                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                              July 6, 2000 Session

                CARL D. CLARK, et al. v. ROGER D. LEMLEY, ET UX.

                       Appeal from the Chancery Court for Lincoln County
                  No. 11,113   Charles Lee, Sitting as Chancellor by Interchange



                       No. M1999-01271-COA-R3-CV - Filed November 9, 2000


This case arises from a dispute between neighbors over the use of an old road which connected
Appellant’s landlocked farm to a public roadway. The road crossed Appellees’ property. After
Appellees erected a locked gate across the old road, Appellant sought injunctive relief to permit
access to the old road. After a trial, the court found that the old road was never a public road and that
no prescriptive easement existed. The court declined to provide the requested relief. Because the
evidence does not preponderate against the trial court’s findings, we affirm.

             Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
               Affirmed and Remanded to the Chancery Court for Lincoln County

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the appellants, Carl D. Clark and Richard
Whittle.

Barbara G. Medley, Lewisburg, Tennessee, for the appellees, Roger D. Lemley and Brenda Dianne
Lemley.

                                                      OPINION

        This case arises from a dispute between neighbors over the use of an old road connecting
Appellant Carl D. Clark’s landlocked farm to a public roadway. 1 The road crosses property owned
by Appellees Roger D. Lemley and Brenda Dianne Lemley. After the Lemleys erected a locked gate
across the old road, Mr. Clark sued for injunctive relief to permit his access to the old road.




         1
           The possible application of Tenn. C ode Ann . § 54-14 -101, et seq., the statutory procedure for petitioning for
a private road from landlocked parcels, was not raised in the court below.
       Mr. Carl Clark purchased his 132 acre, landlocked farm from his uncle, Yale Clark, in 1986.
During this litigation, Mr. Clark transferred his interest in the property to Richard Whittle, who was
then added as a party to this action. The deed transferring the property from Mr. Clark to Mr.
Whittle was recorded on April 20, 1999.

      The Lemleys bought their adjoining tract in 1991. Their deed contains no mention of an
easement.

       The road at issue originates where Wise Road, a public highway, meets the Lemleys’
property. It crosses the Lemleys’ land, runs through to the Clark property, and terminates at a house
there. As it runs across the Lemleys’ land, the old road is unpaved and overgrown with brush. It
crosses over at least one streambed. It is the only road connecting the Clark property to a public
highway. However, the Clark farm may also be accessed by crossing land on another neighbor’s
property.

       At the time he purchased the property, Mr. Clark was working in the oil fields of Africa and
returned home only once a year. His schedule changed in 1990 and he visited more frequently. He
used the old road to access his land and to move farm equipment. After his retirement in 1994, Mr.
Clark spent more time on the farm.

         In 1995, Mr. Clark discovered that a gate on the Lemleys’ property which blocked the old
road was locked. He asked Mr. Lemley for a key to the gate, and Mr. Lemley obliged. Several
weeks later, Mr. Lemley changed the lock. When Mr. Clark asked about it, Mr. Lemley responded
that “he wasn’t allowed back there.” Mr. Clark offered to buy a right-of-way, but Mr. Lemley
refused.

        Mr. Clark then commenced the underlying action, seeking an injunction to allow him access
to the old road. The complaint alleged that the old road was simply an extension of Wise Hollow
Road, a public roadway, and that erection of the gate violated Tenn. Code Ann. § 54-10-110, which
prohibits the obstruction of public highways. Mr. Clark also claimed that he possessed an easement
allowing him to use the old road and a right to use the road through adverse possession. As noted,
after Mr. Whittle purchased the property, he joined in this action.

        The case was tried to the court. The first witness was Sue Barnes, who had resided on the
Clark tract from 1938 to 1948. She testified that vehicles, such as grocery delivery trucks, visitors’
vehicles, and milk trucks, used the old road to access her family’s farm. She stated that these
vehicles used the road across what is now the Lemleys’ property and she never sought permission
for the delivery truck or the milk truck to use the road, but she did not know if her father had.

       Mr. Clark and Mr. Whittle also called Mrs. Barnes’ sister, Josie Tally, who testified that she
too had lived on what is now the Clark property for 13 or 14 years beginning in 1937 and saw
vehicles coming and going from her family’s farm on the old road. She testified that there was
always a wire running across the road, which would be unhooked and refastened for vehicles passing


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through. She stated that her family did not own a car or truck at the time, but the old road was the
only way motor vehicles could reach the farm.

        David Roscoe Clark, son of Yale Clark, who sold Plaintiff Clark his property,2 testified that
his father bought the land in 1951. David Clark testified that he lived on the property from age 1 to
5, when his parents divorced, and off and on from age 14, when his mother died, to 1986.3 David
Clark testified that he, his father, and others used the old road to access the property and that he
never had to have permission to use the road. He also recalled that the County had maintained the
road through what is now the Lemleys’ property and his father helped to maintain the portion of the
road crossing the Clark property by filling in ruts and clearing bushes.

         Carl Clark testified that prior owners of the Lemleys’ land locked the gate and blocked the
road, but Mr. Clark had always managed to get a key. Mr. Clark testified that the Lemleys had given
him a key, but then changed the lock, and refused to give him another key. Mr. Clark claimed that
this shut down his farming operation.

        Mr. Whittle testified that he could reach his land by crossing an adjoining farm “with great
difficulty.” He stated, “if it’s drier weather you can get in with a truck, if you’re very careful,” but
the only way to get a hay baler to his property was over the old road. He claimed that he intended
to make the tract his home. Mr. Whittle stated that the purpose of his lawsuit was to get access to
his property through any roadway.

         The Lemleys called Florence Hamlin, who had lived on the Lemleys’ property from 1951 to
1984. She testified that her husband gave Mr. Clark’s uncle permission to use the road. She also
testified that she did not recall seeing any milk trucks or cars driven by David Clark on the old road.

        The defense next called Tully Beavers, who rented what is now the Lemleys’ property for
over a year at some unspecified time before the Lemleys bought it. He testified that he kept cattle
on the property and strengthened the gate with barbed wire and locked it after someone failed to latch
it back and his cows got loose. He did not remember giving Mr. Clark a key and did not live on the
land.

        Mr. Lemley testified that he first met Mr. Clark when one of Mr. Clark’s dogs came onto his
property. He caught it and called Mr. Clark, who retrieved it. Two years later, Mr. Clark
purportedly asked for a key to open the gate so a member of his family from Florida who owned the
property could view it. Mr. Lemley testified that Mr. Clark never returned the key, and three weeks
later, while hauling hay on the old road, Mr. Clark got stuck in Mr. Lemley’s front yard and made
a mess. When Mr. Lemley learned that Mr. Clark, rather than the lady from Florida, owned the


         2
             David Clark was P laintiff Carl Clark’s c ousin.

         3
         Mr. Clark also tes tified that he did n ot live with his father after his mother’s death, but lived with an uncle,
“Stink” Clark, who resided on an adjoining farm.

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property, it angered him and he changed the lock shortly thereafter. He explained that Mr. Clark
“had lied about the whole situation and he wasn’t going back there . . . he wanted to know why I
changed the lock and I told him what he had done to my yard and what he had done to my driveway
and about him lying and I told him he wasn’t coming through.”

        After hearing the evidence, the trial court denied the request for an injunction. The trial court
determined that the portion of the old road which crossed the Lemley’s property had never been a
public road, which meant that there was no private easement. The trial court also found that no
prescriptive easement arose because the prior use of the road was not adverse, but permissive. This
appeal ensued.

                                                 I. Standard of Review

         As a preliminary matter, we turn to the applicable standard of review. Because this is an
appeal from a decision made by the court following a bench trial, the standard set forth in Tenn. R.
App. P. 13(d) governs our review. Thus, we must examine the record de novo and presume that the
findings of fact are correct "unless the preponderance of the evidence is otherwise." Tenn. R. App.
P. 13(d). Furthermore, great weight must be given to the factual findings made by the trial court that
rest on determinations of credibility. See Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996).
The presumption of correctness requires us to accept the trial court's findings of fact unless the
aggregate weight of the evidence demonstrates that a finding of fact other than the one found by the
trial court is more probably true. See Estate of Haynes v. Braden, 835 S.W.2d 19, 20 (Tenn. Ct. App.
1992) (holding that an appellate court is bound to respect a trial court's findings if it cannot
determine that the evidence preponderates otherwise). For the evidence to preponderate against a
trial court's finding of fact, it must support another finding of fact with greater convincing effect. See
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.Ct.App. 1999).
Questions of law receive plenary review. See Malone & Hyde Food Servs. v. Parson, 642 S.W.2d
157, 159 (Tenn. Ct. App. 1982)

                                             II. Dedication by Implication

        Mr. Clark and Mr. Whittle argue that the section of the old road crossing the Lemleys’
property became a public roadway under the doctrine of dedication by implication, and blocking it
was illegal.4 They maintain that the trial court erred in finding that the old road had never been a
public roadway, asserting that the court failed to properly consider David Clark’s testimony that he
used the road off and on from 1951 to 1968 and that the county maintained the road through the
Lemleys’ property. They assert that the fact that the road ended at the Clark property is immaterial

        4
            Tenn. C ode Ann . § 54-10 -110 states in p ertinent part:

        (a) Any perso n who plac es, or causes to be placed, on any public highway, any brush, briers, or any
        other material or thing which may obstruct or damage such highway, or render it inconvenient or
        hurtful to the traveling public, or who may en croach up on the same in constructing any fence, wall,
        or like impro vement, co mmits a Class C misdem eanor.

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to whether it was a public road as it ran through the Lemley property and argue that the testimony
that grocery vans and milk trucks used the road unimpeded for an extended period is proof of a
dedication (as a public road) by implication.

       To establish that an owner of property impliedly dedicated a roadway thereon to the public,
"there must be proof of facts from which it positively and unequivocally appears that the owner
intended to permanently part with his property and vest it in the public, and that there can be no other
reasonable explanation of his conduct." McKinney v. Duncan,121 Tenn. 265, 271, 118 S.W. 683, 684
(Tenn. 1909). Under Tennessee law:

       "[W]hen a road runs across private property, and is used by the public as a common
       road, without interruption for 50 years, the owner acquiescing in such use, the law
       will presume a dedication for such purpose." [Woolard v. Clymer], 35 S.W. at 1088.
       "Indeed, from long use, without objection of the owner, it may be inferred or
       presumed that such use and enjoyment had a legal origin." Cole v. Dych, 535 S.W.2d
       at 319. An implied dedication does not depend on use by the public for any definite
       period of time; "but it ought to be for such a length of time that the public
       accommodation and private rights might be materially affected by an interruption of
       the enjoyment." Scott v. State, 33 Tenn. 629 at 633 (1854).

Sanders v. Mansfield, No. 01A01-9705-CH-00222, 1998 WL 57532 at * 2 (Tenn. Ct. App. Feb. 13,
1998) (no Tenn. R. App. P. 11 application filed). A public road has generally been defined to be a
way open to all people, without distinction, for passage and repassage at their pleasure. See Cole v.
Dych, 535 S.W.2d 315, 318 (Tenn. 1976) (citing Sumner County v. Interurban Transp. Co., 141
Tenn. 493, 213 S.W. 412 (1918)). Factors to be considered in determining that a dedication by
implication has occurred include showings that the landowner opened the road to public travel and
acquiesced in the use of the road as a public road, and that the public used the road for an extended
period of time. See Town of Benton v. Peoples Bank of Polk County, 904 S.W.2d 598, 602 (Tenn.
Ct. App. 1995).

        Having reviewed the record, we cannot say that the evidence preponderates against the trial
court’s finding that the old road was never a public road. We find no evidence that the Lemleys or
their predecessors intended to dedicate the land to a public use, the paramount question on the issue
of dedication by implication. Although David Clark testified that he recalled that the county
maintained the old road “on up into” the Lemley’s property, the woman who lived on that property
from 1951 to 1984 testified that “we had all the gates fastened from our house plumb back to that
hollow.” She also testified that she did not see vehicles use the old road without her husband’s
permission. The trial judge clearly accorded more weight to the neighbor’s testimony than to David
Clark’s. "Where the trial judge has seen and heard witnesses, especially where issues of credibility
and weight of oral testimony are involved, on review considerable deference must still be accorded
to those circumstances." Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn.
1987). Further, the use of the road by delivery and milk trucks to access one family’s house was not



                                                  -5-
sufficient to show that the owner intended to dedicate the road to a public use; such vehicles use
private driveways as well as public roads.

                                     III. Prescriptive Easement

         Mr. Clark and Mr. Whittle argue that even if the old road was never a public thoroughfare,
a prescriptive easement was created by the open, adverse, and continuous use of the road from 1937
until at least 1968 by the Clark family and its predecessor in interest, which was sufficient to create
a prescriptive easement. They assert that such use, for twenty years, creates a prescriptive easement.

        A prescriptive easement is an implied easement that is premised on the use of the property
rather than language in a deed. A prescriptive easement arises when a person, acting under an
adverse claim of right, makes continuous, uninterrupted, open, visible and exclusive use of another's
property for at least twenty years with the owner's knowledge and acquiescence. See Bradley v.
McLeod, 984 S.W.2d 929, 935 (Tenn. Ct. App.1998); Pevear v. Hunt, 924 S.W.2d 114, 115-116
(Tenn. Ct. App.1996). The party asserting a claim of prescriptive easement bears the burden of
proving these elements. See McCammon v. Meredith, 830 S.W.2d 577, 580 (Tenn.Ct. App.1991);
Fite v. Gassaway, 27 Tenn.App. 692, 701, 184 S.W.2d 564, 567 (1944). Continuity of use for the
requisite twenty-year period may be established by tacking from the use of predecessors in title. See
Star Enterprise v. Warner, No. 01A01-9502-CH-00036, 1995 WL 381652 at * 6 (Tenn. Ct. App.
June 28, 1995) (no Tenn. R. App. P. 11 application filed).

        The undisputed testimony of Mrs. Hamlin demonstrates that from 1951 until 1984, the use
of the old road was permissive and not adverse as is required to establish a prescriptive easement.
Mrs. Hamlin denied that “traffic came in and out by her house to go back into” the Clark property
while she resided on the Lemley property. She specifically testified that her husband gave
permission to use the road to Mr. Clark’s predecessor in title. Mr. Clark and Mr. Whittle bore the
burden of proving the existence of a prescriptive easement by clear and positive proof. See
McCammon v. Meredith, 830 S.W.2d at 580. In light of Mrs. Hamlin’s testimony and the standard
of review, which favors the trial court’s factual findings, we cannot say that the evidence
preponderates against the trial court’s implicit determination that they did not satisfy that burden.

                                           IV. Conclusion

        Accordingly, the judgment of the trial court is affirmed. This case is remanded for any
further proceedings which may be necessary. Costs of this appeal are taxed to Mr. Clark and Mr.
Whittle, for which execution may issue if necessary.



                                                       _________________________________
                                                       PATRICIA J. COTTRELL, JUDGE



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