                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 September 6, 2002 Session

                  BOYD STINSON, ET AL v. BRENDA SUE BOBO

                  Appeal from the Chancery Court for Williamson County
                        No. I-26667 R.E. Lee Davies, Chancellor



                  No. M2001-02704-COA-R3-CV - Filed - February 4, 2003


This appeal involves a conflict between neighbors over whether the Stinsons have a right to use a
dirt lane that runs across the edge of Mrs. Bobo’s property and connects the Stinsons’ property to
a county road. The trial court found a prescriptive easement was proved. Mrs. Bobo appeals that
judgment to this court on two grounds: (1) that the Stinsons failed to show exclusive use of the
easement during the prescriptive period; and (2) that there was no acquiescence to the Stinsons’
claim of right to use the easement by the prior owners of what is now Mrs. Bobo’s property during
the prescriptive period. We affirm the trial court’s judgment.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and THOMAS W. GRAHAM, SP . J., joined.

Tony L. Turnbow, Franklin, Tennessee, for the appellant Brenda Sue Bobo.

M.T. Taylor, Jr., Franklin, Tennessee, for the appellees, Boyd Stinson, George Stinson, Chester
Stinson, Faye Stinson Harris.

                                            OPINION

                                             I. Facts

         This case arises from a dispute between two neighbors over the use of a dirt lane which
connects the appellees’ property to a public road. The appellees, Boyd Stinson, George Stinson,
Chester Stinson and Faye Stinson Harris (the “Stinsons”) along with several of their siblings own
a tract of land on Bice Creek in Williamson County, technically known as Parcel 6. The appellant,
Brenda Sue Bobo, also owns a tract of land on Bice Creek, technically referred to as Parcel 7.01.
Mrs. Bobo’s property is located between the Stinsons’ property and the Daugherty-Capley Road, a
county road.1 The area where the parcels of land in question are located is extremely rural. For
many years, the Stinsons accessed their property by way of the dirt lane which runs alongside and
through Bice Creek. The lane crosses the appellant’s property. The lane is approximately (8) eight
to (10) ten feet wide and is commonly called Bice or Byson Creek Road, Bice Creek Lane or Bice
Branch Road. The trial court described the lane as follows:

         The Bice Creek Lane begins at a point on the Daugherty-Capley Road and follows
         Bice Creek for approximately two miles, then leaves Bice Creek and reconnects with
         the Daugherty-Capley Road, forming a shape of a quarter moon.2

       At some point, hard feelings developed between the Stinsons and the Bobos, and in 1999,
Mrs. Bobo had some of the Stinsons arrested for trespassing for using the lane to access their
property. The Stinsons filed suit on November 23, 1999, in Williamson County Chancery Court
seeking to establish the existence of a public road, a prescriptive easement, an easement by necessity,
and/or an easement by implication across Mrs. Bobo’s property. The Stinsons also sought a
temporary and permanent injunction to allow them to cross Mrs. Bobo’s property to access their
property without interference.

        The trial court denied the temporary injunction. Mrs. Bobo filed a motion to dismiss the
claims for the easement by implication and easement by necessity. The trial court denied the motion
at that time, but granted the motion as to those two claims when Mrs. Bobo renewed it at the
beginning of the trial.

       The trial court heard the matter without a jury on May 24, 2001, and July 18, 2001. The trial
court entered a final decree on September 21, 2001, finding that the Stinsons had not proved the
existence of a public road across Mrs. Bobo’s property. The trial court ruled that the Stinsons did,
however, establish a prescriptive easement across Mrs. Bobo’s property. Mrs. Bobo appealed.

                                                    II. Background

        The parties stipulated that there is no unity of title between the two parcels and that none of
the deeds for either parcel makes a reference to any road or easement across Mrs. Bobo’s parcel. The
Stinsons acquired their property from their parents, George and Sadie Jewel Stinson, who acquired
the property from Sadie’s father, J. H. “Hard” Martin. Mrs. Bobo and her former husband Jack
Tanksley purchased Parcel 7.01 in 1974 from Clyde Mayo. Mr. Mayo purchased the property from
J. T. Capley, who owned the property at about the time that Mr. Martin was living on Parcel 6. The


         1
            Other parcels lie between the Stinsons’ prop erty and M rs. Bob o’s property, but the owne rs of those parcels
are no t involved in this lawsuit.

         2
            This description appears to represent the lane at the height of its use, before the 194 0's, because according to
a 1953 United States Department of the Interior geological survey map compiled from aerial photographs taken in 1947
and spot field surveys conducted in 1953, the Bice Creek Lane at the time the map was created appears as an unimproved
dirt roa d that ends approximately at the S tinsons’ p roperty.

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Stinsons lived on the property with their parents and then their mother from 1945 to around 1967.
During the time the Stinsons lived on Parcel 6, they crossed what is now Mrs. Bobo’s property to
gain access to Daugherty-Capley Road. Daugherty-Capley Road was a dirt road until the 1940’s.
The Stinsons thought that the dirt lane across Parcel 7.01 was also a county road, which they and
everyone else had a right to use.

       At one time there were several roads leading from public roads to the Stinsons’ property in
addition to the lane over Parcel 7.01. According to testimony at trial, these roads fell into disuse
over the years, leaving Parcel 6 functionally landlocked.

        The Stinsons called many witnesses to testify to the public use of the lane and that the lane
was considered to be open to the public. When the Stinsons’ mother moved from the property
sometime between 1965 and 1967, no one else lived on the property with the exception of someone
who camped on the property for a few days and an older woman who lived in the house on the
property for a short period of time with no running water or electricity. The Stinsons visited the
property a few times a year to hunt and reminisce after 1967. During these visits they always used
the lane crossing what is now Mrs. Bobo’s property to access their property.

       Mrs. Bobo testified that when she moved to the property in 1974, there was no road crossing
the property to the Stinsons’ property. Mr. Bobo testified that there was no road crossing the
property to the Stinsons’ property even prior to 1974, when he hunted on the property. After
purchasing the property in 1974, Mrs. Bobo extended her driveway to a barn at the rear of her
property. She believes that it is that driveway that the Stinsons now assert is a road.

        Mrs. Bobo claims that she gave the Stinsons permission to cross her property at times when
it was not wet. At some point, the parties got into a disagreement about ruts in Mrs. Bobo’s yard.
Mrs. Bobo posted “no trespassing” signs on her property that were torn down.

         In 1994 Williamson County paved and improved Daugherty-Capley Road. There were guard
rails placed across the area claimed by the Stinsons to be a public road. Mrs. Faye Stinson Harris
convinced the county to take down the guard rails after she asserted that she owned the property and
needed access to it. The county then built a large ramp on what Mrs. Bobo claims is her property,
without her permission. According to the testimony of Mr. Randolph Chapdelaine, a surveyor
commissioned by the Stinsons in February of 2000 to survey the property where they claim their
easement is located, this ramp is located entirely on a county right-of-way.

       The lane across Parcel 7.01 does not appear on any map as a dedicated county road. In fact,
the highway superintendent testified that the lane is not a county road according to all of the
documents he has reviewed.

        The sole issue on appeal is whether the trial court erred in finding the existence of a
prescriptive easement across Mrs. Bobo’s property.



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                                            III. Prescriptive Easement

        An easement is an interest in another’s real property that confers on the easement’s holder
an enforceable right to use that real property for a specific purpose. Bradley v. McLeod, 984 S.W.2d
929, 934 (Tenn. Ct. App. 1998). The most common form of an easement is a right of passage across
another’s property. 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.3
Michael v. Jakes, No. M1999-02257-COA-R3-CV, 2002 Tenn. App. LEXIS 489, at *48 (Tenn. Ct.
App. Jul. 12, 2002) (no Tenn. R. App. P. 11 application filed) (citing Bradley, 984 S.W.2d at 935;
Pevear v. Hunt, 924 S.W.2d 114, 115-16 (Tenn. Ct. App. 1996); House v. Close, 48 Tenn. App. 341,
345, 346 S.W.2d 445, 447 (1961) (some citations omitted)). The party asserting a claim of
prescriptive easement bears the burden of proving these elements by clear and convincing evidence.
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).

      The trial court found that the Stinsons carried their burden of establishing a prescriptive
easement to the lane stating that:

         Before the Stinson family purchased the subject property in 1945, the Bice Creek
         Lane ceased being used by the public because of the construction of the Daugherty-
         Capley Road in 1940. In 1945 the only persons using the Bice Creek Lane were
         those property owners along the lane and other persons visiting those property
         owners. From 1945 to 1967, the Stinsons lived on the subject property. During this
         period of time their only means of access was the Bice Creek Lane. Their use of said
         lane was clearly open, continuous, uninterrupted, adverse and exclusive.

         There was no evidence that J. T. Capley or Mr. Mayo ever attempted to control or
         restrict access to the Bice Creek Lane. Neither the plaintiffs nor any of the other
         witnesses who testified in this case indicated they ever requested permission from
         Mr. Capley or Mr. Mayo, or anyone else before using the lane.

         Mrs. Bobo who purchased the property in 1971 with her husband, left in 1978 and
         did not return until 1999. She did admit that the barriers erected by Mr. Tanksley
         were really meant for trespassers and not the Stinsons.




         3
          J. H. “Hard” Martin purchased what is now the Stinson property around 1900. He sold the property to his
daughter and son-in-law, Geo rge S. Stinson and S adie Jewell Stinson in 1945. Geo rge and Sadie Jewell Stinson are the
parents of the ap pellees in this case. Mrs. Stinson, a widow, transferred title to the property to her nine children,
including the appellees, as tenan ts in com mon in 1979. T hus, there is no issue regarding the right to tack uses by prior
owners of the dominant tenement in order to establish twenty years of continuous use.

                                                           -4-
       The proof concerning the relationship between the Stinsons and the Tanksleys or the
       Bobos does not support the conclusion that the Stinsons’ use was permissive. In fact
       the Court suspects it was the Stinsons’ demanding demeanor which led to their arrest.
       The Court concludes that the use by the Stinsons until 1967 meets the requirements
       of a prescriptive easement in that their use was at least twenty years. Thus it appears
       the plaintiffs have demonstrated by clear and positive proof that they did use the Bice
       Creek Lane as their exclusive method of ingress and egress to their residence from
       1945 until 1967. This conclusion is underscored by the testimony of Vernon
       Daugherty who stated that during the 1970's he traveled the lane and that it was still
       passable by vehicle during that time. . . . This use by the plaintiffs was open, actual,
       continuous and adverse to the predecessors holding the property interest of the land
       occupied presently by Mrs. Bobo. The only other persons using the lane would have
       been the Turman family, who lived on up the lane from the Stinsons and persons
       visiting either one of the two families. Therefore, the plaintiffs have carried their
       burden of establishing a prescriptive easement for twenty years.

        Mrs. Bobo argues that the trial court erred in finding that the Stinsons had established a
prescriptive easement to the lane across her property. She asserts two related bases for her argument:
(1) that the Stinsons made no exclusive claim of right to use of the lane; and (2) that there was no
acquiescence by her predecessors in title to such an exclusive right in the Stinsons. We will consider
each argument in turn.

                                         IV. Exclusive Use

       With regard to the requirement that to establish a prescriptive easement, the adverse use must
be exclusive, this court has explained:

       It is true as a general rule, and we have so stated, that the user must be exclusive in
       order to result in a prescriptive easement. However, as pointed out in 28 C.J.S.
       Easements sec. 15, the term “exclusive” does not mean that the easement must be
       used by one person only, but simply that the right shall not depend for its enjoyment
       on a similar right in others. That is, it must be exclusive as against the community
       or the public at large. The use may be exclusive in the required sense even though
       it is participated in by the owner of the servient tenement or by owners of adjoining
       land. And, it cannot be contended that a right of way easement is not exclusive
       because on occasion the right of way is put to some public use, all of which is in
       relation to those individuals who have or claim the right to use the right of way.

House, 48 Tenn. App. at 347, 346 S.W.2d at 448.

        Mrs. Bobo does not disagree with this definition and, in fact, states that the use must be
exclusive as against the community or the public at large. She asserts, however, that the Stinsons
failed to meet the exclusive use requirement because: (1) the Stinsons did not use the path or road


                                                 -5-
exclusively; and (2) they never claimed to have an exclusive right to use it. These assertions are
based upon the Stinsons’ testimony that they thought the path or road was a public road and that they
did not assert any right to use the lane which did not also belong to the general public. As stated
earlier, the Stinsons proceeded on alternative theories: one being that Bice Creek Lane was a public
road and the other that they had a prescriptive easement to use the lane.

        The trial court found that the Stinsons failed to meet the burden of proving that Bice Creek
Road was a public road because “although there was evidence of the use of the lane by the general
public . . . there was not clear and convincing evidence that the prior land owners . . . [of what is now
the Bobo property] ever intended to dedicate this lane as a public road.” The court also found that
“Bice Creek Lane ceased being used by the public because of the construction of the Daugherty-
Capley Road in 1940. In 1945 the only persons using the Bice Creek Lane were those property
owners along the lane and other persons visiting those property owners.”

        As the language from House quoted above illustrates, the term “exclusive” has not been
interpreted by Tennessee courts to mean that the claimed easement must never have been used by
the public, but only that the party asserting the easement have a particular purpose for using the
easement that is different from that of the general public. For example in Stone v. Brickey, 70
S.W.3d 82, 86-87 (Tenn. Ct. App. 2001), this court rejected an argument similar to the one Mrs.
Bobo makes in this case stating that:

        Another of appellant’s arguments is that the appellee’s use of the creek road was not
        exclusive. They note that certain members of the general public, including Billy
        Stewart, used the roadway. However, the term “exclusive” does not mean that the
        easement must be used by the claimant only. It simply means that the claimant’s
        right does not depend on a similar right in others. House v. Close, 48 Tenn. App.
        341, 346 S.W.2d 445 (Tenn. Ct. App. 1961); AM . JUR. 2d Easements and Licenses,
        § 71, p. 641. There was no evidence that the road was widely used by the general
        public, and such use has to be considered unlikely in view of the fact that the 600
        foot long road ended at Mr. Stone’s property. In any case, Mr. Stone’s use of the
        road was not dependent on the rights of Mr. Stewart or of anyone else, but followed
        from his status as an abutting landowner.

        In the present case, the trial court found that:

        During the early 1900's, persons from time to time, would travel the Bice Creek
        Lane. The main purpose of such travel was to visit the Martin family or the Turman
        family that lived on Bice Creek Lane; however, it appears that one time this lane was
        used by persons traveling north from the Craigfield Community south, into Hickman
        County. Sometime between 1935 and 1940 the Daugherty-Capley Road was built.
        At that point in time anyone who wished to travel from the Craigfield Community
        to Hickman County was much more likely to use the improved county road rather



                                                  -6-
       than the Bice Creek Lane, which fell into disuse except by persons who owned or
       visited the property on this lane.

       The Court recognizes the defendant’s position that the plaintiffs’ prescriptive
       easement theory should fail under the exclusivity factor if the public used this lane
       as a public road, but the status of this road changed between 1935 and 1940 with the
       construction of the new Daugherty-Capley Road. Upon its completion, the proof
       established the general public no longer had reason and in fact did not use the Bice
       Creek Lane.

       The evidence does not preponderate against these findings. The trial court’s conclusion is
consistent, for example, with the testimony of Mr. Adolph Sullivan who testified as follows:

       Q: So are you saying that this [the Bice Creek Lane] was the main route to get from
       Franklin down to Hickman County, down by the John T. Capley house?

       A: If you went to Hickman County?

       Q: Yes, sir.

       A: Not after they built the Daugherty-Capley Road it wasn’t. I built in ‘39; it was probably
       ‘40 or ‘41 when they built this Daugherty-Capley Road down through.

       Q: So you were only there about a year before they built Daugherty-Capley Road?

       A: Right.

       Q: After they built Daugherty-Capley Road, all the traffic started going on Daugherty-
       Capley Road; didn’t it?

       A: All except where people lived in there; they still used it.

        Consequently, we agree with the trial court which determined that prior use by the general
public of the disputed passageway did not preclude the Stinsons from establishing an exclusive use
for a prescriptive period beginning after the public stopped generally using the lane. Further, even
if others sometimes used the road after 1945, it is not exclusive use itself that is the determinative
factor. Instead, it is a claim to the right to use which is not dependent upon the rights of the general
public which defines the exclusive use requirement. As owners of property reached by Bice Creek
Lane, the Stinsons’ use of the lane was different from and not dependent upon anyone else’s use.

       Mrs. Bobo also argues that the Stinsons did not establish exclusive use because they did not
claim such a use but instead believed the lane was a public road. The Stinsons’ belief as to the basis



                                                  -7-
for their claim does not change its legal status. The Stinsons and their parents before them used the
lane and thereby asserted a right to use it.

          The use and enjoyment which will give rise to an easement by prescription is substantially
the same in quality and characteristics as the possession required to establish title by adverse
possession, in that both must be open, continuous, exclusive and adverse. House, 48 Tenn. App. at
345, 346 S.W.2d at 447. Therefore, judicial interpretation of the character of the requirements of
adverse possession is relevant to the same requirements in the context of a prescriptive easement.
In the context of adverse possession, our courts have consistently held that the intent to hold
adversely to another is not required, Lemm v. Adams, 955 S.W.2d 70, 72 (Tenn. Ct. App. 1997), and
that a mistake as to the location of a boundary line does not make the possession other than adverse,
Peoples v. Hagaman, 31 Tenn. App. 398, 403, 215 S.W.2d 827, 829 (1948). The rule in Tennessee
is that it is not necessary to show an intention to hold and claim the property adversely to the interest
of the title holder. Gibson v. Shular, 29 Tenn. App. 166, 170-71, 194 S.W.2d 865, 866-67 (1946).
“The possession, use, and dominion may be as absolute and exclusive where there is . . . no actual
intention to claim adversely to anyone, as where such an intention exists. . . .” Id.

         Accordingly, the Stinsons’ and their parents’ open and continuous use of the lane for access
to their property is sufficient. Whether they intended to use the passageway adversely to the interests
of the owner of Parcel 7.01 or under the mistaken understanding that the lane was a public road does
not affect the legal consequence.

                                           V. Acquiescence

        Mrs. Bobo’s second argument is that there was no acquiescence to the Stinsons’ exclusive
right to use the lane by Mr. Capley or Mr. Mayo, the two previous owners of what is now Mrs.
Bobo’s property, during the prescriptive period. Essentially, Mrs. Bobo argues that because the
Stinsons used the lane under the mistaken belief that it was a public road, they never put Mr. Capley
or Mr. Mayo on notice that the Stinsons were asserting an exclusive adverse right to use the lane.
Thus, neither prior landowner could have acquiesced in the exclusive adverse right.

        The trial court found there was no evidence that Mr. Capley or Mr. Mayo ever attempted to
control or restrict access to Bice Creek Lane and no evidence that the Stinsons asked permission
from them. There is no real dispute the prior owners of Mrs. Bobo’s property were aware of the
Stinsons’ use of the lane to access their property.

       We find no requirement that an adverse user put the title holder on notice of the legal basis
or source of the claimed right to use. It is the use itself that creates the duty to object. Just as a
mistaken belief as to the underlying claim for the right to use does not make the use other than
adverse, it also does not invalidate acquiescence to that use. Continuous use of the property of
another for a long period of time will be presumed to be adverse, and that presumption may be
rebutted by evidence of permission of the landowner. Stone, 70 S.W.3d at 87; Star Enterprise v.



                                                  -8-
Warner, No. 01-A-01-9502-CH-00036, 1995 Tenn. App. LEXIS 432 *16-*17, (Tenn. Ct. App. Jun.
28, 1995) (no Tenn. R. App. P. 11 application filed).

                                         VI. Conclusion

       Because we find that the Stinsons proved by clear and convincing evidence all of the
requirements necessary for a prescriptive easement, we affirm the decision of the trial court and
remand the case for further proceedings consistent with this opinion as may be necessary. The costs
of appeal are taxed to the appellant, Brenda Sue Bobo, for which execution may issue if necessary.



                                                     ___________________________________
                                                     PATRICIA J. COTTRELL, JUDGE




                                               -9-
