The opinion
04/01/2025
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 14, 2025 Session
BILLY RAY BLANKENSHIP v. TKY ACQUISITIONS, LLC
Appeal from the Chancery Court for Campbell County
No. 7CH1-2022-CV-201 Elizabeth C. Asbury, Chancellor
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No. E2023-01817-COA-R3-CV
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This appeal seeks possession and ownership of real property based on claims of adverse
possession. The trial court ruled in favor of the appellee. We affirm the decision of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which W. NEAL MCBRAYER
and KRISTI M. DAVIS, JJ., joined.
J. Stephen Hurst, LaFollette, Tennessee, for the appellant, Billy Ray Blankenship.
Wesley D. Stone, Knoxville, Tennessee, for the appellee, TKY Acquisitions, LLC.
OPINION
I. BACKGROUND
TKY Acquisitions, LLC (“TKY”) and its predecessors in title have owned the
property now in dispute (“Subject Property”) since as early as 1922. The company
introduced its chain of title during these proceedings. No evidence existed that someone
other than TKY and its predecessors in title claimed ownership of the Subject Property.
Although never in his chain of title, Billy Ray Blankenship’s father added the description
of the Subject Property in a deed to his son dated and recorded in 2010. However, both
before 2010 and after 2010, TKY paid property taxes on the Subject Property. TKY offered
clear and convincing proof of payment of property taxes by it and its predecessors in title
regarding the Subject Property from at least 1999 through 2022.
In 2020, TKY began the process of bidding out a portion of the Subject Property for
sale to fund a pension fund for teachers.1 The boundary was marked for the sale with pink
tape and blue paint; two years later, in 2022, loggers began logging a portion of the Subject
Property pursuant to the contract they had entered with TKY. Thereafter, Mr. Blankenship
asserted that he owned the Subject Property. It was at this time that TKY learned of Mr.
Blankenship’s ownership claim. Upon TKY stating that it would not stop the logging
operation, Mr. Blankenship filed the instant lawsuit and obtained a temporary restraining
order against TKY.
Mr. Blankenship alleged that he owned the disputed property pursuant to the
following exclusive bases: by title, and pursuant to Tennessee Code Annotated sections
28-2-101 (Seven-year adverse possession statute under color of title), 28-2-102 (Seven-
year statute barring claims), 28-2-103 (Extent of Possession), 28-2-109 (Presumption upon
payment of taxes), 28-2-110 (Effect of nonpayment of taxes), and 28-2-105 (Thirty-year
statute and the twenty-year common law adverse possession). Regarding ownership by
title, Mr. Blankenship relied upon the 2010 instrument from his father. In his complaint
and at trial, Mr. Blankenship did not assert that he owned the Subject Property pursuant to
common law adverse possession.
Mr. Blankenship argued that his use of the property was consistent with its
mountainous character. He testified that he cleared trails and rode ATVs on the Subject
Property, raised crops on it, maintained livestock on it, hunted on it, posted it, ran hunters
off of it, allowed others to hunt on it, logged it, cut right-of-ways in it, and ran Larry Hicks
off of it when Mr. Hicks attempted to log it. He asserted that his family picnicked, camped,
and played on the disputed tract. Mr. Blankenship testified during the February 2023
hearing that the property has “always been in my family and nobody’s ever said, well, we
own it until now.” Despite testifying that he “posted [the subject] property,” Mr.
Blankenship’s attorney confirmed that there were no pre-February 2023 photographs
reflecting Mr. Blankenship’s asserted postings.
During the February 2023 hearing, Mr. Blankenship’s surveyor agreed that TKY
held title to the Subject Property because the description of the tract added to Mr.
Blankenship’s 2010 deed was not in his chain of title. Heather Quinn-Bader, a title attorney
who prepared a title opinion regarding the tract, opined that the records in the Register of
Deeds Office for Campbell County did not reflect any “deed which relates to this 63 acres
that went into any of the Blankenships” and that she could not “see any deed by which they
ever got title to that piece.” She further testified that she could not “see anything that would
justify that . . . parcel being included on [Mr. Blankenship’s 2010 deed].”
1
TKY is a limited liability company run by American Timberland Fund to manage timber for
purposes of funding state teachers’ pension funds.
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Patrick Slone, co-owner of IRTEC, Incorporated, an engineering consulting firm
that first began working on the Subject Property in 1998, testified extensively during the
February 2023 hearing. Mr. Slone, who does land surveying, first became involved with
the Subject Property when Begley Lumber Company (“Begley”) owned it. After he
surveyed it for Begley, the Subject Property was sold to TKY. He noted that his
involvement with the property included doing research, locating different areas, placing
iron pins, locating monuments identified in deeds, and marking those monuments. During
his visit to the Subject Property, Mr. Slone never encountered anyone who told him that
they owned it, never saw signage or fencing that would give him or anybody at IRTEC any
indication that someone other than TKY owned the disputed property, and never saw any
remnants of someone growing corn or raising hogs on the Subject Property. Mr. Slone
never observed any “no trespassing” signs up and down Whistle Creek Road, never saw
evidence of mowing any portion of the Subject Property, and never saw any roads Mr.
Blankenship claimed he built.
Mr. Slone further testified that Mr. Blankenship’s father did not include the tract of
land the father owned that adjoined the Subject Property in the 2010 deed. He contended,
therefore, that Mr. Blankenship is not a title owner to real property adjoining the Subject
Property owned by TKY. In this regard, Ms. Quinn-Bader’s testimony is in accord with
Mr. Slone’s testimony.
Danny Smith, a forester with F&W Forestry (“F&W”) began managing TKY’s
property in 2002 and conducted property line maintenance, timber inventory, and hunting
lease administration. During his years of management, Mr. Smith would “go out on the
ground and meet [people] if it was a new [hunting] lease.” He observed that during those
twelve years, none of the hunters had ever complained to him that someone had ordered
them off the Subject Property. He noted that he drove by it “several times per week.” His
services required him to be physically on the property, to flag it, to mark trees by paint,
and to GPS the property in preparation for the timber sale.
According to Mr. Smith, when he is in the field, he occasionally speaks to
landowners if there is a problem. Prior to the logging incident, Mr. Smith stated that he had
never had any face-to-face communications with Mr. Blankenship. When Mr. Smith
approached Mr. Blankenship after the logging commenced to inform him that TKY would
not cease the operation, Mr. Blankenship did not tell him that he had been keeping hunters
off the Subject Property or that he was leasing it to hunters. According to Mr. Smith, Mr.
Blankenship never told him to get off the Subject Property.
Mr. Smith testified that prior to TKY’s timber sale in 2021, no one had been on
TKY’s land clearing roads, flagging, or posting the property. There were no fences on the
Subject Property when Mr. Smith was preparing it for the timber sale. Had he observed
any of these things, he would have contacted his supervisor, Rick Sluss, and then
investigated further. He noted that between November 3, 2020, when he began the process
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of preparing the timber sale, a portion of which was in the disputed area, and August 23,
2022, he and a co-worker were on the Subject Property not less than fourteen times, either
preparing it for sale, showing the timber to be sold, closing the sale, or conducting audits
and inspections.
At the conclusion of the February 2023 hearing, the trial court concluded that “it’s
clear that TKY has title to the property.” Thereafter, in August 2023, a second hearing was
held related to Mr. Blankenship’s statutory adverse possession claims.
Rick Sluss, a consulting forester for over 30 years, works as the regional manager
for F & W; he became familiar with the Subject Property in 1998 when it was owned by
Begley. Mr. Sluss began providing forestry consulting to TKY in December 1999. When
hired to conduct an inventory of the Subject Property, Mr. Sluss and another forester under
his employ physically walked the land. Mr. Sluss noted that upon becoming involved with
the property, he “pretty much ha[s] [Danny Smith] on “that property” every week.”
Mr. Sluss testified that no one using the Subject Property had indicated or claimed
ownership. While physically on the property, he did not see signs being posted by others.
He observed no evidence that anyone other than TKY claimed ownership of the Subject
Property. During Mr. Sluss’s involvement with the disputed property, he noted that neither
he nor any of his employees: (1) “witnessed anyone farming on the disputed tract,” (2)
witnessed anyone other than Bob Muse2 logging the disputed tract, (3) “observed or [was]
made aware of people cutting firewood” on the disputed tract, (4) observed where anyone
was “camping on the disputed property,” (5) observed where anyone was “hunting on the
disputed property without TKY’s permission,” (6) observed anyone “walking around on
the disputed property,” (7) observed anyone “putting fences on the property prior to the
filing of this lawsuit,” or (8) observed “posting signs all around this property, including up
and down Whistle Creek Road.” When setting up the timber sale in 2021, his forester went
out “into the field and [ ] GPS’d, flagged and painted the exterior boundary of the timber
sale.” He noted that if he and the other foresters noticed any signs, they would have “taken
a pause to figure out what was going on . . . .”
Brandi Breland, an asset manager for both BTG Actual and TKY as well as a
fiduciary for TKY, testified that as part of her duties for both companies, she is involved
with record keeping and overseeing all contracts, including those relating to hunting leases.
A mapping system and GPS information is used to define boundaries for hunting leases on
TKY’s property. In addition, Mrs. Breland’s duties include bidding out timber for logging
to both manage timber density and generate revenue for the teachers’ pension fund. Prior
2
Mr. Sluss recalled that in 2001, he was involved in a lawsuit filed by TKY against Bob Muse involving a
portion of the Subject Property. Mr. Muse and others trespassed upon TKY’s property in three different
areas, including a portion of the disputed property. Mr. Muse’s practice was to “set up an adjoining
landowner and then just roam around [TKY’s] property stealing trees.” Apparently, Mr. Muse used Mr.
Blankenship’s property as an adjoining landowner to TKY.
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to Mr. Blankenship’s lawsuit, Mrs. Breland had been to the Subject Property. She testified
that from the time she began working with TKY through the date of the filing of the lawsuit,
there was no indication to her that anyone other than TKY owned the Subject Property.
Mrs. Breland engaged Mr. Sluss to set up the timber sale, which included placing the sale
out for bid to loggers, meeting with prospective buyers, and entertaining and accepting
offers for the timber. Once the timber sale contract was awarded, Mrs. Breland executed
the contract. Due to both the lawsuit and the temporary restraining order issued by the trial
court, Mrs. Breland was required to issue a refund of $107,852.36 on the timber sale
contract.
As he testified previously at the February hearing, Danny Smith, a forester for F &
W from 2002 until 2022, was never made aware of (1) anybody farming or mowing on the
Subject Property, (2) logging on the Subject Property, (3) cutting firewood on the Subject
Property (4) hunting on the Subject Property other than those people that had leases with
TKY, or (5) any signs on the property “prior to this lawsuit.”3 Further, none of the members
or contacts of the hunting clubs came to Mr. Smith and indicated that they were having
problems with someone claiming ownership of the Subject Property. Prior to Mr.
Blankenship’s lawsuit, Mr. Smith observed no fencing on the Subject Property. After Mr.
Blankenship filed his lawsuit, Mr. Smith and Jacob Gordon placed signs for TKY over
signs someone had placed after the lawsuit was filed. Regarding the 2021 timber sale, Mr.
Smith recalled that he first went around the property and both flagged it and GPS’d it. He
began preparing the property for sale on November 3, 2020, by walking on it and flagging
its boundary with pink flags and blue paint. During his identification of the boundary, he
did not see any evidence of someone other than TKY asserting ownership of the Subject
Property. Mr. Smith related that he would have notified Mr. Sluss if he had observed
someone claiming ownership and said “we’ve got a problem.” He recalled taking two
different prospective buyers/logging companies to the timber sale property and, at that
time, did not see evidence of anyone claiming ownership of it.
The trial court made comprehensive findings. It concluded that Mr. Blankenship’s
theory of adverse possession pursuant to Tennessee Code Annotated section 28-2-101
failed because “there was no proof that his predecessors had a grant by the State of
Tennessee or the State of North Carolina as statutorily required.” As to the theory of
ownership pursuant to Tennessee Code Annotated sections 28-2-102 and 28-2-103, the trial
court concluded that these statutes can only be used defensively and therefore the claims
failed. As to the contentions pursuant to Tennessee Code Annotated sections 28-2-109 and
28-2-110 requiring proof by Mr. Blankenship that he and his predecessors paid property
taxes on the disputed property for more than twenty years, the trial court concluded that
“[n]o proof was submitted by Mr. Blankenship that he or his predecessors had paid real
property taxes on the property in dispute . . .” for the required period of time. Addressing
the final statutory claim, Tennessee Code Annotated section 28-2-105, the trial court
3
Signs described at trial were installed by Mr. Blankenship after February 27, 2023.
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determined that Mr. Blankenship did not establish that his 2010 instrument had been
recorded in the Campbell County Register of Deeds Office for the required thirty-year
period.
Despite Mr. Blankenship not asserting in his complaint ownership through common
law adverse possession, the trial court, “[i]n an effort to be thorough,” analyzed the facts
presented at trial pursuant to this doctrine. It concluded that Mr. Blankenship “failed to
prove by clear and convincing evidence all of the requisite requirements for adverse
possession.” The court determined that Mr. Blankenship’s claim of adverse possession was
not continuous or open. The court thereafter dismissed the lawsuit. Mr. Blankenship timely
appealed the trial court’s decision.
II. ISSUES
Mr. Blankenship made an “ASSIGNMENT OF ERROR” in his brief:
Trial Court erred when it failed to apply the appropriate standard for adverse
and continuous use of mountainous property by the Appellant, which would
afford him a grant of title after twenty (20) years.
We restate TKY’s response as follows:
A. By asserting for the first time on appeal that he owned the Subject
Property pursuant to the common law adverse possession doctrine, Mr.
Blankenship waived this issue for this court’s consideration.
B. The trial court correctly determined that Mr. Blankenship did not prove
by clear and convincing evidence that he acquired title to TKY’s real
property by adverse possession when it specifically found that he did not
prove that his asserted possession was open or continuous.
a. Statutory Adverse Possession and Waiver
b. Common Law Adverse Possession, Waiver, and Credibility of
Witnesses
III. STANDARD OF REVIEW
As we observed in Logan v. Cannon, 602 S.W.3d 363, 378 (Tenn. Ct. App. 2019):
Our review of the trial court’s judgment following a non-jury trial is de novo
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upon the record, with a presumption of correctness as to the trial court’s
findings of fact unless the preponderance of the evidence is otherwise. See
Tenn. R. App. P. 13(d); Rogers v. Louisville Land Co., 367 S.W.3d 196, 204
(Tenn. 2012). “In order for the evidence to preponderate against the trial
court’s findings of fact, the evidence must support another finding of fact
with greater convincing effect.” Wood v. Starko, 197 S.W.3d 255, 257 (Tenn.
Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co., 78
S.W.3d 291, 296 (Tenn. Ct. App. 2001)). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall
not be disturbed absent clear and convincing evidence to the contrary. See
Morrison v. Allen, 338 S.W.3d 417, 426 (Tenn. 2011); Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002). We review the trial court’s conclusions of
law de novo with no presumption of correctness. Hughes v. Metro. Gov’t of
Nashville & Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011).
IV. DISCUSSION
“Generally, acquisition by adverse possession for the requisite period of time,
whether statutory or under common law, must be (a) actual and exclusive; (b) open,
visible, and notorious; (c) continuous and peaceable; and (d) hostile and adverse.” Cumulus
Broad., Inc. v. Shim, 226 S.W.3d 366, 376-79 (Tenn. 2007) (emphasis added). “The burden
of proof falls on the individual claiming ownership by adverse possession and the quality
of the evidence must be clear and convincing.” Id. (citing O’Brien v. Waggoner, 20 Tenn.
App. 145, 96 S.W.2d 170, 176 (Tenn. Ct. App. 1936)). “The actual owner must either have
knowledge of the adverse possession, or the possession must be so open and notorious to
imply a presumption of that fact.” Id. (citing Kirkman v. Brown, 93 Tenn. 476, 27 S.W.
709, 710 (Tenn. 1894)).
a. Statutory Adverse Possession
Mr. Blankenship asserts that the trial court erred when it determined that his adverse
possession claims pursuant to Tennessee Code Annotated sections 28-2-101, 28-2-102, 28-
2-103, and 28-2-105 “do not apply” and finding that his usage of the property was sporadic
and not continuous and open.
By sworn complaint, Mr. Blankenship first asserted he acquired the disputed
property by adverse possession pursuant to Tennessee Code Annotated section 28-2-101.
The statute provides as follows:
(a) Any person having had, either personally or through those through whom
that person’s claim arises, individually or through whom a person claims,
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seven (7) years’ adverse possession of any lands, tenements, or
hereditaments, granted by this state or the state of North Carolina, holding
by conveyance, devise, grant, or other assurance of title, purporting to convey
an estate in fee, without any claim by action at law or in equity commenced
within that time and effectually prosecuted against such person is vested with
a good and indefeasible title in fee to the land described in such person’s
assurance of title.
(b) No title shall be vested by virtue of such adverse possession, unless such
conveyance, devise, grant, or other assurance of title shall have been
recorded in the register’s office for the county or counties in which the land
lies during the full term of such seven (7) years’ adverse possession.
Tenn. Code Ann. § 28-2-101. At trial, however, Mr. Blankenship neither presented clear
and positive proof nor argued that he or anyone in his chain of title received title to the
disputed property from the State of Tennessee or the State of North Carolina. Accordingly,
the trial court correctly concluded that he failed to meet the requirements of the statute.
Tennessee Code Annotated section 28-2-102 states as follows:
Any person, and those claiming under such person neglecting for the term of
seven (7) years to avail themselves of the benefit of any title, legal or
equitable, by action at law or in equity, effectually prosecuted against the
person in possession, under recorded assurance of title, as in § 28-2-101, are
forever barred.
Tenn. Code Ann. § 28-2-102. Tennessee Code Annotated section 28-2-103 provides:
(a) No person or anyone claiming under such person 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.
(b) No possession of lands, tenements or hereditaments shall be deemed to
extend beyond the actual possession of an adverse holder until the muniment
of title, if any, under which such adverse holder claims such lands, tenements
or hereditaments is duly recorded in the county in which the lands are located.
Tenn. Code Ann. § 28-2-103. As to those statutes, the trial court correctly determined that
sections 28-2-102 and 28-2-103 may only be used defensively; thus, these statutes cannot
provide Mr. Blankenship as plaintiff statutory adverse possession. See Cumulus Broad.,
Inc., 226 S.W.3d at 376.
As to Mr. Blankenship’s claim pursuant to Tennessee Code Annotated section 28-
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2-105, the statute provides as follows:
Any person holding any real estate or land of any kind or any legal or
equitable interest therein, and such person and those through whom such
person claims having been in adverse possession of same for seven (7) years,
where the real estate is held and claimed by such person or those through
whom such person claims by a conveyance, devise, grant, a decree of a court
of record, or other assurance of title purporting to convey an estate in fee,
and such conveyance, devise, grant, or other assurance of title, has been
recorded in the register’s office of the county in which the land lies for a
period of thirty (30) years or more or such decree entered on the minutes of
such court for a period of thirty (30) years or more, is vested with an absolute
and indefeasible title to such real estate or interest therein.
Tenn. Code Ann. § 28-2-105. The trial court concluded that Mr. Blankenship’s purported
assurance of title did not provide him “assurance of title for thirty (30) years” or more,
because the instrument he relied upon is dated in 2010. Mr. Blankenship had no
predecessors in title relating to the disputed tract because his “chain of purported title” to
the Subject Property begins only with him. Thus, the trial court correctly determined that
this claim lacked merit.
Tennessee Code Annotated section 28-2-110 provides that a purported adverse
possessor is “barred from bringing any action in law or in equity to recover the same . . .”
if the person fails to “pay any state and county taxes thereon for a period of more than
twenty (20) years. . . .” Tenn. Code Ann. § 28-2-110(a). As noted by the trial court, Mr.
Blankenship failed to present proof of payment of property taxes relating to the property
in dispute. In this appeal, he concedes this finding when he states that he “did not rely on
the payment of taxes for twenty (20) years as same was noted as contested in the Trustees
(sic) office.” Therefore, his claims under 28-2-109 and 28-2-110 were correctly found by
the trial court to fail.
Mr. Blankenship cannot show that the evidence of record supports another finding
of fact with greater convincing effect. Accordingly, we affirm the trial court’s decisions
regarding the statutory adverse possession theories.
b. Common Law Adverse Possession, Waiver, and Credibility of Witnesses
Mr. Blankenship contends that the “[t]rial Court erred when it failed to apply the
appropriate standard for adverse and continuous use of mountainous property by the
Appellant, which would afford him a grant of title after twenty (20) years.” By this
argument, Mr. Blankenship relies upon adverse possession under common law. TKY
asserts that Mr. Blankenship waived consideration of this theory when he failed to raise it
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in his complaint, failed to present it or argue it at trial, and failed to include it in his required
Statement of Issues in his brief. According to TKY, “issues not raised in the trial court
cannot be raised for the first time on appeal.” Simpson v. Frontier Cmty. Credit Union, 810
S.W.2d 147, 153 (Tenn. 1991) (citing Lovell v. Metropolitan Government, 696 S.W.2d 2
(Tenn. 1985)).
As the trial court raised and considered the issue, we will address it. When
examining the evidence, the court determined that for at least more than twenty years prior
to this lawsuit, Mr. Sluss, Mr. Smith, and Mr. Slone were on the Subject Property, granting
hunting leases, conducting timber inventories, and locating “monuments, corners, and
gather[ing] information for preparation of a survey.” At no time during this period did Mr.
Sluss, Mr. Smith, or Mr. Slone see “activity as described by Mr. Blankenship.” They saw
no evidence of farming activity, logging except as previously referenced by Mr. Muse,
cutting of firewood, hunters without leases from TKY, camping, fencing, or signs posted
in the area.” They did not “see anyone claiming ownership.”
The trial court concluded that any alleged use by Mr. Blankenship amounted to
nothing more than a series of occasional and sporadic trespasses which cannot constitute
adverse possession and did not rise to the level of clear and convincing evidence as being
actual, exclusive, open, visible, and notorious, continuous, peaceable, hostile, and adverse.
See Coal & Iron Co. v. Coppinger, 95 Tenn. 526, 530, 32 S.W. 465, 466 (1895). Caselaw
in this state has long provided that “‘[m]ere acts of trespass do not constitute actual
possession. ‘The act of a casual trespasser who enters upon land for a temporary purpose,
as for example, to hunt or fish, is not an act of possession, because it is lacking in the
purpose to seize and hold. . . .’”) (quoting Round Mountain Lumber & Coal Co. v. Bass,
13 6 Tenn. 687, 700, 191 S.W. 341 (1916)). Instead, “the owner must have knowledge of
the adverse claim, or it must be so open and notorious as that he will be presumed to have
noticed it.” Id. (citing Kirkman v. Brown, 93 Tenn. 476, 477, 27 S.W. 709, 709 (1893)).
The trial court did not find the testimony supporting Mr. Blankenship’s claim more credible
than TKY’s testimony in opposition. His use, or claimed use, of TKY’s property was not
so open and notorious as to imply a presumption of that fact, and TKY had no knowledge
of the adverse claim until after it began logging on a portion of the disputed property in
2022.
Because the trial court properly weighed the competing testimony and evidence, its
assessment of credibility cannot be overturned absent clear and convincing evidence to the
contrary. Clear and convincing evidence is “evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.1992). Mr. Blankenship has
not provided clear and convincing evidence that this court should disturb the trial court’s
determinations of witness credibility. Neither Mr. Blankenship’s claims of usage nor his
alleged usage of the property satisfied the clear and convincing standard. The record of
both the February 2023 and August 2023 hearings supports the trial court’s conclusion that
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Mr. Blankenship did not prove by clear and convincing evidence all the requirements of
adverse possession.
V. CONCLUSION
The judgment of the trial court is affirmed. The case is remanded for further
proceedings consistent with this opinion. Costs on appeal are assessed to the appellant,
Billy Ray Blankenship.
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JOHN W. MCCLARTY, JUDGE
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