FILED

May 25, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

FRANCES DAVIS, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9706-CH-00254

v. )

) Lawrence Chancery

LORENE INMAN, TERESA G. ) No. 7499-95

INMAN, PAUL W. INMAN and )

VIRGIL INMAN, ) 

)

Defendants/Appellants. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY 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 DEFENDANTS/APPELLANTS 

AFFIRMED AS MODIFIED

AND REMANDED

WALTER W. BUSSART, SPECIAL JUDGE

OPINION
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This case is on appeal from the Chancery Court of Lawrence County,

Tennessee, from an Order of the Chancellor finding ownership of certain

disputed land in the Plaintiff/Appellee, Frances Davis, and granting her

compensatory and punitive damages for trespassing. The case is properly before

this court for review de novo upon the record with a presumption of correctness

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 facts are not significantly in dispute. It appears that Mrs.

Davis (along with her husband) purchased land adjoining the Inmans’ farm in

March of 1956. In early 1966, the Davises began construction of their home

which is now located on that land. Later in 1966, Mr. Davis and his sons

constructed a decorative wooden fence along both sides and across the front of

this home. The fence on the side nearest the Inmans was placed in the same

location as an old wire fence which was there when the Davises purchased the

property. This fence has remained in the same place consistently since its

construction in 1966. 

Sometime after the construction of the home,Mr. and 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 bushhogged the area from time to time. Neither party ever really

prevented the other from coming on and using this strip for hunting or recreation.

In 1995, the Inmans decided to divide the property and hired a surveyor

to assist them. In March of that year, the survey was interrupted when Mrs.

Davis threatened to have anyone arrested who came upon “her property.” Before

the survey was completed, Mrs. Davis mowed the strip outside the decorative

fence and caused to be erected a new barbed wire fence. The Inmans took action

to remove both of the fences erected by Mrs. Davis and to erect their own fence.

This litigation ensued and a restraining order was issued. Mrs. Davis also hired

a surveyor and both parties' surveyors testified at the trial that in fact the 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 wire fence by open and

notorious adverse possession. He awarded compensatory and punitive damages

based upon the Inmans' actions in removing the fences and certain trees on that

property.

In order to acquire title by adverse possession, the possession 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

must have knowledge of the adverse claim. Tidwell v. Van Deventer, 686

S.W.2d 899, 902 (Tenn. App. 1984); Carr v. Wilbanks, 45 Tenn.App. 372, 390,

324 S.W.2d 786, 794 (1958). The plaintiff, of course, has the burden of proof.

Bone v. Loggins, 652 S.W.2d 758, 760 (Tenn. App. 1982). While every element

of the adverse possession must be proven by the plaintiff, she need only put land

to such use and occupation as it is, by its nature and character, susceptible.

Derryberry v. Ledford, 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 for almost thirty years, Mrs. Davis planted trees and

flowers, conducted activities with her children, and generally treated it as her

yard. The Chancellor found this sufficient proof to establish open and notorious

adverse possession as to this fence and we find that the proof in the record

supports that finding.

However, beyond this fence is property clearlywithinthe Inmans’ deed

and there is no proof that this land up to the barbed wire fence was openly and

notoriously possessed. The barbed wire fence was constructed sometime 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 from coming

into the yard. The camera man on a video exhibit showing the land repeatedly

admits that no deed describes this particular piece of property. We find that the

evidence in this record preponderates against the Chancellor’s finding that the

strip of land between the white decorative wood fence and the barbed wire fence

was acquired by Mrs. Davis through adverse possession. Therefore, the
-4-

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

The Chancellor awarded compensatory damages to Mrs. Davis in the

amount of $7,569.08. This award was based upon estimates provided by a fence

company, a landscaping company, and a tree farm company. None of these

witnesses testified at the trial of the case, but the Chancellor allowed Mrs. Davis

to testify as to these estimates which she procured.

We find the proof with regard to compensatory damages to be

contained in the testimony of Mrs. Davis. This proof shows that damages done

to the white plank fence and to the property on the Davises’ side of that fence are

as follows: 4 pine trees ($2,000.00), 75 feet of board plank fence ($562.50), blue

spruce ($285.00), 3 holly bushes($97.00), tractor work ($210.00), seed ($87.00),

straw ($113.75), sod ($700.00), hand labor ($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

testimony that this is her opinion of the replacement cost of this damaged

property. The proof, although hearsay, is uncontroverted. Under all of the

circumstances of this case, it appears appropriate to establish the compensatory

damages based upon this proof at $4,442.25. The damage award is, therefore,

reduced to that amount.

We now turn to the award of punitive damages. The trial court

awarded the Davises $15,000 in punitive damages. The Inmans themselves

exhibited conduct which is willful and wanton under the circumstances. They

clearly acted recklessly and with a conscious disregard for the property of the

Plaintiff. This is conduct which cannot be approved or accepted in a civilized

society. Punitive damages are, therefore, appropriate. However, a portion of the

conduct and action taken by the Inmans was done to their own property in

accordance with the boundary line established heretofore in this opinion. We

review the assignment of punitive damages de novo based upon the record. Our

review leads to the conclusion that an award of punitive damages in the amount

of $5,000.00 is appropriate. Accordingly, the punitive damage award is reduced

to that amount.
-5-

It is, therefore, ORDERED that the boundary line between Mrs. Davis

and the Inmans is established precisely at the place where the white wooden

decorative fence existed for almost thirty years. The Plaintiff is awarded

$4,442.25 in compensatory damages and $5,000.00 in punitive damages and the

cause is remanded to the trial court for further proceedings in accordance with

this opinion.

_______________________________________

WALTER W. BUSSART, SPECIAL JUDGE

CONCUR:

____________________________________

HENRY F. TODD, JUDGE

____________________________________

WILLIAM C. KOCH, JR., JUDGE