                                 IN THE COURT OF APPEALS
                                       AT KNOXVILLE
                                                                         FILED
                                                                        September 30, 1998

                                                                     Cecil Crowson, Jr.
EVA L. MILES                                  )       JEFFERSON COUNTY
                                                                     Appellate C ourt Clerk
                                              )       03A01-9711-CH-00500
        Plaintiff-Appellant                   )
                                              )
                                              )
        v.                                    )       HON. C. S. RAINWATER, JR.,
                                              )       CHANCELLOR
                                              )
                                              )
MARJORIE M. NELSON                            )
                                              )
        Defendant-Appellee                    )       AFFIRMED AND REMANDED




WILLIAM A. ZIERER OF MORRISTOWN FOR APPELLANT

JAMES D. HUTCHINS OF DANDRIDGE FOR APPELLEE




                                  OPINION




                                                                      Goddard, P.J.




                In this case Plaintiff Eva L. Miles sues Defendant Marjorie M. Nelson to have

decreed to her a triangular strip of land which is not encompassed in the deed to her and her

husband. It is, however, included in the deed to Mrs. Nelson and her husband. The Plaintiff

asserts that because she has adversely possessed the disputed area for a period of almost 39 years,

she is entitled to prevail.



                The Trial Court found that the Plaintiff did not prove her claim by clear and

positive proof and, consequently, dismissed her suit.
                Her appeal insists that the evidence preponderates against the Trial Court's

determination that she did not meet her burden of proof.



                The parties own adjoining lots in the Cherokee Lakes Subdivision in Jefferson

County. The Plaintiff owns Lot 9 and the Defendant owns lot 10. The descriptions in the deeds

to both lots refer to a recorded plat and also describes the lots by metes and bounds which, as to

the length of all lot lines and as to the calls as to the front and rear lines, is in conformity with the

recorded plat.1 The Plaintiff and her husband acquired her property from the developer of the

subdivision by deed dated August 13, 1958, and the Plaintiff succeeded to the ownership of the

property upon the death of her husband. The Defendant and her husband acquired the property

by deed dated December 27, 1967, and she also succeeded to the ownership upon the death of her

husband.



                Apparently the parties lived side by side in harmony from the date the Nelsons

purchased the property until May 1997, when, because of the illness of the Defendant, her

daughter and her son-in-law decided to move into the basement of her house so that they might

be in a position to better care for her and see after her needs. Incident to this planned move they

decided to construct a driveway on the property to serve the basement apartment. When a survey

was made of the Defendant's property, it was discovered that a triangular strip of land fronting

approximately 5.8 feet on the road and extending back some 160 feet was in fact a part of lot 10,

although both the Plaintiff and the Defendant had always thought it was a part of lot 9.



                The Defendant and her husband through the years evidenced ownership of the

area in question by planting flowers, shrubs and trees, both fruit and flowering. They had mowed

the area, placed their mailbox on it, and dug a drainage ditch near the road. Mr. Miles had also

cut a tree which was on the boundary line of the property the Plaintiff claims. The restrictions as


        1
                T h e   p l a t   d o e s   n o t   s h o w   t h e       c a l l s   f o r   t h e   s i d e   l o t   l i n e s .

                                                                      2
to the subdivision prevented lot owners from erecting a fence higher than two feet, but no fence

was ever erected by the Mileses. During their ownership, the Mileses had never prevented

anyone from crossing the property in dispute.



                        As already noted, the Trial Court found that the above facts of ownership shown,

which were undisputed, did not meet the requirements for adverse possession.



                        The Chancellor was correct in finding the Plaintiff bore the burden of proving by

clear and positive proof, McCammon v. Meredith, 830 S.W.2d 577 (Tenn.App.1991); Tidwell v.

Van Deventer, 686 S.W.2d 899 (Tenn.App.1984), that she met the requirements necessary to

establish title by adverse possession.2 These requirements are set out in Catlett v. Whaley, 731

S.W.2d 544, 546 (Tenn.App.1987), a recent opinion of this Court, as follows:



                   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. Tidwell
            v. Van Deventer, 686 S.W.2d 899 (Tenn.App.1984); Smith v. Adkison, 622
            S.W.2d 545 (Tenn.App.1981); and Preston v. Smith, 41 Tenn.App. 222, 293
            S.W.2d 51 (1955).

                   The nature and character of the land is taken into consideration in
            determining whether the claimant's possession has been sufficient to establish
            ownership. (Citations omitted.)



                        Our research has disclosed cases which hold that as to mountain land and the like,

Panter v. Miller, 698 S.W.2d 634 (Tenn.App.1985), or where the erecting of a fence would

destroy the principal utility of a particular piece of property, Lamons v. Mathes, 33 Tenn.App.

609, 232 S.W.2d 558 (1950), a fence is not required.




            2
                         T h e c      a s e    o f H a n e s v . P e c k ' s L e s s e e , 8 T e n n . 2 2 7 ( 1 8 2 7 ) , i s o n e o f
t h e f i r s t      T e n n e s s   e e c      a s e s t o e n u n c i a t e t h e r u l e o f " p r e s u m i n g a l o s s g r a n t "
( w h i c h i s     t h e p r e      d e c e     s s o r o f p r e s u m i n g a l o s t d e e d ) b y p o s s e s s i n g p r o p e r t y
a d v e r s e l y    f o r a p       e r i o   d o f 2 0 y e a r s .

                                                                           3
               Beginning as early as 1878, in Pullen v. Hopkins, 69 Tenn. 741 (1878), our

Supreme Court, when addressing adverse possession as it relates to our color of title defensive

statute states the general rule, notes exceptions, and concludes that the general rule requiring

enclosure should not be extended (at page 744):



               It is generally recognized as the law in this State that actual possession for
       seven years is necessary to give the younger grantee the better title under our act
       of 1819, and actual possession is generally understood to mean an enclosure by
       building fences, or other similar improvements. This goes upon the theory that
       the possession must be continuous, and open, and notorious; that is, by such acts
       of possession as give notice to the public that the party is holding possession
       under a claim of title, and in general nothing short of actual enclosure will be
       regarded as sufficient evidence of the continuous occupation of the land as to give
       notice to the public of the adverse holding. See the subject discussed in Angell on
       Lim., sec. 396. Some exceptions have been made to this rule, and the extent to
       which these exceptions have gone, or ought to go, is the question now presented.

               In West v. Lanier, 9 Hum., 762, it appeared that the land was only valuable
       for the timber and iron ore upon it, and Lanier placed slaves upon the land who
       cut timber and removed iron ore therefrom from time to time to supply a factory
       near by, but did not reside upon the land, build houses for the slaves, or make any
       enclosures; his possession, however, we held equivalent to actual possession. The
       court adopted the language used in Ewing v. Burnett, 11 Peters, as follows: "An
       entry by one man upon the land of another is an ouster of the legal possession
       arising from the title or not, according to the intention with which it is done. If
       made under claim or color of right, it is an ouster; otherwise, it is a mere trespass.
       In legal language, the intention guides the entry and fixes its character." Again,
       "neither actual cultivation or residence is necessary to constitute actual possession
       when the property is so situated as not to admit of any permanent useful
       improvement, and the continued claim of the party has been evidenced by public
       acts of ownership such as he would exercise over property he claimed in his own
       right, and would not claim over property he did not claim." In that case the
       possession consisted of digging and removing sand from a lot in Cincinnati, and it
       was held sufficient, the lot not being susceptible of any useful permanent
       improvement.

               The court uses approvingly the language of Judge Gaston in Williams v.
       Buchanan, 1 Ire. L. R., 540: “Possession of land is denoted by the exercise of acts
       of dominion over it, in making the ordinary use and taking the ordinary profits of
       which it is susceptible in its present state, such acts to be so repeated as to show
       that they are done in the character of owner, and not of an occasional trespasser.”
       The possession in that case was of a fish trap and dam in a sluice of an
       unnavigable stream, and having been continuous, was held sufficient. Judge
       Green concludes, “From these cases it will be seen that an inclosure or residence
       on land is not necessary in order to constitute possession, but that such use and
       occupation of it as from its nature and character is susceptible under a claim of
       ownership, will be an actual possession.”



                                                  4
        In the case of Cass v. Richardson, 2 Col., 28, it was held that the erection
and use of a wash place to wash iron ore was not sufficient, the court saying that
in general a building or inclosure of some sort is necessary, but that exceptions
existed where the land is unfitted for residence or cultivation as, for example, an
ore bank, a coal ravine, a sand pit, a stone quarry, or a meadow below tide water.

          The case of Copeland v. Murphey, 2 Col., 64, seems to carry the principle
still farther, as in that case, although it was said that the timber constituted the
principal source of value of the land, it did not appear that it was not susceptible
of cultivation. However, in that case, although the continued cutting and using of
the timber in the sight and hearing of the plaintiff was a strong consideration, yet
it further appeared that the defendant claimed the land under a lost deed, and had
the line surveyed and run out when the plaintiff was along, and it was apparent
that the latter was fully informed that the land was being claimed and held by the
defendant as part of his home tract of land upon which he lived.

        Cases may arise where the acts of domain and ownership over unimproved
lands may be of such a character as to leave no doubt of the party’s claim of
ownership, although the land be susceptible of inclosure or cultivation, and in
such case the claim of possession, it would seem, ought to be recognized. But in
general, the rule that the possession must be by inclosure, if the land be
susceptible of it, is so well understood and recognized that it is better not to depart
from it. Whatever may have been the rule as to an ouster of the possession which
attaches to the legal title, such as would have authorized ejectment by the true
owner, yet it is generally conceded that under our statute of limitations the
possession must be at the time continuous and actual to perfect an inferior title,
and ordinarily the use of timber from uninclosed land is not sufficient, as such
acts are not regarded as giving notice to the public of the party’s possession and
claim.

         The exception, as stated, is where the other acts of possession have been
such as the land is susceptible of from its nature and character. The ore bank, the
sand bank, the fish trap, the stone quarry and coal ravine, have been instanced.
Will it do to establish the rule that the use of timber will amount to actual
possession in all cases where the land, or the greater part of it, is not fertile or
level enough to be profitably cultivated in the present state of population? For
this is what the defendant’s testimony amounts to, although he uses the language
used by the court in the case of Ewing v. Burnett, that the land is not susceptible
of any useful permanent improvement. Yet from his description and the facts
stated, we see simply that at present it would not be profitable to cultivate a large
portion of this land, but how it may be when the country becomes more densely
populated we can not say. He concedes that part of it may be cultivated, and a
small part in fact has since been inclosed. His testimony does not show absolutely
that the land is not susceptible of cultivation or residence.

        If this rule be established it would introduce in a great number of cases the
question whether the land or the greater part of it, be valuable enough to clear and
cultivate; if not, then it would be claimed that the use of timber would be
sufficient evidence of possession; but if suitable land to cultivate, then a different
rule of possession would prevail. This would introduce a rule of uncertainty, and
one that practicably it would be difficult to follow, whereas the other rule is
generally understood, and of easy application, and we think it better to exend the
exceptions to the rule requiring actual inclosure no farther. See 2 Smith, L. cases,
6 Am. Ed., Marg., p. 561, et seq.

                                          5
                We conclude that the possession in this case was not of a character to give
        the defendant the better title, and the judgment will be affirmed.



               In the present case the Plaintiff insists that shrubbery planted along the line she

claims near the front of the tract served to meet the requirement of a fence. One of the

photographs introduced, exhibit four, would, at the angle it was taken, seem to support her

contention. However, her own surveyor testified that the shrubbery was not a hedge and not

restrictive.



               Upon our de novo review of the record we conclude the evidence does not

preponderate against the Trial Court's findings that the Plaintiff has not borne the burden required

when asserting ownership by adverse possession.



               In reaching the foregoing conclusion, we are not unmindful of the case of

Hallmark v. Tidwell, 849 S.W.2d 787 (Tenn.App.1992). In that case it appears that the plaintiff

and her husband had cleared property not included in their deed and "fenced a part of the non-

owned cleared property and created a garden on the remainder." The issue on appeal as to this

case, however, was not whether the plaintiff's possession was sufficiently adverse, but whether

Mrs. Hallmark was required to show that the non-possessory holder of the legal title was not

"under any disability at any time during the period of adverse possession."



               In conclusion, we have not overlooked the alternative relief sought in the

Plaintiff's brief, to-wit, that she was entitled "to a perpetual exclusive prescriptive easement for

all encompassing surface uses, such as planting, gardening, mowing, leisure activities, etc." This

is a theory that was not advanced below and cannot be considered for the first time on appeal.

Simpson v. Frontier Community Credit Union, 810 S.W.2d 147 (Tenn.1991); Brookside Mills,

Inc. v. Moulton, 55 Tenn.App. 643, 404 S.W.2d 258 (1965).



                                                  6
               One additional matter needs to be considered. It appears that a stay order was

entered by this Court pending disposition of this appeal, and thereafter a motion for contempt

was filed by the Plaintiff for acts committed by an agent of the Defendant affecting the disputed

strip of land. Because it is necessary that proof be introduced as to this issue, upon remand it is

appropriate for the Trial Court to address the issues raised by the Plaintiff's motion in respect

thereto.



               Finally, in order to maintain the status quo, the stay heretofore issued will remain

in effect until our judgment becomes final or an application for appeal is accepted by the

Supreme Court and the propriety of the stay resolved by it.



               For the foregoing reasons the judgment of the Trial Court is affirmed and the

cause remanded for such further proceedings, including disposition of the motion for contempt,

as may be necessary. Costs of appeal are adjudged against the Plaintiff and her surety.



                                               _______________________________
                                               Houston M. Goddard, P.J.


CONCUR:



________________________________
Don T. McMurray, J.



________________________________
Charles D. Susano, Jr., J.




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