old logging road” that was “well traveled”

in the past. It was nine to twelve feet wide, crooked and went around large trees in some

places. From his work, Sells concluded that the Old Road went across the Di Sorbos’ lot,

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across Mountain Ash Drive, and into Lot 15, another Subdivision lot west of the Di Sorbos’.

“Junior” Davis, 78, lived in the area all his life. He described the “Old Road” as

starting near the Baisley home and coming out on Plateau Road on one side and up a hill, and

onto Jim Garrett Road on the other side. According to Davis, “Anybody that had any

business going into Monterey or Mayland” used the Old Road. He referred to it as the

Bartley Road from the point it passed the Baisley home, when it became the Baisley Road,

then continued to a point where it had no name. His family traveled the road by foot, rode

horses or a wagon and ran their cattle and hogs. He was present when Mr. Sells surveyed the

road and had “no doubt” that the “Old Road” that Mr. Coley, Sr., pointed out was the same

road he had once used two or three times a month without asking anyone’s permission.

According to Davis, those who used the Old Road maintained it by putting rocks on it or

creating a route around the many mud holes which made the Old Road very crooked. He had

once driven a car part way down the Old Road to Bartley Creek but no further because it

became too rough. Davis had not been on the Old Road across the Coleys’ property since

1955. He knew of no one who used the Old Road since then except for hunters.

Bryant Coley, Jr., testified that he lived within half a mile of the Old Road since 1966.

He recalled going across the Di Sorbos’ land on the Old Road and all the way across his

family’s property. He said the area was all woods then, but the Old Road was “well

maintained” – there were no trees or branches down across it and a truck with mud tires

could traverse the mud holes. The Coleys used the Old Road several times a month to go

cut wood or check their cattle until 2006 when someone started blocking the way at the Di

Sorbos’ lot with stumps and debris. He saw signs or tracks that people traveled from the Old

Road onto the Coleys’ property, but never actually saw or spoke to anyone who did so. As

Mr. Coley, Jr., described it, “they put the [Di Sorbos’] lot across the [Old Road].”

Edgar Miller, 53, went on the Old Road to Jim Garrett Road and on to Monterey with

his father before other roads were built. He also had gone down the section of the Old Road

called Bartley Road, to Baisley Bottom, to Pugh Road, to Plateau Road and on to Crossville.

At the time, the Harrisons usually bulldozed the Old Road about once a year to “keep it

where they could get in and out.” While hunting, he had seen “some people” who drove

trucks on the Old Road on the Coleys’ property. He’d seen a car “every now and then” and

once saw a patrol car “on past” the Old Road. He last saw a car on the Old Road in the early

1980s and had not used the Old Road since the Subdivision installed paved roads.

John Negron formerly held a position on the Subdivision’s Association. He was

aware that since around 2006 the Old Road, or “Bartley Road,” extended from “Lot 15”

across from the Di Sorbo property and onto the Coley property. He described the Old Road

as “a rough cut with stumps” plainly visible by the ruts in it. The Association learned that

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Mr. Coley, Sr., and some hunters were using the Old Road and advised Mr. Coley that it was

private property. Mr. Coley, Sr., had once approached him about buying what became the

Di Sorbo lot after Mountain Ash Drive was finished, but he was not willing to pay the listed

purchase price.

Ralph Dearth lived in the Subdivision since 1997, three fourths of a mile from the Di

Sorbos’ lot. He never saw the Old Road when he moved in; he noticed a “path” about three

feet wide some two or three years later. Since 1999, Kenneth Welker also lived in the

Subdivision. He had seen the Old Road, “an unfinished road” a car’s length wide, across the

Di Sorbo lot sometime around 2006.

D.

Following the hearing, the trial court found that the road was not “properly dedicated”

as a public road. We quote pertinent portions of its ruling:

This case comes down to basically . . . [whether] this . . .

roadway that abuts up to Mountain Ash Road, which is now part

of the Cumberland Lakes subdivision, whether it was a public

road, and if so, is it still a public road or has it been abandoned.

[I]t’s a really close question.

For the last 50 to 75 years, people have been driving on these

roads and these are roads in rural Cumberland County . . .

there’s all these little country lanes that attach that run from

basically Monterey over in the edge of Putnam County all the

way to Crossville that have been in existence since back in the

early part of the last century.

[T]o have a public road, you have to show by clear and

convincing proof that the . . . roadway [] was dedicated for

public use. And the way you do that is from . . . intent of . . . the

landowner as to whether or not . . . they’re giving this for the

public’s use.

[O]ne of the ways you do this is [show] how the property was

used for the last – off and on for the last 60 or 70 years. Give or

take ten or 20 years in places, folks have used that roadway

more so in the 1930s to the 1950s and not so much after that.

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* * *

There is proof in the record that it was used by the public for

very long time. I really struggled with that, but the case turns on

. . . whether or not it was dedicated as a public road and I don’t

find that the proof to a clear and convincing standard has

established that there was a dedication by the owners for that.

[B]ased on the totality of the testimony, . . . primarily . . . folks

have just been given permission or the owners of the land have

not objected to people driving over and using these roads.

Especially in later years, primarily they’ve allowed people to go

in there and hunt deer and turkey and probably dig ginseng and

things of that nature through the various landowners.

Another reason that the Court finds . . . in addition to folks just

having permission to drive over it and the landowners not

stopping them from using these roads[,] is there’s no proof that

the county ever did anything to repair the roads or work on the

roads. There’s no proof that the public at large did anything to

repair the [Old Road]. Basically if there was a mud hole in the

road, they just drove around it. . . .

Having said that, the Court is going to make an alternative

finding. If I am wrong and the appellate court were to find that

there was a public road here, that there has been a dedication –

and that’s what this case turns on – I think the case law is clear

. . ., Mr. Coley is an abutting landowner to this road and he

would have a right of ingress and egress.

This Court has emphasized that the burden of proof required to establish a dedication

of private land for public use is a heavy one. See Hargrove v. Carlton, at *1. Moreover,

the burden may be that much heavier where the public land in question consists primarily of

rural, unimproved woodlands or farmlands as in the case at bar. For this reason, we think

that the trial court’s stated reliance, in part, on McKinney v. Duncan, 118 S.W. 683, 694-95

(Tenn. 1909), is most appropriate. Therein, the Supreme Court observed:

Dedication of a road to the public use over the waste and

unenclosed lands of an individual ought not to be inferred from

bare use alone. Thus, where a road has been in existence for

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more that fifty years, and had originally passed entirely through

woodland, the jury were instructed that the mere use by the

public, however uninterrupted and long-continued, would be

insufficient to constitute it a public road, but must be

accompanied by facts which show the use to have been claimed

as a right, and not by permission of the owner, such as working

on it, keeping it in repair, and requiring the removal of

obstructions. Thus, it has been held that the fact that a farmer

leaves a lane through his farm for his own convenience, and

permits the public to use it as a highway for fifteen years, does

not warrant the inference of dedication. An intention to dedicate

must be obvious, and the same act which would warrant the

inference in cities and towns would be quite insufficient in

sparsely agricultural districts.

The proof establishes nothing more than a mere license or

permission of the owner to the inhabitants of a local

neighborhood to use the pathway as a matter of favor and

convenience; and such use being only by sufferance, during the

pleasure of the owner, he had a right to put an end to it at any

moment. No use or acceptance of the way by the public is

shown, nor any recognition of it by the county court. That a right

of way may be claimed by a dedication to the public use by the

owner of the soil is not denied, but with us this doctrine must be

cautiously admitted. Its too easy application would defeat the

right of the owner of the soil to have compensation for the

damages sustained by laying out a road over his land, to which

he is entitled when such road is laid out by the proper

authorities.

Complainant does not claim an express dedication from any of

the successive owners of the land, but an implied one, because

he and others living in the neighborhood were allowed to use

this passway, repairing it from time to time for this purpose,

without interruption, for thirty years. This is all of their case.

The strip of land over which the road runs was unenclosed and

in woods, and the most that can be said is that while in that

condition the owners did not object to the use of it by the public.

They merely permitted the use of it temporarily as a matter of

favor. This is common in every part of this State, where there

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are unenclosed lands, and no intention upon the part of the

owners to appropriate them to the public use can be implied

from such conduct. They have the right at any time to inclose

them and forbid further use by the public.

(Internal citations omitted.)

As previously noted, in order to establish an implied dedication of the Old Road to

public use, there must be clear and convincing proof “that the owner intended to permanently

part with his property and vest it in the public.” See Jackson v. Byrn, 216 Tenn. at 543, 393

S.W. at 140 (quoting McKinney, 121 Tenn. 265, 271, 118 S.W. 683, 694). Such intent was

shown, for example, in Dennis v. Miceli, M1999-00056-COA-R3-CV, 1999 WL 1072559

(Tenn. Ct. App. M.S., filed Nov. 30, 1999). That case also involved a dispute between

neighboring landowners over access to an old country road that crossed their properties. The

testimony showed that the road existed and was freely used by people in the area since its

purchase by a Mr. Madewell in 1958. Id. at *4. House trailers were located upon it, the

county laid it with rock and gravel, and the school bus and mail carrier traveled on it daily.

The public regularly used the road, first with horses and buggies, later with four-wheel drive

vehicles, and it was always maintained and passable. Id. By the time of trial, the public’s

use of the road had essentially ceased. Given these facts, the trial court held that the road

was impliedly dedicated to the public’s use by Mr. Madewell. In affirming, we observed

that “[t]he required offer and acceptance occurred when Mr. Madewell permitted the school

bus, the mail carrier, and the public to use the road and when the county accepted Mr.

Madewell’s invitation to maintain the road.” Id. at *5.

Returning to the case at bar, there is no such proof of the landowners’ intention or

dedication. At the outset, we agree with the Di Sorbos’ assertion that it remains questionable

whether the Old Road offers a continuous, clearly identifiable route that one could enter at

Jim Garrett Road and take all the way to Plateau Road, as the Coleys contend. Witnesses

described sections of a road or routes, with various names or no name, that led from one

landowners’ property to the next and eventually to main roads and on “to town,” as it were.

To the extent that witnesses testified that a portion of the Old Road crossed the parties’

property, their testimony indicated it was mostly an access route onto unimproved woodlands

that past landowners, such as the Baisleys, the Bartleys, and the Harrisons, used to get in, out

of, and around their properties. They used the Old Road, or parts of it, to access the lands

for hunting, logging timber, grazing cattle, running hogs and similar purposes and raised no

objections when others took the Old Road onto or across their properties.

Dallas Cox last used the Old Road in 1946 and suggested that, at one point, it was one

of the many unnamed old logging trails in the area on land the Harrisons owned. As Mr. Cox

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put it, he never asked permission to use the trails and the Harrisons “never did say nothing.”

The testimony showed that virtually no one except the Harrisons maintained the Old Road.

About once a year, until 1969, they used a bulldozer to clean it out “to keep it where they

could get in and out.” They did the same on the roads on their neighbors’ properties.

Otherwise, the proof was that those that used the Old Road placed rocks on it, but as to the

many mudholes they encountered, they simply took paths around them. In recent years,

rather than repairing or removing obstructions on the Old Road, landowners such as Mr.

Coley, Sr., Jimmy Davis and the Subdivision representatives seemingly expended more time

and effort to block its use by the public. Although Mr. Coley, Sr., maintained that the Old

Road was a public road running across his property, as well as the Di Sorbos’, he fenced his

land and for a time kept a locked gate across the road in the belief that no one needed to go

back there.

In summary, we think such “bare use” by the public, and little else, cannot meet the

clear and unequivocal level of proof required to establish an implied dedication of the Old

Road to public use. We agree with the trial court’s finding that, basically, “folks have just

been given permission or the owners of the land have not objected to people driving over and

using these roads.” This alone does not evince an intention on the part of the landowners to

permanently part with their private property and give it over to the public’s use.

The evidence does not preponderate against the trial court’s finding that the Old Road

was never dedicated as a public road. Accordingly, the Coleys possess no right of access

across the Di Sorbo property. The trial court properly dismissed the complaint.

V.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellants,

Bryant Coley, Sr., Bryant Coley, Jr., Etta Coley and Eleisha Coley. This case is remanded,

pursuant to applicable law, to the trial court for collection of costs assessed below.

__________________________________________

CHARLES D. SUSANO, JR., PRESIDING JUDGE

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