      IN THE COURT OF APPEALS OF TENNESSEE                                 FILED
                                                                          February 28, 2000
                        AT KNOXVILLE
                                                                         Cecil Crowson, Jr.
                                                                        Appellate Court Clerk




TED LANK FORD, et ux,                      ) C/A NO. E1999-1570-COA-R3-CV
                                           )
       Plaintiffs-Appellants,              ) MORGAN CHANCERY
                                           )
vs.                                        ) HON. F RANK V. WILL IAMS, III
                                           ) CHANCELLOR
GILBERT L. YOUNG,                          )
                                           ) AFFIRMED AND
       Defendant-Appellee.                 ) REMANDED




GEORGE H. BUXTON, III and HAROLD P. COUSINS, JR., BUXTON LAW
OFFICE, Oak R idge, for Plaintiffs-Appellants.

JOE R. JUDKINS, Wartburg, for Defendant-Appellee.




                                     O P I N IO N


                                                          Franks, J.


              Plaintiffs’ action sought to bar defendant from using a road across

plaintiff’s property, but upon trial, the Trial Judge dismissed the action and plaintiffs’

have appealed.

              The Trial Judge in his ruling, found that there is and had been a road
across plain tiffs’ prope rty, which had become a public roa d and that p laintiffs failed to

offer proof of trespassing by the placement of power poles and electric lines across

plaintiffs’ pro perty. Finally, the Co urt ruled that a n oil and ga s lease exec uted in

March of 1980 was no longer valid and had terminated. The issues raised on appeal

are:

               1.      Did the Trial Court err in not allowing plaintiffs to cross-examine
                       the defendant regarding the utility poles and lines?

               2.      Did the Trial Court err in its ruling that defendant had a
                       pres criptive e asem ent a cros s plaintif fs’ p rope rty?

               3.      Did the Trial Court err in ruling that the relocation of the road
                       across plain tiffs’ prope rty did not destro y the easeme nt?

               At the end of plaintiffs’ proof, defendant moved to dismiss plaintiffs’

action pursuant to Ten nessee Rules of C ivil Procedure 41.02(2), and the Trial Court

granted the motion as to trespass of defendant by the location of the power poles and

utility lines. Thereafter, plaintiffs’ counsel unsuccessfully attempted to cross-examine

the defendant Young regarding his affirmative defenses, by which defendant averred

that t he powe r poles an d ele ctric lines wer e rightfu lly loc ated on plaint iffs’ pro perty.

               A Rule 41.02(2) motion mandates the dismissal of an action following

the plain tiffs’ pro of, if fro m the f acts and law the plaintiff has sho wn no right to re lief.

Rule 41.0 2(3) provid es that exce pt as otherw ise specified , a dismissal un der this Ru le

operates as an adjudication on the merits. The plaintiffs do not raise the issue of

whether the Trial Court was in error by granting the Rule 41 motion. Since the Trial

Judge had dismissed the action as to trespass, he properly disallowed cross-



                                                 2
examination on that issue.

               Plaintiffs argue that defendant does not have a right to use the roadway

in question. The Trial Court found that the road was a public road, “because the

public has made adverse and uninterrupted use of the road in question for a period of

more than twenty years, claiming the right to do so, without any action on the part of

any person to terminate said use of the road, and the use of said road was not with the

permission of the owners of the real property over which the road traverses.”

               The Court went on to find that any interruption in the use of the road by

the public w as not of su ch duration or nature as to negate th e necessar y elements to

establish that the road had become a public road by the application of the doctrine of

prescrip tion. See Nashville Trust Co. v. Evans, 206 S.W.2d 911, 913 (Tenn. Ct. App.

1947).

               There is dis puted evid ence as to th e length of the road. H oweve r, it is

clear that the road crosses the plaintiffs’ property into the Young property. The

evidence does not p reponde rate against th e Trial Co urt’s finding that the road in

question had been used by the public for at least twenty years.

               The use o f the road b y the Youn gs and oth ers was cle arly adverse to

plaintiff s and th eir pred ecesso rs. It was open a nd visib le and k nown to plaint iffs.

Several people, including Cooper, a predecessor owner, testified that they believed the

road to be a public road.

               Plaintiffs argue that the use of the roadway was permissive, thus

negating an essential element of the doctrine of prescription, and equate “permissive”


                                               3
with “kno wledge a nd acquie scence.” H oweve r, the two term s are not synon ymous in

the con text of e aseme nts by pre scription . See House v. Close, 346 S.W.2d 44 5, 447-8

(Tenn. Ct. App. 1961). “Permissive use” means more than acquiescence; it denotes

permission in fact, expressly or by necessary implication or a license. 25 Am.Jur.2d

Easem ents §65. F ailure to object to the use does n ot mea n the us e is perm issive. Id.

See Koontz v. Superior, 746 P2d 1264 (Wyo. 1987). Acquiescence, on the other hand,

is passiv e assen t or subm ission; c onsen t by silence . 25 Am .Jur.2d E aseme nts §72 .

There is no evidence that Cooper or Lankford ever gave express permission for the

use of the road, nor did any of the users of the road think it was necessary to ask

permission. The Trial Court found the defendant’s proof credible on this issue.

               Finally, plaintiffs argue that a relocation of the road destroyed any

existing prescriptive easement, relying on the case of Bingham v. Knipp, 1999 WL

86985 (Tenn. Ct. App. Feb. 23, 1999) for the proposition that a claimant’s use of a

right-of-w ay ceases to be adverse w hen the ow ner of the s ervient estate in tervenes to

occupy the land supporting the easement. In Bingham, the claimant crossed the

servient property to reach his own property, except during the growing season, when

that pass was covered with corn. During those times, the claimant went around the

field to reach his property, and the Court found this to be an acknowledgment of the

landowner’s sup erior claim to the land in relation to the on e claiming the easem ent. In

this case, the Court found the relocation of the road was de minimis and was to the

benefit of both the landowner and the general public. In asking the Youngs to move

the road, the Coopers recognized the claim of the Youngs to pass through the


                                               4
property. Moreover, slight or immaterial changes or deviations in the portions of the

way do not prevent the creation of an easement by prescription, so long as the way

remains substantially the same throughout the prescriptive period. 25 Am.Jur.2d

Easem ents §58 (199 6); see Centr al Pac. Ry . Co. v. Alam eda Co unty, 284 US 463, 52

S.Ct. 225 (1 932); Scruggs v. Beason, 20 So.2d 774 (Ala . 1945); Weigel v. Cooper, 436

S.W.2d 85 (Ark. 1969). A prescriptive right-of-way is not invalidated because of

deviations from the original route where such changes were made by agreement

between the owner and the person claiming the right-of-way, in apparent recognition

of the latter’s rights. 25 Am.Jur.2d Easem ents §59; see Cha ney v. M artin, 171 S.W.2d

961 (Ark . 1943); Rees v. Dixon, 164 S.W.2d 95 0 (Ky 1942).

              In addition, the Court found that the relocation constituted a dedication

of the land for use as a public road. A dedication may be expressed when the

appropriation is formally declared, or im plied by operation of law fro m an own er’s

condu ct and f acts and circum stances of the c ase. Varallo v. Metropolitan

Govern ment, 508 S.W.2d 342 (Tenn. Ct. App. 1973). The public’s acceptance may

also be expres s or imp lied. Hackett v . Smith Co unty, 807 S.W.2d 695 (Tenn. Ct. App.

1990) .

              The Coopers requested and agreed to the relocation of the road across

their property. Mr. Cooper testified that prior to moving the road, the public used the

road without permission, but he did nothing to stop this use. He also testified that

after the roa d was m oved he e xpected th e public to k eep using the road, an d they, in

fact, did. He testified explicitly: “It wasn’t my road, it was a road that went through


                                             5
there.” His te stimony mak es clear that h e intended the relocation to benefit the public

as well as h imself, and considered the road to b e a public rig ht-of-wa y. The public

accepted this dedication by their continued use.

              For the foregoing reasons, we affirm the judgment of the Trial Court and

remand with the cost of the appeal assessed to appellants.




                                           __________________________
                                           Herschel P. Franks, J.


CONCUR:




___________________________
Charles D. Susano, Jr., J.




___________________________
D. Michael Swiney, J.




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