FRANCES DAVIS,                   )
                                 )
     Plaintiff/Appellee,         )       Appeal No.
                                 )       01-A-01-9706-CH-00254
v.                               )
                                 )            FILED
                                         Lawrence Chancery
LORENE INMAN, TERESA G.          )       No. 7499-95
INMAN, PAUL W. INMAN and         )              May 25, 1999
VIRGIL INMAN,                    )
                                             Cecil Crowson, Jr.
                                 )
                                            Appellate Court Clerk
     Defendants/Appellants.      )
                                 )


                 COURT OF APPEALS OF TENNESSEE


            APPEAL FROM THE CHANCERY COURT FOR
                     LAWRENCE COUNTY
                AT LAWRENCEBURG, TENNESSEE


        THE HONORABLE JIM T. HAMILTON, CHANCELLOR




PAUL B. PLANT
Harwell & Plant
225 Mahr Avenue
P. O. Box 399
Lawrenceburg, Tennessee 38464
      ATTORNEY FOR PLAINTIFF/APPELLEE



THOMAS W. HARDIN
Hardin & Parkes
102 West Seventh Street
P. O. Box 692
Columbia, Tennessee 38402-0692
      ATTORNEY FOR DEFENDANTS/APPELLANTS


                       AFFIRMED AS MODIFIED
                          AND REMANDED


                               WALTER W. BUSSART, SPECIAL JUDGE
                              OPINION
          This case is on appeal from the Chancery Court of Lawrence County,
Tennessee, from an Order of the Chancellor finding ownership of certain
disputed land in the Plaintiff/Appellee, Frances Davis, and granting her
compensatory and punitive damages for trespassing. The case is properly before
this court for review de novo upon the record with a presumption of correctness
of the findings of fact. Unless the evidence preponderates against the findings
of fact, we must affirm, absent an error of law. Tenn. R. App. P. 13(d).


          A review of the evidence presented in the trial court and the briefs filed
here suggest that the facts are not significantly in dispute. It appears that Mrs.
Davis (along with her husband) purchased land adjoining the Inmans’ farm in
March of 1956. In early 1966, the Davises began construction of their home
which is now located on that land. Later in 1966, Mr. Davis and his sons
constructed a decorative wooden fence along both sides and across the front of
this home. The fence on the side nearest the Inmans was placed in the same
location as an old wire fence which was there when the Davises purchased the
property. This fence has remained in the same place consistently since its
construction in 1966.


          Sometime after the construction of the home, Mr. and Mrs. Davis began
to maintain a portion of the Inmans’ field, past this wooden fence. They mowed
and/or bushhogged this strip apparently with the permission of Mr. Inman. Mr.
Inman also bushhogged the area from time to time. Neither party ever really
prevented the other from coming on and using this strip for hunting or recreation.


          In 1995, the Inmans decided to divide the property and hired a surveyor
to assist them. In March of that year, the survey was interrupted when Mrs.
Davis threatened to have anyone arrested who came upon “her property.” Before
the survey was completed, Mrs. Davis mowed the strip outside the decorative
fence and caused to be erected a new barbed wire fence. The Inmans took action
to remove both of the fences erected by Mrs. Davis and to erect their own fence.
This litigation ensued and a restraining order was issued. Mrs. Davis also hired
a surveyor and both parties' surveyors testified at the trial that in fact the Davises'
deed did not include either fence.


                                         -2-
            Based upon these facts, the Chancellor held that Mrs. Davis was
entitled to the property encompassed by the barbed wire fence by open and
notorious adverse possession. He awarded compensatory and punitive damages
based upon the Inmans' actions in removing the fences and certain trees on that
property.


            In order to acquire title by adverse possession, the possession must be
exclusive, actual, adverse, continuous, open and notorious for the entire
prescriptive period under a claim of right or title to the property and the owner
must have knowledge of the adverse claim. Tidwell v. Van Deventer, 686
S.W.2d 899, 902 (Tenn. App. 1984); Carr v. Wilbanks, 45 Tenn.App. 372, 390,
324 S.W.2d 786, 794 (1958). The plaintiff, of course, has the burden of proof.
Bone v. Loggins, 652 S.W.2d 758, 760 (Tenn. App. 1982). While every element
of the adverse possession must be proven by the plaintiff, she need only put land
to such use and occupation as it is, by its nature and character, susceptible.
Derryberry v. Ledford, 506 S.W.2d 152, 157 (Tenn. App. 1973).


            The decorative wood fence erected in 1966 is, according to the survey
of Cleghorne & Associates, very near the boundary line established by the Inman
deed. Inside that fence for almost thirty years, Mrs. Davis planted trees and
flowers, conducted activities with her children, and generally treated it as her
yard. The Chancellor found this sufficient proof to establish open and notorious
adverse possession as to this fence and we find that the proof in the record
supports that finding.


            However, beyond this fence is property clearly within the Inmans’ deed
and there is no proof that this land up to the barbed wire fence was openly and
notoriously possessed. The barbed wire fence was constructed sometime in
April of 1995. Before that, the only evidence is that this land was bushhogged
and mowed by both parties and the Davises did this to keep snakes from coming
into the yard. The camera man on a video exhibit showing the land repeatedly
admits that no deed describes this particular piece of property. We find that the
evidence in this record preponderates against the Chancellor’s finding that the
strip of land between the white decorative wood fence and the barbed wire fence
was acquired by Mrs. Davis through adverse possession.             Therefore, the

                                         -3-
boundary line is established at the location of the white wood decorative fence.


          The Chancellor awarded compensatory damages to Mrs. Davis in the
amount of $7,569.08. This award was based upon estimates provided by a fence
company, a landscaping company, and a tree farm company. None of these
witnesses testified at the trial of the case, but the Chancellor allowed Mrs. Davis
to testify as to these estimates which she procured.


          We find the proof with regard to compensatory damages to be
contained in the testimony of Mrs. Davis. This proof shows that damages done
to the white plank fence and to the property on the Davises’ side of that fence are
as follows: 4 pine trees ($2,000.00), 75 feet of board plank fence ($562.50), blue
spruce ($285.00), 3 holly bushes ($97.00), tractor work ($210.00), seed ($87.00),
straw ($113.75), sod ($700.00), hand labor ($387.00), for a total of $4,442.25.
While the testimony as elicited from Mrs. Davis, based upon the statements of
estimate, is hearsay within Rules 802 and 803, Tenn. R. Evid., it is clear from her
testimony that this is her opinion of the replacement cost of this damaged
property. The proof, although hearsay, is uncontroverted. Under all of the
circumstances of this case, it appears appropriate to establish the compensatory
damages based upon this proof at $4,442.25. The damage award is, therefore,
reduced to that amount.


          We now turn to the award of punitive damages. The trial court
awarded the Davises $15,000 in punitive damages. The Inmans themselves
exhibited conduct which is willful and wanton under the circumstances. They
clearly acted recklessly and with a conscious disregard for the property of the
Plaintiff. This is conduct which cannot be approved or accepted in a civilized
society. Punitive damages are, therefore, appropriate. However, a portion of the
conduct and action taken by the Inmans was done to their own property in
accordance with the boundary line established heretofore in this opinion. We
review the assignment of punitive damages de novo based upon the record. Our
review leads to the conclusion that an award of punitive damages in the amount
of $5,000.00 is appropriate. Accordingly, the punitive damage award is reduced
to that amount.


                                        -4-
         It is, therefore, ORDERED that the boundary line between Mrs. Davis
and the Inmans is established precisely at the place where the white wooden
decorative fence existed for almost thirty years. The Plaintiff is awarded
$4,442.25 in compensatory damages and $5,000.00 in punitive damages and the
cause is remanded to the trial court for further proceedings in accordance with
this opinion.

                              _______________________________________
                              WALTER W. BUSSART, SPECIAL JUDGE



CONCUR:



____________________________________
HENRY F. TODD, JUDGE


____________________________________
WILLIAM C. KOCH, JR., JUDGE




                                      -5-
