1 Rule 10 (Rules of the Court of Appeals of Tennessee). -- (b) Memor andum Opinio n. The Court, with the concurrence of all judges pa rticipating in the case, may affirm, reverse or modify the actions of the trial court by me morandumopinion when a for mal opinion

would have no precedential value. When a case is decided by memorandum

opinion it shall be designated “MEMORANDUM OPINI ON,” shall not be published, and shall not be cited or relied on for any reason i n a subsequent unrelated case. 

# FILED

October 3, 199 7 Cecil W. Crowson

IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE BILLY FRANK HENLEY and, ) From the Chancery Court JOE H. MARLOW, ) for Coffee County , Tennessee ) The Honorab

le Gerald L. Ewell, Sr., Chancel lo r Plaintiffs/

Appellee s, ) vs. ) ) Coffee Chancery

No. 95-165 DALE DOTSON and wife, ) Appeal No. 01A01-9611-CH-00523 ELSIE DOTSON, ) ) AFFI RMED Defendants

/Appellants . ) ) Aubrey L . Harper ) McMinnville, Tennessee ) Attorney

for Def endants/ Appellan ts ) ) Robert F. Hazard ) Tullahoma, Tennessee ) Attorney

for Plain tiffs/App ellees

RULE 10 MEM ORANDUM OPINION

This matter appears appropriate for c onsideration pursuant to Rule 10(b) of the Rules of the Court of Appeals of Tennessee. 1 The plaintiffs in this case, Billy F rank Henley (“Henley ”) and Joe H. Marlow (“Marlow”),

own tracts of farm land in Coffee County , Tennes s ee. Hen ley acquire d his land i n 1992 fro m his brother, Cl ar en ce He nl ey, and his sister-in-law, Nona Mae Henley

. Clarence and Nona Mae Henley had acquire d the prop erty from his pa

rents in 1974. His parents had owned the property since 1957. Marlow acquired one

tract of land at issue in 1973 and another tract of land at issue in 1975. The plaintiffs claim that a road separates their land from that of the defendants, Dale and

ElsieDotson (“Dotson”). Henley and Marlow brought this action after Dotson placed a gate across the r oad, inserted metal posts in the

roadwa y se paratin g Dotson ’s prope

rty from Marlow’s property, a nd inserted fence posts parallel to the roadway in property alleg ed to be owned by Henley. He

nley and Mar

low sought to have the road declared a pu bli c road, and petitioned the trial court to enjoin Dotson from obstruct ing it.2

Dotson countered that the road at issue is merel y a far m lane with no public use. Dotson further contended that a 1995 survey indicates that a significant portion of the road at issue is located wi th in th e b ou nd ar ie s o f D ot so n’ s p ro pe rt y. At the bench trial, th

e pla intiffs proffered the testimony of several witnesses, including Henley’sparents , that as fa r back a s 1918 the r

oad had b een publi cly

used as a means of accessto homes lo ca te d i n t he vi ci ni ty. They te stified that this use continued after the county ceased maintaini ng the r

oad, until Dotson clo sed it. The plain tiffs also p resented testimony that for at least seventy y

ears the road had been treated as the boundary

between the plaintiffs’ proper ty a nd Dots on’s property. A lthough he disputed that the road was a boundary , Dotson acknowledged that, since Dotson was a c hild, the plaintiffs and their predecessors had farme d the land up to the road. In a cursory

opini on, the trial court held that the road was a “public rig ht-of-way ” and enjoined Dotson from obstructing the road way. Dot son then f iled a moti on with the

trial cou rt, seeking a ruling on the ownership of the l an d adjacent to the road, which had been fa rmed by the plaintiffs f

or m any yea rs b ut whi ch D ot son ’s 1 995 sur vey i ndi cat ed b elo nge d t o Do ts on. In a Supplemen

ta l Decre e, the trial court ruled that the road served as the bounda ry betwee

n the plaintiff s’ and the defend ants’ p roperty, in ef fect ruling that the disputed land belonged to the plaintiff s. From th

ese rulin gs, Dots on now app eals. On appeal, Dotson assert s that th e evidence was insufficient to support the trial court’s finding s that the road is a public right-of-way and that the road is the boundary line between th e parties’ property. Dotson also asserts that it was inappropriate for the trial court to rule that the road

serves as the bou

ndary line, bec ause this determin ation wasnot reque sted in the plain tiffs ’ Complaint. Our review of the trial cou

rt’s orde r is de novo upon the record with a presumption of

correc tness of the findings of fact by the tr

ial court. Tenn. R. App. P. 13(d). From our examination of the record, the evidence preponde rates in favor of the trial

court’s finding that

the road constitutes

a public right-of-way . The evidence is sufficient to support the trial court’s finding tha t an implied dedication has been

made. See Reeves v. Perkins, 509 S.W.2d 233 (Tenn. App. 1973); Rogers v. Sain , 679 S.W.2d 450 (Tenn. App. 1984). Therefore, the trial court appropria tely ordere d removal of ob st ru ct io ns pl ac ed on th e r oa d a nd on th e p la in ti ff s’ pr op er ty.3

The evidence is also sufficient to support the trial court’s finding that the road serves as the boundary between the properties of Henley a nd Dotson. “To establish title by adver se possession, th ere must be an

occupa tion of the

propert y under a cl aim of rig

ht or title which is op en, actu al, continuou s, exclusive , advers e and noto rio us for t he prescriptive period of 20 y ears.” Catlett v. Whaley , 731 S.W.2d 544, 546 (Tenn. App. 1987). Furthermore, “[t]here is no question but that the taking of possession of parties, where neither had as much a s twenty y ears possession, buttogether their period of adverse possession had bee n far mor e than twe nty ye ars, with out interr

uption, the

title and right by pr

escription prevailed.” Hill v. Hill , 403 S.W.2d 76 9, 781, 55 Tenn. App. 589, 617 (Tenn. App. 1965). The record indicates that, for decades, Henley

and his family have f

armed the land bordering the road. This continued, u ninterru pted, while title to the land was passed to various members of Henley’sfamily. The evide nce preponderates in fa

vor of the tri al court’s finding that the road separates the properties of Henley and Dotson. O n appeal, Dotson also argues that the trial court improperly ruled that the road was the boundary between the plaintiff

s’ and de fendant s’ prope

rties, be cause th

e plaintif fs faile d to reque st

a boundar y de terminat ion in their

Complaint. This argument is puzzling in view of Dotson’s motion filed on May 6, 1996, specific ally requesting the trial court to make a

ruling regarding this issue. It appears that

the issue was tried by the implied conse nt of the parties. See Derr yberry v . Ledfor d , 506 S.W.2d 152, 155-156 (Tenn. App. 1973). Moreover, any objection Dotson may have ha d was waived by the f

iling of a motion requesting the trial court to rule on this issue. The decision

of the tri al court

is affir med. Costs are t axed to the Appellant, for which execution may issue if nece ssary.

HOLLY KIRBY LILLARD, J.

CONCUR:

W. FRAN K CRAWF ORD, P. J., W.S.

ALAN E. HIGHERS, J.