        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE                   FILED
                                                  September 29, 1999

CUMBERLAND BEND                     )             Cecil Crowson, Jr.
INVESTORS, L.P.,                    )            Appellate Court Clerk
                                    )
      Plaintiff/Appellee,           )
                                    )    Appeal No.
                                    )    01-A-01-9810-CH-00543
VS.                                 )
                                    )    Davidson Chancery
                                    )    95-3303-I
AMBROSE PRINTING                    )
COMPANY, INC.,                      )
                                    )
      Defendant/Appellant.          )


  APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                AT NASHVILLE, TENNESSEE

      THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



NANCY S. JONES
MICHAEL G. STEWART
WALLER LANSDEN DORTCH & DAVIS
511 Union Street, Suite 2100
Nashville, Tennessee 37219-8966
     Attorneys for Plaintiff/Appellee

ANTHONY J. MCFARLAND
BASS, BERRY & SIMS PLC
2700 First American Center
Nashville, Tennessee 37238-2700
      Attorney for Defendant/Appellant



                      AFFIRMED AND REMANDED



                                         BEN H. CANTRELL,
                                         PRESIDING JUDGE, M.S.

CONCUR:
CAIN, J.
COTTRELL, J.
                                OPINION



             Ambrose Printing Company, Inc. claimed a parking easement by

prescription or by implication in a lot across the street from its office building.

The owner of the lot, Cumberland Bend Investors, L.P., sought a declaratory

judgment on Ambrose’s claim. The Chancery Court of Davidson County granted

summary judgment to Cumberland Bend. We affirm.



                                        I.



             In 1976 Ambrose leased a building in a commercial development

in Nashville called MetroCenter. The owner agreed to furnish 100 parking

spaces, either adjacent to the leased building or on the owner’s lot across the

street. The owner elected to designate a large lot across the street where

Ambrose’s employees could park, along with the customers of other businesses

in the area. No particular spaces were designated for Ambrose’s use.



             The building leased by Ambrose and the lot across the street were

subsequently transferred to different owners. In 1980, in order to facilitate the

sale of the parking lot, Ambrose was asked to acknowledge that its parking needs

would thereafter be filled only on a lot adjacent to its building on the same side

of the street. Mr. Ambrose executed a certificate acknowledging that the

landlord had designated another area to fulfill the obligation to provide Ambrose

with 100 parking spaces.




                                       -2-
             Apparently the new parking spaces never materialized, and

Ambrose’s employees continued to share the parking lot across the street. In

1981 Mr. Ambrose wrote to the owner of the parking lot about the situation. His

letter ends with this sentence: “I assume we can continue to park there until we

hear from you to the contrary.”



             In 1982 Ambrose bought its building. The deed does not convey

any property other than the building and the lot upon which it stands; it does not

mention any additional parking spaces.



             On July 13, 1988, the owner of the parking lot physically prevented

Ambrose’s employees from parking there. The secretary of the Ambrose

Corporation wrote to the owner’s agent, asserting a right to an unspecified

number of parking spaces in the disputed lot, based on the original lease. On

September 26 of the same year, the owner of the lot expressly granted Ambrose’s

employees, guests, and invitees permission to park on the paved portion of the

lot. The owner reserved the right to redesignate the parking area to another site

on five days written notice.



             The Ambrose employees continued to park on the lot despite minor

skirmishes over the right to do so. Finally, in 1994 Cumberland Bend, which had

purchased the parking lot in 1992, filed this action for a declaratory judgment

that Ambrose had no right or interest in the parking lot. The Chancery Court of

Davidson County granted Cumberland Bend summary judgment.




                                       -3-
                                        II.

                        An Easement by Prescription



             Ambrose claims a prescriptive easement to 100 parking spaces on

Cumberland Bend’s lot. Contrary to Cumberland Bend’s argument, which

consumes most of its brief, Ambrose does not insist that it has acquired its rights

by seven years adverse possession. Ambrose concedes that to affirmatively

establish an easement, the adverse holder must show adverse use for a period of

twenty years. See McCammon v. Meredith, 830 S.W.2d 577 (Tenn. App. 1991),

and the use must be “adverse, under claim of right, continuous, uninterrupted,

open, visible, exclusive, and with the knowledge and acquiescence of the owner

of the servient tenant, and must continue for the full prescriptive period . . . .”

House v. Close, 346 S.W.2d 445 at 447 (Tenn. App. 1961).



             Ambrose contends, however, that once the adverse use has started,

the owner’s right to stop it will be barred after seven years by Tenn. Code Ann.

§ 28-2-103. That Code section provides: “No person or anyone claiming under

him shall have any action, either at law or in equity, for the recovery of any

lands, tenements, or hereditaments, but within seven (7) years after the right of

action accrued.”



             In Shearer v. Vandergriff, 661 S.W.2d 680 (Tenn. 1983), our

Supreme Court applied Tenn. Code Ann. § 28-2-103 to an action to compel the

defendants to remove a fence which prevented the plaintiffs from using an

easement. In that case the parties owned adjoining land with a thirty foot right



                                       -4-
of way running between them. The center line of the right of way ran along the

property line. One of the owners erected a fence down the middle of the right of

way and more than seven years passed without any action being taken to have the

obstruction removed.



             The plaintiffs argued that Tenn. Code Ann. § 28-2-103 did not apply

to suits involving easements, since twenty years of adverse use was required to

extinguish the easement as well as to establish it. See Boyd v. Hunt, 102 Tenn.

495, 52 S.W. 131 (1899). The Supreme Court rejected this contention, however,

and said:

                    We think this reliance also misconstrues the
             inter-relation of the decisional law of prescriptive
             creation and prescriptive extinguishment of rights-of-
             way and the limiting provisions of T.C.A. § 28-2-103
             in suits thereon.

                                *     *      *

             Under the holding in Boyd, a right-of-way may be
             extinguished by twenty (20) years adverse use. Under
             T.C.A. § 28-2-103, a suit to abate this adverse use
             must be brought within seven (7) years from the time
             the cause of action arose or the right of action is
             barred. In the interim period of time between the
             seven (7) years and twenty (20) years, if the adverse
             holding ceases, the person who has the right-of-way
             may resume his use, as the right-of-way still exists.
             On the other hand he may not bring an action to abate
             the adverse use during that period and if the adverse
             use continues for twenty (20) years, the right-of-way
             is extinguished.

661 S.W.2d at 682.



             Ambrose argues that Shearer v. Vandergriff is authority for its

position: that once seven years has passed, the owner of the servient tenement



                                      -5-
cannot interfere with the adverse use, which will ripen into an easement after

twenty years.



               We think, however, that Ambrose is mistaken, for two reasons.

First, subsection (b) of Tenn. Code Ann. § 28-2-103 provides that the adverse

possession shall not be deemed to extend beyond the actual possession of the

adverse holder until some muniment of title is recorded. See Moore v. Brannan,

304 S.W.2d 660 (Tenn. 1957). Since Ambrose has never had actual possession

of any particular part of the parking lot, the statute does not provide a defense to

this action.



               Second, beyond the obvious language of the statute, this case is the

reverse of Shearer v. Vandergriff. In Shearer the adverse possession covered a

part of an established easement. After seven years, the statute operated to bar an

action to have the obstruction removed. Here, the action was brought for a

declaration that Ambrose did not have an easement (or to prevent Ambrose’s

claim from ripening into an easement). If an action for that purpose is barred

after seven years, the time required for establishing a prescriptive easement has

effectively been shortened from twenty years to seven years. After seven years

the adverse user would be home free, so long as he could hold on for thirteen

more years. We think the distinction we make here is implicit in the Supreme

Court’s language in Shearer, where the court referred to the differences in “the

decisional law of prescriptive creation and prescriptive extinguishment of rights-

of-way.” 661 S.W.2d at 682. Thus, Tenn. Code Ann. § 28-2-103 is not a bar to

this action.



                                        -6-
               The undisputed facts in this case show that at least until 1980

Ambrose was using the parking lot with the permission of the owner. Its lease

provided that the owner would furnish the 100 parking spaces. In 1980 Ambrose

acknowledged that it did not have any right to park on the lot across the street

(apparently on the promise of the owner that the additional parking would finally

be provided next to the building.) Only after the additional lots were not

provided did Ambrose claim a right to the continued use of the parking lot.

Therefore, regardless of all the other questions about whether the use was

permissive or uninterrupted, Ambrose cannot show twenty years of adverse use.



                                         II.

                          An Easement by Implication



               When a parcel of property is divided, an easement by implication

preserves “all those continuous and apparent easements which have in fact been

used by the owner during the unity of ownership and possession.” Powell v.

Riley, 83 Tenn. 153 at 159 (1885). In Allison v. Allison, 193 S.W.2d 476 (Tenn.

App. 1945), the Court outlined the three essential factors for an easement by

implication:

                     “First, unity and a separation of the title;
               second, that before the separation takes place, the use
               which gives rise to the easement shall have been so
               long continued and so obvious as to show that it was
               meant to be permanent; and third, that the easement
               shall be [reasonably] necessary to the beneficial
               enjoyment of the land granted or retained.” Rollo v.
               Nelson, 34 Utah 116, 96 P. 263, 26 L.R.A., N.S. 315,
               324.

193 S.W.2d at 478.



                                        -7-
             We are satisfied that the undisputed facts in this case show that the

first two factors are absent. When Ambrose purchased its building in 1982, title

to the lot across the street had already passed to another owner. Ambrose had

disclaimed any right to park on that lot in order to facilitate the sale. Therefore,

Ambrose’s vendor was no longer the owner of the parking lot, and the need for

the parking spaces on that particular lot were not so obvious as to show that the

right to park there would be permanent.



             The judgment of the court below is affirmed and the cause is

remanded to the Chancery Court of Davidson County for any further proceedings

that may be necessary. Tax the costs on appeal to the appellant.




                                        ______________________________
                                        BEN H. CANTRELL,
                                        PRESIDING JUDGE, M.S.


CONCUR:



_____________________________
WILLIAM B. CAIN, JUDGE



_____________________________
PATRICIA J. COTTRELL, JUDGE
