# FILED March 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

DAVID E. LIND, et ux MYRA ) C/A NO. 03A01-9710-CH-00473 GWYNN LIND, ) ) KNOX CHANCERY Plaintiffs-Appellees, ) ) HON . SHA RON BEL L, v. ) CHANCELL OR ) ALLEN M. WEBB, CLYDE N. WEBB, ) and ASTER VANCE WEBB, ) AFFIRMED ) AND Defendants-Appellants. ) REMANDED

CHARLES G. TAYLOR, III, McDON ALD, LEVY & TAYLOR , Knoxville, for Plaintiffs-Appellees. STEVEN G. SHOPE , Knoxville, for Defendants-Appellants.

O P I N I

O N Franks, J.
In this boun dary line dispute the defen dants app eal from a judgmen t in favor of plainti

ffs, insisting that t

he evidence establ

ished their

right to t he disputed area by advers e possession.

The plaintiffs

filed this

action to est

ablish the boundar

y between the parties,and defendants in the ir pleadings

did not raise

their right to the disputed area by adverse p ossession. H oweve r, on the mo rning of trial d efendan ts essentially concede d the boun dary line was w here plaintiff s had allege d, but as the C hancellor, in her judgm ent recited:

The parties then a

nnounced that in rega

rd to the clai

m concerning2 location of the

boundary between the pa rties’ r espective lot

s, the part

ies were stipulat

ing that the onl

y issue t o be decided by the

Court was whether or not the defendants had a valid defense based upon adverse possession. I

t was agreed that,

if the defendants

could not prove that they were enti

tled to the di sputed property by adverse posse ssion, then plaintiffs w ould prev ail. After hearing testimony, t he Chancellor ruled that “the defendant s had not ‘openly a

nd notoriously ’ occupied the pla intiffs’ pr

operty for a

sufficient l

ength of time to establ

ish a valid claim by adverse poss ession.” In or der f or t he defens e of a

dverse po sses sio n to b e sustained,we explained in Panter v. Miller , 698 S.W.2d 63 4 (Tenn. App . 1985): The burden is on the one alleging to prove his defense of adverse posses sion. See Tipton v. Smith , 593 S.W.2d 298. Adverse posse ssion is neve r to be p resum ed, but a ll of its ele ment m ust be p roved. Drewery v. Ne lms , (1915) 132 Tenn. 254, 177 S. W. 946. In order to be adve rse, the pos session must b e open , notorio us, con tinuou s, actual a nd visib le. Sequatchie Val. Coal & Iron Co. v. Coppinger, (1895) 95 Tenn. 526, 32 S.W. 465. The caliber

of proof necessary

to show those requir

ed elemen ts is depe ndent u pon the use to w hich the land is su sceptib le. Blanken ship v. Blan kenship , (1983 Tenn . App. W .S.) 658 S.W.2 d 125. Id. At 636. “Clear and po sitive pro of” is re quired to estab lish adv erse po ssession
. Kidwell v. VanDeventer , 686 S .W.2d 899 (T enn. A pp. 198 4).

At the conclusion of t

he evidence, the Chancel lor observed: For thirty

years or so,

or perhaps short of

that, the de

fendants used portions of the l

and in question t

o plant seedli

ngs, bedding plant

s and some shrubbery. I believe that his planti

ng probably more l

ikely t han not exte nded in to the dis puted a rea, wh ich wa s a heav ily wood ed area
. The plants that

the Court has been shown today . . . were indi

genous or natural to the w ooded ar eas. . . . so they are no t the types of pla nts in general that would put

one on notice that

they were any

thing other t

han natural plant

ings that was nat

ural to the ar

ea. There were some beds apparently

in which seedlings

were planted, but, as the defendant has told us, the se were pretty well hidden, not t

o hide them from the plaintiffs , but to prevent thievery . Most telli

ng, as the defendant

has testified, people around would proba bly not know an acti

vity was going on. And under the test

imony, the ar

ea was so thick, as

most witnesses have said, it w ould not inv ite a stroll throug h the area to investigate activ ity. The evidence e stablishes that defendants ha d conducted nu rsery3

operations on t

he lot adjoini

ng plaintiffs ’ lot beginni ng in 1950's. Thi s activit y had ceased by the t

ime plainti

ff purchased his lot in 1992. Plai ntiff test ified that he walked the boundary i

n question when he purchased t he lot and there was no indication that anyone was using the property for any purpose. There were no fences, buildings or structures,

and the property

was heavily wooded. The engi neer who made a b oundary surv ey for plaintiffs testified that pla intiffs’ land w as heavily wooded an d he did not observ e anything that would indicate d efendants were conducting a “busines s activit y” in the heavi

ly wooded area. The Marshal ls who reside across

the road from the dis

puted property

since 1954, testified that they never had any kno wledge th at defend ants had co nducted n ursery activities on the property which plaintiff

s purchased. Mr. Marshall conceded on cross-examinat ion that he

never went i nto t he woods

and explained “I

would h ave t

o have a machet e to cut my way thro ugh the wood s”.

Defend ant Allen W ebb testified that he had continuou sly used the 20 ft. strip from 1975 thr

ough 1988 by planti

ng Rhododendrons, Mahonia, Lobelia a nd some ferns, and conceded t hat the plant

ings “were not obvious”.Webb further testified after observi

ng that his mother

had run “people off who were try ing to take the stuff that

was in there”: Q. Is that one of t

he reasons you t

ried to hide i

t back there? A. Yes, sir. Q. You tried to put t hem way back in the woods so they were not easily obs erved from the road? A. That’s part of it. Yes, sir,it was. Q. Anybody driv ing by wou ldn’t know you planted stu ff back in there, right? A. That’s corr ect. Q. And the owner of that lot 183, if they had dr

iven by they wouldn ’t have any ide a you were o ccupying tha t land, wou ld4 they? A. I would doubt that t hey would. We agree with the Trial Judge that the evi

dence offered by t

he defendant that the occa sional use o f the dispute d area by plan ting and co ncealing n ursery plants in part of the disputed area d oes not constitute open an d visible possession. To im part notice, it has be en said that:

Notice of possession of that ope n and visib le character w hich from its nature is cal

culated to appri se the world that the land is occupi

ed and who the occupan t is; such an ap propriation o f land by claim ant as to apprise, or co nvey visible no tice to, the com munity or neig hborhoo d in which it is situa ted that it is in his ex clusive use and enjoym ent. 2 CJS Adverse Possession §50, p.714. Considering defendants’ evidence alone, the elements required to establish adverse posses sion are not esta blished
. See Se quatch ie Val. C oal & Iro n Co.

We affirm the judgment of the Tr ial Court and remand wit h the cost of the appeal assessed to appellants.

__________________________ Herschel P. Franks, J. CONCUR:

___________________________ Don T. McM urray, J.

___________________________ William H. Inman, Sr.J.