# FILED
May 25, 1999 Cecil Crowson, Jr. Appellate Court Cle rk FRANCES DAVIS, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9706-CH-00254 v. ) ) Lawrence Chancery LORENE INMAN, TERESA G. ) No. 7499-95 INMAN, PAU

L W. INMAN and ) VIRGIL INMAN, ) ) Defendants/Appel

lants. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHAN CERY COURT FOR LAWRENCE COUNTY AT LAWRENCEBURG, TENNESSEE
THE HONORABLE JIM T. HAMILTON, CHANCELLOR

PAUL B. PLANT Harwell & Plant 225 Mahr Avenue P. O. Box 399 Lawrenceburg,

Tennessee 38464 ATTORNEY FOR PLAINTIFF/APPELLEE

THOMAS W. HARDIN Hardin & Parkes 102 West Seventh Street P. O. Box 692 Columbia, Tennessee 38402-0692 ATTORNEY FOR DEFEN DANTS/APPELLANTS

AFFIRMED AS MODIFIED AND REMANDED
WALTER W. BUSSART, SPECIAL JUDGE 

# OPINION-2- This case is on appeal from the Chancery Court of Lawre nce County, Tennessee, from an Orde r o f the Chancellor f

inding ownership of ce

rtain disputed land in the Plaintiff /Appellee, Fra

nces Davis , an d granting her compensatory and punitive damages f or trespassing. The case is properly before this court for

review de novo upon the record with a

presumption of corr

ectness of the findings of fact. Unless the evidence preponderates against the findings of fact, we must affirm, absent an error of law. Tenn. R. App. P. 13(d).

A review of the evidence presented in the trial court and the briefs filed here suggest that the fac

ts are not significantly in dis pute. It appears t

hat Mrs. Dav is ( along with her husband ) purchased land adj oining the Inmans’ fa rm in March of 1956. In early 1966, the Davises began construction of their home which is now located on that land. Later in 196 6, Mr. Davis and his son s constructed a decorative woode n fence along both side s and across the fro nt of this home. The fence

on the side nearest t

he Inmans was placed in th e same location as an old wire fence which was there w hen the Davises purcha sed the property. This fen ce has remained in the same place cons istently since its construction in 1 966.

Sometime after the construction of t he home, Mr. an d Mrs. Davis began to maintain a portion of

the Inmans’ field,

past this wooden fence. They mowed and/or bushhogged this strip apparently with the permission of Mr. Inman. Mr. Inman also bush hogged the area fro m time to time. N

either party ever

really prevented the other from com ing on and usingthis strip for hunting or recreation.

In 1995, the Inmans dec

ided to divide the prope

rty and hired a surveyor to assist them. In March of that year, the survey was interr upted when Mrs. Davis threatened to have

anyone arrested who came upon “her property.” Before the survey was comple

te d, Mrs. Davis mow

ed the strip outside the

decorative fence and caused to be erected a new barbed wire fenc e. The Inmans took action to remove both of

the fences erect

ed by Mrs. Davis

and to erect their own fence. This litigation ensued and a restraining order

was issued. Mrs. Davis also hired
asurveyor and

both parties' surve

yors testified at the

trial that in fact t

he Davises' deed did not include either fence.-3- Based upon these facts, the Chancellor held that Mrs. Davis was entitled to the property encompassed by the barbed wi re fence by open and notorious adverse possession.He awarded com pensatory and punitive

damages based upon the Inmans' act ions in removing the fe

nces and certain trees on that property.

In order to acquire title by adverse possession, the posses sion must be exclusive , actual, adverse, continuous, open and notorious for the entire prescriptive

period under a claim of right or title to the property and the owner musthav e knowledge of the adv erse claim. Tidwell v. Van Deventer , 6 8 6 S.W.2d 899, 902 (Tenn. A

pp. 1984); Carr v. Wilbanks , 45 Tenn.App. 3 72, 390, 324 S.W.2d

786, 794 (1958). Th

e plaintiff, of course, has the burden of proof. Bone v. Loggins , 652 S.W.2d 758, 760 (Tenn. App. 1 982). While every element of the adverse

possession must be proven by the plaintiff, she need only put land to such use and occupatio n as it is, by its nature and character, susceptible. Derryberry v. L

edford , 506 S.W.2d 152, 157 (Tenn. App. 1973).

The decorative wood fence erected in 1966 is, according to the survey of Cleghorne & Associates, very near the boundary line established by the Inman deed. Inside that fence fo r almost th irty years, Mrs.Davis planted trees and flowers, conducte d activities with her children, and generally treated it as her yard. The Chancellor

found this sufficient

proof to establish

open and notorious adverse po s session as to this fence and we find that the proof in the record supports that finding.
However, beyond this fence is property clea rly within t he Inmans’ deed and there is no proof tha

t this land up to the barbed wire fence was openly and notoriouslypossessed. The bar bed wire fence w

as constructed somet

ime in April of 1995. Before that, the only evidence is that this land was bushhogged and mowed by both parties and the Davises did this to keep snakes f rom coming into the yard. The

camera man on a vi

deo exhibit showing the

land repeatedly admits that no deed describes this part icular piece of pr

operty. We find tha

t the evidence in this record preponderates agai nst the Chancellor’s findi ng that the strip of land between the

white decorative

woodfence and the barbed wire fence
was acquired by Mrs. D avis throu gh adver se possession. Ther efore, the-4-

boundary line is established a t the location of the white wood decorative fence.

The Chancellor awar

ded compensatory dam

ages to Mrs. Davis

in the amount of $7,569.08. This award was based upon estimates provided by a fence company, a landscaping comp any, and a tree farm compan y. No ne of these witnesses testified atthe trial of the ca se, but the Chancellor all

owed Mrs. Davis to testify as to these

estimates which she

procured.

We find the proof with r egard t o co mpensatory damages to be contained in the testimony of Mr s. Davis. This proof shows tha t damages done to the white plank fen

ce and to the propert

y on the Davises’ side

of that fence are
as follows: 4 pine

trees ($2,000.00), 75 feet of board pla nk fence ($562.50),

blue spruce ($285.00), 3 holly bus h es ($97.00 ), tractor work ($210.00), seed ($87.00), straw ($113.75) , so d ($700.00), hand la bor ($387.00), for

a total of $4,442.25

. While the testimony as elicited from Mrs

. Davis, based upon the statements of estimate, is hearsay within Rules 802 and 803, Tenn. R. Evid., it is clear from her testimonythat this is her opinion of the replacement cost of this damaged property. The proof, althou gh hearsay, is uncont

roverted. Under

all of t he circumstances of this case, it appears appropriate

to establish the compensatory damages based u pon this p roof at $4,442.25. The damage award is, therefore, reduced to that amou

nt.

We now turn to the award of punitive damages. The trial court awardedthe Davises $15,000 in punitive dam ages . The Inmans themselves exhibited conduct which is wil lf ul a nd wanton under the circumstances. They clearly acted recklessly a

nd with a conscious disr

egard f or the prop erty of the Plaintiff. This is c on duct which cannot be approved or accepted in a civilized society. Punitive damages ar e, therefore,

appropriate. Ho

wever, a portion of the conduct and action taken by the Inma ns was done to their ow n property in accordance with the boundary l ine established heretofore in this opinion. We review the assignment

of punitive damages de

novo based upon the rec

ord. Our review leads to the conclusio n that an award of

punitive damages in the amount of $5,000.00 is appro priate. Accordingly, the p unitive damage

award is reduced to that amount.-5- Itis, therefore,

ORDERED tha

t the boundary line

between Mrs. Davis
a nd the Inmans is established precisely at the place where the white woode n decorative

fence existed for

almost thirty ye a rs. The Plaintiff is awarded $4,442.25 in compensatory damag es and $5,000.00 in puni

tive damages and the
cause is remanded to th

e tr ial court for furt

her proceedings in a

ccordance with this opinion.

_____ _____________

____________________

_ WALTER W. BUSSART, SPECIAL JUDGE

CONCUR:

__________________________________ __ HENRY F. TODD, JUDGE

__________________________________ __ WILLIAM C. KOCH, JR., JUDGE