                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                March 10, 2014 Session

                 CITY OF TOWNSEND v. ANTHONY DAMICO

                   Appeal from the Circuit Court for Blount County
                      No. L-18244     David R. Duggan, Judge




                No. E2013-01778-COA-R3-CV-FILED-MAY 27, 2014




This appeal presents the issue of whether the City of Townsend (“the City”) properly issued
a citation for trespass to the defendant, Anthony Damico, when he exited the Little River
onto private property in order to avoid crossing a dam on his inner tube. The Townsend
Municipal Court upheld the citation and issued Mr. Damico a fine. Mr. Damico appealed to
the Blount County Circuit Court for a trial de novo. The circuit court held that Mr. Damico
had a right to portage around the dam and that he was denied this right when he was
confronted by an agent of the private property owner. The circuit court further held that Mr.
Damico did not engage in trespass when he traversed private property because he was
seeking to avoid further confrontation, which the court found constituted justifiable cause.
Therefore, the circuit court dismissed the citation. The City of Townsend appeals. We
reverse and remand for reinstatement of the trespassing citation and fine.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.

William J. Carver and Camille H. Sanders, Knoxville, Tennessee, for the appellant, City of
Townsend.

Joe Nicholson, Maryville, Tennessee, for the appellee, Anthony Damico.
                                          OPINION

                           I. Factual and Procedural Background

        The essential facts in this case are not in dispute. On June 23, 2012, Mr. Damico and
several of his friends were “tubing” on the Little River in Townsend. There are several
businesses in Townsend that rent inner tubes to individuals for recreational use on the Little
River, including the entity that rented the inner tube to Mr. Damico, Smoky Mountain River
Rat. As much of the Little River flows along privately owned land, this business and all
similar enterprises are required to provide and identify for their rental customers the location
of designated egress points in the river. Smoky Mountain River Rat also informs its
customers that all property along the river is private. Upon exit at any designated egress
point, the tubing customers are transported back to the respective business facility and their
parked vehicles.

       During their journey, Mr. Damico and his friends floated past the final designated
point of egress for Smoky Mountain River Rat patrons before encountering a small dam
known as Wears Dam. In order to avoid the dam, which they believed to be unsafe to
traverse, Mr. Damico and friends either had to paddle or swim back upstream to the nearest
egress point or exit the river. The group chose to exit the river onto private property at the
Ye Olde Mill Campground, despite the presence of signs indicating “private property” and
“no trespassing,” in order to avoid Wears Dam. Before leaving the river, Mr. Damico was
confronted by Robert Williams, the manager of Ye Olde Mill Campground, who informed
Mr. Damico that the campground was private property and that Mr. Damico could either pay
a nominal fee to remain on campground property or return to the river. Mr. Damico, having
carried no money with him, refused to pay the fee. As the conversation continued, it became
somewhat combative. At trial, Mr. Damico admitted that he used profanity in the presence
of campground patrons. Mr. Damico and his friends eventually crossed the campground
property by foot and proceeded to a public sidewalk bordering Highway 321. Once they had
traveled past the dam, the group returned to the river.

        The owner of the campground soon called the Townsend Police Department and
reported a trespass. The officer dispatched to investigate the incident found Mr. Damico and
his friends in the Little River and ordered that Mr. Damico exit the river and answer
questions. As Mr. Damico apparently admitted that he had entered the campground property,
the officer issued him a citation for trespassing.

        The Townsend Municipal Court heard the case on December 6, 2012, and upheld the
citation, issuing Mr. Damico a fine. Mr. Damico appealed to the Blount County Circuit
Court. Upon hearing, the circuit court dismissed the trespass citation, finding that (1) the

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Little River is a navigable waterway in the legal sense and (2) users of the Little River have
a right to portage around waterway obstacles. The court concluded that Mr. Damico was
denied his right to portage when he was confronted by an agent of the private property
owner. The circuit court further held that Mr. Damico did not engage in trespass when he
traversed private property because he was seeking to avoid further confrontation, which the
court found constituted justifiable cause. Accordingly, the circuit court dismissed the
citation. The City timely appealed.

                                         II. Issues Presented

        The City presents the following issues for our review, which we have restated slightly:

        1.      Whether the trial court erred by finding that Mr. Damico had justifiable cause
                to trespass and dismissing the trespass citation on that basis.

        2.      Whether the trial court erred by holding that the Little River through
                Townsend is a navigable waterway in the legal sense.

                                      III. Standard of Review

       Our standard of review is de novo with a presumption of correctness as to the trial
court’s findings of fact unless the preponderance of the evidence is otherwise. Tenn. R. App.
P. 13(d); McCarty v. McCarty, 863 S.W.2d 716, 719 (Tenn. Ct. App. 1992). No presumption
of correctness attaches to the trial court’s legal conclusions. Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                             IV. Trespass

       The dispositive issue in this case is whether Mr. Damico engaged in trespass by
violating Townsend Municipal Code § 5-111.1 The trial court, inter alia, found the following
with regard to the alleged trespass:

                This Court has ruled that Little River is navigable water of the United
        States in the legal sense, and that recreational users of the River have a right
        of portage to proceed onto private property in order to go around obstructions
        and obstacles in the water. Because, however, Mr. Damico did not portage


        1
         Cases involving violation of a city ordinance are civil in nature, “having as their object the
vindication of domestic regulations.” Metro. Gov’t of Nashville & Davidson Cnty. v. Allen, 529 S.W.2d 699,
707 (Tenn. 1975).

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around the dam, but rather walked directly across the property to a public
sidewalk and road, it could still be said, and indeed the Townsend Municipal
Court held, that he trespassed on the property by taking that route across the
property.

...

 [T]respass must be an intentional harm. If there is no intentional act–in the
sense of an act voluntarily done–there is no trespass. Kite v. Hamblen, 192
Tenn. 643, 241 S.W.2d 601 (1951); 24 Tenn. Juris. Trespass §2.

       Other cases hold that one need not show malice or wrongful intent if the
alleged act of trespass is done without justifiable cause. McQueen v. Heck, 41
Tenn. (1 Cold.) 212 (1860); see, Luttrell v. Hazen, 35 Tenn. (3 Sneed) 20
(1855).

       There is no dispute in this case that Mr. Damico and his party were
floating the Little River on June 23, 2012, they did not egress the River at the
point they were supposed to, and then they observed the dam spanning the
River. There is no dispute that it was because of the dam that the tubers
entered onto the private property of the Campground. A verbal altercation
ensued which became heated. While this Court has held that Mr. Damico and
the group had a right to proceed around the dam and re-enter the River, they
chose not to do that. Rather, they walked directly across the property to a road
which allowed them to walk to the public sidewalk on Highway 321. Then,
they turned and walked along the public road parallel to the River and
eventually re-entered the River.

       Mr. Damico testified that he had no intention to trespass upon
Campground property, but that he considered going onto the property, in order
to portage around the dam, to be his only option. He further testified that the
reason he did not proceed around the dam, but rather took the route to the
public sidewalk on Highway 321, was because of the confrontation and in
order to take the most direct route to the public sidewalk that he could take,
while avoiding further confrontation. [internal citation]

       Certainly he was denied his right of portage.

     Accordingly, the Court finds that, under the specific facts of this case,
Mr. Damico did not engage in a trespass when he crossed Campground

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       property. While he testified that he did not intend to trespass, but rather was
       seeking the most direct route to the public property without further
       confrontation, to the extent his decision was an intentional act, nevertheless the
       act was engaged in with justifiable cause. Accordingly, the Court holds that
       there was no trespass.

The court then dismissed the trespass citation.

       The Townsend Municipal Code § 5-111 defines “trespassing,” in pertinent part, as:

       The owner or person in charge of any lot or parcel of land or any building or
       other structure within the corporate limits may post the same against
       trespassers. It shall be unlawful for any person to go upon any such posted lot
       or parcel of land or into any such posted building or other structure without the
       consent of the owner or person in charge.

There was no dispute in this case that there existed multiple “no trespassing” signs posted
on the campground property, which were visible from the river.

       The courts of this state have similarly defined the tort of trespass as an unauthorized
entry upon the land of another. See Norvell v. Gray’s Lessee, 31 Tenn. 96, 103 (1851) (“In
law every entry upon the soil of another, in the absence of a lawful authority, without the
owner’s license, is a trespass.”). Contrary to the trial court’s holding, in a case involving
trespass, the defendant’s intent to trespass or knowledge that he is trespassing is immaterial.
See McQueen v. Heck, 41 Tenn. 212, 215 (1860); Luttrell v. Hazen, 35 Tenn. 20, 23 (1855);
Miles v. Huff’s Foodtown, Inc., No. 85-158-II, 1986 WL 1786 at *5 (Tenn. Ct. App. Feb. 11,
1986).

        The trial court relied upon our Supreme Court’s opinion in Kite v. Hamblen, 241
S.W.2d 601, 603 (1951), a case that involved “assault and battery which was a trespass vi et
armis (striking plaintiff with fists),” rather than trespass upon property. In Kite, the Court
stated, “[t]respass is an intentional harm, and where there is no intentional act, in the sense
of an act voluntarily done, there is no trespass.” Id. As explained in 75 A M. J UR. 2d Trespass
§ 5 (2014):

       The controlling issue is the intent to complete the physical act, regardless if,
       in so acting, the actor did not intend to commit a trespass and acted in good
       faith. Although it is not necessary that the trespasser intend to invade the
       property, commit a trespass, or even know that the act will constitute one, it is
       required that there be an intent to do the act that results in the trespass.

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        Mr. Damico testified that he exited the river and crossed campground property, which
he knew to be private, in order to reach a public road. His intent in doing so is relevant only
inasmuch as he voluntarily entered the property, as opposed to being, for instance, washed
upon the property by the river. Mr. Damico conceded that the distance would have been
shorter to simply walk around the dam and immediately return to the water. He stated,
however, that he “did not want to continue walking on the property” and “wanted to get off
their property as soon as I could.” The photographs admitted into evidence demonstrate that
there were no physical obstructions preventing Mr. Damico from utilizing the shortest route
to simply walk around the dam. Further, there is no evidence that Mr. Damico was
physically obstructed by the owner’s agent, Mr. Williams. Mr. Williams testified that he was
sitting at a picnic table speaking to Mr. Damico, who was still in the water, when Mr.
Damico “got out and went on up to the road, and his friends followed him.”

       There is no dispute in this cause that Mr. Damico entered upon the land of another
without consent. His lack of intent to trespass is of no consequence. The fact that he thought
his route in crossing the property would somehow avoid confrontation is also not dispositive.
Mr. Damico did not merely walk around the dam and return to the water. Rather, he
traversed private property without permission, away from the river, to arrive at a public road.
Whether he intended to trespass or not, Mr. Damico entered onto the land of another without
the owner’s consent. Therefore, the trial court erred in dismissing the citation for trespass.
The trial court’s additional findings regarding portage and justifiable cause will be discussed
below.

                            V. Navigable Waterways and Portage

        In its Final Judgment, the trial court stated that counsel for both parties agreed that an
issue to be adjudicated was whether the Little River constituted a navigable waterway. The
City argues that the trial court erred in its determination that the Little River is a navigable
waterway. There are two types of navigable waterways in Tennessee: (1) those that are
navigable in the legal sense and (2) those that are navigable in the ordinary sense. As our
Supreme Court explained over 100 years ago:

       If the river be a public, navigable stream in the legal sense, the soil covered by
       the water, as well as the use of the stream, belongs to the public. But if it be
       not navigable in the legal meaning of the term, the ownership of the bed of the
       stream is in the riparian proprietor, but the public have an easement therein for
       the purpose of transportation and commercial intercourse. A distinction is
       taken by the common law between streams which in the common acceptation
       of the term are suited to some purposes of navigation and small shallow
       streams which are not so. In respect to the former,-which, though not

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       navigable in the sense of the law, are yet of sufficient depth naturally for
       valuable floatage, as for rafts, flatboats, and perhaps small vessels of lighter
       draught than ordinary,-while it is settled that the right of property in the bed of
       the stream is vested in the riparian proprietor, and in that respect it is to be
       regarded as a private river, still it is equally well settled that the public have a
       right to the free and uninterrupted use and enjoyment of such stream for all the
       purposes of transportation and navigation to which it is naturally adapted.

Webster v. Harris, 69 S.W. 782, 784 (Tenn. 1902). Therefore, if the Little River is navigable
in the legal sense, the public owns the waterway and the soil beneath it. Id. Should it be
classified as navigable in the ordinary sense, the adjoining property owners own the land
beneath the waterway to the low-water mark, with the public maintaining an easement to use
the waterway. Id.; see also City of Murfreesboro v. Pierce Hardy Real Estate, Inc., No.
M2000-00562-COA-R9CV, 2001 WL 1216992 at *10 (Tenn. Ct. App. Oct. 12, 2001).

        The trial court concluded that the Little River was navigable in the legal sense. The
court also made a determination that alternatively, should the river be navigable only in the
ordinary sense, the public had an easement for transportation and commercial intercourse
thereon, including recreational use. The trial court further determined that Mr. Damico had
a right to portage around the dam, which the court defined as “the right of an individual to
utilize private land to pass by an obstacle in or along the waterway, and it refers to a limited
privilege the user/navigator has to go onto adjoining private land to scout, and, if necessary,
make a safe, reasonable portage.”

       Following a thorough review of the evidence, we conclude that the trial court was not
obligated to make determinations regarding whether the Little River was navigable in the
legal or ordinary sense or whether Mr. Damico had a right to portage around the dam. The
navigability of the river is not properly at issue in this case because Mr. Damico’s conduct
extends beyond mere use of the flowing water and the soil beneath it. The uncontroverted
evidence established that Mr. Damico exited the river, entered private property posted “no
trespassing,” and without consent of the owner traversed the campground property in order
to reach a public road. Further, authority has not been shown to exist in Tennessee for
holding that navigability of the river has distinct bearing upon the issue of whether Mr.
Damico maintained a right to portage around the dam. We conclude that the trial court erred
in reaching this question and hereby pretermit the issue as moot.

       Likewise, the issue of whether Mr. Damico maintained a right to portage around the
dam is not dispositive in this case. The trial court found that portage involves a “limited
privilege” of the river’s user to “utilize private land to pass by an obstacle.” While this
concept has never been defined in Tennessee case law, other jurisdictions have held that

                                               -7-
when users of a waterway encounter obstacles, the users can circumvent those obstacles by
utilizing the most direct route that does not damage private property. See Montana Coal. for
Stream Access, Inc. v. Curran, 682 P.2d 163, 172 (Mont. 1984) (“the public is allowed to
portage around such barriers in the least intrusive way possible, avoiding damage to the
private property holder’s rights.” ); Adirondack League Club, Inc. v. Sierra Club, 706 N.E.2d
1192 (N.Y. 1998)(holding that despite the right to portage around an obstacle on riparian
lands, any use of private river beds or banks that is not strictly incidental to the right to
navigate gives rise to an action for trespass).

       The sole issue for the trial court to adjudicate in this action was whether Mr. Damico
was properly issued a citation for trespassing on private property. The undisputed facts show
that Mr. Damico did not merely carry his inner tube around the dam, utilizing the most direct
route that was least harmful to the private landowner. Rather, after being approached by the
owner’s agent, Mr. Damico proceeded to walk across the private property without permission
to access and use the public road beyond it. Therefore, as the trial court properly found, Mr.
Damico did not merely “portage” around the dam. We conclude that the issue of portage is
also pretermitted as moot.

       The trial court found that Mr. Damico’s right to portage and the landowner’s “denial”
of same constituted “justifiable cause” to excuse Mr. Damico’s trespass. The court based its
analysis on McQueen, 41 Tenn. at 215, wherein our Supreme Court stated:

               In trespass it is not necessary for the plaintiff to show that the act was
       done of malice, or any wrongful intent; so far as the right to maintain the
       action is concerned, it is sufficient if it were done without a lawful or
       justifiable cause, though it may have been done accidentally or by mistake.

McQueen concerned the issue of whether a sheriff, in acting upon an invalid capias warrant,
was liable to the plaintiff for trespass. Id.

        Our research has uncovered no other Tennessee case utilizing the language of
“justifiable cause” in regard to a civil trespass. We do generally observe, to the extent
pertinent to the specific facts under review, that a defense of private necessity exists to a
charge of criminal trespass, as our Court of Criminal Appeals has explained:

       Necessity is a defense wherein conduct, otherwise unlawful, is justified if: “(1)
       The person reasonably believes the conduct is immediately necessary to avoid
       imminent harm; and (2) The desirability and urgency of avoiding the harm
       clearly outweigh, according to ordinary standards of reasonableness, the harm
       sought to be prevented by the law proscribing the conduct.” Tenn. Code Ann.

                                              -8-
       § 39-11-609. The Sentencing Commission Comments to this section state that
       the defense of necessity is applicable in exceedingly rare situations where
       criminal activity is “an objectively reasonable response to an extreme
       situation.” The Sentencing Commission provides an example as follows:
       “[T]he necessity defense would bar a trespass conviction for a hiker, stranded
       in a snowstorm, who spends the night in a vacant cabin rather than risking
       death sleeping in the open.”

State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998). In Tennessee
jurisprudence, this is the only form of “justifiable cause” that could be applicable to the
factual circumstances at bar.

        We conclude that the facts of this case do not establish any type of justifiable cause
or private necessity for Mr. Damico’s actions. While it is true that Mr. Damico was verbally
instructed by the agent that he could not come onto the campground property without paying
a $2.00 fee, Mr. Damico was not obstructed from circumventing the dam on foot by utilizing
the most direct route. Had Mr. Damico merely walked around the dam and returned to the
river, this Court would undertake a different analysis. Here, Mr. Damico chose to cross
private property without consent and walk to the public road. This course was not the most
direct route and did not have the least impact on the private landowner. Given these facts,
the trial court erred in finding that Mr. Damico had justifiable cause to commit a trespass.

                                      VI. Conclusion

       For the reasons stated above, we reverse the trial court’s judgment and remand for
reinstatement of the trespassing citation and fine. Costs on appeal are assessed to the
appellee, Anthony Damico.




                                                   _________________________________
                                                   THOMAS R. FRIERSON, II, JUDGE




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