                 IN THE COURT OF APPEALS OF TENNESSEE

                                    AT KNOXVILLE                   FILED
                                                                        March 2, 1998

DAVID E. LIND, et ux MYRA                       Cecil Crowson, Jr.
                              ) C/A NO. 03A01-9710-CH-00473
                                                Appellate C ourt Clerk
GWYNN LIND,                   )
                              ) KNOX CHANCERY
      Plaintiffs-Appellees,   )
                              ) HON . SHA RON BEL L,
v.                            ) CHANCELLOR
                              )
ALLEN M. WEBB, CLYDE N. WEBB, )
and ASTER VANCE WEBB,         ) AFFIRMED
                              ) AND
      Defendants-Appellants.  ) REMANDED




CHARLES G. TAYLOR, III, McDON ALD, LEVY & TAYLOR , Knoxville, for
Plaintiffs-Appellees.

STEVEN G. SHOPE , Knoxville, for Defendants-Appellants.




                                      O P I N IO N


                                                           Franks, J.


              In this boun dary line dispute the defen dants app eal from a judgmen t in

favor of plaintiffs, insisting that the evidence established their right to the disputed

area by adverse possession.

              The plaintiffs filed this action to establish the boundary between the

parties, and defendants in their pleadings did not raise their right to the disputed area

by adverse p ossession. H oweve r, on the mo rning of trial d efendan ts essentially

concede d the boun dary line was w here plaintiff s had allege d, but as the C hancellor, in

her judgm ent recited:

              The parties then announced that in regard to the claim concerning
               location of the boundary between the parties’ respective lots, the parties
               were stipulating that the only issue to be decided by the Court was
               whether or not the defendants had a valid defense based upon adverse
               possession. It was agreed that, if the defendants could not prove that
               they were entitled to the disputed property by adverse possession, then
               plaintiffs w ould prev ail.

               After hearing testimony, the Chancellor ruled that “the defendants had

not ‘openly and notoriously’ occupied the plaintiffs’ property for a sufficient length of

time to establish a valid claim by adverse possession.”

               In order for the defense of adverse possession to be sustained, we

explained in Panter v. Miller, 698 S.W.2d 63 4 (Tenn. App . 1985):

               The burden is on the one alleging to prove his defense of adverse
               posses sion. See Tipton v. Smith, 593 S.W.2d 298. Adverse possession
               is neve r to be p resum ed, but a ll of its ele ment m ust be p roved. Drewery
               v. Nelms, (1915) 132 Tenn. 254, 177 S.W. 946. In order to be adverse,
               the pos session must b e open , notorio us, con tinuou s, actual a nd visib le.
               Sequatchie Val. Coal & Iron Co. v. Coppinger, (1895) 95 Tenn. 526, 32
               S.W. 465. The caliber of proof necessary to show those required
               elemen ts is depe ndent u pon the use to w hich the land is su sceptib le.
               Blanken ship v. Blan kenship, (1983 Tenn . App. W .S.) 658 S.W.2 d 125.
               Id. At 636.

“Clear and po sitive pro of” is re quired to estab lish adv erse po ssession . Kidwell v.

VanDeventer, 686 S .W.2d 899 (T enn. A pp. 198 4).

               At the conclusion of the evidence, the Chancellor observed:

               For thirty years or so, or perhaps short of that, the defendants used
               portions of the land in question to plant seedlings, bedding plants and
               some shrubbery. I believe that his planting probably more likely than
               not exte nded in to the dis puted a rea, wh ich wa s a heav ily wood ed area .
               The plants that the Court has been shown today . . . were indigenous or
               natural to the w ooded ar eas. . . . so they are no t the types of pla nts in
               general that would put one on notice that they were anything other than
               natural plantings that was natural to the area. There were some beds
               apparently in which seedlings were planted, but, as the defendant has
               told us, these were pretty well hidden, not to hide them from the
               plaintiffs, but to prevent thievery. Most telling, as the defendant has
               testified, people around would probably not know an activity was going
               on. And under the testimony, the area was so thick, as most witnesses
               have said, it w ould not inv ite a stroll throug h the area to investigate
               activ ity.

               The evidence e stablishes that defendants ha d conducted nu rsery


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operations on the lot adjoining plaintiffs’ lot beginning in 1950's. This activity had

ceased by the time plaintiff purchased his lot in 1992. Plaintiff testified that he

walked the boundary in question when he purchased the lot and there was no

indication that anyone was using the property for any purpose. There were no fences,

buildings or structures, and the property was heavily wooded. The engineer who

made a b oundary surv ey for plaintiffs testified that pla intiffs’ land w as heavily

wooded an d he did not observ e anything that would indicate d efendants were

conducting a “business activity” in the heavily wooded area. The Marshalls who

reside across the road from the disputed property since 1954, testified that they never

had any kno wledge th at defend ants had co nducted n ursery activities on the property

which plaintiffs purchased. Mr. Marshall conceded on cross-examination that he

never went into the woods and explained “I would have to have a machete to cut my

way thro ugh the wood s”.

               Defend ant Allen W ebb testified that he had continuou sly used the 20 ft.

strip from 1975 through 1988 by planting Rhododendrons, Mahonia, Lobelia and

some ferns, and conceded that the plantings “were not obvious”. Webb further

testified after observing that his mother had run “people off who were trying to take

the stuff that was in there”:

               Q.     Is that one of the reasons you tried to hide it back there?

               A.     Yes, sir.

               Q.     You tried to put them way back in the woods so they were not
                      easily observed from the road?

               A.     That’s part of it. Yes, sir, it was.

               Q.     Anybody driv ing by wou ldn’t know you planted stu ff back in
                      there, right?

               A.     That’s corr ect.

               Q.     And the owner of that lot 183, if they had driven by they
                      wouldn ’t have any ide a you were o ccupying tha t land, wou ld

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                       they?

               A.      I would doubt that they would.

               We agree with the Trial Judge that the evidence offered by the defendant

that the occa sional use o f the dispute d area by plan ting and co ncealing n ursery plants

in part of the disputed area d oes not constitute open an d visible possession. To im part

notice, it has be en said that:

               Notice of possession of that ope n and visib le character w hich from its
               nature is calculated to apprise the world that the land is occupied and
               who the occupan t is; such an ap propriation o f land by claim ant as to
               apprise, or co nvey visible no tice to, the com munity or neig hborhoo d in
               which it is situa ted that it is in his ex clusive use and enjoym ent.

               2 CJS Adverse Possession §50, p.714.

Considering defendants’ evidence alone, the elements required to establish adverse

posses sion are not esta blished . See Se quatch ie Val. C oal & Iro n Co.

               We affirm the judgment of the Trial Court and remand with the cost of

the appeal assessed to appellants.




                                             __________________________
                                             Herschel P. Franks, J.

CONCUR:




___________________________
Don T. McM urray, J.




___________________________
William H. Inman, Sr.J.




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