DEMPEL EARPS,                             )
                                          )
       Plaintiff/Appellant,               )
                                          )    Appeal No.
                                          )    01-A-01-9505-CH-00206
VS.                                       )
                                          )    Macon Chancery
                                          )    No. 2555
IRENE S. EARPS, RONNIE EARPS,             )
AND GREG EARPS,

       Defendants/Appellees.
                                          )
                                          )
                                          )
                                                                FILED
                                                                 Oct. 31, 1995

                                                                Cecil Crowson, Jr.
                                                                 Appellate Court Clerk
                      COURT OF APPEALS OF TENNESSEE
                        MIDDLE SECTION AT NASHVILLE



APPEALED FROM THE CHANCERY COURT OF MACON COUNTY
AT LAFAYETTE, TENNESSEE

THE HONORABLE C. K. SMITH, CHANCELLOR




CALVIN P. TURNER
202 E. Gay Street
P. O. Box 1100
Lebanon, Tennessee 37087
       Attorney for Plaintiff/Appellant

JAMES W. CHAMBERLAIN
105 Court Square
P. O. Box 98
Lafayette, Tennessee 37083
       Attorney for Defendants/Appellees




                              AFFIRMED AND REMANDED




                                          BEN H. CANTRELL, JUDGE


CONCUR:
LEWIS, J.
KOCH, J.
                                        OPINION


                 The plaintiff in the trial court claimed title to a disputed area of land by

adverse possession. The chancellor found that the disputed property was not within

the calls of the plaintiff's deed and that the plaintiff had failed to establish a

prescriptive title by twenty years of adverse possession. We affirm.



                                                    I.



                 In 1971 Eugene and Irene Earps owned a tract of land in Macon County.

On May 31 of that year they conveyed approximately 7/10 of an acre to their son

Barry and his wife, Lois. The description in the deed referred to some identifiable

boundaries but some of the distances were approximate. When Barry and Lois later

built a house on the land, they ran the driveway to the road at a point where they

could avoid excavating a high bank that ran in front of the house. They also

constructed a fence enclosing the land occupied by the house and the driveway.



                 In 1976 or 1977 Mr. and Mrs. Earps made a parol gift to Barry and Lois

of an additional strip of land beyond the driveway.1 They intended to increase his lot

size to an acre because they had given another son an acre of land at another

location. Barry fenced in the additional land by moving his fence a short distance

beyond its original location along the driveway.



                 Barry and Lois divorced in 1980, and as part of the settlement, Lois

transferred her interest in the property to Barry.




        1
          A parol gift of land coupled with the requisite period of adverse possession gives the possessor
the protec tion of the statute. McGam mon v. Brooks, 17 Tenn. App. 339, 67 S.W .2d 173 (1933). The
discuss ion ab out adverse pos ses sion that follows is relevant to the land c laim ed b y the pa rol gift.

                                                  -2-
              Barry married the plaintiff in 1983 and in 1986 he transferred an interest

in the house and lot to her. After the conveyance he and the plaintiff held title to the

home as tenants by the entireties. The deed contained the same description as the

1971 deed to Barry and Lois.



              Barry Earps died in 1993 and title to the property conveyed by the 1971

deed passed to the plaintiff by virtue of her right of survivorship. She put the property

up for sale and a question arose about the exact boundaries. Mrs. Irene Earps

employed a surveyor to establish the lines called for in the 1971 deed. The surveyor

found that the calls in the deed would not close; consequently he plotted the lines

using the definite distance along the road called for in the deed. The survey line on

the south side of the house cuts across the driveway about one-third of the way to the

road, leaving the rest of the driveway and a large triangular-shaped part of the front

yard outside of the calls of the deed. When Mrs. Irene Earps, her son Ronnie, and

Barry Earps' son Greg put up a fence along the surveyed line the plaintiff obtained a

temporary injunction and claimed title to all the land enclosed by the fence Barry

Earps erected in 1976 or 1977.



                                           II.



              In her complaint the plaintiff relied on two theories. First, that the

disputed property had been held adversely under color of title for more than seven

years, and, second, that she held a prescriptive title to the property by virtue of more

than twenty years adverse possession.



              With respect to the first theory we would note that if the disputed

property came within the calls of the 1971 deed there would be no need to assert that

the property had been held adversely for any period of time. Title to the property

would have passed by the deed and not by adverse possession.


                                          -3-
              Thus, the first question to be answered is what the 1971 deed covered.

The chancellor found that the survey made in 1994 accurately located the lines

described in the original deed. While an inference could be drawn that the deed

covered the entire area of the driveway, we do not think the evidence preponderates

against the chancellor's finding. See Rule 13(d), Tenn. R. App. P. Therefore, the

plaintiff did not hold the disputed area under color of title.



              With respect to the plaintiff's second theory, it, too, has some flaws. It

is true that a prescriptive title to property may be perfected by twenty years of adverse

possession.    Catlett v. Whaley, 731 S.W.2d 544 (Tenn. App. 1987).              But the

possession must of necessity be adverse, id., Tidwell v. Van Deventer, 686 S.W.2d

899 (Tenn. App. 1984), and the adverse possessor has the burden of establishing the

adverse possession by clear and positive proof. Id. at 902; Jones v. Coal Creek

Mining & Mfg. Co., 133 Tenn. 183, 180 S.W. 991 (1915). The burden of proof is even

greater when the adverse possession is asserted against family members. See 3 Am.

Jur. 2d Adverse Possession § 202, 203.



              The chancellor did not make a specific finding that Barry Earps had

possessed the disputed property by permission from his parents; he did, however, in

general terms, express doubts about the adverse nature of the possession. In his

findings from the bench, the chancellor said:



                       I just find that the plaintiff here has failed to carry
              the burden of proof as set out in the pleadings. She has
              not established by the evidence that she has a color of
              title, nor has this been a twenty-year adverse use, nor has
              she established that there is a prescriptive easement, in
              my opinion. That, I feel like, would require an adverse
              use. And also, as far as the implied easement, I also find
              that she's failed to prove that, even though it wasn't in the
              pleadings. I'm not satisfied with what I've heard on that.
              I feel like there may be an awesome burden of proof here.
              But, I think when you come to dealing with land and
              property, particularly in this situation where it was family
              members who owned this land -- And a lot of times,
              brothers and sisters and mothers and children will let

                                           -4-
                each other use their land and barns as if it's all theirs or
                any of them without any real commitment to that being
                anybody else's property.



                While another conclusion on this point would have been possible, when

we consider the heightened burden of proof on the plaintiff, we cannot say that the

chancellor's findings are against the preponderance of the evidence.



                If the disputed property was not within the calls of the 1971 deed and

Barry Earps' possession of it was not adverse to his mother and father, then the

plaintiff's case must fail.



                                                III.



                Although not raised in the pleadings, the seven year defensive statute,

Tenn. Code Ann. § 28-2-103, has been raised on appeal. This code section bars the

right of the original owner to recover property that has been adversely held for more

than seven years. It does not give the adverse possessor title to the property, but it

does give him or her the right to sue for trespass or for an injunction to prevent the

repossession. Tuggle v. Southern Ry. Co., 140 Tenn. 275, 204 S.W. 857 (1918).2



                As in the action claiming title by adverse possession, however, to

establish the defense provided in Tenn. Code Ann. § 28-2-103, the possession must

be adverse and not permissive. Pyron v. Colbert, 46 Tenn. App. 287, 328 S.W.2d

825 (1959). The chancellor's findings are as fatal to this contention, as they are to the

contention that the appellant has title by adverse possession.



                                               IV.


        2
         For the view that Tenn . Code A nn. § 28-2-103 can be used only as a defense, see Moore v.
Brannan, 42 Tenn. App. 542, 304 S.W .2d 660 (1957) and Savely v. Bridges, 57 Tenn. App. 372, 418
S.W .2d 472 (1967 ).

                                               -5-
              One other aspect of the case should be noted.      Even if Barry Earps had

acquired title to the disputed area by adverse possession it would not have passed

to the appellant alone at Barry's death. The right of survivorship created by the deed

to the appellant in 1986 covered only the property conveyed by the original deed in

1971. The calls in both deeds are identical and we have concluded that the original

deed only conveyed the property shown on the 1994 survey. Therefore, if Barry died

intestate, the appellant would take only what the law gives her by intestate

succession. The record shows that Barry Earps had a child by his first marriage. (He

is in fact a defendant in this action). Thus, the appellant would not have inherited the

property in her sole name at Barry's death.



              The judgment of the trial court is affirmed. The cause is remanded to

the Chancery Court of Macon County for any further proceedings necessary. Tax the

costs on appeal to the appellant.



                                                  _____________________________
                                                  BEN H. CANTRELL, JUDGE


CONCUR:


_______________________________
SAMUEL L. LEWIS, JUDGE


_______________________________
WILLIAM C. KOCH, JR., JUDGE




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