IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 10, 2014 Session

WALTER ALLEN GAULT v. JANO JANOYAN, ET AL.

Appeal from the Chancery Court for Knox County

No. 185155-3 Michael W. Moyers, Chancellor

No. E2014-00218-COA-R3-CV-FILED-OCTOBER 30, 2014

This case concerns a boundary line dispute. Walter Allen Gault (“Plaintiff”) sued Jano

Janoyan and Pinnacle Bank (“Defendants”) seeking a declaratory judgment that, by way of

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adverse possession, he is the rightful owner of a triangle-shaped piece of land, 41.59 feet at

its base and approximately 302 feet on each of its two sides. The disputed area is within the

deed boundaries of the property owned by Janoyan, the Plaintiff’s next door neighbor. (See

attached exhibit.) The parties’ properties are in Forest View, a residential subdivision in

Knoxville. Defendants filed an answer and a counterclaim for ejectment and quiet title to

the property. Both parties moved for summary judgment. After a hearing, the trial court

granted summary judgment to the Defendants. Plaintiff appeals. We affirm.

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

Affirmed; Case Remanded

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

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

Terry G. Adams and Kevin J. Tonkin, Knoxville, Tennessee, for the appellant, Walter Allen

Gault.

M. Edward Owens, Jr, Knoxville, Tennessee, for the appellee, Jano Janoyan and Pinnacle

Bank.

OPINION

The complaint also named Hugh M. Queener, Trustee, as a party defendant. Mr. Queener was 1

subsequently dismissed from the suit by agreed order. 
I.

Plaintiff has lived on his property continuously since 1970. In 1974, he acquired an

ownership interest by way of a deed from his wife, and later owned full title when his wife

passed away. In 1971, Plaintiff and his wife began planting trees along what Plaintiff refers

to as “the Occupation Line,” the line he claims as the boundary between the two lots by

virtue of his alleged adverse possession of the disputed area. Seven trees and a bush remain.

They have grown, and, according to Plaintiff, are of sentimental value to him.

Up until 2007, the lot now owned by Janoyan was undeveloped. In 2007, Janoyan’s

predecessor in interest constructed a home on the lot. In 2013, Janoyan purchased the

property and has resided there with his family ever since. Pinnacle Bank holds two deeds of

trust on the Janoyan lot. The disputed area is not enclosed. The instant dispute arose after

Plaintiff learned that Janoyan intended to fence his property, including the disputed area.

The disputed area is situated entirely within Lot 30, title to which is held by Janoyan.

Plaintiff, however, claims ownership of the disputed area by virtue of adverse possession. In

the alternative, he seeks a prescriptive easement for his exclusive use and enjoyment of the

property.

The parties’ lots are reflected in their respective deeds by metes and bounds

descriptions as well as by reference to the subdivision plat that was recorded in 1955. The

Gault lot, excluding the disputed area, is a .773 acre, rectangular tract. The Janoyan lot is a

corner lot that is also generally rectangular but wider at the rear property line than at the

front. Including the disputed area, the Janoyan lot consists of approximately 1.24 acres. The

disputed area totals .144 acres.

An affidavit of the tax assessor reflects that property taxes on the Gault lot and the

Janoyan lot have been assessed based on the recorded subdivision plat and deeds for some

38 and 42 years, respectively. The parties do not dispute that they have each paid their

respective property taxes.

In April 2013, Plaintiff filed a complaint in which he alleged that he has held the

disputed area “exclusively, actually, adversely, continuously, openly and notoriously” for

more than forty-two years and thus owns the disputed area by virtue of adverse possession.

In addition to planting trees, Plaintiff alleges that he had periodically mowed the grass along

the “Occupation Line” and otherwise tended the property for over forty years. Plaintiff

further alleges that he used the disputed area as a play area for his children and for a family

garden. Plaintiff requested that the court establish the “true and correct” boundary line and

find that title to the disputed area has vested in him. In the alternative, Plaintiff sought a

prescriptive easement over the disputed area. Janoyan filed an answer in which he averred

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that Plaintiff had no valid claim to the disputed area and was essentially trespassing with full

knowledge that the property was not his. In his counterclaim, Janoyan sought to have

Plaintiff ejected from his property and enjoined from further preventing Janoyan’s use of his

property.

In September 2013, Plaintiff moved for summary judgment on his claim of adverse

possession. In hissupporting affidavit, Plaintiff alleged that he believed the Occupation Line

to be the boundary line between the two lots. In 1982, he built a patio in the disputed area

and placed a swing upon it which has been replaced over the years due to weathering but the

patio still remains. In addition, Plaintiff built a swing set for his children that was located

in the disputed area and remained there until the mid-1980s. Plaintiff alleged that his family

had buried some twelve dogs and other family pets in the disputed area, each marked by a

readily identifiable headstone. Further, Plaintiff’s son had constructed a remote control

racetrack that he and other neighborhood children used during the 1980s and early 1990s.

Also, in the 1970s, Plaintiff installed a drainpipe that carries water from his property into the

disputed area; he made repairs to the drainage pipe as recently as 2013. Plaintiff further

alleged that a previous owner of the Janoyan lot had placed stakes at the Occupation Line

that Plaintiff considered as a “clear indication” of his property line. Further, according to

Plaintiff, all previous owners of the Janoyan lot had maintained that property only to the

Occupation Line. Plaintiff alleged that he discussed the boundary line with Janoyan’s

predecessor in interest, Mrs. Schultz, who confirmed in their discussion that she thought her

property ended at the Occupation Line. Plaintiff alleged that since 2004, his grandchildren

had used the disputed area as a play area the majority of weekends every month. Plaintiff

claimed he never cared to enclose the disputed area because he felt it was not aesthetically

pleasing and fencing it would be expensive. Plaintiff alleged that he had “used and

exercised dominion over the land in the disputed area in a manner consistent with how yards

are typically used in residential neighborhoods” – by maintaining the property and using it

as a gathering place for family and friends – thus demonstrating ownership.

In November 2013, Defendants moved the court to grant summary judgment in their

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favor and dismiss Plaintiff’s claims of ownership to the disputed area. In his affidavit,

Janoyan stated that it was not apparent to him, upon visiting the property before he purchased

his lot, that anyone other than the title owner owned the entire lot. He disputed that the trees

formed an obvious boundary line between the two lots. According to Janoyan, Plaintiff’s

“patio” is actually some flat flagstones upon which Plaintiff located a swing shortly after

filing his complaint. At that time, Plaintiff also installed or manipulated a drain cap in the

disputed area. Janoyan conceded that water drains from Plaintiff’s property into the disputed

The motion was filed byDefendant PinnacleBank and adopted by DefendantJanoyan in its entirety. 2

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area. According to Janoyan, there are only four pet “headstones” located along the boundary

line and no visible bike track ruts in the disputed area. Janoyan concluded that,

the proof shows that Plaintiff has not enclosed the property; that

the uses asserted by Plaintiff do not support a claim of adverse

possession; that the proof shows that Plaintiff has not paid taxes

on the disputed property for over twenty years, and Plaintiff’s

claim is therefore barred by Tenn. Code Ann. § 28-2-110; and

the proof shows that Plaintiff is not entitled to a prescriptive

easement.

After a hearing, the trial court entered summary judgment in favor of Defendants. The

court found that Plaintiff’s claims were barred by the application of section 28-2-110 and

dismissed the action with prejudice. Plaintiff filed a timely notice of appeal.

II.

As taken verbatim from his brief, Plaintiff raises the issue of “whether the Trial Court

erred in granting summary judgment in favor of the Defendants . . . and dismissing all of

Plaintiff[’s] . . . claims with prejudice based solely upon the provisions of Tenn. Code Ann.

§ 28-2-110.”

III.

This Court has stated the standard of review applicable to motions for summary

judgment as follows:

Summary judgments are proper in virtually any civil case that

can be resolved on the basis of legal issues alone. They are not,

however, appropriate when genuine disputes regarding material

facts exist. Thus, a summary judgment should be granted when

the undisputed facts, as well as the inferences reasonably drawn

from the undisputed facts, support only one conclusion - that the

party seeking the summary judgment is entitled to a judgment as

a matter of law.

The party seeking a summary judgment bears the burden of

demonstrating that no genuine dispute of material fact exists and

that it is entitled to a judgment as a matter of law. When the

moving party is the defendant, it is entitled to a judgment as a

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matter of law only when it affirmatively negates an essential

element of the non-moving party’s claim or establishes an

affirmative defense that conclusively defeats the non-moving

party’s claim.

Brigadoon Ptnrs, LLC v. Hughes, No. E2007-00267-COA-R3-CV, 2008 WL 538990 at *

2 (Tenn. Ct. App. E.S., filed Feb. 27, 2008)(citations omitted).

IV.

Plaintiff assertsthat the trial court erred in granting summary judgment to Defendants.

He argues that the trial court improperly interpreted and applied Tenn. Code Ann. § 28-2-110

to dismiss his alternative claims of adverse possession and prescriptive easement.

Simply stated, the doctrine of adverse possession provides that “[w]hen an adverse

possessor holds the land for a period of twenty years, even absent any assurance or color of

title, the title vests in that possessor.” Cooke v. Smith, 721 S.W.2d 251, 255-56 (Tenn. Ct.

App. 1986)). “The underlying idea of the doctrine of adverse possession is ‘that the

possession should be maintained in an open and notorious manner, so as to warn the true

owner that a hostile claim is being asserted to his land.’ ” Wilson v. Price, 195 S.W.3d 661,

666 (Tenn. Ct. App. 2005)(quoting Bensdorff v. Uihlein, 132 Tenn. 193, 177 S.W. 481,

483(Tenn. 1915)). On the other hand, Tenn. Code Ann. § 28-2-110 was enacted “to

facilitate the collection of property taxes by requiring persons claiming an interest in real

property to have that interest assessed and to pay the taxesthereon.” Cumulus Broadcasting,

Inc. v. Shim, 226 S.W.3d 366, 381 (Tenn. 2007)(citing Burress v. Woodward, 665 S.W.2d

707, 709 (Tenn. 1984)). To that end, section 28-2-110(a) provides as follows:

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.

The trial court held as follows:

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[T]he Court finds that it is undisputed that for more than twenty

years Plaintiff has not paid taxes on the disputed area of

property that is the subject of this action, and that, therefore,

Plaintiff’s claims to any legal or equitable interest in the

disputed property are barred by Tenn. Code Ann. § 28-2-110(a).

Pointing to Cumulus, Plaintiff asserts that the Supreme Court has carved out an exception

that permits his adverse possession claim to proceed forward despite his admitted

nonpayment of property taxes on the disputed area. In Cumulus, the High Court held as

follows:

Tennessee Code Annotated section 28-2-110 should notserve as

a bar to a claim of adverse possession when the tracts are

contiguous, a relatively small area is at issue, and the adjacent

owners making claims of ownership have paid their respective

real estate taxes. To hold otherwise would effectively eliminate

the adverse possession of any part of an adjoining tract. As a

matter of policy, possession of property for twenty or more

years, accompanied by all other elements of the doctrine, is a

basis for ownership.

226 S.W.3d at 376-77.

In the present case, there is no apparent dispute that the parties’ lots are contiguous

or that they have each paid their respective property taxes. Accordingly, the issue boils down

to whether a “relatively small” area is at issue. Plaintiff acknowledges that the term is not

specifically defined in Cumulus. He takes the position that because the disputed area makes

up only 7 percent of the total land area owned by both parties, it thereby qualifies as

“relatively small” so that section 28-2-110(a) does not bar his claim.

Our review of the survey obtained by Plaintiff as well as the recorded subdivision plat

certainly puts the disputed area into perspective. We are dealing here with two lots – less

than 2 acres in all – in a platted residential neighborhood. In our view, the lots themselves

may be described as “relatively small.” As earlier described, Plaintiff’s lot is roughly threefourths of an acre, while the Janoyan lot is approximately one and a quarter acres. At its

widest point, at the rear lot line, the disputed area is over forty-one feet wide. Excluding the

disputed area would effectively reduce the rear line of the Janoyan lot from 202 feet to 160

feet, while correspondingly increasing Plaintiff’s rear lot line from 110 feet to 152 feet. Or,

as Janoyan sees it, the overall size of his lot will decrease by over eleven percent, while

Plaintiff’s lot size will increase by nearly twenty percent. Janoyan concludes: “Percentage

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formulas are meaningless in a case like this[,] [and] the disputed area is not ‘relatively small’

in any sense of the word.” Under the facts before us, we agree. Accordingly, the exception

created in Cumulus does not apply to prevent application of the statutory bar to Plaintiff’s

claim of adverse possession.

At this juncture, we briefly discuss Plaintiff’s alternative claim that he is entitled to

a prescriptive easement over the disputed area. Again, Cumulus is instructive. Therein, the

High Court discussed prescriptive easements as follows:

A doctrine related to adverse possession is that of prescriptive

easement[. . . .]. Generally, this easement arises when a use, as

distinguished from possession, is adverse rather than permissive,

open and notorious, continuous and without interruption, and for

the requisite period of prescription. The extent of the rights

matured by prescription is based upon the extent of the use

during the period of prescription.

Most authorities describe the doctrine of adverse possession and

that of prescriptive easement as “blended” but with differing

histories; the primary distinction is that the adverse possessor

occupied the land of another, whereas, in prescription, there is

merely adverse use of the land of another. A prescriptive

easement is not ownership and the right acquired is limited to

the specific use.

In order to establish prescriptive easement under the common

law of this state, the usage must be adverse, under claim of right,

continuous, uninterrupted, open, visible, exclusive, and with the

knowledge and acquiescence of the owner of the servient

tenement, and must continue for the full prescriptive period.

The requisite period of time of continuous use and enjoyment

for a prescriptive easement is twenty years.

Id. at 378-79.

Again, in his complaint, Plaintiff generally alleges that he has used the disputed area

as land for his family garden and as a play area for his children. With little more elaboration,

Plaintiff claims that as a result of his adverse “possession” of the disputed area for over fortytwo years, he is “entitled to a Prescriptive Easement over the land . . . for his exclusive use

and enjoyment.” In this manner, Plaintiff does not seek simply the right to cross over the

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Janoyan lot for any certain purpose or continued use, but sole possession of the entirety of

the disputed area. Janoyan characterizes Plaintiff’s easement claim as nothing more than “an

adverse possession claim in disguise.” We agree. As a result, we conclude that Plaintiff’s

prescriptive easement claim is essentially the same adverse possession with a new name. It

is likewise barred.

Based on the foregoing, the trial court correctly held that “Plaintiff’s claims to any

legal or equitable interest in the disputed property are barred by Tenn. Code Ann. § 28-2-

110(a).” The trial court properly granted summary judgment in favor of Defendants as a

matter of law. We reject Plaintiff’s arguments to the contrary.

V.

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

Walter Allen Gault. This case is remanded to the trial court, pursuant to applicable law, for

enforcement of the court’s judgment and the collection of costs assessed below.

_____________________________________

CHARLES D. SUSANO, JR., CHIEF JUDGE

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