                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                Assigned on Briefs June 13, 2011

     JOHN GRIFF LUCAS v. CITY OF WAVERLY, TENNESSEE, ET AL.

                    Appeal from the Circuit Court for Humphreys County
                            No. 9961    George C. Sexton, Judge


                   No. M2010-01644-COA-R3-CV - Filed August 31, 2011


In this inverse condemnation action, the trial court granted summary judgment to
condemning authority on ground that statute of limitations barred suit; landowner appeals.
Condemning authority urges affirmance of the dismissal on alternative grounds. Finding that
the action is not barred by the statute of limitations and that genuine issue of material fact
exists which precludes summary judgment, we reverse the dismissal of this action and
remand for further proceedings.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., and A NDY D. B ENNETT, J.J., joined.

Anthony L. Sanders, Waverly, Tennessee, for the appellant, John Griff Lucas.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary S. Foust, Senior Counsel,
for the appellees, City of Waverly, Tennessee, and Humphreys County, Tennessee.

                                                OPINION

I. Procedural History 1

      This appeal arises out of the widening of State Highway 13 in Humphreys County.
The State of Tennessee initiated an eminent domain action in Humphreys County Circuit
Court on December 15, 2005, condemning land owned by John Lucas; an Order of


        1
          This case has a convoluted procedural history and, in the interest of clarity and brevity, we recount
only the history relative to the issues presented in this appeal.
Condemnation and Appropriation was entered on February 6, 2006. On February 5, 2007,
while the eminent domain action was pending, Mr. Lucas filed this inverse condemnation
action naming the State of Tennessee, Humphreys County, and the City of Waverly as
Defendantss, alleging that the road project took an additional fifteen feet of his property, for
which he sought compensation. Each Defendants answered the complaint and moved to
dismiss the action. Thereafter, Mr. Lucas filed notices voluntarily dismissing the entire
action against the State and the cause of action for trespass against the City and the County2 ;
the case proceeded on the inverse condemnation claim.

       The City and County filed a motion for summary judgment with supporting materials,
to which Mr. Lucas responded; the court granted the motion and dismissed the case on the
grounds that the action was barred by the statute of limitations contained at Tenn. Code Ann.
§ 29-16-124. The trial court found that the cause of action accrued on either of two
occasions:

               5. The Plaintiff and affiant Gardner, a Tennessee Department of
        Transportation (TDOT) representative, had at least two conversations in
        October, 2002. Gardner presented Plaintiff with the proposed right of way
        (ROW) plans for the improvement of Highway 13. The ROW plans showed
        the property Plaintiff claims as his being within the right of way of Highway
        13. Plaintiff does not dispute that he received these plans of Highway
        acquisition and existing property lines; rather Plaintiff’s Affidavit states he
        was furnished various maps and stated that the [“]margins of Highway 13
        were shown incorrectly.” Plaintiff’s Affidavit states that the dispute went on
        for several years.
               6. Pursuant to Tenn. Code Ann. Section 29-16-123 a cause of action
        for inverse condemnation arises when the landowner is aware that his land has
        suffered injury of a permanent nature and the property has been physically
        occupied for purposes of internal improvement. The Court finds and
        concludes as a matter of law that there was notice of a permanent injury in
        October, 2002, and that the cause of action [occurred] at the time of the
        conversations between Gardner and Plaintiff Lucas. The Court finds and
        concludes these conversations were sufficiently detailed to alert the Plaintiff
        that the Defendants were appropriating real property for [the] purpose of
        internal improvement.



        2
          An Order of Nonsuit as to the State was signed by the Chancellor on October 2, 2008 and filed on
October 6. The record does not contain a separate order of nonsuit as to the cause of action for trespass
against the City and the County.

                                                   -2-
             7. The Court concludes a matter of Law that there was another
      permanent injury sufficient to alert the Plaintiff that the Defendants had
      appropriated the area complained of in the complaint in connection with a
      waterline that the City of Waverly intended to install. The City of Waverly’s
      representatives requested Plaintiff Lucas to execute a deed granting the City
      written permission to cross his property to install a water line. The writing
      given to Lucas was entitled “Map showing easement description for deed of
      easement[”] which Map was dated 4/14/00, revised 2/7/02 & revised 4/11/02.
      The Court concludes that Lucas signed the deed of easement knowingly and
      voluntarily. The Court finds the easement contains two maps (recorded Book
      184. pages 1679 and 1680) designating the property Plaintiff claims he owns
      as ‘existing right of way’ for Highway 13. When Lucas signed the deed of
      easement on Friday 13, 2003, he was aware that the City or TDOT claimed the
      property Lucas now alleges he owns.

Mr. Lucas appeals, asserting the following issues:

             A. Whether the trial court erred in finding that the City of Waverly and
      Humphreys county established the affirmative defense of statute of limitations,
      as governed by T.C.A § 29-16-124.
             B. Whether the trial court erred in finding that John Lucas sustained a
      permanent injury to his property, thus constituting a taking, and had notice of
      that permanent injury in October, 2002 based upon conversations that took
      place between John Griff Lucas and Robert Gardner, or alternatively that John
      Griff Lucas sustained a permanent injury to his property, thus constituting a
      taking, and had notice of that permanent injury on February 13, 2003 based
      upon the execution by John Griff Lucas of a deed granting the City of Waverly
      an easement across his property for purposes of installing a waterline.
             C. Whether the trial court erred in finding that no genuine issues of
      material fact exist concerning whether the statute of limitations for inverse
      condemnation actions bars Mr. Lucas’ complaint.

The City and County present the following additional issues for review:

             1. Whether the trial court erred in concluding that there remains a
      genuine issue of material fact regarding the ownership of the real property
      involved in this case.
             2. Whether the trial court erred in omitting the physical description of
      the real property at issue in this case from the Judgment and Final Decree
      entered in this case.

                                            -3-
               3. Whether the trial court erred in stating in its Judgment and Final
       Decree that the sole grounds for dismissal of this case was the one-year
       limitation of actions provided by Tenn. Code Ann. § 29-16-124 when other
       grounds for dismissal (such as lack of proof of ownership and estoppel by
       deed) exist.

II. Discussion

       A. Standard of Review

        When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party’s claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). However,
“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or
shutup’ or even to cast doubt on a party’s ability to prove an element at trial.” Id. at 8. If the
moving party's motion is properly supported, “[t]he burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd
v. Hall, 847 S.W.2d 208, 215(Tenn. 1993)). The non-moving party may accomplish this by:

       “(1) pointing to evidence establishing material factual disputes that were
       overlooked or ignored by the moving party; (2) rehabilitating the evidence
       attacked by the moving party; (3) producing additional evidence establishing
       the existence of a genuine issue for the trial; or (4) submitting an affidavit
       explaining the necessity for further discovery pursuant to Tenn. R. Civ. P. Rule
       56.06.”

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)(citations omitted).

       A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005); BellSouth
Adver. & Publ. Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland
Healthcare Ctr., Inc., 49 S.W.3d 281, 284 (Tenn. 2001); Penley v. Honda Motor Co., 31
S.W.3d 181, 183 (Tenn. 2000). We review the summary judgment decision as a question of
law. Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 437 (Tenn.1998); Robinson
v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). Accordingly, this court must review the record
de novo and make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56
have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v.

                                               -4-
West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004); Staples v. CBL & Assoc., 15 S.W.3d
83, 88 (Tenn. 2000).

        In our review, we must consider the evidence presented at the summary judgment
stage in the light most favorable to the non-moving party, and we must afford that party all
reasonable inferences. Draper, 181 S.W.3d at 288; Doe v. HCA Health Servs., Inc., 46
S.W.3d 191, 196 (Tenn. 2001); Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 507
(Tenn. 2001). We must determine first whether factual disputes exist and, if so, whether the
disputed fact is material to the claim or defense upon which the summary judgment is
predicated and whether the disputed fact creates a genuine issue for trial. Byrd, 847 S.W.2d
at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).
"If there is a dispute as to any material fact or any doubt as to the conclusions to be drawn
from that fact, the motion must be denied." Byrd, 847 S.W.2d at 211.

        In their motion for summary judgment, Defendantss contended that summary
judgment was appropriate because: (1) the action was barred by Tenn. Code Ann. § 29-16-
124; (2) the land in dispute was included in land acquired when Highway 13 was originally
constructed between 1940 and 1945; and (3) Mr. Lucas was estopped to claim that the
western margin of the Highway 13 right of way was other than as described in a public
utility easement he executed to the City of Waverly in 2002, which incorporated the then
existing margin.3 Defendants also asks this court, if we hold that the trial court erred in
granting summary judgment on the ground stated, to affirm the grant of summary judgment
on the alternative ground that Mr. Lucas has not established he is the owner of the
property—an essential element of an inverse condemnation claim—and upon the ground of
estoppel by deed.

        B. Statute of Limitations

       Tenn. Code Ann. § 29-16-123 allows a landowner whose property is taken by an
authority exercising the power of eminent domain to pursue an inverse condemnation action.
See Meighan v. U. S. Sprint Comm. Co., 924 S.W.2d 632, 640–41 (Tenn. 1996). Such
actions must be commenced within twelve months after the land has been taken and the work
begun or, if the owner is unknown or under certain disabilities, within twelve months after




        3
         In support of their motion, Defendants relied upon the affidavits of Albert Zimmerman and Robert
Gardner and maps and deeds attached to the affidavits in support of their motion; they also filed a Statement
of Undisputed Material Facts.

                                                    -5-
the owner acquires actual knowledge of the taking or removal of the disabilities. Tenn. Code
Ann. § 29-16-124.4

       Mr. Lucas argues that the record does not show that his property had actually been
taken in either October 2002 or on February 13, 2003 but, rather, that construction of the
improvements to Highway 13 did not begin until after February 6, 2006, the date of entry
of the Order of Possession in the condemnation proceeding. He asserts that neither the
conversations between he and Mr. Gardner referenced in the court’s findings nor his grant
of the easement to the City to construct the waterline created “an injury of a permanent
nature . . . sufficient to constitute a ‘taking’ thus triggering the statute of limitations.”

       Robert Gardner’s affidavit recited that he worked from 2002 to 2004 as an
independent contractor with Capitol Consultants, which had a contract with the Tennessee
Department of Transportation to negotiate with landowners whose property fronted on
Highway 13. In this capacity, Mr. Gardner met with Mr. Lucas in September and October
of 2002 and presented to him a copy of the plans for the project; in both meetings, Mr. Lucas
expressed his belief that the State’s determination of its right of way and the tax maps
showing the boundaries of the property owners were not correct. In June 2004, Mr. Gardner
had another conversation with Mr. Lucas, in which Mr. Gardner advised that the tax map
had been corrected and that the Department had reviewed the revised map and believed the
right of way line was correct.

       Mr. Lucas’ affidavit, filed in response to the motion, does not specifically address the
conversations with Mr. Gardner, although he does acknowledge telling “Capitol
Consultants” that the maps which he had been furnished were incorrect; he states that he
“did not know if the land in question was going to be taken or if the map was going to be
corrected.” He further acknowledges receiving a letter in December 2005 from Mary Foust,
counsel for Defendantss, advising that “the State would be taking the property in the
implementation of the project in question (widening of Highway 13).”




       4
           Tenn. Code Ann. § 29-16-124 provides:

       The owners of land shall, in such cases, commence proceedings within twelve (12) months
       after the land has been actually taken possession of, and the work of the proposed internal
       improvement begun; saving, however, to unknown owners and nonresidents, twelve (12)
       months after actual knowledge of such occupation, not exceeding three (3) years, and saving
       to persons under the disabilities of infancy and unsoundness of mind, twelve (12) months
       after such disability is removed, but not exceeding ten (10) years.


                                                   -6-
       Defendants also asserted that the fact that Mr. Lucas signed a utility easement in
February 2002 was proof that he was aware of the boundaries of the claimed right of way
as early as 2002. The affidavit of Albert Zimmerman, employee of QK4 Architecture
Engineering Planning, which contracted with the Department of Transportation to perform
the survey and design work for the Highway 13 improvement project, discussed the utility
easement Mr. Lucas conveyed to the City of Waverly. In his affidavit, he states that “[i]t
appears that the Highway 13 ROW [right of way] plans that I developed were used as the
base mapping for the easement [plotted on Deed Book 184, page 1680].” With respect to
the easement, Mr. Lucas states in his affidavit that “[t]he easement was without warranty as
I did not agree with the drawing as shown and that is why I refused to give a warranty with
the easement and this was explained to the City Attorney, John Lee Williams.”

       The affidavits and other material filed by Defendants in support of the motion did not
show that Defendants had actually taken possession of the property in 2002 or that the
project was begun at any time prior to February 5, 2006—one year prior to the filing of this
suit. Indeed, Mr. Lucas’ affidavit recites that he was advised in December 2005 only that
the State “would be taking the property.” The evidence shows at most that the road project
was planned; performance of the project did not begin until the State initiated the
condemnation proceeding in February 2006.

        The conversations Mr. Lucas had with Mr. Gardner did not satisfy the requirement
of Tenn. Code Ann. § 29-16-124 that the land “actually be taken possession of, and the work
of the proposed internal improvement begun” before the twelve month period for the
landowner to initiate suit. Similarly, inasmuch as Defendants had not taken possession of
the land or begun work on the road project, Mr. Lucas’ conveyance of the utility easement
to the City in 2002 is not germane to the statute of limitations issue.5 The trial court erred
in holding that this action was barred by Tenn. Code Ann. § 29-16-124.

        C . Ownership of the Property at Issue

       Defendants urge this court to affirm the dismissal of the action on alternative grounds,
premised upon their contentions that Mr. Lucas did not own the property at issue and that he
was estopped to assert that his property was other than that described in a deed he executed
granting a waterline easement to the City of Waverly. Defendants dispute that the 15 foot


        5
            See Knox County v. Moncier, 455 S.W.2d 153, 156 (Tenn. 1970) (“The statute of limitations
should be applied in such a manner that the landowner will have the one year period within which to bring
his suit ‘after injury or after reasonable notice or knowledge of such injury and damage.’ Morgan County
v. Neff (1953), 36 Tenn.App. 407, 256 S.W.2d 61.”).


                                                  -7-
tract of land adjoins the Highway 13 right-of-way; they contend, based on the affidavits and
materials filed in support of the motion, that the disputed tract is actually within the
boundaries of the Highway 13 right-of-way.

        Mr. Zimmerman based his location of the disputed tract on the Highway 13 right-of-
way as shown on plans prepared in 1939 when the highway was originally constructed. He
stated in this regard:

       1. . . . My company performed the survey work for this property in May 1997
       and I did the design for the widening of Highway 13, for this part of the
       project, in the fall of 1997. In developing the right of way plans for Highway
       13, my company used the proposed right of way shown on the 1939 plans.
       [The 1939 proposed right of way would be denoted as ‘existing’ right of way
       on my design plans.] We then plotted the most current deeds for the properties
       as shown on the tax maps in 1997 and we surveyed property lines where we
       could find them.
       I have reviewed the survey field data my company compiled and reviewed the
       1939 Highway 13 plans. I was able to match up the centerline of the old plans
       with the centerline of the existing Highway 13 survey information which
       provided me with the basis of my design to widen Highway 13.

His affidavit also identifies the issue at the heart of this dispute:

       2. The old (1939) plans depict there was a landowner named A. W. Lucas on
       the western margin of Highway 13 between Mathews Hollow Road and
       Marable Road. On the old plans there was no Clydeton Road, as Clydeton
       Road was constructed in the 1970’s. According to the Clydeton Road plans,
       that surveyor located a pin at the north side of Clydeton Road, where it
       intersects with the western margin of Highway 13. Our survey crew did not
       locate this pin in 1977, (during the Highway 13 survey work), however, it may
       have existed. What the survey crew was trying to locate was any highway
       monuments, as a pin could mean an old corner, or a point in a side line; the
       highway monument designates with lettering that the property is owned by
       some governmental entity.
       ***
       4. I also reviewed a plans sheet from the Clydeton Road project which was
       constructed by the City of Waverly in 1977. The sheet was entitled Property
       Map for State Route 1-State Route 13 Bypass. The sheet indicated that the
       new road was to connect Highway 13 to Main Street, (US 70/SR 1). I did not
       have these Clydeton Road plans sheets when I did my Highway 13 design, but

                                               -8-
       now that I have these plans, I labeled my Highway plans exhibit for this Lucas
       tract with pins/monuments that I have noted from the Clydeton Road plans.
       Basically, the only monument would be the centerline of Clydeton Road. . . .
       ***
       6. I find it significant that Lucas’ legal descriptions do not give any reference
       to a locatable existing monument on the ground for a surveyor to find. The
       legal descriptions state that the ‘western margin’ of the highway is the
       boundary line for Lucas’ property, but this doesn’t define where the margin of
       the highway is, such as to be located on the ground.

       Defendants also filed the affidavit of Roger Jones, Geographic Information Systems
(GIS) Technical Supervisor II with the Tennessee Comptroller’s Office, who had been asked
by counsel for Defendants to assist in locating the western boundary line for Highway 13.
The affidavit states, in part pertinent to this discussion:

       I have reviewed the survey data compiled and labeled on the ‘new’ Highway
       13 plans and I have reviewed the 1939 Highway 13 plans. I was able to match
       up the centerline of the old plans with the centerline of the ‘new’ Highway 13
       survey information. These two plans are part of the overlay exhibit. The
       centerline is considered to be one of the monuments of Highway 13 and they
       were located by the survey for the newer Highway 13 plans. In my opinion,
       the ‘exist. and prop. ROW’ line (as shown in DB 184, pp 1679-1680) is Lucas’
       eastern boundary line. That line hasn’t changed since the 1939 plans were
       drawn to the best of my knowledge, information and belief.

Defendants also filed the affidavits of three employees of Gresham, Smith and Partners, an
engineering firm engaged by the City of Waverly to relocate underground water and sewer
lines necessitated by the Highway 13 widening project. Those affidavits generally discussed
the easements obtained from Mr. Lucas in connection with the water line relocation project
and stated that, in designing the plans for the water lines, they relied on the Highway 13 right
of way as shown on the Department of Transportation plans. The affidavits and other
materials filed by Defendantss in support of their motion were sufficient to negate Mr.
Lucas’ contention that he was the owner of the property in question; as a result, the burden
then shifted to him show that a genuine issue of material fact exists. Hannan, 270 S.W.3d
at 5.
        In his complaint, Mr. Lucas alleged that his property was derived by instrument of
record in Deed Book 127, page 130, Will Book Q, page 313, and Will Book U, page 250.
His affidavit states the following with reference to the property and his chain of title:




                                              -9-
        3. I am the Plaintiff in this case and a Defendant in the case of State of
Tennessee v. John G. Lucas, Docket No. 9907 in the Circuit Court of
Humphreys County, Tennessee and 9907 is a direct condemnation action
where the state is attempting to take property located on both sides the [sic]
State Route 1 - State Route 13 By-Pass and lands located between the old
Cemetery Road and the Marable Cemetery Road, including slope easements.
        ***
        5. I own the property which is the subject of both cases and derived
one-half interest of the property from my trust created for me by my father and
then received the other one-half interest in the property at my step-mother’s
death. . . .
        6. The above designated real property is located on the west margin of
Highway 13 and runs with the highway beginning at Marable Cemetery Road,
running southward to almost Matthews Hollow Road and is divided by Mary
Rawlings property and a road project generally known as the Clydeton Road,
Cowan Avenue, and officially named State Route 1 - State Route 13 By-Pass.
        ***
        15. Tom White was involved in the surveys for the acquisition of
properties for the State Route 1 - State Route 13 road project. (Clydeton Road,
Cowan Avenue). A copy of this road project further supports my position and
a copy is attached as Exhibit No. 7 as the margin of Highway 13 is shown to
intersect as scaled 50 feet from its centerline and is further evidenced by a
boundary pin which was set by Sam Long, County Surveyor. This pin is
shown on the State Route 1 - State Route 13 road project (Clydeton Road,
Cowan Avenue), which was the southeast boundary of the Town Hill
restaurant property. Furthermore, Tom White performed a boundary survey
which was paid for jointly by Thomas A. Armstrong and myself. This survey
further showed that the boundary of Highway 13 was 50 feet from its
centerline. All of these pins for this survey have been found except for the pin
at the margin of Highway 13 which was destroyed, presumably by the State of
Tennessee during construction of the new project (widening). . . .
        20. My step mother and myself executed deeds for the conveyance of
property for the State Route 1 - State Route 13 (Clydeton Road, Cowan
Avenue) Project and were later contacted by Orbin Pegram, of the City of
Waverly, to execute a deed of correction to reflect the fact that the roadway
was not build [sic] as exactly as originally described and we executed the deed
of correction as an accommodation and without additional consideration. This
deed did not in any way change the location of the boundary margin of
Highway 13 prior to this new project. The metes and bounds as a portion of
the deed of correction are reflected in the Tom White survey of 1979, which

                                      -10-
       definitely shows the margin of Highway 13 as 50 feet from its centerline. All
       of the lands which were deeded to the City of Waverly for the State Route 1 -
       State Route 13 project were not included in the deed of record in Deed Book
       74, page 577. Some additional lands are described in at least one and maybe
       two other deeds.

      Mr. Lucas also filed the affidavit of Christopher White, a surveyor, in opposition to
the motion for summary judgment.6 Mr. White’s affidavit states in pertinent part:

               5. I performed a survey for John G. Lucas on property west of and
       adjacent to Highway 13 and generally lying south from Marable Road to
       almost Matthews Hollow Road and the property is intersected with the
       Highway 13- State Route 1 (Cowan Avenue, Clydeton Road Extension).
               6. In performing the survey I followed the requisite statutes and
       regulations concerning surveys conducted in the State of Tennessee.
               7. It is my professional opinion that on the property identified to me by
       John G. Lucas as his property, I found small strips of property which would
       run in a smooth north-south direction which were not included in the
       condemnation case of the State of Tennessee against John G. Lucas.
               8. I identified those strips of property by cross hatching on the survey
       plat that I drafted from my survey of the John G. Lucas property.

        The information contained in Mr. Lucas’ and Mr. White’s affidavits and the exhibits
attached to the affidavits are sufficient to create a genuine issue of fact as to the location and
ownership of the disputed tract. Defendants contend that the property acquired as part of the
original Highway 13 extended 65 feet from the centerline of Highway 13; the materials upon
which their contention as to the location of the line is based is predicated on the 1939
Highway 13 plans. To some extent, however, the Zimmerman affidavit raises a question as
to the reliability or weight to be afforded to property descriptions which use the 1939 center
line. The documents show that Clydeton Road, constructed in the 1970’s, intersected with
Highway 13; pins and monuments associated with the Clydeton Road project were not
located when the expansion plans for Highway 13 were prepared in 1997. Similarly, the
Jones affidavit does not definitively state where the center line of Highway 13 is. Mr. Lucas
contends (supported by a survey by Tom White) that Defendants’ right of way only goes 50
feet from centerline of Highway 13. Considering the evidence in the light most favorable to
Mr. Lucas and affording him all reasonable inferences, Defendants have not shown the



       6
          It is not clear if the Tom White referred to in Mr. Lucas’ affidavit is the same person as
Christopher White.

                                               -11-
absence of a genuine issue of material fact and, consequently, have not established their
entitlement to judgment as a matter of law.

       D. Estoppel

       Defendants also assert that Mr. Lucas is estopped to deny that his property line is other
than as stated in three deeds he executed because the deeds “acknowledge ‘the existing and
proposed right-of-way line’ [terminology used in the property descriptions in the deeds] of
State Highway 13 is located as the engineering plans for the improvement of State Highway
13 indicates.” Defendants contend that the deeds “support the contention that the common
boundary between Appellant’s 13-acre tract and the State Highway 13 right of way line
remains as established by the 1939 eminent domain acquisition from A. W. Lucas, the
Appellant’s grandfather” and put Mr. Lucas “on notice” that the state and local governments
consider the ‘existing and proposed right-of-way line’ to be as indicated on the deeds and
related maps. In light of the factual issue of the ownership and location of the disputed tract,
discussed supra, we respectfully disagree with the proposition that Mr. Lucas is bound by
what could be an erroneous description of the Highway 13 right-of-way. Moreover, the
record does not show Defendants have demonstrated that this is an appropriate case for the
application of estoppel principles.

        “Estoppel by deed is a bar which precludes one party to a deed and his privies from
asserting as against the other party and his privies any right or title in derogation of the deed
or from denying the truth of any material facts asserted in it.” 19 Am. Jur., Estoppel, Sec.
6, p. 603. Denny v. Wilson County, 281 S.W.2d 671, 675 (Tenn. 1955). Before establishing
estoppel by deed, the parties relying on the estoppel must prove that they (1) lacked
knowledge of the true facts; (2) relied upon the untrue facts; and (3) took action based on the
untrue facts. Lampley v. Romine, No. M2005-01726-COA-R3-CV, 2006 WL 3728907
(Tenn. Ct. App. Dec. 15, 2006).

        In Lampley, a boundary dispute case, which, like the present case, involved conflicting
surveys, the Lampleys received their property, consisting of twenty acres, by deed from
family members. A .07 acre parcel had been omitted from the deed as well as from a
subsequent quitclaim deed executed between the Lampleys for estate planning purposes; this
tract became at issue when the Romines purchased an adjoining tract and secured a survey
showing the .07 acre tract to be on the Romine property. At trial, the Romines sought to
estop the Lampleys from claiming ownership of the .07 acre parcel; the trial court refused
to apply estoppel by deed, finding that the Romines had not relied on the erroneous deed.
On appeal, this court affirmed the trial court, holding that reliance “must be shown in order
to claim estoppel by deed. . . .” Lampley, 2006 WL 3728907 at *2.



                                              -12-
       The record is devoid of any proof that Defendants relied upon either of the deeds
executed by Mr. Lucas in any aspect of the Highway 13 widening project. As a consequence,
Mr. Lucas is not estopped from challenging the Defendants’ location of the disputed
property, including the surveys upon which the Defendants’ descriptions are based.

III. Conclusion

    For the foregoing reasons, the judgment of the trial court is REVERSED and the case
REMANDED for further proceedings in accordance with this opinion.




                                                 ________________________________
                                                 RICHARD H. DINKINS, JUDGE




                                          -13-
