                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                            NOVEMBER 17, 2009 Session

     MELVIN QUARLES, ET AL. v. BARBARA ATKINS SMITH,                            ET AL.

             Direct Appeal from the Chancery Court for Fayette County
                     No. 14332     William C. Cole, Chancellor


              No. W2009-00514-COA-R3-CV - Filed February 24, 2010


This case involves a boundary line dispute. Plaintiffs brought suit to enjoin Defendant
Walker from entering property they claimed to own. However, Defendant Walker filed a
counter-claim against Plaintiffs asserting, among other things, ownership by adverse
possession. The trial court found that title to the disputed property had vested in Defendant
Walker, and therefore, it granted summary judgment in his favor. We affirm.


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

A LAN E. H IGHERS, P.J., W.S.,, delivered the opinion of the Court, in which D AVID R.
F ARMER, J., and H OLLY M. K IRBY, J., joined.

James Stephen King, Memphis, Tennessee, for the appellants, Melvin Quarles, Charlotte
Quarles, Glen Hayden and Cheryl Hayden

Thomas D. Forrester, Covington, Tennessee, for the appellee, June Walker, Jr., a/k/a J. G.
Walker, Jr.
                                              OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

        June Walker, Jr. (“Defendant Walker”) obtained ownership of two tracts of land in
Fayette County, Tennessee, encompassing approximately 92.64 acres,1 on December 8, 1948,
by Trustee’s Deed from his parents, Mr. and Mrs. J.G. Walker. On October 7, 2003, Melvin
Quarles, Charlotte Quarles, Glen Hayden, and Cheryl Hayden (“Plaintiffs”) purchased, from
Barbara Atkins Smith (“Defendant Smith”), land located in Fayette County, Tennessee,
which adjoins land owned by Defendant Walker. The boundary line between Plaintiffs’ land
and Defendant Walker’s land is in dispute. Both parties claim title to a partially wooded and
partially open field fourteen-acre tract bordered by Defendant Walker’s undisputed property
to the west and Plaintiffs’ undisputed property to the east. A boundary survey shows a fence
line marked “A” bordering the eastern edge of the disputed property and a fence line marked
“B” partially bordering the disputed property’s western edge.

       In his affidavit, Mr. Quarles claims that after purchasing the land from Defendant
Smith, he began to plant grass seeds when “[t]he reading on the planter’s acreage counter
made me suspicious that the property did not contain the 78 acres that I thought we were
purchasing.” Therefore, he had the property surveyed by Jack McAdoo in November 2005.
After comparing the deed descriptions of both Plaintiffs’ deed and Defendant Walker’s deed,
Mr. McAdoo determined that the deed descriptions do not overlap, and that the disputed
fourteen-acre tract is included within Plaintiffs’ deed. Thus, Mr. McAdoo found that the “A”
fence line was not the property boundary, but that Plaintiffs’ property extended west of that
line.

       Thus, in December 2006, Plaintiffs filed suit against Defendant Smith for breach of
warranty of title and breach of contract, and they sued Defendant Walker seeking to establish
the boundary line of their adjoining properties and seeking an injunction to prevent
Defendant Walker from entering the disputed property. In response, Defendant Walker pled
several affirmative defenses, including Tennessee Code Annotated section 28-2-109 2 and


       1
        The 1948 recording instrument states that 92.64 acres were conveyed to Defendant Walker.
However, a 1983 tax map lists the property at 102 acres.
       2
           Tennessee Code Annotated section 28-2-109 states:

       Any person holding any real estate or land of any kind, or any legal or equitable interest
       therein, who has paid, or who and those through whom such person claims have paid, the
       state and county taxes on the same for more then twenty (20) years continuously prior to the
                                                                                             (continued...)

                                                   -2-
adverse possession pursuant to Tennessee Code Annotated section 28-2-103. Defendant
Walker also asserted a counter-claim against Plaintiffs, claiming title to the disputed property
through the payment of property taxes since 1948, or, alternatively, through adverse
possession or prescription, and asserting Tennessee Code Annotated section 28-2-103 as a
defense to ejectment.

        Defendant Walker filed a motion for summary judgment regarding his counter-claim
against Plaintiffs, claiming it was “without dispute” that he had adversely possessed the
disputed property since 1948. In support of his motion for summary judgment, Defendant
Walker filed a “Statement of Undisputed Material Facts” on April 29, 2008,3 which provides
in part:

        Walker has openly, adversely and exclusively possessed and occupied to the
        exclusion of all others the disputed property . . . since he acquired ownership
        in 1948.

        Walker’s parents exclusively possessed and occupied Walker[’]s property
        including the property in dispute to the exclusion of all others prior thereto.

        Since 1948 Walker has exclusively used, possessed and occupied the disputed
        property in his farming/cattle business.

        The fence line indicated by the letter “A” on the Jack A. McAdoo survey is the
        recognized boundary line between Walker and Plaintiffs[’] predecessors in title
        since 1948 and was the recognized boundary line prior to 1948 by and between
        Walker’s parents and the Plaintiffs[’] predecessors in title.

        The fence line indicated by letter “A” on the boundary survey of Jack McAdoo


        2
         (...continued)
        date when any question arises in any of the courts of this state concerning the same, and who
        has had or who and those through whom such person claims have had, such person's deed,
        conveyance, grant or other assurance of title recorded in the register's office of the county
        in which the land lies, for such period of more than twenty (20) years, shall be presumed
        prima facie to be the legal owner of such land.



        3
        Defendant Walker’s “Statement of Undisputed Facts” relied upon the Affidavits of Defendant
Walker and Assessor of Property Mark A. Ward, as well as the depositions of Charles Quarles and Defendant
Smith.

                                                    -3-
has been maintained as a boundary line fence by Walker and Plaintiffs[’]
predecessors in title including Charlie Quarles, Plaintiffs’ father/father-in-law
who leased the property from Plaintiffs[’] predecessors in title for many
years[.]

The fence indicated by the letter “B” on the survey of Jack McAdoo along the
southwest portion of the disputed property indicated by an “old tree with
fence” was a part of an internal fence constructed and maintained by Walker
in his cattle operation and was never recognized by Walker or Plaintiffs[’]
predecessors in title as a boundary fence.

....

Charlie Quarles and Walker maintained the recognized boundary fence,
indicated by the letter “A” on the McAdoo survey, by Quarles doing the labor
and Walker furnishing the fencing material.

Charles Quarles acknowledged that nothing had changed about the recognized
boundary line fences since he started leasing Plaintiffs[’] predecessors in title
property in 1992[.]

Charles Quarles acknowledges that the disputed [property] . . . has been
occupied by Walker since his knowledge of the property in 1992[.]

Charles Quarles was aware that since he started leasing the Plaintiffs[’]
predecessors in title property in 1992 that Walker claimed all the property on
the west side of the fence shown by letter “A”[.]

....

Not until after the McAdoo survey dated November 9, 2005 was any question
raised with the Fayette County Tax Assessor regarding a disputed boundary
line.

Defendant, Barbara Atkins Smith, Plaintiffs[’] predecessor in title, provided
a Plat she had found in the paperwork of her[] [a]unt[,] Francis Early, Ms.
Smith’s predecessors in title.

The plat . . . was prepared F.W. Carter, a surveyor from Brownsville, TN in
July 1958 and the boundary line shown regarding the disputed portion of the

                                       -4-
       property is consistent with Walker’s boundary claim and also consistent with
       the historical tax assessor maps.

       The United States Department of Agricultural Farm Services historic aerial
       photographs since 1971 reflect[] boundary lines consistent with Walker’s
       claim to the disputed property.

       The Plaintiffs nor their predecessors in title have possessed, occupied or
       claimed or attempted to possess [or] occupy any portion of the disputed
       property from the time [of] Walker’s possession in 1948 until this dispute
       arose sometime after the November 9, 2005 McAdoo survey.

       Plaintiffs have no knowledge or information of anyone possessing the disputed
       property other than Walker.

        Plaintiffs filed a “Response to Statement of Undisputed Material Facts” five months
later, on September 25, 2008, the date of the summary judgment hearing, denying certain
allegations of fact, but admitting that neither they, nor their predecessors in title, had
“possessed, occupied or claimed or attempted to possess [or] occupy any portion of [the]
disputed property from the time [of] Walker’s possession in 1948 until this dispute arose
sometime after the November 9, 2005 McAdoo Survey.” They further admitted that they
were without knowledge of anyone other than Walker possessing the disputed property. The
trial court refused to consider Plaintiffs’ response, finding it untimely.4

       The trial court granted Defendant Walker’s motion for summary judgment finding that
“the disputed property has been openly, notoriously, adversely possessed, occupied and
claimed by [Defendant Walker] since 1948 pursuant to a recognized fence line between
[Defendant Walker] and Plaintiffs[’] predecessors in title[, and] [t]hat [Defendant Walker]
has acquired title to said disputed property by common law prescription.” In granting
summary judgment to Defendant Walker, the trial court noted that even if it had considered
Plaintiffs’ untimely filed responses, that summary judgment would have nonetheless been
appropriate. Plaintiffs appeal the trial court’s grant of summary judgment.5




       4
           This finding is not challenged on appeal.
       5
         The trial court’s order granting summary judgment to Defendant Walker was made final pursuant
to Tennessee Rule of Civil Procedure 54.02.

                                                       -5-
                                       II.    I SSUES P RESENTED

      Appellants have timely filed their notice of appeal and present the following issue for
review, summarized as follows:

1.      Whether the trial court erred in granting summary judgment to Defendant Walker.


                                    III.     S TANDARD OF R EVIEW

        In the instant case, we are asked to review the trial court’s grant of summary
judgment. Summary judgment is appropriate when “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. Ruling on a motion for summary judgment does not involve disputed issues
of fact, but only questions of law. Owner-Operator Indep. Drivers Ass’n v. Concord EFS,
Inc., 59 S.W.3d 63, 68 (Tenn. 2001). Thus, our standard for reviewing a grant of summary
judgment is de novo with no presumption of correctness as to the trial court’s findings. See
Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). The evidence
must be viewed “in the light most favorable to the nonmoving party,” and all reasonable
inferences must be drawn in the non-moving party’s favor. Staples v. CBL & Assocs., 15
S.W.3d 83, 89 (Tenn. 2000).


                                             IV.   D ISCUSSION

                                       A.     Adverse Possession

       The trial court’s order granting summary judgment to Defendant Walker is somewhat
unclear; however, it appears the grant was based on both a finding of common law adverse
possession and a finding of common law prescription.6 As we stated above, the trial court
refused to consider Plaintiffs’ response to Defendant Walker’s statement of undisputed
material facts. Plaintiffs do not challenge the trial court’s action on appeal, and thus, we
must now determine whether, under Defendant Walker’s undisputed material facts,
Defendant Walker was entitled to judgment as a matter of law. See generally Owens v.


        6
          We note that Defendant Walker’s counter-claim cited only Tennessee Code Annotated section 28-2-
103, which “may be utilized by the adverse holder only in the defense of a suit and not as a means to bar use
by the rightful owner.” Cumulus, 226 S.W.3d at 376 (citing Kittel v. Steger, 121 Tenn. 400, 117 S.W. 500,
503 (Tenn. 1909)). Additionally, Plaintiffs frame the issue on appeal as whether Defendant Walker’s
conduct constitutes adverse possession such that summary judgment was appropriate.

                                                    -6-
Bristol Motor Speedway, Inc., 77 S.W.3d 771, 775 (Tenn. Ct. App. 2001) (stating that the
fact that the plaintiff’s response to the defendant’s statement of material facts was not filed
until the day before the summary judgment hearing would have justified the trial court in
disregarding the plaintiff’s response “on that basis alone.”) (citing Tenn. R. Civ. P. 56.03).

        “The doctrine of adverse possession is often described as a limitation on the recovery
of real property; the limitation period may operate not only as a bar to recover adversely
possessed property but it may also vest the adverse holder with title.” Cumulus Broad., Inc.
v. Shim, 226 S.W.3d 366, 375 (Tenn. 2007) (citing Ralph E. Boyer, Survey of the Law of
Property 233, 236 (3d ed. 1981)). The policy rationales behind adverse possession are “(1)
the stabilization of uncertain boundaries through the passage of time; (2) respect for the
apparent ownership of the adverse possessor who transfers his interest; and (3) assurances
of the long-term productivity of the land.” Id. at 376.

        “In our state, common law adverse possession rests upon the proposition ‘that, where
one has remained in uninterrupted and continuous possession of land for 20 years, a grant or
deed will be presumed.’” Id. at 376-77 (quoting Ferguson v. Prince, 136 Tenn. 543, 190
S.W. 548, 552 (Tenn. 1916)). To establish common law adverse possession, as with a
statutory adverse possession claim, “the possession must have been exclusive, actual,
adverse, continuous, open, and notorious for the requisite period of time.” Id. at 377 (citing
Hightower v. Pendergrass, 662 S.W.2d 932, 935 n.2 (Tenn. 1983)). Adverse possession is
a question of fact, and the party claiming ownership by adverse possession bears the burden
of proving the requisite elements by clear and convincing evidence. Id. (citing Kirkman v.
Brown, 93 Tenn. 476, 27 S.W. 709, 710 (Tenn. 1894); O’Brien v. Waggoner, 20 Tenn. App.
145, 96 S.W.2d 170, 176 (Tenn. Ct. App. 1936)). “When an adverse possessor holds the land
for a period of twenty years, even absent any assurance or color of title, the title vests in that
possessor.” Id. (citing Cooke v. Smith, 721 S.W.2d 251, 255-56 (Tenn. Ct. App. 1986)).

        On appeal, Plaintiffs argue that summary judgment was improperly granted to
Defendant Walker because Defendant Walker only “occasionally” used the disputed
property. Specifically, Plaintiffs contend that Defendant Walker’s cutting of the timber on
the wooded portion of the disputed property in 1997 was insufficient to constitute adverse
possession as to the wooded portion, and that Defendant Walker’s “naked assertion” that he
“regularly maintained cows and/or grew hay on the property” without detailing “how often
he cut hay and how much time he had cows on the land” did not establish adverse possession
as to the open field portion of the disputed property. Plaintiffs cite to Stoker v. Brown, 583
S.W.2d 765, 767 (Tenn. 1979), wherein the Court stated that “[o]ccasional grazing and
cultivation are insufficient to establish adverse possession[,]” as well as Bone v. Loggins, 652
S.W.2d 758, 760 (Tenn. Ct. App. 1982), in which this Court stated that “[t]he occasional use
of land by cutting trees, no matter how long, will not alone constitute adverse possession.”

                                               -7-
(emphasis added) (citing Coal & Iron Co. v. Coppinger, 95 Tenn. 526, 530, 32 S.W. 465, 466
(1895); Cusick v. Cutshaw, 34 Tenn. App. 283, 292 237 S.W.2d 563, 567 (1948)).

       Plaintiffs’ argument overlooks one key detail: Defendant Walker’s adverse possession
claim is not based solely on his logging, farming, and cattle activities. As submitted in
Defendant Walker’s statement of undisputed material facts, the disputed property has been
enclosed within Defendant Walker’s recognized boundary fence line since 1948 and neither
Plaintiffs nor their predecessors in title questioned Defendant Walker’s possession of the
disputed property for more than fifty years. In Erck v. Church, 87 Tenn. 575, 11 S.W. 794,
795-96 (Tenn. 1889), an adverse possessor, mistaken as to his property’s boundary, built a
fence fifty feet onto his neighbor’s property. Our Supreme Court ultimately held that no
adverse possession had occurred because the requisite time period had not been met;
however, it recognized that such possession otherwise qualified as adverse. Id. at 794.
“Typically, fencing is indicia of ownership.” Cumulus, 226 S.W.3d at 377 (citing Bensdorff
v. Uihlein, 132 Tenn. 193, 177 S.W. 481, 482 (Tenn. 1915)); see also Wilson v. Price, 195
S.W.3d 661, 667 (Tenn. Ct. App. 2005) (“[F]encing a property demonstrates a clear claim
of ownership[.]”).

       It matters not that Defendant Walker seemingly did not realize that he was
encroaching upon his neighbor’s land. Our Supreme Court has recognized the “proper rule”
regarding a mistaken boundary line as follows:

       [I]n the absence of positive proof or unambiguous circumstances showing that
       a possession is or is not adverse, the exclusive possession and use of the land
       are presumed to be adverse, it is not necessary to show an intention to hold
       and claim the property in spite of the fact that the legal title may be in another.
       The possession of one who holds property as his own is adverse to all the
       world, although he never heard of an adverse claim. . . . The fact that the
       occupant might, if he knew that he was on his neighbor's land, recognize and
       accede to the latter's title, does not affect the adverse character of his
       possession, where, because there has never been any question or doubt as to
       the location of the boundary, he possesses and uses the property as his own,
       and does not recognize or accede to any superior title.


Id. at 378 (quoting Annotation, Possession in Ignorance of, or Under Mistake as to,
Boundary Line as Adverse, 80 A.L.R. 155, 157 (1932) (superceded by Adverse Possession
Due to Ignorance or Mistake as to Boundaries, 97 A.L.R. 14 (1935)) (emphasis added)).




                                               -8-
       Because we find, based on Defendant Walker’s statement of undisputed material facts,
that the disputed property was enclosed within Defendant Walker’s recognized boundary
fence for a period of more than fifty years prior to the raising of any question regarding
ownership, we affirm the trial court’s finding of common law adverse possession.
Accordingly, we need not consider whether the elements of common law prescription have
been established.


                                      B. Payment of Taxes


         Next, we consider Plaintiffs’ argument that Defendant Walker is barred from claiming
title to the disputed property by Tennessee Code Annotated section 28-2-110, which states:


        (a) Any person having any claim to real estate or land of any kind, or to any
        legal or equitable interest therein, the same having been subject to assessment
        for state and county taxes, who and those through whom such person claims
        have failed to have the same assessed and to pay any state and county taxes
        thereon for a period of more than twenty (20) years, shall be forever barred
        from bringing any action in law or in equity to recover the same, or to recover
        any rents or profits therefrom in any of the courts of this state.
        (b) This section shall not apply to persons under eighteen (18) years of age or
        to persons of unsound mind if suit shall be brought by them, or any one
        claiming through them, within three (3) years after the removal of such
        disability.

        (c) Nothing in this section shall bar a person from bringing an action to contest
        the lapse of a mineral interest within the period provided by § 66-5-108(f).


Plaintiffs maintain that they paid taxes on the disputed property, and thus, Defendant Walker
is precluded from claiming title to such. Defendant Walker disputes Plaintiffs’ allegation
that they paid property taxes on the disputed property, and he further asserts that Plaintiffs
may not now raise section 28-2-110 as an affirmative defense because it was not raised in
their pleadings.7


        We need not determine whether Plaintiffs waived Defendant Walker’s alleged failure

        7
        We note that Plaintiffs did cite to section 28-2-110 in their response to Defendant Walker’s motion
for summary judgment.

                                                   -9-
to pay property taxes as a defense, as we find the statute inapplicable to this case.
“Tennessee Code Annotated section 28-2-110 was enacted in order to facilitate the collection
of property taxes based upon property evaluations.” Cumulus, 226 S.W.3d at 381. As our
Supreme Court stated,
       Tennessee Code Annotated section 28-2-110 should not serve as a bar to a
       claim of adverse possession when the tracts are contiguous, a relatively small
       area is at issue, and the adjacent owners making claims of ownership have paid
       their respective real estate taxes. To hold otherwise would effectively
       eliminate the adverse possession of any part of an adjoining tract.


Id. In this case, Plaintiffs acknowledge that each party paid the property taxes due on his or
her respective undisputed property. Additionally, we find that the fourteen-acre disputed
property is “relatively small” as compared to the over 150 acres of undisputed property
owned by the parties. As evidence of its relatively small size, we note that it was not until
the spring of 2005–approximately a year and a half after Plaintiffs purchased the
property–that Mr. Quarles first suspected that his property did not include the seventy-eight
acres he believed he purchased. Accordingly, we find that Tennessee Code Annotated
section 28-2-110 does not act as a bar to Defendant Walker’s claim to the disputed property.
Because we have found that Defendant Walker has satisfied the requirements for common
law adverse possession, and his claim is not barred by 28-2-110, we affirm the trial court’s
grant of summary judgment to Defendant Quarles. All remaining issues are pretermitted.



                                     V.   C ONCLUSION


       For the aforementioned reasons, we affirm the trial court’s grant of summary
judgment to Defendant Walker. Costs of this appeal are taxed to Appellants, Melvin
Quarles, Charlotte Quarles, Glen Hayden, and Cheryl Hayden, for which execution may issue
if necessary.


                                                    _________________________________
                                                    ALAN E. HIGHERS, P.J., W.S.




                                             -10-
