                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                               SEPTEMBER 17, 2008 Session

        DALE ANTHONY SCOTT, ET AL. v. MARION YARBRO, ET AL.

                 Direct Appeal from the Chancery Court for Decatur County
                          No. 3325    Ron E. Harmon, Chancellor



                    No. W2008-00090-COA-R3-CV - Filed October 15, 2008


This is the third appeal of this property case involving the ownership of three parcels of real property
held by tenants-in-common. We dismissed the first two appeals for lack of jurisdiction, finding that
the trial court's order did not constitute a final judgment. Plaintiffs/Appellants claim ownership of
the disputed tract by three modes: (1) title by prescription, (2) title by adverse possession, and (3)
title by payment of property taxes pursuant to Tenn. Code Ann. §§ 28-2-109 and 29-2-110. Finding
that Plaintiffs/Appellants have failed to meet their burden to prove ownership based upon any of the
three theories, we affirm.

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

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

J. Michael Ivey, Parsons, TN, for Appellants

Lloyd R. Tatum, Henderson, TN, for Appellees
Tommy E. Doyle, Linden, TN, for Appellees

                                              OPINION

        This property case is on appeal to this Court for the third time. See Scott v. Yarbro, No.
W2004-00746-COA-R3-CV, 2005 WL 1412128 (Tenn Ct. App. June 15, 2005) (“Scott I”); Scott
v. Yarbro, No. W2005-02830-COA-R3-CV, 2007 WL 121425 (Tenn. Ct. App. Jan. 19, 2007)
(“Scott II”). The underlying facts and pertinent procedural history were set forth in Scott I, and are
as follows:

               This [case] concerns the ownership of a parcel of real property (“the
               Farm”) located in Decaturville, Decatur County, Tennessee. Dover
               Scott (“Decedent”) was one of six children who inherited a one-sixth
               (1/6th) interest in the Farm following his father's death. Thereafter,
Decedent purchased the interests of other relatives in the Farm giving
him title to a significant portion of the Farm at his death. Decedent
died on May 27, 1999, survived by his four sons (collectively referred
to as the “Decedent's Children” or “[Plaintiff/] Appellants”). At issue
in the trial court below were three parcels of real property
encompassing the Farm; a 1.2 acre tract, a 3.1 acre tract, and a 188
acre tract. The Decedent's Children inherited the Decedent's interest
in the Farm, represented by deeds he obtained during his lifetime,
however, they contend that they also obtained title to the remaining
land encompassing the Farm. Numerous relatives of the Decedent's
Children are co-tenants (hereinafter “Defendants” or “Appellees”) in
the remainder of the Farm and assert their interest to the property as
well.

The facts are largely undisputed, and they are set forth in a
“Stipulation of Facts” entered into between the parties. From 1953
until his death in 1999, Decedent lived on the Farm with the
Appellants in a house built in the 1930's, farmed the land and retained
the profits therefrom, rented portions of the Farm to other tenants and
retained the rent proceeds, paid the expenses for the Farm, made
improvements to the Farm, and paid the property taxes on the Farm
since 1966. After Decedent and his family took possession of the
Farm in 1953, none of the other co-tenants lived on the Farm, paid for
any of the expenses related to maintaining the Farm, shared in the
profits generated by the Farm, or contributed to the payment of the
property taxes. During the course of his occupancy, Decedent
executed three mortgages identifying his interest in the Farm as a
“5/12ths interest.” Decedent never discussed the status of the Farm
with the other co-tenants, and he never expressly stated that he
considered himself to be the sole owner of the Farm.


On April 5, 2002, the Decedent's Children filed a complaint in the
Chancery Court of Decatur County against the other co-tenants. In the
complaint, the Decedent's Children requested a judgment allowing
them to “recover from Defendants jointly and severely [sic] damages
which may be shown by proof to have been sustained by the Plaintiffs
for Defendants' wrongfully [sic] and intentional trespassing.”
Additionally, the Decedent's Children asserted that they obtained title
to the Farm by adverse possession pursuant to section 28-2-101 et
seq. of the Tennessee Code and/or the co-tenants' failure to pay the
property taxes due on the Farm pursuant to section 28-2-109 and
section 28-2-110 of the Tennessee Code. The co-tenants subsequently


                                 -2-
              answered the complaint and filed their counterclaims against the
              Decedent's Children and cross-claims against each other asserting a
              right to partition the property pursuant to section 29-27-101 and
              section 29-27-201 of the Tennessee Code. Thereafter, each party
              submitted a “Memorandum of Law” to the trial court. In their
              “Memorandum of Law,” the Decedent's Children, in addition to the
              adverse possession and property tax theories of ownership asserted in
              their complaint, also asserted ownership of the Farm based on
              common law prescription.

Scott I, 2005 WL 1412128 at *1 (footnotes omitted).

       The procedural history of the case prior to the instant appeal is set out in Scott II:

              Prior to the first appeal, the trial court entered a “Decree” in which
              the trial court found that the Plaintiffs/Appellants Decedent's Children
              had proven an ouster as to the 1.2 acre and 3.1 acre tracts, but not as
              to the 188 acre tract. The trial court ordered that the 188 acre tract be
              sold for partition and that the proceeds be distributed among the
              parties according to their respective interests. The Decedent's
              Children filed an appeal from this order, asking this Court to
              determine whether they obtained title to the 188 acre tract by adverse
              possession, common law prescription, or pursuant to Tennessee Code
              Annotated §§ 28-2-109 and 28-2-110.

              On June 15, 2005, this Court filed a “Memorandum Opinion”
              dismissing the first appeal for lack of appellate jurisdiction and
              remanding the case to the trial court for further proceedings. We
              determined that the original decree was not a final judgment.... We
              noted as well that the trial court, in determining that the Decedent's
              Children did not gain title to the 188 acre tract, made no findings of
              fact or conclusions of law, and did not address any particular theory
              of achieving title, finding only that the Decedent's Children failed to
              prove an “ouster.” Id. at *4 n. 8. Further, we observed that, while the
              common law prescription theory of ownership was not alleged in the
              original or amended complaints, it had likely been tried by express or
              implied consent under Rule 15.02 of the Tennessee Rules of Civil
              Procedure. Id. at *4 n. 7. The cause was remanded to the trial court.
              Following the remand in Scott I, the trial court entered a
              “Supplemental Final Decree” on November 18, 2005. In Scott II, this
              Court determined that the November 18, 2005 Order did not
              constitute a final judgment as to the issue of common-law
              prescription on the 188-acre tract and the case was again remanded.


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               Scott II, 2007 WL 121425, at *5. Upon remand, the trial court
               entered a third decree, which was filed on December 6, 2007. The
               Final Decree reads, in relevant part, as follows:

               6. There is no proof in the Stipulations of Fact or in the record that
               Dover Scott’s occupancy of the property in question was without the
               actual or implied permission of the other co-tenants. To the
               contrary...the Stipulations of Fact state[] “that Dover Scott, or his
               children, the Plaintiffs herein, never mentioned anything about the
               status of the farm to the other co-tenants owners.”

               *                                  *                               *

                       Because there is no proof in the Stipulations of Fact or in the
               record that Dover Scott’s occupancy of the property in question was
               without the actual or implied permission of the other co-tenants, the
               Court finds that the Plaintiffs fail[] to satisfy that part of the elements
               necessary to establish title by prescription....

                        Also, because there is no proof in the Stipulations of Fact or
               in the record on the issue of disability in general and in particular no
               proof that all of these Defendants were under no disability to assert
               their rights, the Plaintiffs also fail to prove this element necessary to
               establish title by prescription.

               *                                        *                          *

                       Therefore, the Plaintiffs failed to prove the elements necessary
               to establish a claim under the doctrine of title by prescription.

                      This is declared a Final Judgment within the meaning of rule
               54.02 of the Tennessee Rules of Civil Procedure and the Court makes
               an expressed determination that there is no just reason for delay.

        The children of Dover Scott appeal this (now) final decree and raise two issues for review
as stated in their brief:

               I. Whether the Plaintiffs have acquired title to the remaining interest
               of the property by prescription or adverse possession.

               II. Whether the Plaintiffs have acquired title to the remaining interest
               of the property through T.C.A. §28-2-110 and/or T.C.A. §28-2-109.



                                                  -4-
        Because this case was tried by the court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court. Unless
the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn.
R.App. P. 13(d). Furthermore, when the resolution of the issues in a case depends upon the
truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses and their
manner and demeanor while testifying is in a far better position than this Court to decide those
issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn.Ct.App.1997). The weight, faith, and credit to be given to any witness'
testimony lies in the first instance with the trier of fact, and the credibility accorded will be given
great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959
(Tenn.1997).

        In this case, we are only concerned with the ownership of the 188-acre tract. Dover Scott’s
children claim title to this tract by three modes: (1) title by prescription, (2) title by adverse
possession, and/or (3) title pursuant to Tenn. Code Ann. §§ 28-2-109 and 28-2-110. We will address
each of these methods of obtaining title in order to determine whether Dover Scott’s children have
provided evidence sufficient to prove their claim.

                                       Title by Prescription

     The law of title by prescription was recently discussed by this Court in Amos v. Taylor, No.
M2006-02170-COA-R3-CV, 2008 WL 1891443 (Tenn. Ct. App. April 28, 2008):

                        “Title by prescription” is a mode of acquiring title to real
               property by “immemorial or long-continued enjoyment.” Zetrouer v.
               Zetrouer, 89 Fla. 253, 256, 103 So. 625, 627 (Fla.1925). The term
               “prescription” derives from the term “prescribe,” which in the
               non-medical sense means to “assert a right or title to the enjoyment
               of a thing, on the ground of having hitherto had the uninterrupted and
               immemorial enjoyment of it.” Black's Law Dictionary 4th Ed. Rev.
               (1968), p. 1345.

                        The original theory underlying the right of title by prescription
               was that “the right claimed must have been enjoyed beyond the period
               of the memory of man, which for a long time in England went back
               to the time of Richard I.” Zetrouer, 103 So. at 627. Because proving
               “continued enjoyment” of the property back to the time of Richard I
               was becoming more problematic with the passage of time, a custom
               arose of “allowing a presumption of a grant” on proof of “usage for
               a long term of years.” Id.




                                                  -5-
        The doctrine of title by prescription in Tennessee can be
traced to the 1860 case of Marr's Heirs v. Gilliam, 41 Tenn. 488
(Tenn.1860). In that matter the Tennessee Supreme Court stated:

       It is ... well settled that the exclusive and
       uninterrupted possession by one tenant in common of
       land for a great number of years-say for twenty or
       more-claiming the same as his own, without any
       account with his co-tenants, or claim on their
       part,-they being under no disability to assert their
       rights,-becomes evidence of a title to such sole
       possession, and the [fact finder is] authorized to
       presume a release, an ouster, or other thing necessary
       to protect the possessor....

 Marr's Heirs, 41 Tenn. at 501. As the Court of Appeals explained
110 years later, possession of land is prima-facie evidence of title and
“the law supposes that it had a legal origin.” Morgan v. Dillard, 456
S.W.2d 359, 362 (Tenn.Ct.App.1970). In Tennessee, such possession
must remain “undisturbed for the period of twenty years,” and if it
does, the undisturbed possession becomes “an assurance of title of no
less force or efficacy than the actual grant whose place it supplies.”
Id.

        If a plaintiff can prove the requisite “long-continued use and
enjoyment” of the property, a presumption of title by prescription
arises. Morgan v. Dillard, 456 S.W.2d 359, 362 (Tenn.Ct.App.1970)
(citing Cannon v. Phillips, 34 Tenn. 211, 214 (1854)) (emphasis
added); Brown v. Daly, 83 S.W.3d 153, 159 (Tenn.Ct.App.2001)
(quoting Livesay v. Keaton, 611 S.W.2d 581, 583
(Tenn.Ct.App.1980) (holding that if the party asserting title has
proven both essential elements, “a presumption of title may arise in
favor of the possessor of the land”). The “presumption” of title rests
upon the simple fact of long-continued use and enjoyment. Morgan,
456 S.W.2d at 362. The presumption that results from the
long-continued possession and use is not founded upon the idea that
as a matter of fact a grant once existed, “it rests alone upon a
principle of public policy, to quiet the title of those who can show no
other title than long-continued possession and use.” Id. (quoting
Cannon v. Phillips, 34 Tenn. 211, 214 (Tenn.1854)).

       The presumption of title, however, may be rebutted by
evidence that the possession was by the permission or indulgence of


                                  -6-
               the other co-tenants. Walker v. Moore, 745 S.W.2d 292, 295
               (Tenn.Ct.App.1987); Morgan, 456 S.W.2d at 363. It may also be
               rebutted by the fact one or more of the co-tenants were under a
               disability, such as the disability of minority during the requisite
               twenty year period. Walker, 745 S.W.2d at 298. Moreover,
               “disabilities may accumulate to rebut the presumption, which is
               unlike the statute of limitations (the doctrine of adverse possession).”
               Id. (citing Marr's Heirs v. Gilliam, 41 Tenn. 488 (Tenn.1860)....

                       To establish title by prescription between or among
               co-tenants, the parties asserting title must prove two elements. Brown
               v. Daly, 83 S.W.3d 153, 157 (Tenn.Ct.App.2001); Livesay, 611
               S.W.2d at 583; Morgan, 456 S.W.2d at 361. First, the prescriptive
               holder must show exclusive and uninterrupted possession of the land
               in question for more than twenty years, during which time he must
               claim the same as his own without any accounting to his co-tenants
               or claim on their part. Livesay, 611 S.W.2d at 583 (citing Morgan,
               456 S.W.2d at 361). Second, the party asserting title must also show
               that none of the co-tenants were under a disability to assert their
               rights to the property. Id. ... Both elements must be proven for the
               doctrine of title by prescription to apply. Brown, 83 S.W.3d at 157
               (quoting Livesay, 611 S.W.2d at 583).... If one of the elements is not
               proven, then the doctrine is not applicable to the case. Livesay, 611
               S.W.2d at 584.

Amos v. Taylor, 2008 WL 1891443, at *4-5 (footnotes omitted).

        The record contains no evidence that Dover Scott made any statements, or took any actions
toward the other heirs indicating that he claimed full ownership of the disputed tract. Although there
is no evidence that the Yarbros ever attempted to use the tract, the children of Dover Scott stipulate
that they have no knowledge of the Yarbros ever being barred from going onto or otherwise using
the disputed tract. In fact, in the three deeds of trust that Dover Scott executed, he asserts that he
only owns an undivided 5/12ths interest in the farm: “This being the land owned by my father, Will
Scott, at the time of his death, and which I inherited a 1/6th undivided interest by my sister...and
which I was conveyed a 1/12 undivided interest by Paul Scott....” Furthermore, there is no proof in
either the Stipulations of Fact, or in the record, on the issue of any disability of the Defendants.
Based upon the evidence in record, we conclude that the children of Dover Scott have not met their
burden to prove ownership of the 188-acre tract by prescription. Specifically, they have failed to
show exclusive possession of the land, and have provided no evidence concerning the disability
criterion. Livesay, 611 S.W.2d at 583.

                                   Title by Adverse Possession



                                                 -7-
        To establish title by adverse possession, there must be an occupation of the property under a
claim of right or title which is open, actual, continuous, exclusive, adverse and notorious for the
prescriptive period of 20 years. Catlett v. Whaley, 731 S.W .2d 544, 546 (Tenn.Ct.App.1987); see
also Tidwell v. Van Deventer, 686 S.W.2d 899 (Tenn.Ct.App.1984). Adverse possession must be just
that-adverse. This Court has held that, in order to be adverse, possession “must be of such a character
as to leave no doubt of claim of ownership by adverse possession and to give notice to the public of
the possession and the claim.” Blankenship v. Blankenship, 658 S.W.2d 125, 127
(Tenn.Ct.App.1983). We have also held that the party claiming ownership by adverse possession
“must sustain the proposition that the possession was in fact adverse to the true owner.” Bynum v.
Hollowell, 656 S.W.2d 400, 403 (Tenn.Ct.App.1983). Under Tennessee law, the burden of
establishing by clear and positive proof such adverse possession is on the adverse possessor. See
Whitworth v. Hutchison, 731 S .W.2d 915, 917 (Tenn.Ct.App.1986) (citing Jones v. Coal Creek
Mining and Mfg. Co., 180 S.W. 991 (Tenn.1915); Davis v. Louisville & N.R. Co., 244 S.W. 483
(Tenn.1922)). This rule applies to both the length of time and the character of possession. Id.
Evidence of adverse possession is strictly construed and any presumption is in favor of the holder of
the legal title. Moore v. Brannan, 304 S.W.2d 660, 667 (Tenn.Ct.App.1959).

         Much of the evidence (or lack thereof) discussed in the prescription section above is equally
applicable to Plaintiffs/Appellants’ claim of ownership through adverse possession. Specifically,
there is no proof that the Yarbros were excluded from the farm, or that Dover Scott held this property
in contravention of the rights of any other co-tenant. In fact, Dover Scott purchased the undivided
interests of three of the co-tenants.1 One claiming title by adverse possession would not purchase the
interests of his or her co-tenants; rather, the doctrine dictates that the person claiming adverse
possession has exercised his or her claim to the land in a manner that is actually adverse to the rights
and interests of the other tenants. Perhaps more important than Dover Scott’s purchase of the
interests of some of his co-tenants is the fact that he never claimed full ownership of the tract. In
three separate deeds of trust executed by Dover Scott and his wife in favor of Decatur County Bank,
the Scotts’ interest in the disputed tract is described as an “undivided 5/12th interest.” From the
record, we conclude that the children of Dover Scott have failed to meet their burden to show title by
adverse possession.

                               Title based on payment of real estate taxes

        Tenn. Code Ann. § 28-2-109 provides:

                 Any person holding any real estate or land of any kind, or any legal or
                 equitable interest therein, who has paid, or who and those through
                 whom such person claims have paid, the state and county taxes on the
                 same for more then twenty (20) years continuously prior to the date
                 when any question arises in any of the courts of this state concerning


        1
           The record contains deeds from Velora Scott Fisher (dated January 3, 1962), Marva Scott Jackson and Doris
Scott (dated March 13, 1963), and Paul Scott (dated August 17, 1965).

                                                        -8-
               the same, and who has had or who and those through whom such
               person claims have had, such person's deed, conveyance, grant or other
               assurance of title recorded in the register's office of the county in
               which the land lies, for such period of more than twenty (20) years,
               shall be presumed prima facie to be the legal owner of such land.

Tenn. Code Ann. § 28-2-110 provides, in relevant part:

               (a) 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.

         Although Tenn. Code Ann. §§ 28-2-109 and 28-2-110 provide the basis for a prima facia case
of ownership, the presumption is rebuttable. In Phillips v. Pittsburgh Consolidated Coal, 541
S.W.2d 411 (Tenn 1976), our Supreme Court made it clear that Tenn. Code Ann. § 28-2-110 “does
not bar a suit by one tenant in common against another tenant in common who has paid such taxes
unless the plaintiff has been disseised or ousted by the defendant.” Id. at 413. In Burress v.
Woodward, 665 S.W.2d 707 (Tenn. 1984) (upon which Plaintiffs/Appellants rely), the Court stated
that “nothing in § 28-2-110 prevents Defendants from defending their title. The failure to pay taxes
for twenty years does not automatically cause Defendants to be ejected....T.C.A. § 28-2-110 does not
affect title or destroy rights....” Id. at 709. Although we may concede that Plaintiffs/Appellants have
satisfied Tenn. Code Ann. § 28-2-109 by showing the payment of property taxes for the statutory
period, this showing creates only a rebuttable presumption of ownership. Here, the Yarbros have,
indeed, rebutted the presumption in defending their alleged ownership interest. Consequently, the
burden shifts back to the Scotts to show that the Yarbros have otherwise been “disseised or ousted”
from the property. Phillips, 541 S.W.2d at 413. The evidence in the record does not support such
a finding in this case. Consequently, the Scotts failed to satisfy their burden once the Yarbros
rebutted the Scotts’ claimed ownership.

       For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are
assessed equally to the Appellants, Dale Anthony Scott, Michael Ronnell Scott, Danny Ray Scott,
Terry Eugene Scott, and their respective sureties.


                                                       ___________________________________
                                                       J. STEVEN STAFFORD, J.




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