# FILED

December 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

W. J. CROWELL and wife, ) MILDRED P. CROWELL, ) ) Plaintiffs/Appell

ants, )

) Bedford Chancery ) No. 17,899 VS. ) ) Appeal No. ) 01A01-9609-CH-00431 LARRY DON HASTY and wife, ) CONNIE MARIE HASTY, ) ) Defendants/Appel

lees. )

APPEAL FROM THE CHANCERY COURT FOR BEDFORD COUNTY

AT SHELBYVILLE, TENNESSEE

THE HONORABLE TYRUS H. COBB, CHANCELLOR

For the Plaintiffs

/Appellants : For the Defendants/Appellees : C. Kelly Wilson Andrew C. Ram bo Shelbyville, Tennessee Shelbyville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE 

## O P I N I O N1 This deed was referred to throughout the trial asa “boun dary deed” bec ause the only description of the property it contained was “Boun ded on the north by George Sanders; east by George Sanders; south

by Earnest Haynes, and west by Lem Clardy, containing fouteen [sic] acres.” -2- This appeal involves a disp ute between neighbors ov er the location of appr oxima tely five acres of property along Old Virginia Road in rural Bedford County. The owners of the property filed suit in the Chancery Court for Bedford County alleging that their n eighbors were trespassing on the propert y and requesting
ajudicial determina

tion of the property’s location. Their neighbors asserted that they
owne d the dis puted property and that the plaintiff property owners were mistaken about the location of their tract

. Following a bench trial, the trial court determined thatthe plaintiff prope

rty owners’ tract was actually over 1,150 feet to the south of where they thought it was and that the plaintiff

property owners had not established
aclaim to the disputed property by adverse possession. On this appeal, the

plaintiff propertyowners asser t that the evidence does not su pport the trial cour

t’s decision regardingthe location of the proper ty and their adverse possession claim. We disagree and, therefor e, affirm the judgment.

I.

W. J. Crowell is a ge

neral contractor and real estate br oker who l ives in Shelbyville. In the mid-1960s, he began purchasing prope

rty on Old Virginia Road in the vicinity of Unionville. He first became interested in a 14-acre tract

owned by Ceci l and Betty Compton. When Mr. Crowell discovered that the property was separated from O ld Virginia Road by app roximately 290 feet

, Mr. Compton recommended thathe discuss buying the strip of land between the eastern boundary of the 14-acre tract and the road from W. H. Bomar. Mr. Bomar a greed to sell t

he propertyto Mr. Crowell “for a price.” Thus, on March 18, 1966, W. J. and Mildred P. Crowell purchase

d the 14-acre trac

t from the Comptons. 1 On March 22, 1966, the Crowells purchased a 5-acre tract from W. H. and Ruberta C. Bomar, believing that the western boundary of

this tract ran along the eastern boundary of the 14-acre tract they had purchased fo

ur days earlier fr

om the Comptons.2 Mr. Crowell later purchased another 21-acre tract to the south o

f the other four t

racts. This tract’s northern boundary is the southern boundary of the tract he purc hased in Janu ary 1967. A portion of this tract’s southern boundary abuts Highway 41A. -3- In 1967, Mr. Crowe

ll purchased two mor

e tracts of proper

ty in the area that he believed were contiguous with the two tracts he had p urchased in 1966. In January 19 67, he acquired a trac

t behind the tract he

had purchased from

the Comptons in March 1966. In September 1967, he purchased from

Ernest Haynes a 15-acre tract adjacent to the 14-acre tract he h ad pur chased from the Comptons. The northern boundary of this tract i s the southern boundary of th e 14-acre tract purchased from the Comptons. The western boundary of th e tract is the eastern boundary of the propertyMr. Crowell purchase d in January 1967. Mr. Crowell al so believed that the eastern boundary of this tract was t he western boundary of the tract he had purchased from Mr. Bomar on Marc h 22, 1966. 2 Mr. Crowell removed fences and cleared portions of the

property. He use

d the property prima

rily for cutting cedar t

rees and hunting deer.

In October 1970, W. H. Bomar conveye d a tract of proper

ty to Haile Selassi

e and Frances Marie Arnold. This tract contained approximately 59 ac

res, excluding the 5-acre trac t that Mr. Bomar had conveyed t o Mr. Crowell on M

arch 22, 1966. Approximately

46 acres of this tra

ct was immediate

ly t o the north

of the tract Mr. Crowell purchased from the Comptons in M arch 1966. In fact, the southern boundary of the Arnolds’ tract was the northern boundary of the tract the Crowells purchased from the Comptons in March 1966. The remainder of the Arnolds’ trac

t, except for th e pro perty conveyed to the Crowells in Marc h 1966, was a strip of

property between 270 and 297 feetwide and between 1,985 and 2,100 feet long running along Old Virginia Road.

On April 3, 1980, the Arnolds’ p roperty was sold at the courthouse steps as a result of the Arnol ds’ div orce proceeding. Larry Don and Con nie Marie Hasty purchased the property, and on April 7, 1980, r

eceived a deed to the 59.1 acre tract less the property that h ad been conveyed to the Crowells in March 1 966. Mr. Hasty,
alicensed engineer, believed that the tract was essentially square in shape and hired Rex Northcutt to survey the proper ty. At thi s point, Mr. Hast y discovered that the propertyhe had purchased in cluded that long, narrow , 13-acre strip of property-4-

running adjacent to

Old Virginia

Road. The survey also revealed that the tract Mr. Crowell had purchased from

Mr. Bomar was a

ctually on the southern

portion of this strip rather than th

e northern portion w

here Mr. Crowe

ll believed it had bee

n.
Relying on this survey, Mr. Hasty be gan to erect a fenc e along Old Virginia Road between the road and the 14-acre tract Mr. Cro well ha d purchased from Mr. Comptonin March 1966. On June 26, 1985, Mr. Crowell sent Mr.Hasty a registered lett er stating: “It has come to my attention that you have recently erected a bar be d wire fence on my propert y on Old Virginia Roa

d. This letter is t

o request you to
remove this fence from my property within ten days, or I will take the nec essary action to move it myse

lf.” Mr. Hast

y did not respond to this

letter, and neither Mr. Crowell nor Mr. Hasty

ever discussed the le

tter. Since purc

hasing and fencing

in the property, Mr. H

asty has used it as a pa

sture and for growi

ng hay.

In May 1992, the Crowells filed suit against the

Hastys in the

Chancery Court for Bedford County alleging that the Hastys were trespassing on their p roperty. They also requested $60,000 in d amages and a

declaration of the location of the boundary lines between the parti

es’ land . The Hast

ys denied that they we

re trespassing and asserted that the locat ion of the Crowells’ proper ty was further sout

h than the Crowells believed it was. After joining the Bomars as third-party defendants, the trial courtconducted a bench trial inSeptember 1995. D uring the trial, the

Hastys introduced Mr. Northcutt’s survey showing the location of the long, narrow strip of propertyand the location of where Mr. Crowell believed his 5-acre tract was located (Tract B) as well as the locati

on of where the surveyor had determined that this tract
was actually located (Tract A). See Appendi x One to this opinion. In November 1995, t he trial court file

d a memorandum conc

luding that Tract A

was the tract th

e Crowells had purchased from the Bomars on Marc

h 22, 196 6. The trial cour t also dismissed the Crowells’ adverse possession claim.

II.

We turn first to the Crowe lls’ assertion that t

he trial court err

ed by determining that the tract they purchased from Mr. Bomar in March 1966 was Tract A rather than Tract B. They insist that the t

rial court’s deter

mination is inconsistent with their deed and withthe undisputed i ntentions of Mess rs. Crowell and Bomar. Regrettably, the3 In the words of the de ed, “running then

ce in a Westerly

direction with

the South [sic

North] property line of Thompson.” -5- nume rous cl erical errors in the pertinent deeds create ambiguities over which reasonable

persons might differ

. We find, howe

ve r, that the most sensible interpretation

of the deeds in light of the monuments in the field is the one adopted by the trial court.

The Crowells’ challe

nge to the trial court’s c

onclusion concerning th

e location of the tract they purc

hased from Mr. Bo

mar is based on the second ca ll in their March 22, 1966 deed which descr ibes the western bou

ndary line of their t

ract as follows: “thence in a Northe

rly direction

with Haynes’ Ea

st boundary line

and with the East boundary line of Crowell

. ” They insist that thi s boundary line could onl y be the western boundary line of

Tract B because , at the time of the conveyance in 1966, o

nly the western boundary line of Tract B could have coincided with the eastern boundary line of pr op erty owned by both the Hayneses and the Cr owells. This point

is welltaken but is also inconsistent with the location of

the southern bounda

ry of th e property described in the first call.

The southern bo undar y line of the tract t he Crowells purcha

sed from the Bomar s in Marc h 1966 ran east-to-w est along the norther

n boundary line of Thompson. 3 As the trial court found, the southern boundary line of the tract c ould be Thompson’s northern boundary line only if the tract was locatedwhere the surveyor designated Tract A. To buttre s s the trial court’s reliance on the re ference to Thomps on’s boundary line, the sur veyor also testified

unequivocally that he f

ound the hub and the pin marking both the southeas tern and s outhwestern corner s of the tract exactlywhere they should ha ve been. He also pointed out tha t the description of the property began a

t the southeast corner of the tract originally conveyed to Mr. Bomar and that this poin

t could only have been on the sou thernmost end of the property not 1,100 fe

et to the north.

As an aid in locating dispu ted boundaries, the courts fir st look to natural objects, then artificial mo numents, then the

boundaries of

adjacent landowne

rs, and finally to courses and dist ances. See Pritchard v. Rebori , 135 Tenn. 328, 332 -33, 186 S.W. 121, 122 (1916); Bramblett v. Ru nyan , 631 S.W. 2d 1 29, 131 (Tenn. Ct. App.-6-

1981). In this case, the

trial court based it

s decision on artific

ial monuments and the bou ndaries of adjacent landowners. Having reviewed this decision under Tenn. R. App. P. 13(d),

we cannot say that t

he evidence preponde

rates against this de

cision.

In addition to their

reliance on the second call establishing the western boundary line of the

tract, the Crow

ells also point to the

undisputed fact that both Mr. Crowell and Mr. Bomar intended to convey Tract B rather than Tract A. The

y argue that this intention, not evi dent on the face of t

he deed, should someho

w t rump the description

of the property’s boundaries in their deed. The parties’ intent

is generally derived from the calls

in the deed. See Mayse v. Laf ferty , 38 Tenn. (1 He

ad) 60, 61- 62 (1858). However, adjoining property ow ners may agree upon the exact location of their common boundar

y lines where ther

e is doubt abo ut the location of the true line. See Houston ’s Heirs v. Matthews , 9 Tenn. (1 Yer.) 116, 118-19 (1826); Winborn v. Alexander , 39 Tenn. App. 1, 17, 279 S.W.2d 718, 725 (1954). They cannot change boundaries by parole agreeme nt when the calls ar

e definite and wel

l understood. See May v. Aber nathy , 23 Tenn. App. 236, 242, 130 S.W. 2d 135, 139 (1939).

This record contains no e vidence that the

Crowells on one hand and eitherthe Bomars, the Arnolds, or the Hastys on the other had any dis agreement concerning the location of the boundary lines o

f their properties or that they entere d into any explicit paroleagreements conce rning the location of t

heir boundaries. T

hus, there is no explicit parole agreement

that prevents the H

astys from relying on

the description

of their property in the

deed they received

from the clerk and

master in 1980.

III.

As a final matter, the Crowells assert that the trial court er

red by failing to find that they had acquired tit

le to Tract B by ad

verse possession eithe

r under Tenn. Code Ann. § 28-2-105 (1980) or by v irtue of the common-law doctrine of prescription. We have deter mined that the Crowells have failed to carry their burden under either
c laim, first because they did not establish that th ey had assurance of

title to th e propertythey ar e now c laiming and second because they have not possessed the disputed property adve

rsely for twenty ye

ars.-7- T HE T ENN . C ODE A NN . § 28-2-105 C LAIM

Tenn. Code Ann. § 28-2-105 enables persons who have continually possessed property for

seven years under an assurance of title to acquire fee simple interest in the property. A deed

pur po rting to convey a fee simple estate is such an assurance of title, see Southern Iron & Coa l Co. v. Schwoon , 124 Tenn. 176, 203-04, 135 S.W. 785, 792 (1911); Sharp v. Vanwinkle , 80 Tenn. 15, 19 (1883), even if the deed is invalid. See Wallace v. M cPherson , 187 Tenn. 333, 339, 214 S.W. 2d 50, 53 (1947); Thurston v. University of N.C. , 72 Tenn. 513, 51 9 -20 (1880). For the purpose of Tenn. Code Ann. § 28-2-105 , the disputed area must fall w ithin the calls of the adverse possessor’s deed. See Burks v. Boles , 934 S.W.2d 653, 655 ( Tenn. Ct. App. 1996). The statutory prescript ive period does not

commence until posse ssion of the propertyunder assurance of ti tle begins. See Barnes v. Vickers , 62 Tenn. 370, 372 (1874).

The party claiming title through ad verse pos session has the burden of proof. See Buchanan v. Nixon , 163 Tenn. 364, 369 , 43 S.W.2d 380, 382 (1931); Blakemore

v. Matthews , 154 Tenn. 334, 341 , 285 S.W. 567, 5 69 ( 1926). We have already determined thatthe March 22, 1966 deed from the Bomars to the Crowells conveyed Tract A, not Tract

B. Even were w

e to find that the

Crowells have bee

n possessing Tract B adversely since 1966, no part of Tract B was included within the calls of the March 22, 1966 deed. Thus, the Crowells have not carried their burden regarding their Tenn. Code Ann. § 28-2-105 claim because they have failed to prove that they
were holding adversely the property c overed by the March 22, 1966 deed from the Bomars.

T HE C OMMON -L AW P RESCRIPTION C LAIM

Parties without assurance of title may acquire a fee simple interest in pr operty by continuously possessing th e land for twenty

years under a claim of ri ght. See Keel

v. Sutton , 142 Tenn. 341, 346 , 219 S.W. 351, 3 53 (1920); Cooke v. Smith , 721 S.W.2d 251, 255 (Tenn. Ct. App. 1986); Pr eston v. Smith , 41 Tenn. App. 222, 228, 293 S.W.2d 51, 53 (1955). The

posse ssion mus t be actual, adver se, continuous,-8-

exclusive, visible, and noto rious. See Catlett v. Whaley , 731 S.W.2d 544, 546 (Tenn. Ct. App. 1987). Persons see king to establish title m

ust establish

their possession by clear and positive proo f, see Jones v. Coal Creek Mining & Mfg. Co. , 133 Tenn. 183, 185, 180 S.W. 991, 992 ( 1915); McCammon v. M eredith , 830 S.W.2d 577, 58 0 (Tenn. Ct. App. 1991), that leaves no doubt concer ning the adverse cla

im of ownership. See Cooke v. Smi th , 721 S.W.2d at 254. To be adverse, the nature of the possession

need only be consiste nt with the nature a nd circumstances of

the land involved. See Bensdorff v. U ihlein , 132 Tenn. 193, 198, 177 S.W. 481, 482 (1915); Catlett v. Whaley , 731 S.W.2d at 54 6.

We need not minutely dissect the n ature of the Crow

ells’ possession of the disputed property in this case because they have failed to demonstrate that the

y have possessed the property

for at least twenty year

s. They began posse ssing the property, believing it to betheirs, in March 1966. On October 1970, the Bomars con veyed the propertyto the Arnolds, and the Hastys purchased the Arnolds’ pro perty o n the courthouse

steps in April 1980. In June 1985, the Hastys constructed a fence around portions of the property. I n addition tothe shortness of time the Crowells possessed the property, the rec

ord contains no evidenc

e that e ither theArnolds or the Has tys kne w or should have kno wn of the Crowells’ adver se claim. See Tidwell v. V an Deventer , 686 S.W.2d 899, 902 (Ten n. Ct. App. 1984).

IV.

We affirm the judgment

and remand the case to the trial court for whatever further proceedings may be r

equired. We tax the costs of this appeal to W.J. Crowell and Mildred P. Crowell for which execution, if necessary, may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

________________________________ HENRY F. TODD, P.J., M.S.

________________________________-9-

SAMUEL L. LEWIS, JUDGE