                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    January 3, 2001 Session

           J. W. HARGROVE, ET AL. v. LARRY E. CARLTON, ET AL.

                   Appeal from the Chancery Court for Williamson County
                             No. 25196  Russ Heldman, Judge



                   No. M2000-00250-COA-R3-CV - Filed February 14, 2001


After the defendant landowners placed gates across a roadway that ran through their land, some
adjoining landowners filed suit to have the gates removed. The plaintiffs argued that the roadway
was a public road, or in the alternative that they had acquired prescriptive rights to use it. The trial
court ruled for the defendants. We affirm.

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

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Jason A. Golden, Columbia, Tennessee, for the appellants, J. W. Hargrove, Pat Hargrove, Jennifer
Hargrove, Janie Louise Hargrove, Lurene Nalls, and John C. Peach.

C. Dewees Berry, IV and Susan W. Foxman, Nashville, Tennessee, for the appellees, Larry E.
Carlton and Michelle D. Carlton.

                                              OPINION

                                                I.
                                         AN OLD ROADWAY

        On September 30, 1996, two adjoining tracts of land in Williamson County totaling 109 acres
were transferred by warranty deed from the Carolyn C. Casparis Trust to Larry and Michele Carlton.
The common boundary between the two tracts is described in the deed as running along “the center
of an old abandoned roadbed.” That roadway, labeled as “the Old Ridge Road” on the survey map,
and elsewhere referred to only as “the Ridge Road,” is the bone of contention in this case.

         Casparis Road runs north from the Ridge Road, and connects to Mobley’s Cut Road, which
is part of the Williamson County road system. At the southern end of the Ridge Road, another road
connects to the Maury County road system at Sulphur Springs Road. The Ridge Road thus could,
and sometimes did, serve as a convenient shortcut between the two counties.

       The Carltons wished to combine their two tracts, to build a house for themselves, and to clear
much of the land for horse pastures and hayfields. They had brush and small trees cleared, and
removed an old barbed wire fence that ran along one side of the Ridge Road. When their contractor
prepared to begin building the house, he placed gates at both ends of the road.

        On January 20, 1998, some of the Carltons’ neighbors to the south filed suit to have the gates
removed. They claimed that the Ridge Road was historically a public road that had never been
legally abandoned by Williamson County, and that they had no other outlet to Williamson County
services, other than along the road at issue. In the alternative, they claimed that as a result of their
use of it over the years, they had obtained a prescriptive easement of way over the road. The
Carltons answered, denying these claims.

        The case went to trial on December 1, 1999. At the conclusion of the proof, the trial court
ruled that the Ridge Road had never been a public road, and that the plaintiffs had failed to show the
open, continuous, and uninterrupted use of the road that would be required to establish a prescriptive
easement. The court accordingly dismissed the complaint. This appeal followed.

                                                  II.
                                             DEDICATION

        We must note at the outset that the parties enjoyed a complete evidentiary hearing before the
trial court, and therefore that in our review of this case, we must presume that the trial court’s
findings of fact are correct, unless the preponderance of the evidence is otherwise. Rule 13(d) Tenn.
R. App. P.

        The plaintiffs stipulated at trial that there had never been a formal dedication of the road, but
argued that it became public because it had been open for public travel for many years, and previous
owners had acquiesced in its use as a public road. Private land may become public as the result of
an implied dedication, Rogers v. Sain, 679 S.W.2d 450 (Tenn. Ct. App. 1984), but the burden of
proof required to establish such a dedication is a heavy one.

        The party asserting that a public road exists as the result of an implied dedication must prove
by clear and convincing evidence that there was an intention on the part of the landowner to dedicate
the road to the public, and that the road was either expressly or impliedly accepted by the public.
Jackson v. Byrn 393 S.W.2d 137, 140 (Tenn. 1965). The required intent has been described as “a
plain and unequivocal intention on the part of the owner to appropriate the property to public use.”
Kincaid v. Hamilton, 70 S.W. 619 (1902). And further, “it must appear that the owner intended to
permanently part with his property and vest it in the public.” McKinney v. Duncan, 118 S.W. 683
(Tenn. 1909).



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        The plaintiffs alleged that both sides of the road had been fenced at one time, and they argued
that the erection of the fences was “an overt act of intent to dedicate said roadway.” It does not
appear to us, however, that such an act by an unknown prior owner shows a plain and unequivocal
intention to vest the property in the public.

        The plaintiffs also testified as to use of the roadway by members of the public. Their
testimony indicates that it has not been used very much in the last thirty years, but that it was in more
frequent use at an earlier time. Plaintiffs J.W. Hargrove and his sister Louise Hargrove testified that
they each had used the road “all my life.” As children, they accompanied their father when he used
the road to check fences or to travel to the Boston community north of his property. Seventy-five-
year-old Louise Hargrove testified that her grandfather told her that there had once been a store and
houses along the road.

        Sixty-six-year-old Jim Nalls, whose invalid mother was one of the plaintiffs, testified that
he used to see horseback riders or hunters on the road, and that no one ever had to ask permission
to use it. He himself occasionally used the road if he was looking for some missing cows, or if he
had a load of logs to haul. Seventy-five-year-old Arnold Hendricks, who spent a lot of his youth in
the area because his kinfolks lived there, testified that he used to see people riding horses on the
Ridge Road, but that he never saw any cars or trucks using it.

       Seventy-four-year-old Renis Baker, a neighbor of the plaintiffs and a current member of the
Williamson County Highway Commission, testified that he believed the Ridge Road to be a public
road. He admitted, however, that it was not a county road, and that to his knowledge, the county had
never done any maintenance work on it.

        The appellees do not attempt to refute the historical testimony, but simply argue that the
evidence is not sufficient to establish dedication of the roadway by the owner, or acceptance by the
public. They point out that use of a road by the general public, even for an extended period, is not
enough to create a presumption that the landowner intended to dedicate it as a public road.
Appellees cite Jackson v. State, 46 Tenn. 532 (1869), where our Supreme Court stated that even
where a road had been in existence for fifty years, that would be insufficient to constitute it a public
road, in the absence of proof of the requisite intent.

       In view of the importance the law attaches to the intent of the owner when an implied
dedication is claimed, and of the stringent standard of proof required to establish such an intent, it
appears to us that the evidence does not preponderate against the trial court’s finding that the Ridge
Road never was dedicated as a public road. Appellants’ first argument must therefore fail.

                                                III.
                                              EASEMENT

       The requirements for establishing an easement by prescription are similar to those for adverse
possession. The claimants must establish, by clear and positive proof, that they have enjoyed the use


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of the property for at least twenty years, and that such use has been adverse, under claim of right,
continuous, uninterrupted, visible, exclusive, and with the knowledge and acquiescence of the owner
of the servient tenement. Pevear v. Hunt, 924 S.W.2d 114 (Tenn. Ct. App. 1996); House v. Close,
346 S.W.2d 445 (Tenn. Ct. App. 1961); Nashville Trust Co. v. Evans, 206 S.W.2d 911 (Tenn. Ct.
App. 1948).

        The appellants allege that the only event that ever interrupted their use of the land occurred
in the 1970's, when Mr. Casparis, the defendants’ predecessor in interest, had a mound of dirt placed
across the middle of the road in order to block its use. According to Mr. Hargrove, his father and
some of the other neighbors banded together to retain an attorney. Their attorney got in touch with
Mr. Casparis’ attorney, and shortly thereafter, the mound of dirt was removed.

        The testimony of all the witnesses indicates that after the incident with Mr. Casparis, traffic
on the road remained quite sparse. Mr. Hargrove claimed that he continued to use the road “at least
once or twice a month,” and that he bush hogged the road, “kept stuff cut off of it.” On cross-
examination, he admitted that the last time he went through with the bush hog was a few years before
the Carltons bought the property. He also admitted that other than himself and members of his
family, he didn’t know anyone else who was using the road. Mr. Nalls testified that before the
lawsuit was filed, he sometimes traveled the road on his tractor to do some work for his uncle who
lived on the other end.

         Mrs. Jewell Grey, has lived on Casparis Road for thirty-five years. Her house faces the road,
but is set back from it. After retiring from the nursing profession twenty-one years ago, Mrs. Grey
has spent a lot of time outdoors in her garden, located on the side of her house. She testified that in
recent years the only person she has ever seen using the Ridge Road was Mr. Hargrove. She also
stated that before the Carltons bought the land, the road had become overgrown with brush and trees,
that it was impassible for cars, and that even a tractor might have to deviate onto another part of the
Carltons’ land to get from one end of the road to the other. The last time she saw a logging truck on
the road was fifteen or twenty years ago, and the truck got stuck in the mud.

         Mrs. Grey’s testimony as to the poor condition of the road was consistent with several photos
that were admitted into evidence, as well as with the testimony of Arnold Hendricks. Mr. Hendricks
retired from the Metro Nashville Police Department fifteen or twenty years ago, and returned to the
area to do some farming. He testified that when he returned, there were already trees growing in the
roadbed, and that horses could use the road, but not cars.

        After carefully examining the record in this case, we do not believe that the infrequent use
of the road by the appellants was sufficiently continuous, open or visible to give the owners notice
that others were using their land under a claim of right. See Pevear v. Hunt, 924 S.W.2d 114 (Tenn.
Ct. App. 1996). The evidence thus does not preponderate against the trial court’s determination that
the appellants failed to acquire a prescriptive easement.




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                                               IV.

        The judgment of the trial court is affirmed. Remand this cause to the Chancery Court of
Williamson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellants, J. W. Hargrove, Pat Hargrove, Jennifer Hargrove, Janie Louise Hargrove, Lurene
Nalls, and John C. Peach.




                                             _________________________________________
                                             BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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