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. SHARON BELL, 

v. ) CHANCELLOR

)

ALLEN M. WEBB, CLYDE N. WEBB, )

and ASTER VANCE WEBB, ) AFFIRMED

) AND

Defendants-Appellants. ) REMANDED

CHARLES G. TAYLOR, III, McDONALD, LEVY & TAYLOR, Knoxville, for

Plaintiffs-Appellees.

STEVEN G. SHOPE, Knoxville, for Defendants-Appellants.

O P I N I O N

Franks, J.

In this boundary line dispute the defendants appeal from a judgment in

favor of plaintiffs, insisting that the evidence established their right to the disputed

area by adverse possession.

The plaintiffs filed this action to establish the boundary between the

parties, and defendants in their pleadings did not raise their right to the disputed area

by adverse possession. However, on the morning of trial defendants essentially

conceded the boundary line was where plaintiffs had alleged, but as the Chancellor, in

her judgment recited: 

The parties then announced that in regard to the claim concerning
2

location of the boundary between the parties’ respective lots, the parties

were stipulating that the only issue to be decided by the Court was

whether or not the defendants had a valid defense based upon adverse

possession. It was agreed that, if the defendants could not prove that

they were entitled to the disputed property by adverse possession, then

plaintiffs would prevail.

After hearing testimony, the Chancellor ruled that “the defendants had

not ‘openly and notoriously’ occupied the plaintiffs’ property for a sufficient length of

time to establish a valid claim by adverse possession.” 

In order for the defense of adverse possession to be sustained, we

explained in Panter v. Miller, 698 S.W.2d 634 (Tenn. App. 1985):

The burden is on the one alleging to prove his defense of adverse

possession. See Tipton v. Smith, 593 S.W.2d 298. Adverse possession

is never to be presumed, but a ll of its element must be proved. Drewery

v. Nelms, (1915) 132 Tenn. 254, 177 S.W. 946. In order to be adverse,

the possession must be open, notorious, continuous, actual and visible. 

Sequatchie Val. Coal & Iron Co. v. Coppinger, (1895) 95 Tenn. 526, 32

S.W. 465. The caliber of proof necessary to show those required

elements is dependent upon the use to which the land is susceptible. 

Blankenship v. Blankenship, (1983 Tenn. App. W.S.) 658 S.W.2d 125. 

Id. At 636.

“Clear and positive proof” is required to establish adverse possession. Kidwell v.

VanDeventer, 686 S.W.2d 899 (Tenn. App. 1984). 

At the conclusion of the evidence, the Chancellor observed:

For thirty years or so, or perhaps short of that, the defendants used

portions of the land in question to plant seedlings, bedding plants and

some shrubbery. I believe that his planting probably more likely than

not extended into the disputed a rea, which wa s a heavily wooded area . 

The plants that the Court has been shown today . . . were indigenous or

natural to the wooded areas. . . . so they are not the types of plants in

general that would put one on notice that they were anything other than

natural plantings that was natural to the area. There were some beds

apparently in which seedlings were planted, but, as the defendant has

told us, these were pretty well hidden, not to hide them from the

plaintiffs, but to prevent thievery. Most telling, as the defendant has

testified, people around would probably not know an activity was going

on. And under the testimony, the area was so thick, as most witnesses

have said, it would not invite a stroll through the area to investigate

activity.

The evidence e stablishes that defendants had conducted nursery
3

operations on the lot adjoining plaintiffs’ lot beginning in 1950's. This activity had

ceased by the time plaintiff purchased his lot in 1992. Plaintiff testified that he

walked the boundary in question when he purchased the 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 engineer who

made a boundary survey for plaintiffs testified that pla intiffs’ land was heavily

wooded and he did not observe anything that would indicate defendants were

conducting a “business activity” in the heavily wooded area. The Marshalls who

reside across the road from the disputed property since 1954, testified that they never

had any knowledge that defendants had conducted nursery activities on the property

which plaintiffs purchased. Mr. Marshall conceded on cross-examination that he

never went into the woods and explained “I would have to have a machete to cut my

way through the woods”. 

Defendant Allen Webb testified that he had continuously used the 20 ft.

strip from 1975 through 1988 by planting Rhododendrons, Mahonia, Lobelia and

some ferns, and conceded that the plantings “were not obvious”. Webb further

testified after observing that his mother had run “people off who were trying to take

the stuff that was in there”:

Q. Is that one of the reasons you tried to hide it back there?

A. Yes, sir.

Q. You tried to put them way back in the woods so they were not

easily observed from the road?

A. That’s part of it. Yes, sir, it was.

Q. Anybody driving by wouldn’t know you planted stuff back in

there, right?

A. That’s correct.

Q. And the owner of that lot 183, if they had driven by they

wouldn’t have any idea you were occupying tha t land, would
4

they?

A. I would doubt that they would.

We agree with the Trial Judge that the evidence offered by the defendant

that the occa sional use of the disputed area by planting and concealing nursery plants

in part of the disputed area does not constitute open and visible possession. To impart

notice, it has be en said that: 

Notice of possession of that open and visible character which from its

nature is calculated to apprise the world that the land is occupied and

who the occupant is; such an appropriation of land by claimant as to

apprise, or convey visible notice to, the community or neighborhood in

which it is situa ted that it is in his exclusive use and enjoyment.

2 CJS Adverse Possession §50, p.714.

Considering defendants’ evidence alone, the elements required to establish adverse

possession are not established. See Sequatchie Val. Coal & Iron Co. 

We affirm the judgment of the Trial Court and remand with the cost of

the appeal assessed to appellants.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

William H. Inman, Sr.J.