                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                November 19, 2002 Session

        STELLA KELTNER, ET AL. v. OPEN LAKE SPORTING CLUB

               Direct Appeal from the Chancery Court for Lauderdale County
                       No. 10,448   Jon Kerry Blackwood, Chancellor



                  No. W2002-00449-COA-R3-CV - Filed February 12, 2003


This is a dispute over ownership of the Right Hand Arm portion of Open Lake. The trial court
awarded summary judgment to Open Lake Sporting Club. Having determined that there are genuine
issues of material facts, we reverse and remand for further proceedings.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed; and
                                        Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Kenneth R. Shuttleworth and William C. Sessions, Memphis, Tennessee, for the appellants, Stella
Keltner and Norris Nix.

Joseph W. Barnwell, Memphis, Tennessee, for the appellee, Open Lake Sporting Club.

                                            OPINION

       This appeal arises from a cause of action to quiet title to a body of water known as Right
Hand Arm, which runs out of Open Lake in Lauderdale County, Tennessee. The lake is adjacent to
the Mississippi River and apparently was formed during the New Madrid earthquake in 1811-12.
The main body of Open Lake is owned by the defendant, Open Lake Sporting Club (“OLSC”). Right
Hand Arm is a narrow portion of the lake jutting eastward from the main body of water and
continuing through the property owned by the plaintiff Stella Keltner (Keltner). The largest portion
of Right Hand Arm is situated in property now owned by the United States Fish and Wildlife
Service.

        OLSC is a sporting club which was organized in 1905. In the same year, it acquired property
including the main part of Open Lake. OLSC asserts it received the property by conveyance through
three separated deeds. One conveyance was by deed executed by A. Booth and Company in January
26, 1905. A second deed was executed by the Anderson-Tulley Company in 1905. The third
conveyance was from Adam Scott and wife in the same year. In its counter-complaint, OLSC
contends that,

       [t]he deed describes Open Lake and Right Hand Arm as follows:

               “all that part of the waters of the Big Open Lake including what is
               called the ‘right arm’ on the land lying North of and East of said Big
               Open Lake . . .”

Several members of OLSC have cabins on its property and have erected duck blinds for hunting on
the lake.

         Keltner owns two separate tracts of land contiguous to the south and east of Open Lake. The
tract to the east of the lake comprises the eastern boundary of Open Lake. It consists of 576 acres,
through which flows Right Hand Arm. Keltner traces her chain of title to the property to a
conveyance by A. B. White to R. F. Gaines and J. C. Marley in November of 1887. The tract now
owned by the United States Fish and Wildlife Service was conveyed to the United States by the
Anderson-Tulley Company and is situated to the east of the Keltner property.

        In 1995, Keltner leased the property to Norris Nix (Nix). Keltner submits that prior to 1995,
the tract was leased for several decades to OLSC, giving OLSC’s members the right to use the
property for hunting and fishing and for ingress and egress to the portion of Right Hand Arm located
on the United States’ property. She contends that this right was extinguished upon expiration of the
lease. OLSC denies this lease. In its counter-complaint, OLSC asserts that the only leases it ever
had were a 1981 squirrel hunting lease and a 1994 lease for recreational activities. Keltner’s
predecessor in interest, Charlie Keltner, was a member of OLSC. In 1952, OLSC authorized the
expenditure of $3,000 for the construction of a dam at the entrance of Right Hand Arm and
appointed Charlie Keltner and another member to determine its precise location. OLSC contends
that this dam interrupts the water connection between Open Lake and Right Hand Arm, and that it
was constructed with the understanding that other OLSC members would be permitted access to
Right Hand Arm through Keltner’s property. This arrangement, according to OLSC, was in effect
for over fifty years. In its counter-complaint, OLSC further asserted open and notorious use of the
disputed waters, a pathway across the Keltner tract to the main portion of Right Hand Arm, and a
twelve acre tract bordered on the north, south and west by Open Lake and on the east by the Keltner
property.

        The actions giving rise to this lawsuit began in 1996, when counsel for OLSC advised Stella
Keltner by letter that she should cease to exercise any ownership rights of Right Hand Arm,
including the granting of any rights to a third party. Thus after nearly one-hundred years of peaceful
co-existence and a mutually beneficial relationship between OLSC and the plaintiff’s predecessor
in interest, this dispute arose over who may have access to the Keltner property.




                                                 -2-
        In April of 1997, Keltner and Nix filed a complaint for declaratory judgment to quiet title
and determine their rights under the1945 deed conveying the property to Keltner’s predecessors in
interest. Keltner submits that pursuant to this deed, her predecessors in interest acquired the right
to unrestricted access to and ownership of the portion of Right Hand Arm that is located within the
undisputed property boundary. She further contends that OLSC has no right to use the portion of
Right Hand Arm situated on her property for any reason. In her complaint, she prayed for a
judgment declaring her title to the disputed portion of Right Hand Arm and for an injunction
prohibiting the members of OLSC from using or trespassing upon her property for any reason
without her express permission.

         OLSC does not dispute Keltner’s ownership of the land, or that her predecessors in interest
had clear and unencumbered title to the property. 1 However, OLSC contends that Keltner has no
ownership interest in the waters of Right Hand Arm. OLSC contends that Keltners obtained title to
the land lying to the north and south side of Right Arm, but not to Right Hand Arm itself. It asserts
that it obtained title to all of Right Hand Arm, the largest portion of which is currently on property
of the United States.2 Although in its counter-complaint OLSC quotes from the Anderson-Tulley
deed to establish its ownership of Right Hand Arm, it later asserted that it acquired the eastern
portion of Right Hand Arm through the 1905 conveyance from the Anderson-Tulley Company, and
the southern end, which is at dispute here, through the conveyance from the A. Booth Company.
OLSC contends that the Chancery Court of Lauderdale County previously decreed that Open Lake
was owned by OLSC. Keltner asserts that the Anderson-Tulley Company did not own and therefore
could not have conveyed the disputed portion of Right Hand Arm to OLSC, and that the chancery
court did not decree that OLSC owns Right Hand Arm.

        In June of 1997, OLSC filed a counter-complaint to quiet title and for injunctive relief.
OLSC prayed the court to declare it the owner of all the waters of Right Hand Arm, to find it has
an easement by prescription across the Keltner property to reach the waters of Right Hand Arm and
the twelve acre tract, and for an injunction requiring Keltner to permit its members to have access
to Right Hand Arm and the tract. In its answer to Keltner’s first set of interrogatories, OLSC
asserted that it was abandoning its claim for prescriptive easement, and that it would amend its
pleadings accordingly. Both parties moved for summary judgment. The trial court awarded
summary judgment to OLSC in January 2002. Keltner filed a timely notice of appeal to this Court.




         1
          In its answer and counter-complaint, OLSC alleges that Stella Keltner is not the sole owner of the tract of land.
In her answer, Stella Keltner admits that Sharon Keltner and Clay Keltner each own a one-eighth undivided interest of
the Keltner property.

         2
          OLSC asserts ownership of the main portion of Right H and Arm, which is situated in property currently owned
by the United States, based on the 1905 conveyance from the Anderson-Tulley Company. We note that this portion of
Right Ha nd A rm is not a subject of dispute between the parties to this cause of action. Thus this Opinion does not
address whether OLSC is correct in this assertion or whether the U nited S tates must be jo ined as a party to this action.

                                                           -3-
                                         Issues Presented

       The issues as presented by Keltner for our review are:

       (1)     [Whether] the chancery court erred in denying the Keltners’ motion for
               summary judgment because as an incident of ownership, and by operation of
               law, the Keltners acquired ownership of that portion of Right Hand Arm that
               is within the Keltner property line under the doctrine of riparian rights.

       (2)     [Whether] the chancery court erred in granting Open Lake’s motion for
               summary judgment as there are material facts in dispute as to Open Lake’s
               claim that it is the owner of the portion of Right Hand Arm that is within the
               undisputed property boundary of the Keltners.

               A.      Open Lake recognized as long ago as May 3, 1943, that the
                       waters of Right Hand Arm located within the Keltner property
                       boundary were owned by the Keltners’ predecessors in
                       interest.

               B.      The chancery court erred in granting Open Lake’s motion for
                       summary judgment as a genuine issue of material fact exists
                       as to whether the Anderson-Tulley Company could grant an
                       interest in and to waters it did not own.

               C.      The chancery court erred in granting Open Lake’s motion for
                       summary judgment because there exist genuine issues of
                       material fact as to the ability of Open Lake to trace its
                       ownership interest in the Right Hand Arm body of water back
                       to a grantor with proper title.

                                        Standard of Review

        Summary judgment should be awarded when the moving party can demonstrate that there
are no genuine issues regarding material facts of the cause of action and that it is entitled to a
judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
1993); McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). Mere assertions
that the nonmoving party has no evidence does not suffice to entitle the movant to summary
judgment. McCarley, 960 S.W.2d at 588. The moving party must either conclusively demonstrate
an affirmative defense or affirmatively negate an element which is essential to the nonmoving party’s
claim. Id. If the moving party can demonstrate that the nonmoving party will not be able to carry
its burden of proof at trial on an essential element of its case, summary judgment is appropriate. Id.




                                                 -4-
        When a party makes a properly supported motion for summary judgment, the burden shifts
to the nonmoving party to establish the existence of disputed material facts or that the moving party
is not entitled to summary judgment as a matter of law. Id.; Staples v. CBL & Assocs., 15 S.W.3d
83, 89 (Tenn. 2000). The nonmoving party cannot merely rely on the pleadings, but must
demonstrate that essential elements of a claim exist by: 1) pointing to evidence that creates a factual
dispute; 2) re-enforcing evidence challenged by the moving party; 3) offering additional evidence
which establishes a material dispute; 4) submitting a Tenn. R. Civ. P. 56.06 affidavit explaining the
need for additional time for discovery. McCarley, 960 S.W.2d at 588.

       We review an award of summary judgment de novo, with no presumption of correctness
afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002). In
determining whether to award summary judgment, the court must view the evidence in the light most
favorable to the non-moving party, drawing all reasonable inferences in favor of the non-moving
party. Staples, 15 S.W.3d at 89. Summary judgment should be awarded only when a reasonable
person could reach only one conclusion based on the facts and inferences drawn from those facts.
Id. If there is any doubt about whether a genuine issue exists, summary judgment should not be
awarded. McCarley, 960 S.W.2d at 588.

         The interpretation of a written legal document such as a deed is a matter of law. Pointe, LLC
v. Lake Mgmt. Ass'n, 50 S.W.3d 471, 474 (Tenn. Ct. App., 2000)(perm. app. denied). Our review
of a trial court’s conclusions on issues of law is de novo, with no presumption of correctness. See
Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996); Tenn. R. App. P. 13(d).

                                                    Riparian Rights

        We first address Keltner’s assertion that she owns the waters of Right Hand Arm by virtue
of the doctrine of riparian rights.3 The doctrine of riparian rights provides that owners of land
through which a natural watercourse runs have the right to use the water for useful purposes.
Black’s Law Dictionary 1192 (5th ed. 1979). Thus riparian owners are presumed to have the right
to use of the water abutting their property, although they may not own the body of water itself.

        When a deed is silent as to the use of the water abutting the land which it conveys, but
conveys the land with all appurtenances, there is a presumption that the right to the use and
enjoyment of the water is part of the grant. Pointe, 50 S.W.3d at 475. This presumption arises from
the fact that the inherent value of riparian land is derived from the proximity of the water. Id.
Unless the deed specifically excludes riparian rights, or unless it is clear from the property
description in the deed that the right to the use of the water is excluded, riparian rights will be
presumed as an appurtenance. Id. at 476-77. Such rights depend not on ownership of the land


         3
           Technica lly, the term “littoral” refers to land adjacent to a lake or sea, while the term “riparian” refers to land
adja cent to a river. C urrent usage, however, generally applies “riparian” to land abutting either a rive r or a lake.
Pointe, LLC v. Lake M gm t. Ass’n, 50 S.W .3d 471, 475 n.2 (Tenn. Ct. App. 2000 ).

                                                             -5-
beneath the water, but on the contact between the land and the water. See Stanley v Ring, No.
W2001-00950-COA-R3-CV, 2002 WL 1751409, at * 4 (Tenn. Ct. App. Mar. 20, 2002) (no perm.
app. filed). Thus we agree with Keltner that in the absence of language in the deed of conveyance
excluding riparian rights to the waters of Right Hand Arm, such rights as held by the conveyor are
presumed to have passed as part of the conveyance of property. The extent of riparian rights is a
question of reasonableness. 93 C.J.S. Waters §§ 13, 14 (2001). What constitutes reasonableness
is a question of fact to be determined in light of the circumstances. 93 C.J.S. Waters § 16 (2001);
Stanley, 2002 WL 1751409, at * 4.

        The existence of riparian rights, or the right to use of the water, however, does not equate
with ownership of the body of water itself. We accordingly disagree that the doctrine of riparian
rights, without more, is sufficient to establish Keltner’s ownership of Right Hand Arm as a matter
of law. We next turn to the deeds themselves to determine whether the disputed portion of Right
Hand Arm was conveyed as part of the tract conveyed to Keltner’s predecessor in interest.

                     Ownership of Right Hand Arm Pursuant to the Deeds

       A non-navigable lake or stream may be privately owned. Pointe, LLC v. Lake Mgmt. Ass’n,
50 S.W.3d 471, 476 (Tenn Ct. App. 2000). A riparian owner takes title only to that which is
conveyed by the deed. 78 Am Jur 2d Waters § 44 (2002). In Pointe, we noted that Tennessee
follows the general rule that:

       [a]lthough a grant of littoral land will convey no more land than the parties intended,
       provided such intention is revealed, the interest of a riparian owner in the bed of a
       lake or pond is presumed to pass in a conveyance of the upland, in the absence of an
       intention to the contrary, as disclosed either by express words of exclusion contained
       in the grant or conveyance or by such a description as clearly excludes it from the
       land conveyed. Although the terms of a grant must be liberally construed in favor of
       the grantee, the words should receive their everyday meaning, and be considered in
       the light of the surrounding circumstances and the situation of the parties. No title
       to submerged land will pass to the grantee of the upland where the grantor has, in
       fact, no title to the land under water.

Pointe, 50 S.W.3d at 476-77 (quoting 93 C.J.S. Waters § 107 (1956)).

       Having exhaustively reviewed this record, we believe there are genuine issues of material fact
which render summary judgment inappropriate in this case. Keltner argues that summary judgment
for OLSC is in error because the Anderson-Tulley Company did not own and therefore could not
convey the disputed portion of Right Hand Arm to OLSC. If the trial court awarded summary
judgment based on the belief that the disputed waters were conveyed to OLSC by the Anderson-
Tulley Company, this assertion is true.




                                                -6-
        Mr. Bill Harmon (Mr. Harmon), the secretary-treasurer and member of the Board of Directors
of OLSC who was deposed as the representative of OLSC, stated that OLSC does not base its
ownership of the disputed waters on the Anderson-Tulley conveyance. That conveyance included
the northern portion of the main body of Open Lake and, it is asserted, the main portion of Right
Hand Arm. According to Mr. Harmon, OLSC acquired the disputed portion of Right Hand Arm
through the conveyance from the A. Booth Company. Mr. Harmon further stated that he did not
believe there was any document other than that conveying the Booth Company property that would
establish OLSC’s ownership of the disputed portion of Right Hand Arm. Thus the Anderson-Tulley
deed referenced in OLSC’s counter-complaint is not relevant to the determination of who owns the
waters running through Keltner’s property.

        OLSC asserts that it has superior title to the disputed waters because it can trace ownership
of its property to the original land grant of 1856. Assuming, arguendo, that this is true, it is not
particularly helpful to the determination of whether OLSC has good title to the portion of Right Hand
Arm flowing through the Keltner property. OLSC’s title to the large portion of Right Hand Arm as
conveyed by the Anderson-Tulley Company is not in dispute in this case. According to the
deposition of Kenneth Max Billingsley (Mr. Billingsley), a surveyor and forester retained by OLSC,
the land grant “certainly” did not include all of Right Hand Arm. Clearly, the main portion of Right
Hand Arm was not part of the original land grant, but was situated on property formerly owned by
the Anderson-Tulley Company and now owned by the United States. Further, according to Mr.
Billingsley, the exact parameters of the land grant itself have not been definitively determined. Mr.
Billingsley stated that as far as he could tell, there was no way to determine whether the grant
included the portion of Right Hand Arm at dispute in this case. As no professional survey has been
made to determine the boundaries of the land grant, it is practically impossible for this Court to
determine its boundaries. We note, however, that OLSC does not dispute Keltner’s ownership of
the land through which Right Hand Arm runs. Thus even assuming the Keltner property was within
the boundaries of the 1856 land grant, this tract of land was conveyed to Keltner’s predecessor in
interest through uncontested conveyances traced back to 1887. The legitimacy of these conveyances
simply is not at dispute in this case.

        We believe the pivotal issues in this case to be whether the A. Booth Company had title to
the disputed area of Right Hand Arm when it conveyed its property to OLSC and, if it did, whether
the Right Hand Arm waters were part of that conveyance. OLSC asserts that the wording of the
1945 conveyance of the Keltner property to Charlie Keltner, the plaintiff’s father-in-law, is
conclusive evidence that the Keltner property did not include the waters of Right Hand Arm. We
disagree. OLSC does not contend, and we do not find in the deeds, that any of the conveyances
before 1945 specifically excluded the water. The first deed conveying the property from Mr. Calcutt
to Charlie Keltner stated, “[i]t is understood that this conveyance does not include any claims the
grantor may have or may hereinafter have to the waters, the title to which is claimed by the Open
Lake Sporting Club.” Mr. Calcutt executed a second deed in 1945 conveying whatever interest he
might have had in the waters. As far as we can determine, Right Hand Arm is not specifically
excluded from any of the conveyances in the Keltner chain of title, and Keltner’s title to the tract of



                                                 -7-
land has been conceded.4 We cannot determine from the record before us to what bodies of water
the Calcutt conveyance refers.

        In order to determine whether OLSC has title to the disputed waters, the trial court must first
determine whether the A. Booth Company had title to a narrow strip of waters running through
property it did not own. If so, that ownership did not include the land. Moreover, if the Booth
Company did own the disputed waters, its ownership had to have ended at what is now the Keltner
eastern boundary, as that portion of Right Hand Arm undisputedly was owned by the Anderson-
Tulley Company and is now situated on property owned by the United States. While this would have
resulted in a unique configuration, it raises an issue of material fact to be addressed by the trial court.

                                  Recognition of Ownership by Agreement

        Parol evidence is not admissible to alter an unambiguous deed. See Staub v. Hampton, 101
S.W. 776, 781 (Tenn. 1907). However, when deeds are ambiguous, the court may consider parol
evidence of the circumstances and conditions surrounding the conveyance to resolve the ambiguity.
Preston v. Bush, 408 S.W.2d 675, 677 (Tenn. Ct. App. 1966)(perm. app. denied) When deeds are
ambiguous with regard to the boundary between adjoining properties, the boundary can be
established by evidence of a parol agreement between the landowners. Thornburg v. Chase, 606
S.W.2d 672, 674 (Tenn. Ct. App. 1980). Such an agreement does not violate the statute of frauds
where the deed is not so patently ambiguous as to be void. Id. Where parties have recognized
agreement of a boundary through their actions, direct evidence of a formal agreement is not required.
Franks v. Burks, 688 S.W.2d 435, 438 (Tenn. Ct. App. 1984). An oral agreement between property
owners to establish a property boundary in the face of ambiguous deeds can be shown through
circumstances and evidence that the parties have recognized an agreement. Id. The establishment
of such a boundary through parol agreement is predominately a matter of intent as evidenced by the
words and deeds of the parties. See, e.g., Brooks v. Brake, No. 01A01-9508-CH-00365, 1996 WL
252322, at *5 (Tenn. Ct. App. May 15, 1996) (no perm. app. filed). Although this case is not a
property boundary dispute in the usual sense, we believe this general rule is apt in the case now
before us.

        Keltners submit that OLSC has recognized that the waters of Right Hand Arm were owned
by the Keltners and their predecessors in interest. They argue that this is supported by the minutes
of stockholders’ meetings since 1943, and the OLSC’s use of Keltner land and waters was by express
permission of the Keltners. Keltner offers as evidence a 1991 permit by which Charlie Keltner
granted OLSC members permission to hunt on his land and to cross his property. Also in the record
is a 1972 letter from OLSC’s secretary to its members stating that OLSC “has leased all hunting and
fishing rights for one year on the land owned by Charlie Keltner that lies along the East Bank of the

         4
           OLSC additionally sub mits a plat used in the conveyance to Mr. Calcutt, Charlie Ke ltner’s pre decessor in
interest, as evidence that the disputed waters were never a part of the Keltner tract. On this plat, the portions conveyed
were colored in red, the portions outside of the conveyance were colored in blue. OLSC contends that since the disputed
waters were not colored in red, they were not part of the con veyance. W e find this unconvincing as none of the waters
were colored-in, neither in re d nor blue.

                                                           -8-
lake and also the land across the reach.”5 The minutes of OLSC’s stockholder meetings and Ms.
Keltner’s deposition reflect that this lease continued through the early 1990's.

        Having read the stockholder’s meeting minutes and reviewed the leases and correspondence,
we are convinced only that OLSC recognized Keltner owned the land. In her brief, Keltner contends,
“at a called meeting of the stockholders of Open Lake on October 23, 1943, the committee
authorized to lease the ‘Calcutt part of the Right Arm’ reported that they had not been able to do
anything.” The minutes in fact read, “[t]he committee appointed to lease . . . the Calcutt part of the
lake [in addition to other parts] . . . reported that they had not been able to do anything.” Based on
the record before us, we are satisfied that the actions of OLSC and Charlie Keltner evidence
definitive agreement on Keltner’s ownership of the property. An issue of fact remains, however, on
whether the OLSC’s actions are sufficient to constitute recognition of Keltner’s ownership of the
waters.

       OLSC further submits that its ownership of Right Hand Arm previously was determined by
the Chancery Court of Lauderdale County in Open Lake Sporting Club v. Lauderdale Haywood
Angling Club, No. 7191 R.D. (Ch. Lauderdale, Feb. 8, 1991). We disagree. The chancellor in that
case determined OLSC owns Open Lake; it did not address Right Hand Arm or any portion of the
Keltner tract.

                                                    Conclusion

       Unresolved issues of material fact remain in this case such that summary judgment is not
appropriate. We remand for further proceedings and findings of fact regarding whether the A. Booth
Company conveyance to OLSC included the disputed area of Right Hand Arm and whether the
conduct between OLSC and Keltner’s predecessor in interest evidenced recognition of either party’s
ownership of the disputed waters. Costs of this appeal are taxed to the appellee, Open Lake Sporting
Club.



                                                                ___________________________________
                                                                DAVID R. FARMER, JUDGE




       5
           The Reach, also referred to as Long Lake, apparently is another stream running thro ugh K eltners’ property.

                                                          -9-
