                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE

  MARY JANE LUSK, v. JESSE W. ENGLETT, VIRGINIA P. ENGLETT,
                 AND JOSEPH D. ENGLETT.

                  Direct Appeal from the Chancery Court for Lewis County
                            No. 3624 Donald P. Harris, Judge,



                    No. M1999-00294-COA-R3-CV - Decided April 17, 2000



In this boundary dispute, the Chancellor declared the boundary between the parties based upon the
parties’ deeds, and rejected defendants’ contention that an old fence row established the boundary.
Defendant has appealed.

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

FRANKS, J., delivered the opinion of the court, in which GODDARD, P.J., and SWINEY, J, joined.

David D. Peluso, Hohenwald, Tennessee for the Defendants-Appellants.

Douglas Thompson Bates, III, Centerville, Tennessee for Plaintiff-Appellee.




                                              OPINION

                In this boundary dispute over the parties’ adjoining parcels of property, both parties’
deeds state that the boundary line in question runs north at 38 degrees. This call is used in all of the
deeds in plaintiff’s chain of title back to 1935. In defendants’ chain of title there are at least seven
deeds prior to defendants’ which use the 38 degree call back to 1950. Prior to that, there are four
deeds in defendants’ chain of title which use a 28 degree call, but preceding those deeds there are
two deeds which use a 38 degree call back to 1920.

                Defendants, however, presented evidence of the existence of an old fence dating back
to the 1940's, which they claim to be the boundary.

                Plaintiff employed a surveyor, Kenneth Carroll, who surveyed the property and
prepared a plat which follows the calls in the deeds. Defendant also hired a surveyor who did not
take issue with the location of the 38 degree line, but who opined that since the beginning and ending
points of the fence, which do not run in a straight line were in close proximity to the 28 degree line,
the fence should probably be the boundary.

                On appeal, we review the Trial Court’s finding of fact de novo with a presumption
of correctness. T.R.A.P. Rule 13(d). The Trial Court admitted the Kenneth Carroll survey into
evidence on behalf of the plaintiff, though the plat was presented by Scottie Brewer, Carroll’s
assistant, who actually did the measurements and shot the lines on the property. Defendants argue
this was error based upon Tennessee Rules of Evidence 901(b)(1), which states that evidence should
be authenticated by a witness with knowledge. Tennessee Rules of Evidence 901 further states that
there must be sufficient evidence to prove to the Court that the matter in question is what the
proponent claims it to be.

                Brewer explained exactly what was done and how they established the 38 degree line,
and defendants’ own surveyor did not take issue with their location of the 38 degree line as called
for in the deeds. The Trial Court concluded that Brewer was able to adequately identify the 38
degree line and we find no abuse of discretion of the Trial Court’s allowing Brewer to identify the
line on the survey, as the survey was only introduced for this limited purpose.

               Defendants contend that the Carroll survey was somehow flawed in its location of
the 38 degree boundary line, but had no countervailing proof that the Carroll survey was improper,
since their own surveyor showed precisely the same result regarding the 38 degree line.

                 Next, defendants argue that the fence should have been recognized as a boundary line
due either to acquiescence or adverse possession. Under common law, legal title to real property
may be acquired by prescription, “that is twenty years actual adverse possession, with or without
color of title”. Moore v. Brannan,, 304 S.W.2d 660, 670 (Tenn. Ct. App. 1957). Adverse possession
requires possession which is actual, visible, continuous, notorious and exclusive. Sequatchie Val.
Coal & Iron co. v. Coppinger, 32 S.W. 465 (Tenn. 1895). Occasional acts of trespass are not
sufficient. Fuller v. Jackson, 62 S.W. 274 (Tenn. Ct. App. 1901).

               In an adverse possession action, there is “a presumption in favor of possession in
subordination to the title of the true owner.” Bynum v. Hollowell, 656 S.W.2d 400 (Tenn. Ct. App.
1983). The party seeking to establish ownership by adverse possession bears the burden of rebutting
this presumption, and the acts relied upon to prove adverse possession must “be of such a character
as to leave no doubt of claim of ownership” and must “give notice to the public of the possession
and the claim.” Blankensip v. Blankenship, 658 S.W.2d 125 (Tenn. Ct. App. 1983).

                 There is essentially no proof of any adverse or hostile possession in this record, and
this issue is without merit. There are cases which hold that when a fence is erected that encloses a
portion of someone else’s land, and that portion is enclosed for the requisite period, then the holder
has adversely possessed the land. See e.g., Lemm v. Adams, 955 S.W.2d 70 (Tenn. Ct. App. 1997);
Hallmark v. Tidwell, 849 S.W.2d 787 (Tenn. Ct. App. 1992). These cases are cases where the person
claiming the property by adverse possession actually erected the fence. The fence in this case was
erected by plaintiff’s predecessor, not defendants herein, and one of plaintiff’s predecessor’s testified

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that she helped erect the fence and it was not intended to be a boundary, but merely used to fence
in crops. In this connection see Bynum v. Hollowell, 656 S.W.2d 400 (Tenn. Ct. App. 1983). The
evidence does not preponderate against the Trial Court’s determining the location of the boundary
between the parties. T.R.A.P. Rule 13(d).

                Plaintiff asked this Court to find that defendants’ appeal is frivolous, pursuant to
Tennessee Code Annotated §27-1-122. We cannot say that this appeal was totally lacking in merit,
or taken for delay, so as to invoke the statutory penalty.

               We affirm the judgment of the Trial Court with cost of the appeal assessed to
defendants.




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