Teresa Vincent v. Jerry S. Johnston, Sr.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 8, 2013 Session

TERESA VINCENT v. JERRY S. JOHNSTON, SR.

Appeal from the Chancery Court for McMinn County

No. 2011-CV-457 Jerri S. Bryant, Chancellor

No. E2013-00588-COA-R3-CV-FILED-JANUARY 24, 2014

This boundary line dispute involves a five-acre parcel of real property (“Disputed Property”)

in McMinn County to which the petitioner and respondent, who own adjoining parcels, both

claim ownership. The petitioner filed a petition to quiet title, requesting that she be declared

the owner of the Disputed Property, and for declaratory judgment as to damages she claimed

as a result of the respondent’s alleged trespass, encroachment, and harvesting of timber. The

respondent filed a counter-petition, alleging that he was the rightful owner of the Disputed

Property; raising affirmative defenses of waiver/estoppel, champerty, and adverse possession;

and requesting damages for the petitioner’s alleged encroachment and destruction of

boundary markers. Following a bench trial, the trial court declared the petitioner the owner

of the Disputed Property, dismissed the respondent’s counter-petition, and dismissed all

claims for damages. The respondent appeals. We affirm the trial court’s finding that title

to the Disputed Property is vested in the petitioner. We determine, however, that the

respondent has established the statutory defense of adverse possession, pursuant to Tennessee

Code Annotated § 28-2-103 (2000), only to the extent that certain improvements encroach

upon the Disputed Property, and we reverse upon this ground. We remand to the trial court

for determination as to the extent of the encroachments. We affirm the trial court’s judgment

in all other respects.

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

Affirmed in Part, Reversed in Part; Case Remanded

T HOMAS R. F RIERSON, II., J., delivered the opinion of the Court, in which D. M ICHAEL

S WINEY and J OHN W. M CC LARTY, JJ., joined.

Andrew J. Brown, Cleveland, Tennessee, for the appellant, Jerry S. Johnston, Sr.

Travis D. Henry, Cleveland, Tennessee, for the appellee, Teresa Vincent.

OPINION

I. Factual and Procedural Background

The petitioner, Teresa Vincent, purchased 122.8 acres in McMinn County (“Vincent

Property”), which were conveyed to her in fee simple via warranty deed from Bowater, Inc.

(“Bowater”) dated February 5, 2010, and recorded in the Register’s Office for McMinn

County in Plat Cabinet A, Slide 21B on September 16, 2010. Ms. Vincent’s deed

incorporated the property description from a survey prepared by William D. McKenzie,

Registered Land Surveyor, on March 16, 1982 (“McKenzie Survey”). Bowater had used

what became the Vincent Property for harvesting timber, and the land remained primarily

wooded and undeveloped at the time of trial.

At the time Ms. Vincent acquired her property, the respondent, Jerry S. Johnston, Sr.,

owned approximately 200 acres of forested land to the west and southwest of the Vincent

Property (“Johnston Property”). A portion of the chain of title for the Johnston Property

dates back to a conveyance from the Tennessee Valley Authority (“TVA”) to Mr. Johnston’s

grandfather, Tyrus Wright, dated December 17, 1948, and recorded in the Register’s Office

for McMinn County on February 27, 1950. Mr. Johnston testified that while much of his

grandfather’s original tract had been sold in parcels, he had been acquiring land for several

years in an attempt to reconstruct his grandfather’s farm. According to Mr. Johnston, he

acquired the parcel that he claims includes the Disputed Property through a June 26, 1987

warranty deed, by which grantors Claude and Margaret Tatum conveyed a life estate in the

property to Mr. Johnston’s mother, Marie Green, with a remainder to Mr. Johnston.1 Ms.

Green subsequently transferred to Mr. Johnston her interest in the relevant portion of the

Johnston Property via warranty deed dated December 16, 1993, and recorded in the

Register’s Office for McMinn County on February 14, 1994 (“1993 Deed”). At trial, Mr.

Johnston relied upon the property description regarding the first of two tracts described in

the 1993 Deed for his claim of recorded title to the Disputed Property. The Johnston

Property is primarily woodland and includes a campground consisting of approximately

twenty-six acres set along the Chickamauga Lake, which is fed by the Hiwassee River.

The Disputed Property consists of five acres situated at the southwestern corner of

the Vincent Property and the southeastern corner of the Johnston Property. As the property

is primarily wooded, it is undisputed that prior to this action, Mr. Johnston’s campground

tenants regularly rode four-wheelers on dirt trails over the Disputed Property, the southern

1

The original 1987 deed listed only Ms. Green as the grantee, but this deed was corrected by a Deed

of Correction, dated April 22, 1988, and recorded May 6, 1988, as conveying a life estate to Ms. Green with

the remainder to Mr. Johnston.

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tip of which leads to the lake. The property line along the lake is designated as the 685.44

contour on all relevant surveys. The lake is further designated as TVA property. Testimony

and photographs also demonstrated that Mr. Johnston built a boat ramp with two boat docks

in 1988 where the Disputed Property adjoins the lake. Mr. Johnston and his tenants testified

that the Disputed Property contained several improvements, including an asphalt road, metal

carport with camper space, and a frame building or cabin. The extent, however, to which

these improvements were located on or extended into the Disputed Property was challenged

by Ms. Vincent.

Ms. Vincent, who is a licensed real estate agent, asserted in her petition, inter alia,

that she had no indication Mr. Johnston was claiming the Disputed Property until after

closing on her land purchase. Between the time that her offer was accepted by Bowater in

late June or early July 2009 and when the sale closed in February 2010, she and her husband,

David Vincent, visited the Vincent Property often.2 Their visits included walking,

picnicking, and planning for future building. The Vincents both testified that they sometimes

walked across the Disputed Property during this time period but did not see Mr. Johnston on

the Disputed Property. Ms. Vincent stated that usually in the wintertime, the water level

changed such that Mr. Johnston’s tenants could access the shore by traversing the Disputed

Property.

The instant dispute occurred following closure on the sale of the Vincent Property in

February 2010. The Vincents erected a cable across the dirt road leading to the Disputed

Property in an attempt to prevent use of four-wheelers in the area. Ms. Vincent claimed that

the first indication she had that Mr. Johnston was claiming the Disputed Property was when

he moved the cable and brought in a bulldozer to pack dirt approximately three feet high.

This measure effectively blocked Ms. Vincent’s access to her property. Testimony indicated

that contemporaneously, the Vincents were clearing an area that included part of the

Disputed Property when Mr. Johnston stopped a bulldozer operator and instructed him that

the Disputed Property was part of the Johnston Property.

Following these incidents, Ms. Vincent retained Registered Land Surveyor Charles

R. (“Randy”) Brown to survey the Disputed Property. Mr. Brown’s survey (“Brown

Survey”), completed on September 9, 2011, indicated to Ms. Vincent that the Disputed

Property was part of the Vincent Property. Mr. Johnston subsequently retained Registered

Land Surveyor Jimmy L. Richmond, who completed his survey of the Disputed Property on

July 12, 2012 (“Richmond Survey”).

2

Although he testified at trial, David Vincent is not listed on the deed conveying the Vincent Property

and is not a party to this action.

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Ms. Vincent filed a Petition to Quiet Title and for Declaratory Judgment on December

16, 2011, requesting that she be declared the owner of the Disputed Property. She alleged

that Mr. Johnston had encroached and trespassed over her land and had intentionally and/or

negligently removed timber belonging to her. By her petition, Ms. Vincent sought relief that

Mr. Johnston be ordered to remove all improvements encroaching on her property and be

held liable for damages. Mr. Johnston responded by filing an answer and counter-petition

on April 25, 2012, asserting that he was the owner of the Disputed Property and alleging that

Ms. Vincent had encroached on his property. Mr. Johnston raised the affirmative defenses

of waiver/estoppel, champerty, and adverse possession. Mr. Johnston requested that the

court declare him to be the owner of the Disputed Property and assess damages against Ms.

Vincent for encroachment and destruction of boundary markers.

Concomitantly with his counter-petition, Mr. Johnston filed a motion for temporary

injunction, requesting that Ms. Vincent be ordered to refrain from destroying, moving, or

encroaching upon boundary markers. The parties subsequently submitted an Agreed Mutual

Temporary Injunction, entered by the trial court on May 10, 2012, inter alia, enjoining both

parties from altering the Disputed Property or interfering with its current use, including

recreational use by Mr. Johnston’s tenants.

Ms. Vincent filed an answer to the counter-petition on November 8, 2012, asserting

as affirmative defenses that Mr. Johnston had not paid taxes on the Disputed Property and

that his action was barred by Tennessee Code Annotated § 28-2-109, the statute of frauds,

and the doctrine of unclean hands. Following a bench trial conducted over two non-

consecutive days on November 14 and 28, 2012, the trial court issued an oral bench ruling,

declaring Ms. Vincent the owner of the Disputed Property, denying her request for damages,

and dismissing Mr. Johnston’s counter-petition in full. The trial court entered a written order

incorporating its oral ruling on January 30, 2013. Mr. Johnston timely appealed.

II. Issues Presented

Mr. Johnston presents five issues on appeal, which we restate as follows:

1. Whether the trial court erred by failing to find that the true boundary line

between the Johnston and Vincent Properties was the northeast boundary of

the Disputed Property as depicted on the Richmond Survey.

2. Whether the trial court erred by finding that Mr. Johnston’s warranty deeds,

recorded on December 16, 1993, and June 26, 1987, respectively, did not

establish color of title to the Disputed Property.

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3. Whether the trial court erred by failing to find Mr. Johnston in adverse

possession of the Disputed Property pursuant to Tennessee Code Annotated §

28-2-101 through -103 and the common law.

4. Whether the trial court erred by failing to find the warranty deed from

Bowater, Inc. to Teresa Vincent, dated February 5, 2010, void as champertous

pursuant to Tennessee Code Annotated § 66-4-201 through -205 and common

law.

5. Whether the trial court erred by finding that Ms. Vincent and her predecessor

in title had been paying property taxes on the Disputed Property, resulting in

an indicia of ownership.

III. Standard of Review

In this non-jury real property dispute, our review is de novo 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); Shew v. Bawgus, 227 S.W.3d 569,

576 (Tenn. Ct. App. 2007) (citing Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001)). “In

order for the evidence to preponderate against the trial court’s finding 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)). We review the trial court’s conclusions of law

de novo with no presumption of correctness. Shew, 227 S.W.3d at 576 (citing S.

Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001)).

IV. Boundary Line

Mr. Johnston contends that the trial court erred by failing to find that the true

boundary line between the Johnston Property and Vincent Property was the northeast

boundary of the Disputed Property as depicted on the Richmond Survey. The court found

instead that the Disputed Property lay southwest of the Johnston Property and was not

included in the property description contained in Mr. Johnston’s 1993 Deed. Ms. Vincent

contends that the trial court properly established the boundary line between the Johnston

Property and Vincent Property to be the southernmost line of the Disputed Property, as

described in the 1982 McKenzie Survey incorporated into Ms. Vincent’s deed and the Brown

Survey. Upon careful review of the evidence in this cause, we agree with Ms. Vincent.

It is well settled in Tennessee that “‘[i]n determining disputed boundaries resort is to

be had first to natural objects or landmarks, because of their very permanent character; next,

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to artificial monuments or marks, then to the boundary lines of adjacent landowners, and then

to courses and distances.’” Wood, 197 S.W.3d at 258 (citing Thornburg v. Chase, 606

S.W.2d 672, 675 (Tenn. Ct. App. 1980)). As this Court further explained in Wood:

The governing rules are near universal and are recited by the Court of

Appeals in Ohio in Sellman v. Schaaf, 26 Ohio App.2d 35, 269 N.E.2d 60, 66

(1971).

In 11 C.J.S. Boundaries § 3, p. 540, it is said:

“It has been declared that all the rules of law adopted for

guidance in locating boundary lines have been to the end that the

steps of the surveyor who originally projected the lines on the

ground may be retraced as nearly as possible; further, that in

determining the location of a survey, the fundamental principle

is that it is to be located where the surveyor ran it. Any call, it

has been said, may be disregarded, in order to ascertain the

footsteps of the surveyor in establishing the boundary of the

tract attempted to be marked on the land; and the conditions and

circumstances surrounding the location should be taken into

consideration to determine the surveyor’s intent.”

In Clark, Surveying and Boundaries (2d Ed. 1939), it is

said at page 727, Section 665:

“The original survey must govern if it can be retraced. It

must not be disregarded. So, too, the places where the corners

were located, right or wrong, govern, if they can be found. In

that case a hedge planted on the line established by original

survey stakes was better evidence of the true line than that

shown by a recent survey. In making a resurvey it is the

surveyor’s duty to relocate the original lines and corners at the

places actually established and not to run independent new lines,

even though the original lines were full of errors.”

In 6 Thompson, Real Property, 594, Description and

Boundaries, Section 3047 (1962 replacement), the following is

stated.

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“The line actually run is the true boundary, provided the

essential survey can be found and identified as the one called

for, and prevails over maps, plats, and field notes. * * * The

lines marked on the ground constitute the actual survey and

where those lines are located is a matter to be determined by the

jury from all the evidence. If the stakes and monuments set at

the corners of the parcel in making the survey have disappeared,

it is competent to show their location by parol evidence.”

At page 599, Secton 3049, it is further said that:

“Marked corners are conclusive and will control over

courses and distances. Although stakes are monuments liable to

be displaced or removed, they control so long as it is certain that

they mark the corners of the original survey.”

Sellman, 26 Ohio App.2d 35, 269 N.E.2d 60 at 66.

Wood, 197 S.W.3d at 255.

In its order quieting title to Ms. Vincent in the Disputed Property, the trial court made

the following specific findings of fact, in pertinent part, regarding the boundary line between

the parties’ properties:

I think it’s clear in this case that the surveys show that this was Bowater

property. Surveyor Brown points – his points show that his map checks the

same as the original TVA 1941 map and the McKenzie survey.

If you look really closely at TVA map 71D, as part of Exhibit 8, the

1967 TVA map shows Tyrus Wright’s ownership to come to the southern

boundary of the disputed area. That was in 1967.

The Richmond – Mr. Richmond just testified that when you look at the

survey in this case, when you look at the maps – he pulled maps, he pulled the

survey, he pulled the TVA map – this property is not owned by Mr. Johnston.

So I’ve got Mr. Richmond, Mr. Brown, both claiming that as surveyors

that this property description that Mr. Johnston’s claiming under in his 1993

deed does not match what he’s claiming it does match on the ground. The

courses do not match, the distances do not match, the angles of the lines do not

match – the bearings I guess is the word I’m looking for.

Gallagher, who made an excellent witness, testified on behalf of

Bowater and verified the location of the 898-1 corner.

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And that corner at some point has been moved even per Mr.

Richmond’s survey, on 10. He found both markers in the same place, which

they shouldn’t have been under any set of circumstances. This Court hasn’t

been presented enough proof to decide who moved them, but there’s only one

party that would have benefitted from the movement of those.

...

Mr. Gallagher said that Bowater had walked this property consistently and

continued to check their marked boundaries, that the pictures in Exhibit 10 are

not consistent with the way Bowater marks their properties, which raises the

specter that somebody else attempted to mark that northern boundary to appear

as though it were a Bowater marking but it was not.

So I find Mr. Gallagher’s testimony and his descriptions to be logical

and credible about that line and the disputed issues of fact about who marked

that line and what those markings on that line indicate. I also find that the

boundaries were also assisted, as another indicia that he on cross-examination

was attempting to say that these weren’t exact-to-scale maps and he refuted

that it was. So since the property’s also marked that way as far as the southern

boundary line, I find that was the true boundary line, the southern boundary

line as on Exhibit 10 and Exhibit 2.

Upon our thorough review of the record, we determine that the preponderance of the

evidence supports the trial court’s findings on this issue.

The relevant property description in the 1993 Deed upon which Mr. Johnston relies

for his claim of ownership to the Disputed Property reads as follows:

TRACT I: BEGINNING at a US-TVA Monument No. 898-1, as identified in

the Second Tract of the deed from H.C. Fee and wife, Dorothy Fee, to H.M.

Heston and wife, Betty Heston, dated September, 1973; thence in a

Southwesterly direction from said beginning point 300 feet to a point; thence

in a Southeasterly direction 526 feet, more or less, to a point in the 685.44

contour; thence in a North-Northeasterly direction along said 685.44 contour

to a point marked by an angle iron as set forth in the description for the Second

Tract in the Fee to Heston Deed; thence North 43 deg 26 min West 565 feet to

a point, the place of BEGINNING.

Placement of the beginning marker, TVA Monument No. 898-1, is central to the trial

court’s finding that the above property description does not include the Disputed Property.

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As the trial court noted, both surveyors, Mr. Brown and Mr. Richmond, testified that they did

not find the marker to be in the location where it should have been according to the 1982

McKenzie Survey and the TVA map. Mr. Brown further testified that he believed the 898-1

monument had been moved. He stated that prior to Ms. Vincent’s land purchase, he had

walked the boundaries of the shoreline portion of the Vincent Property in 2006 because at

the time, he was considering purchasing the land. He had no indication in 2006 that Mr.

Johnston was claiming ownership of the Disputed Area. He added that when he surveyed

the Disputed Area in 2011, markers existed that were not present when he walked the

boundary in 2006.

Mr. Brown further testified that in addition to referencing the McKenzie Survey, he

used maps provided by the Tennessee Valley Authority (“TVA”). He reviewed a TVA map

dated May 12, 1941, noting that the map showed the same boundary lines for the Disputed

Property as those on the McKenzie Survey. He explained that the location of the 898-1

monument listed on the 1941 TVA map was consistent with the location of the 898-1

monument noted on the 1982 McKenzie Survey. When Mr. Brown surveyed the Disputed

Property, he found that the 898-1 monument was missing from the location where it had been

located on the TVA map and McKenzie Survey. He opined that the monument had been

moved because it was now at a location where, according to the McKenzie Survey, there

should have been “a pine tree in a fence.” Mr. Brown opined that the 898-1 monument

should have been approximately 300 feet southwest of where he actually located it on the

ground. This was based on the close match of the balance of the remaining points along the

northernmost line to their locations on the 1941 map and 1982 survey. He clarified that the

898-1 monument was now on the “northern line on the McKenzie Survey to the pine tree”

and that proceeding southwesterly 312.5 feet, the pin was now missing.

Mr. Brown asserted that he did not agree with the northern boundary line of the

Disputed Property as it is represented on the Richmond Survey. Although he agreed with Mr.

Richmond’s representation of the western boundary line between the Vincent Property and

Johnston Property, Mr. Brown indicated the northern boundary did not match any deed he

had reviewed. He asserted that the Richmond Survey’s southwesternmost line, running north

43 degrees, 26 minutes, zero seconds for a distance of 565 feet, as shown on the Richmond

Survey, was the only line that matched the property description for the boundary of the

Disputed Property on Mr. Johnston’s deed. This is the last call on the deed, “back to the

point of beginning” at the 898-1 monument. Mr. Brown further opined that pursuant to the

deed’s legal description of Mr. Johnston’s property, the boundary line is located southwest

of where Mr. Johnston is claiming. In reference to Mr. Johnston’s 1993 Deed, Mr. Brown

summarized:

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This deed right here, when we was up there surveying, me and my crew,

[Mr. Johnston] had this deed with him. We both read it together. I explained

where I thought it was. He objected. I’m fine with that. But based on the

TVA documents, on the old prior survey, and even Mr. Richmond’s survey,

you know, this deed has got to be setting southwest of that line.

When questioned regarding how closely he was able to match his survey to the McKenzie

Survey, Mr. Brown stated: “It’s very, very close.”

Jimmy Richmond, retained as an expert surveyor by Mr. Johnston, testified that when

preparing his survey, he consulted TVA maps, deeds, the McKenzie Survey, and Mr.

Johnston himself regarding where Mr. Johnston believed the boundary line to be. Mr.

Johnston considered the boundary line to be aligned with remains of painted marks on trees,

fencing along the northern line of the Disputed Property, and a roadway near that line. Mr.

Richmond observed that the roadway was visible and that remnants of fencing could be seen

embedded in some of the trees. He stated that he obtained the calls referring to the

northwestern and southwestern lines of the Disputed Property from the deeds, the TVA maps,

and the McKenzie Survey.

Mr. Richmond testified that the northeastern boundary line depicted on his survey was

“strictly a use line that we found on the ground.” In reviewing Mr. Johnston’s 1993 Deed

before conducting the survey, Mr. Richmond believed the deed established title of the

Disputed Property in favor of Mr. Johnston. He explained, however, that when he surveyed

the Disputed Property, he discovered that the 898-1 monument, the beginning point of the

property description, was not located where the McKenzie Survey and TVA maps had shown

it to be. He explained:

But the problem that arises, until you go in there and actually begin to do the

surveying, the measurements and to locate what’s there and realize what’s

going on, the deed calls for the point of beginning to be a TVA concrete

monument, No. 898-1, and if you go out there on the ground there is an

existing monument with that number on it, which Mr. Johnston felt like and

told us he felt like was his northwest corner. And if you just stand there on

that monument and read the deed, you have no reason to think it doesn’t go

around this piece of property that he feels like is his. When we got into it and

began to do the surveying, we realized that there was some other issues.

According to Mr. Richmond, the location of the 898-1 monument on his survey represents

the monument’s actual location at the time he surveyed. He stated that the monument did not

appear to have been moved recently.

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Mr. Richmond identified on his survey the location where he actually found the 898-1

monument. He acknowledged that based on the TVA maps and McKenzie Survey, he

believed the 898-1 monument should be on the southwestern corner of the Disputed Property.

On his survey, he noted that the current location of the 898-1 monument is actually where

the TVA map shows the 898-2 monument to be located. He confirmed that the northern

boundary line claimed by Mr. Johnston was not consistent with the final call on Mr.

Johnston’s deed and that the southernmost line of the Disputed Property is consistent with

the last call of Mr. Johnston’s deed.

Both Mr. Brown’s and Mr. Johnston’s testimony regarding the current placement of

the 898-1 monument and the inconsistency of Mr. Johnston’s claimed northeastern boundary

line with the property description on his 1993 Deed support the trial court’s finding that said

boundary line is not the true one and that Mr. Johnston does not hold title to the Disputed

Property. The trial court also found that Bowater, as Ms. Vincent’s predecessor in title, had

been the owner of the Disputed Property and had conveyed it to Ms. Vincent. In reaching

this finding, the trial court expressly found Bowater representative Kevin Gallagher to be a

highly credible witness. See Morrison v. Allen, 338 S.W.3d 417, 426 (Tenn. 2011) (“When

credibility and weight to be given testimony are involved, considerable deference must be

afforded to the trial court when the trial judge had the opportunity to observe the witness’

demeanor and to hear in-court testimony.”).

The parties stipulated that Hiwassee Land Company and Bowater are different names

for the same company. In his employment with Resolute, Mr. Gallagher is the custodian of

records regarding the company’s land holdings, a responsibility he testified he has maintained

since 1982.3 Mr. Gallagher authenticated a silvicultural weeding report, dated July 27, 1987,

regarding the cultivation of trees or site preparation for tree planting on Bowater property.

The report included a map identifying the areas treated and areas cleared, including the

Disputed Property, which was mechanically cleared of trees and then cultivated in 1987. He

also identified a plantation inventory adjustment report, dated March 9, 1988, showing a

planting of loblolly pine seedings completed on the Disputed Property on March 1, 1988.

Mr. Gallagher reviewed a boundary marking report, dated August 1982. He explained

that the company’s procedure, subsequent to obtaining a survey, would have been to send a

boundary marking crew to identify and number the corners so that the corner numbers on the

report would correspond to those indicated on the map. When he withdrew this boundary

3

Mr. Gallagher testified that he began working for Bowater in 1982, although until 1984, the division

he worked for was known as Catawba Timber Company. Following a merger in 2008, Bowater became part

of Abitibi, Inc., and Mr. Gallagher’s current employer is known as Resolute F.P. U.S., Inc. At the time of

trial, Mr. Gallagher was a forest analyst working in Resolute’s United States wood products department.

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marking report from the file, attached was a copy of the 1982 McKenzie Survey. He

confirmed that the McKenzie Survey attached to the boundary marking report was the same

McKenzie Survey, dated March 16, 1982, previously admitted into evidence. Regarding the

TVA 898-1 monument, Mr. Gallagher stated that the boundary report noted the monument

at corner number 186 with a steel post placed there.

Mr. Gallagher also reviewed a boundary marking report dated 1984. He explained

that it reflected the Bowater boundary crew’s work of inspecting the boundary and

performing any necessary refurbishing. The crew had walked the entire boundary of the

property. An identical copy of the map attached to the 1982 boundary report was attached

to the 1984 report. The 1984 report referenced TVA CR 898-1, again corresponding to

corner 186 and identifying a steel post. The attached map included the Disputed Property.

Mr. Gallagher further reviewed a boundary marking report dated December 1989 with the

TVA 898-1 monument similarly referenced. The 1989 report was the final boundary

marking report Bowater generated for what is now the Vincent Property and the Disputed

Property.

Mr. Gallagher testified that he personally walked what is now the Vincent Property

with the Vincents when Bowater was marketing the property for sale in June 2009. When

they traversed the land, they came upon a dirt, unimproved road, connecting with

Lamontville Road. The property visit continued down to the waterfront and through the

woods generally across the entirety of the property. At that time, Mr. Gallagher observed no

improvements on the property. He, however, did not go onto the Disputed Property. He

knew of no other ownership claims to the land.

Mr. Gallagher stated that he again walked the land with Mr. Vincent in July or August

2009 and at that time, traversed the Disputed Property. He observed that the Bowater map

“accurately reflected what was on the ground.” The map he referenced was distributed in

Bowater’s marketing materials and to the Vincents before Ms. Vincent purchased the land.

The map reflects that the Disputed Property is within what was then Bowater’s property.

Mr. Gallagher further testified that he visited both the Vincent Property and Disputed

Property a few weeks in advance of trial. During the visit, he walked the boundary lines with

the boundary marking reports and other documents from his file in hand. Mr. Gallagher

described Bowater’s procedure for marking boundary lines as follows:

So after a property was surveyed, the corners are placed by the surveyor

and boundaries in between the corners are also marked by the surveyor, either

by flagging tape or hacking trees on either side of the boundary.

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Subsequent to that, our boundary marking crew would go in and, going

by what the surveyor had indicated on the ground, would place steel posts

where the corners were. Typically a surveyor might put an iron pin or

something like that. We would put a steel post painted orange, identify three

witness trees at each corner, so those would be trees in close proximity to the

corner, and identify the distance and bearing from the witness tree to the

corner. That way if the corner got removed at some point then we would have

means to replace it. Then we would mark the boundary in between the

corners.

By way of example, if the corner’s here (indicating) and another corner

is on the corner of that wall over there, the boundary line in between, and if

this side is the Bowater property and this side is the alien or adjacent property,

we mark trees on either side of that boundary line. And so the trees on the

Bowater side would be marked with a single band, a 3 to 4 inch wide band,

about a third of the way around the tree facing the property line.

...

And then, again, if the Bowater property is over here and this is the

alien property, so the trees that are just inside the line on the alien property

would be marked similarly but with two bands. So that if someone out there

working on the property or inspecting the property, if you were on the Bowater

property and you see the property line and you see that you’re facing, you’re

looking at trees that are painted with two stripes, you know you’re on the

Bowater side of the line. Conversely, if you’re on the alien side of the line and

you see trees painted with one stripe, you know that you’re not on the Bowater

property.

As he summarized, in the final analysis, a tree with a single orange band would be on

Bowater’s property. A tree with a double band would be located on “alien property,” in this

case, the Johnston Property.

During trial, Mr. Gallagher reviewed photographs taken of trees he observed on the

Vincent Property that exhibited boundary markings as noted on the 1989 boundary marking

report. He stated that he walked the northernmost line of the Disputed Property and observed

a tree shown in a photograph admitted as exhibit 10 and identified on the Richmond Survey

as B1 and B2. He indicated that if the northern boundary line were located where Mr.

Johnston claims it is, the markings on the tree shown in exhibit 10 would not be consistent

with Bowater’s method of marking boundaries. As Mr. Gallagher explained, the tree was

marked on the south side of the tree facing away from Mr. Johnston’s claimed boundary and

was marked with a single stripe instead of double stripes.

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Mr. Gallagher also addressed the northernmost corner of the Disputed Property on the

Richmond Survey where the Richmond Survey indicates a “METAL POST PAINTED

ORANGE, WITH REFERENCE TREES WITH CUT ‘X’ ON TREES, ALSO PAINTED

ORANGE.” He noted that this marking is not consistent with the method Bowater had used.

When asked to explain why the marking is not consistent, he stated in pertinent part:

First of all, this paint appears to have been placed there more recently than the

1989 marking as we saw in the other photograph. The paint is brighter; it

covers more into the fissures and crevices of the bark.

Number two, there are two witness trees at this corner. Our prescribed

method was to mark three witness trees so long as there were three available.

And there are other trees available that could have been marked, but there’s

only two, so the boundary marking crew – we would have marked three trees

and not just two.

Thirdly, the X’s at this spot are not facing squarely the corner, so the

method is that the X’s would face squarely at the corner. The two witness

trees that are marked with X’s here, the X’s do not face the corner. One of

them is offset by approximately 20 degrees and the other is facing almost 60

degrees away from the corner.

Number four . . . all the boundary marking reports have identified

witness trees at this corner, which is presumably corner 185 on our map. And

the two trees that are marked as witness trees are loblolly pine trees. The

boundary marking reports call for a 6 inch elm, a 12 inch sweet gum and a 16

inch loblolly pine, which would have been 16 inches at the time the boundary

marking report was done so we would expect to see a much larger diameter

tree there by now.

So neither of the trees that are marked are elm or sweet gum and don’t

match a 16 inch loblolly pine. They are trees that are – these two trees are, one

of them is approximately 12 inches and the other is approximately 14 inches

in diameter. Also, these two trees originated from the stand that was planted

in 1988. They’re loblolly pines, they are the same height as the whole stand

of loblolly pines that’s there, and so they’ve had 25 growing seasons and that’s

the reason they’re this size now. In 1989 they would have – these trees were

planted in 1988; in 1989 the trees would have been one year old.

...

And, finally, on the map, this corner on the ground is not reflective of

where it would be indicated on our map.

...

Based on the topo map and coming across this knob here, I know where

that corner is located on the ground relative to our topo map, again I haven’t

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measured it off on the ground but approximately two, three hundred feet

northeast of where our corner is indicated on our map.

Mr. Gallagher acknowledged that while the boundary marking reports had been

produced between 1982 and 1989, he worked at the Catawba mill in South Carolina.

Regarding the boundary marking reports, he clarified that the “witness trees,” which were

located on the perimeter of what was then Bowater’s property, would not have been removed

when the property was cleared in 1987. When attempting to find the witness trees upon his

visit to the Disputed Property, he was unsuccessful. In response, Mr. Johnston denied

painting any boundary markers or knowing of anyone other than Bowater painting boundary

markers.

Mr. Johnston argues that in finding that the northeastern boundary on the Richmond

Survey was not the true northeastern boundary line of the Disputed Property, the trial court

improperly relied upon the 1982 McKenzie Survey over the Richmond Survey. As noted

above, “‘[i]n determining disputed boundaries resort is to be had first to natural objects or

landmarks, because of their very permanent character; next, to artificial monuments or marks,

then to the boundary lines of adjacent landowners, and then to courses and distances.’”

Wood, 197 S.W.3d at 258 (citing Thornburg v. Chase, 606 S.W.2d 672, 675 (Tenn. Ct. App.

1980)). In Wood, this Court reversed the trial court’s placement of a boundary line based

upon the pins marking an adjacent landowner’s line in a recent survey where an older survey

existed that relied on artificial monuments. Id. at 259 (“It is agreed by all parties that the

platted survey is based upon no natural objects or landmarks. In order of priority, one must

then look to artificial monuments or markers before ever relying on boundary lines of

adjacent land owners or courses and distances.”).

Mr. Johnston argues that in this case, the trial court improperly applied a principle

stated in the Wood decision as one of several “governing rules” in determining boundary

disputes: “[I]t is the monuments laid out by the original surveyor, if they can be located,

which govern the boundaries, even if the actual survey used in the plat is in error.” Id. at

260. Mr. Johnston relies on Cupp v. Heath, No. E2010-02364-COA-R3-CV, 2011 WL

3557059 at *5-6 (Tenn. Ct. App. Aug. 11, 2011), to support his argument that because his

property and the Vincent Property did not originate from the same landowner, the general

hierarchy governing boundaries established in Thornburg should apply without deference to

an original survey of one property owner’s land. In Cupp, this Court distinguished the facts

from those in Wood and concluded that the original survey, created for only one of the

parties, did not carry greater weight than more recent surveys because the parties’ respective

properties did not share a common predecessor in title. See Cupp, 2011 WL 3557059 at *7.

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In the case at bar, it is undisputed that the Vincent Property and Johnston Property do

not originate with a common landowner. We find Mr. Johnston’s analogy to Cupp based on

this fact misplaced, however. Although there was some testimony regarding trees as natural

monuments, neither surveyor was able to rely on the placement of trees in the Disputed

Property in preparing his respective survey because of tree cutting in the area since the 1982

McKenzie Survey and execution of Mr. Johnston’s 1993 Deed. The trial court then focused

on artificial monuments, particularly the placement of the TVA 898-1 concrete monument,

the beginning and ending point of the property description for the relevant tract in Mr.

Johnston’s 1993 Deed. Mr. Richmond testified that he established the northeastern boundary

line on his survey on the line as Mr. Johnston was using it. Mr. Johnston testified that in

adopting this line as his boundary, he had relied on the dirt trail, the orange “Bowater paint,”

and the remains of a barbed wire fence in the trees. He clearly stated his belief that the 898-1

monument, as it was placed at the time of trial, was the beginning point of his northern

boundary. Both surveyors, however, were unable to align the current placement of the 898-1

monument with the property description in Mr. Johnston’s deed. Furthermore, the trial court

credited Mr. Richmond’s testimony that he found both the 898-1 and 898-2 monuments in

the same location, which, as the court noted, “they shouldn’t have been under any set of

circumstances.”

In contrast to Mr. Johnston’s assertion regarding the trial court’s reliance on the

primacy of an early survey over a later one, we conclude that the trial court properly

considered the importance of artificial monuments and both expert surveyors’ testimony

regarding the misalignment between those monuments and the property description in Mr.

Johnston’s 1993 Deed if any part of the Disputed Property were attributed to that description.

See generally Thornburg, 606 S.W.2d at 675. The evidence does not preponderate against

the trial court’s finding that the common boundary line between the Vincent Property and

Johnston Property was as described in the 1982 McKenzie Survey incorporated into Ms.

Vincent’s deed and the Brown Survey. Mr. Johnston is not entitled to relief on this issue.

IV. Color of Title

Mr. Johnston contends that the trial court erred by finding that the property description

contained in his 1993 and 1987 warranty deeds, respectively, did not provide him color of

title to the Disputed Property. Having found that the calls in the 1993 Deed, which Mr.

Johnston claimed enclosed the Disputed Property, did not match what was actually located

on the ground by both Mr. Richmond and Mr. Brown, the trial court ruled in its Order that

Mr. Johnston’s deeds afforded him no color of title to the Disputed Property. Having

carefully reviewed the evidence, we agree with the trial court.

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Our Supreme Court has defined color of title as “‘something in writing which at face

value, professes to pass title but which does not do it, either for want of title in the person

making it or from the defective mode of the conveyance that is used.’” Cumulus, 226 S.W.3d

at 376 n.3 (quoting Thompson on Real Property § 87.12, at 145 (David A. Thomas ed.,

1994)). Mr. Johnston argues that in relying on the surveyors’ expert opinions regarding the

ultimate issue of which party possessed title to the Disputed Property, the trial court

erroneously held Mr. Johnston to a higher burden than required to establish color of title. He

further argues that because of natural changes in the Johnston Property between its original

metes and bounds description in 1948 and as observed in 2011, the boundaries of the

Disputed Property could not have been the same as in the description contained in Mr.

Johnston’s deed.

We determine these arguments to be unavailing. Having determined that the evidence

does not preponderate against the trial court’s finding that the description in Mr. Johnston’s

deed did not include the Disputed Property, we must also conclude that the evidence does not

preponderate against the trial court’s finding that the description was insufficient to provide

color of title. See Turnage v. Kenton, 102 Tenn. 328, 334 (1899) (holding that while a

description need not be identical in boundaries to the property at issue in order to establish

color of title, it must be sufficient to demonstrate that it covers the land in controversy).

VI. Adverse Possession

Mr. Johnston next argues that the trial court erred by discounting multiple

improvements he made to the Disputed Property and finding that his use of the Disputed

Property was indicative of trespass rather than adverse possession. Ms. Vincent contends

that the trial court properly found that Mr. Johnston’s use of the Disputed Property did not

constitute adverse possession. We conclude that although the trial court correctly found that

Mr. Johnston did not adversely possess the entire five acres constituting the Disputed

Property, the trial court did err in failing to find that Mr. Johnston was entitled to the

statutory defense of adverse possession in relation to the portion of the Disputed Property

upon which certain improvements are located.

Mr. Johnston asserts that he had openly and notoriously possessed the Disputed

Property since 1988 and therefore maintains that he was in adverse possession under the

common law rule requiring use for twenty years and pursuant to the seven-year use

requirement of Tennessee Code Annotated § 28-2-102 (2004) and § 28-2-103. Acquisition

of property by adverse possession may operate as a bar to recovery of the property by the title

holder, and it may also operate to vest the adverse possessor with title. See Cumulus, 226

S.W.3d at 375; Wilson v. Price, 195 S.W.3d 661, 666-67 (Tenn. Ct. App. 2005). Our

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Supreme Court has elucidated the statutory forms of adverse possession as follows in

pertinent part:

[L]imitations of real property actions, i.e., the statutory forms of adverse

possession, are found in Tennessee Code Annotated sections 28-2-101 through

103. Initially, land granted by the state, for example, requires only a period of

seven years’ adverse possession under a recorded assurance or color of title,

terms which are used interchangeably. Tenn. Code Ann. § 28-2-101 (2000);

see, e.g., Slatton v. Tenn. Coal, Iron, & R.R. Co., 109 Tenn. 415, 75 S.W.926,

927 (Tenn. 1902). Another provision, Tennessee Code Annotated section 28-

2-105, does not require any proof of a state land grant but does prescribe

assurance of title for thirty years and a minimum of seven years of adverse

possession. The limitations on actions statutes, described in Tennessee Code

Annotated sections 28-2-102 and 103, are defensive only, barring only the

remedy. Kittel v. Steger, 121 Tenn. 400, 117 S.W. 500, 503 (Tenn. 1909).

These rights may be utilized by the adverse holder only in the defense of a suit

and not as a means to bar use by the rightful owner. Slavely v. Bridges, 57

Tenn. App. 372, 418 S.W.2d 472, 479 (Tenn. Ct. App. 1967). Tennessee Code

Annotated section 28-2-102 provides a defense when there is assurance of title

and seven years possession; this statute serves as protection as to the entire

boundary as described. Section 28-2-103, which does not involve color of

title, protects an adverse holder after a period of seven years but only as to that

portion of the land in his actual possession. Shearer v. Vandergriff, 661

S.W.2d 680, 682 (Tenn. 1983).

Cumulus, 226 S.W.3d at 376. The Court further described common law adverse possession:

In our state, common law adverse possession rests upon the proposition “that,

where one has remained in uninterrupted and continuous possession of land for

20 years, a grant or deed will be presumed.” Ferguson v. Prince, 136 Tenn.

543, 190 S.W.548, 552 (Tenn. 1916); see also Webb v. Harris, 44 Tenn. App.

492, 315 S.W.2d 274, 277 (Tenn. Ct. App. 1958). Color (or assurance) of title

is not required. Keel v. Sutton, 142 Tenn. 341, 219 S.W.351, 352-53 (Tenn.

1920); Hallmark v. Tidwell, 849 S.W.2d 787, 792-93 (Tenn. Ct. App. 1992).

In order to establish adverse possession under this theory, or in any statutorily

based claim, the possession must have been exclusive, actual, adverse,

continuous, open, and notorious for the requisite period of time. Hightower

v. Pendergrass, 662 S.W.2d 932, 935 n. 2 (Tenn. 1983); cf. Menefee v.

Davidson County, 195 Tenn. 547, 260 S.W.2d 283, 285 (Tenn. 1953).

Adverse possession is, of course, a question of fact. Wilson v. Price, 195

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S.W.3d 661, 666 (Tenn. Ct. App. 2005). The burden of proof is on the

individual claiming ownership by adverse possession and the quality of

evidence must be clear and convincing. 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 knowledge of the adverse possession, or the

possession must be so open and notorious to imply a presumption of that fact.

Kirkman v. Brown, 93 Tenn. 476, 27 S.W.709, 710 (Tenn. 1894). When 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).

Id. at 376-77.

In ruling that Mr. Johnston had not adversely possessed the Disputed Property, the

trial court made the following specific and pertinent findings of fact in pertinent part:

As to adverse possession, under the [Hollow] vs. Butler case hunting

is not enough. Mr. Johnston must prove adverse possession by clear and

convincing evidence. What was done here, the riding of four wheelers in this

area, is more of an indication of a trespass rather than an open and notorious

claim of ownership in this case which is exclusive actual adverse possession.

The actual owner must have knowledge of the possession or it must be so open

and notorious as to imply a presumption of that through fact. The occasional

use of the land is insufficient. That’s also in the Hollow vs. Butler case.

An aerial view indicates the disputed area was planted, as Bowater

planted their other property, as late as 1989 and Bowater cleared that area

without dispute or complaint from [Mr. Johnston]. And I find that he has not

established that area by adverse possession either, so judgment for [Ms.

Vincent].

As the trial court indicated, Mr. Johnston presented extensive testimony regarding his

tenants’ practice of riding four-wheelers on the trails over the Disputed Property. Five

tenants, who paid yearly fees to Mr. Johnston to rent campsites at his campground on

undisputed Johnston Property, testified that they rode four-wheelers across the Disputed

Property as often as every weekend when weather permitted. According to his tenants and

by his own testimony, Mr. Johnston made a practice of showing new tenants what he

considered to be his property line so that they would remain on his property when riding or

walking. This purported line was of a location to include the Disputed Property. Some

tenants testified that they occasionally hunted on the Disputed Property and used it for access

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to the lake. It was undisputed that Mr. Johnston had kept the trails used by his tenants,

including those on the Disputed Property, clear of brush to the extent that four-wheelers

could pass over them.

The trial court found that this recreational use of the Disputed Property was occasional

and more indicative of trespass than of adverse possession. We agree with the trial court on

this point. The court specifically cited in its order this Court’s decision in Hollow v. Butler,

No. E2010-02150-COA-R3-CV, 2011 WL 3062021 (Tenn. Ct. App. July 26, 2011). In

Hollow, this Court found the defendant’s attempt to demonstrate adverse possession

insufficient where the only acts shown were “cattle straying into the Disputed Area, allowing

neighbors to hunt, occasional cutting of firewood, repairing of the fence in the Disputed

Area, and incident of cutting timber.” See 2011 WL 2062021 at *9; see also Heaton v.

Steffen, No. E2008-01564-COA-R3-CV, 2009 WL 2633050 at *5 (Tenn. Ct. App. Aug. 27,

2009) (“Actions such as the taking of firewood and hunting are more indicative of an intent

to trespass than an intent to seize and hold the land.”) (citing McCammon v. Merideth, 830

S.W.2d 577, 580 (Tenn. Ct. App. 1991)). While it is true that Mr. Johnston’s tenants’

recreational use of the Disputed Area was more frequent than the defendant’s use of the

disputed area in Hollow, we cannot conclude that the acts of riding four-wheelers and

hunting rose to the level of the open and notorious use required for adverse possession.

The trial court made no specific findings regarding improvements Mr. Johnston

claimed he had made to the Disputed Property. All testimony, including that of Mr.

Johnston’s tenants, indicated that the majority of the Disputed Property was wooded and

crossed by only rough trails requiring four-wheelers for motorized passage. Mr. Johnston,

however, testified that he built a boat ramp in 1988, paved a dirt road with asphalt in the

early 1990s, constructed a framed building (cabin) for a tenant in 1994, and built a metal

carport over a deck for placement of a camper in 2002. Ms. Vincent asserts in her brief on

appeal that the only proof Mr. Johnston presented regarding these improvements, aside from

his own testimony, was the Richmond Survey showing portions of the framed building and

carport encroaching over the boundary line as drawn by Mr. Richmond. We note that in

addition, (1) Mr. Richmond testified that he had accurately placed the location of the framed

building and carport on his survey; (2) Mr. Johnston presented a photograph of his name and

“1988” etched in the cement of the boat ramp; (3) Ms. Vincent testified she had “always

questioned that one camper down there at the bottom” by the boat dock, presumably meaning

the metal carport and camper base; and (4) the small asphalt roadway, which Mr. Johnston

stated extended from the county road to the boat dock, is shown on both the Brown and

Richmond Surveys, respectively.

As referenced above, acquisition of property by adverse possession must be, for the

requisite period of time, “(a) actual and exclusive; (b) open, visible, and notorious; (c)

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continuous and peaceable; and (d) hostile and adverse.” See Cumulus, 226 S.W.3d at 376.

Apart from time considerations, we determine that Mr. Johnston’s construction and use of

the framed building and metal carport with base have been actual and exclusive; open,

visible, and notorious; continuous and peaceable; and hostile and adverse. We are unable to

conclude the same for the boat ramp, however, without evidence in the appellate record as

to whether the boat ramp is located solely on TVA property at the contour line by the water

or encroaches onto the Disputed Property.

Regarding the remaining improvement of the asphalt road along the southern

boundary of the Disputed Area, we agree with Ms. Vincent’s assertion on appeal that Mr.

Johnston failed to present clear and convincing evidence that the road was possessed

exclusively by him or his tenants. See Cumulus, 226 S.W.3d at 377 (“The burden of proof

is on the individual claiming ownership by adverse possession and the quality of the evidence

must be clear and convincing.”). The paving of the asphalt road does not therefore constitute

an improvement sufficient for adverse possession. We note that this conclusion indicates no

determination regarding whether Mr. Johnston may be entitled to a prescriptive easement

along the asphalt road, as that issue has not been raised by the parties and constitutes an open

and unanswered question of use rather than possession. See id. at 378 (“A doctrine related

to adverse possession is that of prescriptive easement . . . 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.”).

Regarding the time period considerations, Mr. Johnston stresses that he built the boat

dock in 1988, twenty-four years before Ms. Vincent filed her petition and thus exceeding the

twenty-year requirement of common law adverse possession. See Cumulus, 226 S.W.3d at

376. As noted above, however, we are unable to determine from the record before us that

the boat dock encroaches upon the Disputed Property. We therefore cannot conclude that

any of Mr. Johnston’s encroaching improvements were in existence for at least twenty years

prior to the instant action.

In the alternative, Mr. Johnston argues that he is entitled to the defense of adverse

possession pursuant to Tennessee Code Annotated § 28-2-102 or § 28-2-103. As recognized

previously, Tennessee Code Annotated § 28-2-102 “provides a defense when there is

assurance of title and seven years possession” and “serves as protection as to the entire

boundary as described.” Cumulus, 226 S.W.3d at 376; see also Shearer v. Vandergriff, 661

S.W.2d 680, 682 (Tenn. 1983). Having determined that the trial court properly found that

Mr. Johnston’s deed does not afford him color of title, we must conclude that no relief is

available under the defense provided by section 28-2-102.

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The same is not true, however, for the defense afforded by Tennessee Code Annotated

§ 28-2-103, which “does not involve color of title” and “protects an adverse holder after a

period of seven years but only as to that portion of the land in his actual possession.” See

Cumulus, 226 S.W.3d at 376 (citing Shearer, 661 S.W.2d at 682). Tennessee Code

Annotated § 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.

As this Court has explained:

Tenn. Code Ann. § 28-2-103 bars the right of the title owner to recover

property that has been adversely held for more than seven years. Teeples v.

Key, 500 S.W.2d 452, 456 (Tenn. Ct. App. 1973). The statute does not convey

title, but may be used defensively by the adverse holder. It is “a defensive

statute and protects the adverse holder in possession to the extent and upon the

terms set forth in the statute.” Moore, 42 Tenn. App. At 564, 304 S.W.2d at

662; see also Lemm, 955 S.W.2d at 73 n.1 (stating that the statute provides a

valid defense but does not entitle the adverse holder to a decree granting him

title).

Michael v. Jakes, No. M1999-02257-COA-R3-CV, 2002 WL 1484448 at *13 (Tenn. Ct.

App. July 12, 2002).

Mr. Johnston’s testimony that he constructed the framed building in 1994 and the

metal carport with camper base in 2002 was undisputed. His adverse use and possession of

both encroachments regarding the Disputed Property continued for over seven years. We

hold that to the extent Mr. Johnston’s improvements of the framed building and metal carport

with base encroach upon the Disputed Property, he has established adverse possession of

only those portions of the Disputed Property encroached upon. We reverse the trial court’s

finding of no adverse possession solely in this regard. We remand for determination of the

portions of the Disputed Property encroached upon by Mr. Johnston’s frame building and

metal carport with base. On remand, we also direct the trial court to determine whether Mr.

Johnston’s boat ramp adversely encroaches upon the Disputed Property and if so, by what

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measure of real property. On remand, the parties should be allowed to present additional

evidence regarding the extent of each specified improvement’s encroachment. See First

Tenn. Bank Nat’l Assoc. v. Hurd Lock & Mfg. Co., 816 S.W.2d 38, 40 (Tenn. Ct. App. 1991)

(“[T]his court, in its original opinion, envisioned and intended that the trial judge, on remand,

take all action necessary to do complete justice, including the reception of additional

proof.”).

VII. Champerty

Mr. Johnston posits that the trial court should have afforded him the presumption of

champerty as to the validity of Ms. Vincent’s deed, thereby shifting the burden to Ms.

Vincent to overcome the presumption by clear and convincing evidence. The trial court,

having found no adverse possession on Mr. Johnston’s part, also denied Mr. Johnston’s claim

of champerty. We conclude that the trial court did not err in affording no presumption of

champerty to Mr. Johnston, and we further conclude that Mr. Johnston’s minimal adverse

encroachments, noted in the previous section of this opinion, do not render Ms. Vincent’s

deed champertous.

As Mr. Johnston acknowledges, a finding of adverse possession is a prerequisite to

a finding of champerty. See Foust v. Metcalf, 338 S.W.3d 457, 464 (Tenn. Ct. App. 2010).

As this Court explained in Foust:

Champerty originated in English Common Law; it was designed to

prevent the “trafficking of dormant titles.” See 14 Am. Jur. 2d Champerty,

Maintenance, Etc. § 12 (2010). Historically, a conveyance of real estate was

considered champertous and void if the deed was conveyed when the real

property was in the adverse possession of someone other than the grantor. Id.

Tennessee is one of the few jurisdictions in the United States that still

recognizes champerty. See id.; see also Levine v. March, 266 S.W.3d 426, 437

n. 13 (Tenn. Ct. App. 2007). Tennessee’s law of champerty is embodied in

Tenn. Code Ann. § 66-4-201 et seq. Pursuant to Tenn. Code Ann. § 66-4-202,

an agreement to sell land “shall be utterly void where the seller has not

personally, or by the seller’s agent or tenant, or the seller’s ancestor, been in

actual possession of the lands or tenements, or of the reversion or remainder,

or taken the rents or profits for one (1) whole year next before the sale.” The

statute renders void any sale of real property when another is in adverse

possession, even where the grantor holds the land in perfect title. Green v.

Cumberland Coal & Coke Co., 110 Tenn. 35, 72 S.W. 459, 460 (1903). As

this court explained in Levine v. March:

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Tennessee champerty statutes prohibit the sale of

pretended interests in real property. Tenn. Code Ann. § 66-4-

201 (2004). They also include the presumption that a sale of any

interest in real property by a person without actual or

constructive possession of the real property is champertous.

Tenn. Code Ann. § 66-4-205 (2004). The purpose of these

statutes is to protect persons in actual possession of an interest

in real property from suits based on pretended or dormant

claims, unless the suits are instituted in good faith by persons

with bona fide claims of title. Williams v. Hogan, 19 Tenn.

(Meigs) 187, 189 (1838).

266 S.W.3d at 437-38. The court elaborated in a footnote to this paragraph

that, “[t]his statute can trace its lineage at least as far back as 32 Henry VII, ch.

9 (1540) . . . . Tennessee is among the handful of states that continue to

recognize this species of champerty.” Id. at 437 n. 13.

In the more recent opinion of Mitchell v. Keck, No. E2005-02381-COA-

R3-CV, 2006 WL 1735142, at *2 (Tenn. Ct. App. June 26, 2006), this court

stated:

Under [the champerty statutes], if one out of possession

attempts to convey land which is adversely possessed by a third

party, the conveyance is void. Kincaid v. Meadows, 40 Tenn. (3

Head) 188, 192, 1859 WL 3430, at *2 (1859); Blair v. Gwosdof,

[46 Tenn. App. 314,] 329 S.W.2d 366, 368 (Tenn. Ct. App.

1959). Regardless of the validity of the conveyor’s title to the

land, such title becomes merely a pretended title, within the

statute, when there is an attempt to convey it under such

circumstances. Kincaid, 40 Tenn. (3 Head) at 192, 1859 WL

3430, at *2; Blair, 329 S.W.2d at 368. There is no required

duration of adverse possession by the third party; all that is

required is that the third party adversely possess the land at the

time of the conveyance. Kincaid, at 192; Blair, at 368.

Adverse possession requires “an occupation of the

property under a claim of right or title which is open, actual,

continuous, exclusive, adverse and notorious.” Catlett v.

Whaley, 731 S.W.2d 544, 546 (Tenn. Ct. App. 1987).

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Mitchell, 2006 WL 1735142, at *2.

Tenn. Code Ann. § 66-4-203 goes on to provide that any suit brought

for the recovery of real property “shall be forthwith dismissed, with costs, by

the court in which such suit may be pending,” upon a finding by the court that

the deed conveying the property to the plaintiff was champertous. See Levine,

266 S.W.3d at 438 (stating that “legal claims based on champertous deeds are

subject to dismissal”).

Foust, 338 S.W.3d at 462-63. “In champerty cases, the adverse possession ‘must be at least

as high in nature and dignity as that possession which is held to be adverse under the statute

of limitation’”). Id. at 464 (quoting Gernt v. Floyd, 174 S.W. 267, 268 (Tenn. 1915)).

Regarding the presumption of champerty, Tennessee Code Annotated § 66-4-205

(2004) provides:

If any person sells any lands or tenements, not having possession of them

personally or by agent or tenant, the same being adversely held by color of

title, champerty shall be presumed until the purchaser shows that such sale was

bona fide made.

(Emphasis added.) Inasmuch as we have determined that the trial court correctly found Mr.

Johnston to possess no color of title to the Disputed Property through his 1993 Deed, we

further determine that the trial court correctly declined to afford Mr. Johnston the champerty

presumption provided by Tennessee Code Annotated § 66-4-205.

Regarding the encroachments of the framed building and carport with base, Mr.

Johnston has not presented on appeal any authority to support a position that such minimal

adverse encroachments with no color of title constitute the nature and dignity of adverse

possession required to find the rightful title holder’s deed to be a pretended title and thus

champertous. Upon our review of the relevant case law, we decline to so hold. See, e.g.,

Foust, 338 S.W.3d at 459-66 (reversing the trial court’s denial of the defendant’s champerty

defense when the defendant possessed color of title to a “narrow but substantial strip of

land,” known by the parties as an “interlock,” and had constructed a fence to enclose a

portion of the interlock); McDavid v. McGuire, 526 S.W.2d 474, 479 (Tenn. Ct. App. 1973)

(determining that the defendant landowners’ deeds were champertous as to a one-fourth acre

parcel of land that had been given but never deeded to a church by the defendant landowners’

predecessor in title and had been adversely used as a parking lot and roadway by church

members for twenty years); Mitchell v. Keck, No. E2005-02381-COA-R3-CV, 2006 WL

1735142 (Tenn. Ct. App. June 26, 2006) (affirming the trial court’s finding that a quitclaim

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deed to the plaintiff of a twenty-foot drive was champertous when the grantors of the

quitclaim deed were heirs to an interest in the drive only under a prior deed in the plaintiff’s

chain of title and had executed the quitclaim deed only after the defendant, who adversely

possessed the drive, refused to grant the plaintiff an easement in the drive). Mr. Johnston is

not entitled to relief on this issue.

VIII. Property Taxes as Indicia of Ownership

Mr. Johnston contends that the trial court erred in finding sufficient evidence to

support an indicia of ownership in favor of Ms. Vincent based on the payment of real

property taxes on the Disputed Property. In its order vesting title in the Disputed Property

to Ms. Vincent, the trial court found, inter alia, that Ms. Vincent and her predecessor in title,

Bowater, had been paying taxes on the Disputed Property. We conclude that the evidence

does not preponderate against this finding and that the trial court properly considered

payment of taxes on the Disputed Property as one indicia of ownership.

Tennessee Code Annotated § 28-2-109 (2000) 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

[sic] twenty (20) years continuously prior to the date when any question arises

in any of the courts of this state concerning 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.

Mr. Johnston bases his argument regarding this issue on what, upon our review of the

record, we find appears to have been a point of confusion in the McMinn County Assessor

of Property’s testimony. Assessor Jerry Anderson testified that the tax map for the Vincent

Property assessed 122.8 acres, inclusive of the Disputed Property. He stated also that prior

to Ms. Vincent’s acquiring the Disputed Property, taxes on the land at issue were assessed

to Ms. Vincent’s predecessors in title. On cross-examination, he allowed that if Mr.

Johnston’s 1993 deed actually contained a description for a portion of property that had been

assessed by his office to Ms. Vincent, that assessment would be in error. Mr. Anderson did

not, however, testify to any error in assessment of the taxes on the Disputed Property. As

noted previously, we owe great deference to the trial court as to the weight and credibility

afforded each witness. See Morrison, 338 S.W.3d at 426. This issue is without merit.

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IX. Conclusion

For the reasons stated above, we reverse the trial court’s finding of no adverse

possession with regard solely to the extent that Mr. Johnston’s improvements of the framed

building and metal carport with base encroach upon the Disputed Property. We remand for

determination of the portions of the Disputed Property adversely encroached upon by Mr.

Johnston’s frame building and metal carport with base, as well as a determination of whether

Mr. Johnston’s boat ramp adversely encroaches upon the Disputed Property and if so, by

what measure of real property. The trial court’s judgment is affirmed in all other aspects.

Costs on appeal are assessed equally to both parties.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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