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

             WALTER ALLEN GAULT v. JANO JANOYAN, ET AL.

                   Appeal from the Chancery Court for Knox County
                   No. 185155-3    Michael W. Moyers, Chancellor




              No. E2014-00218-COA-R3-CV-FILED-OCTOBER 30, 2014


This case concerns a boundary line dispute. Walter Allen Gault (“Plaintiff”) sued Jano
Janoyan and Pinnacle Bank (“Defendants”)1 seeking a declaratory judgment that, by way of
adverse possession, he is the rightful owner of a triangle-shaped piece of land, 41.59 feet at
its base and approximately 302 feet on each of its two sides. The disputed area is within the
deed boundaries of the property owned by Janoyan, the Plaintiff’s next door neighbor. (See
attached exhibit.) The parties’ properties are in Forest View, a residential subdivision in
Knoxville. Defendants filed an answer and a counterclaim for ejectment and quiet title to
the property. Both parties moved for summary judgment. After a hearing, the trial court
granted summary judgment to the Defendants. Plaintiff appeals. We affirm.

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

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Terry G. Adams and Kevin J. Tonkin, Knoxville, Tennessee, for the appellant, Walter Allen
Gault.

M. Edward Owens, Jr, Knoxville, Tennessee, for the appellee, Jano Janoyan and Pinnacle
Bank.

                                          OPINION



       1
        The complaint also named Hugh M. Queener, Trustee, as a party defendant. Mr. Queener was
subsequently dismissed from the suit by agreed order.
                                              I.

        Plaintiff has lived on his property continuously since 1970. In 1974, he acquired an
ownership interest by way of a deed from his wife, and later owned full title when his wife
passed away. In 1971, Plaintiff and his wife began planting trees along what Plaintiff refers
to as “the Occupation Line,” the line he claims as the boundary between the two lots by
virtue of his alleged adverse possession of the disputed area. Seven trees and a bush remain.
They have grown, and, according to Plaintiff, are of sentimental value to him.

        Up until 2007, the lot now owned by Janoyan was undeveloped. In 2007, Janoyan’s
predecessor in interest constructed a home on the lot. In 2013, Janoyan purchased the
property and has resided there with his family ever since. Pinnacle Bank holds two deeds of
trust on the Janoyan lot. The disputed area is not enclosed. The instant dispute arose after
Plaintiff learned that Janoyan intended to fence his property, including the disputed area.
The disputed area is situated entirely within Lot 30, title to which is held by Janoyan.
Plaintiff, however, claims ownership of the disputed area by virtue of adverse possession. In
the alternative, he seeks a prescriptive easement for his exclusive use and enjoyment of the
property.

        The parties’ lots are reflected in their respective deeds by metes and bounds
descriptions as well as by reference to the subdivision plat that was recorded in 1955. The
Gault lot, excluding the disputed area, is a .773 acre, rectangular tract. The Janoyan lot is a
corner lot that is also generally rectangular but wider at the rear property line than at the
front. Including the disputed area, the Janoyan lot consists of approximately 1.24 acres. The
disputed area totals .144 acres.

       An affidavit of the tax assessor reflects that property taxes on the Gault lot and the
Janoyan lot have been assessed based on the recorded subdivision plat and deeds for some
38 and 42 years, respectively. The parties do not dispute that they have each paid their
respective property taxes.

       In April 2013, Plaintiff filed a complaint in which he alleged that he has held the
disputed area “exclusively, actually, adversely, continuously, openly and notoriously” for
more than forty-two years and thus owns the disputed area by virtue of adverse possession.
In addition to planting trees, Plaintiff alleges that he had periodically mowed the grass along
the “Occupation Line” and otherwise tended the property for over forty years. Plaintiff
further alleges that he used the disputed area as a play area for his children and for a family
garden. Plaintiff requested that the court establish the “true and correct” boundary line and
find that title to the disputed area has vested in him. In the alternative, Plaintiff sought a
prescriptive easement over the disputed area. Janoyan filed an answer in which he averred

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that Plaintiff had no valid claim to the disputed area and was essentially trespassing with full
knowledge that the property was not his. In his counterclaim, Janoyan sought to have
Plaintiff ejected from his property and enjoined from further preventing Janoyan’s use of his
property.

        In September 2013, Plaintiff moved for summary judgment on his claim of adverse
possession. In his supporting affidavit, Plaintiff alleged that he believed the Occupation Line
to be the boundary line between the two lots. In 1982, he built a patio in the disputed area
and placed a swing upon it which has been replaced over the years due to weathering but the
patio still remains. In addition, Plaintiff built a swing set for his children that was located
in the disputed area and remained there until the mid-1980s. Plaintiff alleged that his family
had buried some twelve dogs and other family pets in the disputed area, each marked by a
readily identifiable headstone. Further, Plaintiff’s son had constructed a remote control
racetrack that he and other neighborhood children used during the 1980s and early 1990s.
Also, in the 1970s, Plaintiff installed a drainpipe that carries water from his property into the
disputed area; he made repairs to the drainage pipe as recently as 2013. Plaintiff further
alleged that a previous owner of the Janoyan lot had placed stakes at the Occupation Line
that Plaintiff considered as a “clear indication” of his property line. Further, according to
Plaintiff, all previous owners of the Janoyan lot had maintained that property only to the
Occupation Line. Plaintiff alleged that he discussed the boundary line with Janoyan’s
predecessor in interest, Mrs. Schultz, who confirmed in their discussion that she thought her
property ended at the Occupation Line. Plaintiff alleged that since 2004, his grandchildren
had used the disputed area as a play area the majority of weekends every month. Plaintiff
claimed he never cared to enclose the disputed area because he felt it was not aesthetically
pleasing and fencing it would be expensive. Plaintiff alleged that he had “used and
exercised dominion over the land in the disputed area in a manner consistent with how yards
are typically used in residential neighborhoods” – by maintaining the property and using it
as a gathering place for family and friends – thus demonstrating ownership.

         In November 2013, Defendants2 moved the court to grant summary judgment in their
favor and dismiss Plaintiff’s claims of ownership to the disputed area. In his affidavit,
Janoyan stated that it was not apparent to him, upon visiting the property before he purchased
his lot, that anyone other than the title owner owned the entire lot. He disputed that the trees
formed an obvious boundary line between the two lots. According to Janoyan, Plaintiff’s
“patio” is actually some flat flagstones upon which Plaintiff located a swing shortly after
filing his complaint. At that time, Plaintiff also installed or manipulated a drain cap in the
disputed area. Janoyan conceded that water drains from Plaintiff’s property into the disputed


       2
           The motion was filed by Defendant Pinnacle Bank and adopted by Defendant Janoyan in its entirety.


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area. According to Janoyan, there are only four pet “headstones” located along the boundary
line and no visible bike track ruts in the disputed area. Janoyan concluded that,

              the proof shows that Plaintiff has not enclosed the property; that
              the uses asserted by Plaintiff do not support a claim of adverse
              possession; that the proof shows that Plaintiff has not paid taxes
              on the disputed property for over twenty years, and Plaintiff’s
              claim is therefore barred by Tenn. Code Ann. § 28-2-110; and
              the proof shows that Plaintiff is not entitled to a prescriptive
              easement.

       After a hearing, the trial court entered summary judgment in favor of Defendants. The
court found that Plaintiff’s claims were barred by the application of section 28-2-110 and
dismissed the action with prejudice. Plaintiff filed a timely notice of appeal.

                                              II.

        As taken verbatim from his brief, Plaintiff raises the issue of “whether the Trial Court
erred in granting summary judgment in favor of the Defendants . . . and dismissing all of
Plaintiff[’s] . . . claims with prejudice based solely upon the provisions of Tenn. Code Ann.
§ 28-2-110.”

                                              III.

      This Court has stated the standard of review applicable to motions for summary
judgment as follows:

              Summary judgments are proper in virtually any civil case that
              can be resolved on the basis of legal issues alone. They are not,
              however, appropriate when genuine disputes regarding material
              facts exist. Thus, a summary judgment should be granted when
              the undisputed facts, as well as the inferences reasonably drawn
              from the undisputed facts, support only one conclusion - that the
              party seeking the summary judgment is entitled to a judgment as
              a matter of law.

              The party seeking a summary judgment bears the burden of
              demonstrating that no genuine dispute of material fact exists and
              that it is entitled to a judgment as a matter of law. When the
              moving party is the defendant, it is entitled to a judgment as a

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              matter of law only when it affirmatively negates an essential
              element of the non-moving party’s claim or establishes an
              affirmative defense that conclusively defeats the non-moving
              party’s claim.

Brigadoon Ptnrs, LLC v. Hughes, No. E2007-00267-COA-R3-CV, 2008 WL 538990 at *
2 (Tenn. Ct. App. E.S., filed Feb. 27, 2008)(citations omitted).

                                             IV.

       Plaintiff asserts that the trial court erred in granting summary judgment to Defendants.
He argues that the trial court improperly interpreted and applied Tenn. Code Ann. § 28-2-110
to dismiss his alternative claims of adverse possession and prescriptive easement.

         Simply stated, the doctrine of adverse possession provides that “[w]hen an adverse
possessor holds the land for a period of twenty years, even absent any assurance or color of
title, the title vests in that possessor.” Cooke v. Smith, 721 S.W.2d 251, 255-56 (Tenn. Ct.
App. 1986)). “The underlying idea of the doctrine of adverse possession is ‘that the
possession should be maintained in an open and notorious manner, so as to warn the true
owner that a hostile claim is being asserted to his land.’ ” Wilson v. Price, 195 S.W.3d 661,
666 (Tenn. Ct. App. 2005)(quoting Bensdorff v. Uihlein, 132 Tenn. 193, 177 S.W. 481,
483(Tenn. 1915)). On the other hand, Tenn. Code Ann. § 28-2-110 was enacted “to
facilitate the collection of property taxes by requiring persons claiming an interest in real
property to have that interest assessed and to pay the taxes thereon.” Cumulus Broadcasting,
Inc. v. Shim, 226 S.W.3d 366, 381 (Tenn. 2007)(citing Burress v. Woodward, 665 S.W.2d
707, 709 (Tenn. 1984)). To that end, section 28-2-110(a) provides as follows:

              Any person having any claim to real estate or land of any kind,
              or to any legal or equitable interest therein, the same having
              been subject to assessment for state and county taxes, who and
              those through whom such person claims have failed to have the
              same assessed and to pay any state and county taxes thereon for
              a period of more than twenty (20) years, shall be forever barred
              from bringing any action in law or in equity to recover the same,
              or to recover any rents or profits therefrom in any of the courts
              of this state.

       The trial court held as follows:




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              [T]he Court finds that it is undisputed that for more than twenty
              years Plaintiff has not paid taxes on the disputed area of
              property that is the subject of this action, and that, therefore,
              Plaintiff’s claims to any legal or equitable interest in the
              disputed property are barred by Tenn. Code Ann. § 28-2-110(a).

Pointing to Cumulus, Plaintiff asserts that the Supreme Court has carved out an exception
that permits his adverse possession claim to proceed forward despite his admitted
nonpayment of property taxes on the disputed area. In Cumulus, the High Court held as
follows:

              Tennessee Code Annotated section 28-2-110 should not serve as
              a bar to a claim of adverse possession when the tracts are
              contiguous, a relatively small area is at issue, and the adjacent
              owners making claims of ownership have paid their respective
              real estate taxes. To hold otherwise would effectively eliminate
              the adverse possession of any part of an adjoining tract. As a
              matter of policy, possession of property for twenty or more
              years, accompanied by all other elements of the doctrine, is a
              basis for ownership.

226 S.W.3d at 376-77.

        In the present case, there is no apparent dispute that the parties’ lots are contiguous
or that they have each paid their respective property taxes. Accordingly, the issue boils down
to whether a “relatively small” area is at issue. Plaintiff acknowledges that the term is not
specifically defined in Cumulus. He takes the position that because the disputed area makes
up only 7 percent of the total land area owned by both parties, it thereby qualifies as
“relatively small” so that section 28-2-110(a) does not bar his claim.

        Our review of the survey obtained by Plaintiff as well as the recorded subdivision plat
certainly puts the disputed area into perspective. We are dealing here with two lots – less
than 2 acres in all – in a platted residential neighborhood. In our view, the lots themselves
may be described as “relatively small.” As earlier described, Plaintiff’s lot is roughly three-
fourths of an acre, while the Janoyan lot is approximately one and a quarter acres. At its
widest point, at the rear lot line, the disputed area is over forty-one feet wide. Excluding the
disputed area would effectively reduce the rear line of the Janoyan lot from 202 feet to 160
feet, while correspondingly increasing Plaintiff’s rear lot line from 110 feet to 152 feet. Or,
as Janoyan sees it, the overall size of his lot will decrease by over eleven percent, while
Plaintiff’s lot size will increase by nearly twenty percent. Janoyan concludes: “Percentage

                                              -6-
formulas are meaningless in a case like this[,] [and] the disputed area is not ‘relatively small’
in any sense of the word.” Under the facts before us, we agree. Accordingly, the exception
created in Cumulus does not apply to prevent application of the statutory bar to Plaintiff’s
claim of adverse possession.

       At this juncture, we briefly discuss Plaintiff’s alternative claim that he is entitled to
a prescriptive easement over the disputed area. Again, Cumulus is instructive. Therein, the
High Court discussed prescriptive easements as follows:

                 A doctrine related to adverse possession is that of prescriptive
                 easement[. . . .]. Generally, this easement arises when a use, as
                 distinguished from possession, is adverse rather than permissive,
                 open and notorious, continuous and without interruption, and for
                 the requisite period of prescription. The extent of the rights
                 matured by prescription is based upon the extent of the use
                 during the period of prescription.

                 Most authorities describe the doctrine of adverse possession and
                 that of prescriptive easement as “blended” but with differing
                 histories; the primary distinction is that the adverse possessor
                 occupied the land of another, whereas, in prescription, there is
                 merely adverse use of the land of another. A prescriptive
                 easement is not ownership and the right acquired is limited to
                 the specific use.

                 In order to establish prescriptive easement under the common
                 law of this state, the usage must be adverse, under claim of right,
                 continuous, uninterrupted, open, visible, exclusive, and with the
                 knowledge and acquiescence of the owner of the servient
                 tenement, and must continue for the full prescriptive period.
                 The requisite period of time of continuous use and enjoyment
                 for a prescriptive easement is twenty years.

Id. at 378-79.

        Again, in his complaint, Plaintiff generally alleges that he has used the disputed area
as land for his family garden and as a play area for his children. With little more elaboration,
Plaintiff claims that as a result of his adverse “possession” of the disputed area for over forty-
two years, he is “entitled to a Prescriptive Easement over the land . . . for his exclusive use
and enjoyment.” In this manner, Plaintiff does not seek simply the right to cross over the

                                                 -7-
Janoyan lot for any certain purpose or continued use, but sole possession of the entirety of
the disputed area. Janoyan characterizes Plaintiff’s easement claim as nothing more than “an
adverse possession claim in disguise.” We agree. As a result, we conclude that Plaintiff’s
prescriptive easement claim is essentially the same adverse possession with a new name. It
is likewise barred.

       Based on the foregoing, the trial court correctly held that “Plaintiff’s claims to any
legal or equitable interest in the disputed property are barred by Tenn. Code Ann. § 28-2-
110(a).” The trial court properly granted summary judgment in favor of Defendants as a
matter of law. We reject Plaintiff’s arguments to the contrary.

                                             V.

      The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Walter Allen Gault. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the court’s judgment and the collection of costs assessed below.




                                            _____________________________________
                                             CHARLES D. SUSANO, JR., CHIEF JUDGE




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