       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                     FILED
                                                    December 22, 1998

W. J. CROWELL and wife,            )                Cecil W. Crowson
MILDRED P. CROWELL,                )               Appellate Court Clerk
                                   )
       Plaintiffs/Appellants,      )
                                   )   Bedford Chancery
                                   )   No. 17,899
VS.                                )
                                   )   Appeal No.
                                   )   01A01-9609-CH-00431
LARRY DON HASTY and wife,          )
CONNIE MARIE HASTY,                )
                                   )
       Defendants/Appellees.       )




      APPEAL FROM THE CHANCERY COURT FOR BEDFORD COUNTY
                   AT SHELBYVILLE, TENNESSEE


             THE HONORABLE TYRUS H. COBB, CHANCELLOR




For the Plaintiffs/Appellants:              For the Defendants/Appellees:

C. Kelly Wilson                             Andrew C. Rambo
Shelbyville, Tennessee                      Shelbyville, Tennessee




                    AFFIRMED AND REMANDED




                                       WILLIAM C. KOCH, JR., JUDGE
                                 OPINION
       This appeal involves a dispute between neighbors over the location of
approximately five acres of property along Old Virginia Road in rural Bedford
County. The owners of the property filed suit in the Chancery Court for Bedford
County alleging that their neighbors were trespassing on the property and requesting
a judicial determination of the property’s location. Their neighbors asserted that they
owned the disputed property and that the plaintiff property owners were mistaken
about the location of their tract. Following a bench trial, the trial court determined
that the plaintiff property owners’ tract was actually over 1,150 feet to the south of
where they thought it was and that the plaintiff property owners had not established
a claim to the disputed property by adverse possession. On this appeal, the plaintiff
property owners assert that the evidence does not support the trial court’s decision
regarding the location of the property and their adverse possession claim. We
disagree and, therefore, affirm the judgment.


                                               I.


       W. J. Crowell is a general contractor and real estate broker who lives in
Shelbyville. In the mid-1960s, he began purchasing property on Old Virginia Road
in the vicinity of Unionville. He first became interested in a 14-acre tract owned by
Cecil and Betty Compton. When Mr. Crowell discovered that the property was
separated from Old Virginia Road by approximately 290 feet, Mr. Compton
recommended that he discuss buying the strip of land between the eastern boundary
of the 14-acre tract and the road from W. H. Bomar. Mr. Bomar agreed to sell the
property to Mr. Crowell “for a price.” Thus, on March 18, 1966, W. J. and Mildred
P. Crowell purchased the 14-acre tract from the Comptons.1 On March 22, 1966, the
Crowells purchased a 5-acre tract from W. H. and Ruberta C. Bomar, believing that
the western boundary of this tract ran along the eastern boundary of the 14-acre tract
they had purchased four days earlier from the Comptons.




       1
        This deed was referred to throughout the trial as a “boundary deed” because the only
description of the property it contained was “Bounded on the north by George Sanders; east by
George Sanders; south by Earnest Haynes, and west by Lem Clardy, containing fouteen [sic] acres.”

                                              -2-
       In 1967, Mr. Crowell purchased two more tracts of property in the area that he
believed were contiguous with the two tracts he had purchased in 1966. In January
1967, he acquired a tract behind the tract he had purchased from the Comptons in
March 1966. In September 1967, he purchased from Ernest Haynes a 15-acre tract
adjacent to the 14-acre tract he had purchased from the Comptons. The northern
boundary of this tract is the southern boundary of the 14-acre tract purchased from
the Comptons. The western boundary of the tract is the eastern boundary of the
property Mr. Crowell purchased in January 1967. Mr. Crowell also believed that the
eastern boundary of this tract was the western boundary of the tract he had purchased
from Mr. Bomar on March 22, 1966.2 Mr. Crowell removed fences and cleared
portions of the property. He used the property primarily for cutting cedar trees and
hunting deer.


       In October 1970, W. H. Bomar conveyed a tract of property to Haile Selassie
and Frances Marie Arnold. This tract contained approximately 59 acres, excluding
the 5-acre tract that Mr. Bomar had conveyed to Mr. Crowell on March 22, 1966.
Approximately 46 acres of this tract was immediately to the north of the tract Mr.
Crowell purchased from the Comptons in March 1966. In fact, the southern boundary
of the Arnolds’ tract was the northern boundary of the tract the Crowells purchased
from the Comptons in March 1966. The remainder of the Arnolds’ tract, except for
the property conveyed to the Crowells in March 1966, was a strip of property
between 270 and 297 feet wide and between 1,985 and 2,100 feet long running along
Old Virginia Road.


       On April 3, 1980, the Arnolds’ property was sold at the courthouse steps as a
result of the Arnolds’ divorce proceeding. Larry Don and Connie Marie Hasty
purchased the property, and on April 7, 1980, received a deed to the 59.1 acre tract
less the property that had been conveyed to the Crowells in March 1966. Mr. Hasty,
a licensed engineer, believed that the tract was essentially square in shape and hired
Rex Northcutt to survey the property. At this point, Mr. Hasty discovered that the
property he had purchased included that long, narrow, 13-acre strip of property


       2
         Mr. Crowell later purchased another 21-acre tract to the south of the other four tracts. This
tract’s northern boundary is the southern boundary of the tract he purchased in January 1967. A
portion of this tract’s southern boundary abuts Highway 41A.

                                                 -3-
running adjacent to Old Virginia Road. The survey also revealed that the tract Mr.
Crowell had purchased from Mr. Bomar was actually on the southern portion of this
strip rather than the northern portion where Mr. Crowell believed it had been.


      Relying on this survey, Mr. Hasty began to erect a fence along Old Virginia
Road between the road and the 14-acre tract Mr. Crowell had purchased from Mr.
Compton in March 1966. On June 26, 1985, Mr. Crowell sent Mr. Hasty a registered
letter stating: “It has come to my attention that you have recently erected a barbed
wire fence on my property on Old Virginia Road. This letter is to request you to
remove this fence from my property within ten days, or I will take the necessary
action to move it myself.” Mr. Hasty did not respond to this letter, and neither Mr.
Crowell nor Mr. Hasty ever discussed the letter. Since purchasing and fencing in the
property, Mr. Hasty has used it as a pasture and for growing hay.


      In May 1992, the Crowells filed suit against the Hastys in the Chancery Court
for Bedford County alleging that the Hastys were trespassing on their property. They
also requested $60,000 in damages and a declaration of the location of the boundary
lines between the parties’ land. The Hastys denied that they were trespassing and
asserted that the location of the Crowells’ property was further south than the
Crowells believed it was. After joining the Bomars as third-party defendants, the trial
court conducted a bench trial in September 1995. During the trial, the Hastys
introduced Mr. Northcutt’s survey showing the location of the long, narrow strip of
property and the location of where Mr. Crowell believed his 5-acre tract was located
(Tract B) as well as the location of where the surveyor had determined that this tract
was actually located (Tract A). See Appendix One to this opinion. In November
1995, the trial court filed a memorandum concluding that Tract A was the tract the
Crowells had purchased from the Bomars on March 22, 1966. The trial court also
dismissed the Crowells’ adverse possession claim.


                                           II.


      We turn first to the Crowells’ assertion that the trial court erred by determining
that the tract they purchased from Mr. Bomar in March 1966 was Tract A rather than
Tract B. They insist that the trial court’s determination is inconsistent with their deed
and with the undisputed intentions of Messrs. Crowell and Bomar. Regrettably, the

                                          -4-
numerous clerical errors in the pertinent deeds create ambiguities over which
reasonable persons might differ.             We find, however, that the most sensible
interpretation of the deeds in light of the monuments in the field is the one adopted
by the trial court.


       The Crowells’ challenge to the trial court’s conclusion concerning the location
of the tract they purchased from Mr. Bomar is based on the second call in their March
22, 1966 deed which describes the western boundary line of their tract as follows:
“thence in a Northerly direction with Haynes’ East boundary line and with the East
boundary line of Crowell.” They insist that this boundary line could only be the
western boundary line of Tract B because, at the time of the conveyance in 1966, only
the western boundary line of Tract B could have coincided with the eastern boundary
line of property owned by both the Hayneses and the Crowells. This point is well-
taken but is also inconsistent with the location of the southern boundary of the
property described in the first call.


       The southern boundary line of the tract the Crowells purchased from the
Bomars in March 1966 ran east-to-west along the northern boundary line of
Thompson.3 As the trial court found, the southern boundary line of the tract could be
Thompson’s northern boundary line only if the tract was located where the surveyor
designated Tract A. To buttress the trial court’s reliance on the reference to
Thompson’s boundary line, the surveyor also testified unequivocally that he found
the hub and the pin marking both the southeastern and southwestern corners of the
tract exactly where they should have been. He also pointed out that the description
of the property began at the southeast corner of the tract originally conveyed to Mr.
Bomar and that this point could only have been on the southernmost end of the
property not 1,100 feet to the north.


       As an aid in locating disputed boundaries, the courts first look to natural
objects, then artificial monuments, then the boundaries of adjacent landowners, and
finally to courses and distances. See Pritchard v. Rebori, 135 Tenn. 328, 332-33, 186
S.W. 121, 122 (1916); Bramblett v. Runyan, 631 S.W.2d 129, 131 (Tenn. Ct. App.



       3
        In the words of the deed, “running thence in a Westerly direction with the South [sic North]
property line of Thompson.”

                                                -5-
1981). In this case, the trial court based its decision on artificial monuments and the
boundaries of adjacent landowners. Having reviewed this decision under Tenn. R.
App. P. 13(d), we cannot say that the evidence preponderates against this decision.


      In addition to their reliance on the second call establishing the western
boundary line of the tract, the Crowells also point to the undisputed fact that both Mr.
Crowell and Mr. Bomar intended to convey Tract B rather than Tract A. They argue
that this intention, not evident on the face of the deed, should somehow trump the
description of the property’s boundaries in their deed. The parties’ intent is generally
derived from the calls in the deed. See Mayse v. Lafferty, 38 Tenn. (1 Head) 60, 61-
62 (1858). However, adjoining property owners may agree upon the exact location
of their common boundary lines where there is doubt about the location of the true
line. See Houston’s Heirs v. Matthews, 9 Tenn. (1 Yer.) 116, 118-19 (1826);
Winborn v. Alexander, 39 Tenn. App. 1, 17, 279 S.W.2d 718, 725 (1954). They
cannot change boundaries by parole agreement when the calls are definite and well
understood. See May v. Abernathy, 23 Tenn. App. 236, 242, 130 S.W.2d 135, 139
(1939).


      This record contains no evidence that the Crowells on one hand and either the
Bomars, the Arnolds, or the Hastys on the other had any disagreement concerning the
location of the boundary lines of their properties or that they entered into any explicit
parole agreements concerning the location of their boundaries. Thus, there is no
explicit parole agreement that prevents the Hastys from relying on the description of
their property in the deed they received from the clerk and master in 1980.




                                          III.


      As a final matter, the Crowells assert that the trial court erred by failing to find
that they had acquired title to Tract B by adverse possession either under Tenn. Code
Ann. § 28-2-105 (1980) or by virtue of the common-law doctrine of prescription. We
have determined that the Crowells have failed to carry their burden under either
claim, first because they did not establish that they had assurance of title to the
property they are now claiming and second because they have not possessed the
disputed property adversely for twenty years.

                                          -6-
                    THE TENN. CODE ANN. § 28-2-105 CLAIM


      Tenn. Code Ann. § 28-2-105 enables persons who have continually possessed
property for seven years under an assurance of title to acquire fee simple interest in
the property. A deed purporting to convey a fee simple estate is such an assurance
of title, see Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 203-04, 135 S.W.
785, 792 (1911); Sharp v. Vanwinkle, 80 Tenn. 15, 19 (1883), even if the deed is
invalid. See Wallace v. McPherson, 187 Tenn. 333, 339, 214 S.W.2d 50, 53 (1947);
Thurston v. University of N.C., 72 Tenn. 513, 519-20 (1880). For the purpose of
Tenn. Code Ann. § 28-2-105, the disputed area must fall within the calls of the
adverse possessor’s deed. See Burks v. Boles, 934 S.W.2d 653, 655 (Tenn. Ct. App.
1996). The statutory prescriptive period does not commence until possession of the
property under assurance of title begins. See Barnes v. Vickers, 62 Tenn. 370, 372
(1874).


      The party claiming title through adverse possession has the burden of proof.
See Buchanan v. Nixon, 163 Tenn. 364, 369, 43 S.W.2d 380, 382 (1931); Blakemore
v. Matthews, 154 Tenn. 334, 341, 285 S.W. 567, 569 (1926). We have already
determined that the March 22, 1966 deed from the Bomars to the Crowells conveyed
Tract A, not Tract B. Even were we to find that the Crowells have been possessing
Tract B adversely since 1966, no part of Tract B was included within the calls of the
March 22, 1966 deed. Thus, the Crowells have not carried their burden regarding
their Tenn. Code Ann. § 28-2-105 claim because they have failed to prove that they
were holding adversely the property covered by the March 22, 1966 deed from the
Bomars.


                   THE COMMON-LAW PRESCRIPTION CLAIM


      Parties without assurance of title may acquire a fee simple interest in property
by continuously possessing the land for twenty years under a claim of right. See Keel
v. Sutton, 142 Tenn. 341, 346, 219 S.W. 351, 353 (1920); Cooke v. Smith, 721 S.W.2d
251, 255 (Tenn. Ct. App. 1986); Preston v. Smith, 41 Tenn. App. 222, 228, 293
S.W.2d 51, 53 (1955).      The possession must be actual, adverse, continuous,

                                         -7-
exclusive, visible, and notorious. See Catlett v. Whaley, 731 S.W.2d 544, 546 (Tenn.
Ct. App. 1987). Persons seeking to establish title must establish their possession by
clear and positive proof, see Jones v. Coal Creek Mining & Mfg. Co., 133 Tenn. 183,
185, 180 S.W. 991, 992 (1915); McCammon v. Meredith, 830 S.W.2d 577, 580
(Tenn. Ct. App. 1991), that leaves no doubt concerning the adverse claim of
ownership. See Cooke v. Smith, 721 S.W.2d at 254. To be adverse, the nature of the
possession need only be consistent with the nature and circumstances of the land
involved. See Bensdorff v. Uihlein, 132 Tenn. 193, 198, 177 S.W. 481, 482 (1915);
Catlett v. Whaley, 731 S.W.2d at 546.


      We need not minutely dissect the nature of the Crowells’ possession of the
disputed property in this case because they have failed to demonstrate that they have
possessed the property for at least twenty years. They began possessing the property,
believing it to be theirs, in March 1966. On October 1970, the Bomars conveyed the
property to the Arnolds, and the Hastys purchased the Arnolds’ property on the
courthouse steps in April 1980. In June 1985, the Hastys constructed a fence around
portions of the property. In addition to the shortness of time the Crowells possessed
the property, the record contains no evidence that either the Arnolds or the Hastys
knew or should have known of the Crowells’ adverse claim. See Tidwell v. Van
Deventer, 686 S.W.2d 899, 902 (Tenn. Ct. App. 1984).




                                        IV.


      We affirm the judgment and remand the case to the trial court for whatever
further proceedings may be required. We tax the costs of this appeal to W. J. Crowell
and Mildred P. Crowell for which execution, if necessary, may issue.


                                              ____________________________
                                              WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________
HENRY F. TODD, P.J., M.S.


________________________________

                                        -8-
SAMUEL L. LEWIS, JUDGE




                         -9-
