Opinion
No. M1999-02257-COA-R3-CV.
Filed July 12, 2002.
Appeal from the Chancery Court for Davidson County; No. 98-2906-I; Irvin H. Kilcrease, Jr., Chancellor.
Affirmed in Part, Reversed in Part, and Remanded.
Randall W. Burton, Brentwood, Tennessee, for the appellant, Scott D. Michael.
Cecil D. Branstetter, Carrol D. Kilgore, Nashville, Tennessee, for the appellee, Ellis P. Jakes.
Patricia J. Cottrell, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and William C. Koch, Jr., J., joined.
This appeal involves two neighbors, Mr. Michael and Mr. Jakes, who share a boundary line and now dispute who owns land that is within the calls of Mr. Jakes's deed but has been used by Mr. Michael, in part for a portion of the driveway to his house. Mr. Michael lived on his lot for eleven (11) years prior to the filing of this suit and believed for some time after he purchased his lot that his driveway and a strip of land adjacent to it were within the calls of his deed. Mr. Jakes had a survey of the land performed, which showed that a portion of the driveway and the strip adjacent to it were owned by Mr. Jakes and not Mr. Michael. Mr. Jakes erected a fence along the driveway. Mr. Michael then filed suit claiming that he owned the disputed property under the doctrine of adverse possession or, in the alternative, owned the right to use the property by prescriptive easement. Mr. Michael also claimed an interest in the land pursuant to Tenn. Code Ann. § 28-2-103, the statute of limitations provision, which bars ejectment of an adverse possessor after seven (7) years of continued, open, and notorious use and possession. Mr. Michael later amended his complaint to allege forcible entry and detainer by Mr. Jakes. The trial court granted summary judgment for Mr. Jakes and stated in its final order that Mr. Michael had no interest in the property at issue. Mr. Michael now appeals that ruling. We reverse the grant of summary judgment in part.
OPINION
This case involves a dispute between adjoining landowners over a strip of land which includes a portion of a driveway to one neighbor's house. Although title to the disputed strip has remained with Mr. Jakes, Mr. Michael asserts that he has exclusively used the driveway and adjoining strip for the period of time necessary to have established either ownership by adverse possession or a prescriptive easement. The trial court granted summary judgment to Mr. Jakes and found that Mr. Michael had no property interest in the disputed strip of land. Because this case was decided on summary judgment, the facts set out below are taken from the affidavits submitted in support or opposition to the motion.
I. Facts
The following facts are undisputed. Mr. Scott D. Michael, owns a lot ("Michael Lot") that adjoins a lot ("Jakes Lot") owned by the defendant in the underlying action, Mr. Ellis P. Jakes. Both the Michael Lot and the Jakes Lot are located in the Jakes Subdivision on Eatons Creek Road in Davidson County. The Michael Lot was originally owned by Mr. Jakes who sold it in March of 1978 to Mr. Friedmann. Thereafter, Mr. Friedmann built the house that now stands on the property. In 1981, Mr. Friedmann sold the property to Mr. Loftin. At the time that Mr. Loftin purchased the Michael Lot, there was a gravel driveway from the street to the house located thereon. Mr. Loftin believed that this driveway was part of his property and in 1983 paved the driveway. Mr. Michael purchased the property in 1987 from Mr. Loftin.
Since Mr. Michael has owned his lot, there has been a driveway on the property connecting his house and garage to the road. When Mr. Michael purchased his property he assumed that the driveway and the land adjacent to it were within the calls of his deed. In 1990, when he refinanced his property, he learned that his deed did not include a portion of his driveway or an adjacent 22 foot strip he had maintained. In 1990, Mr. Michael added a garage to his property, which he extended in 1993. Later, in March of 1998, Mr. Michael added a shed next to the garage. At that time, Mr. Jakes became concerned that Mr. Michael's garage addition crossed the property line. A survey was conducted, it was discovered that the 1998 addition encroached on Mr. Jakes's land. The survey also disclosed that a portion of Mr. Michael's driveway and the strip adjacent to that driveway were included in Mr. Jakes's deed and not in Mr. Michael's deed. The parties discussed Mr. Jakes selling a portion of the property, which included the land under Mr. Michael's driveway and a small strip adjacent to it, to Mr. Michael.
At some point thereafter, Mr. Jakes built a fence which bisected the strip of property adjacent to the driveway, and sent Mr. Michael a letter asking for $3,850 for the portion of Mr. Jakes's property that was not fenced. Mr. Michael refused to pay this amount and then filed suit on September 25, 1998, seeking a declaratory judgment that he was the owner of the property by way of adverse possession or, in the alternative, that he owned a prescriptive easement for use of the property. Mr. Jakes counterclaimed seeking injunctive relief and requesting that Mr. Michael remove his 1998 improvement, which was entirely on Mr. Jakes's land. Mr. Michael removed the shed in October of 1998, and Mr. Jakes withdrew that portion of his counterclaim. Mr. Jakes then filed a motion for summary judgment.
Mr. Michael filed an amended complaint, which included a forcible entry and detainer action based upon Mr. Jakes's actions in fencing off part of the disputed parcel. After a hearing on the motion for summary judgment, the transcript of which is not in the record, the trial court granted Mr. Jakes's motion for summary judgment and dismissed Mr. Michael's complaint. The court stated in its Final Judgment that it based its ruling:
upon supporting and opposing affidavits and upon argument of counsel in open court concerning property rights in defendant's tract of land . . . which argument included [Mr. Michael's] concession that he has no color of title to any part of the [property in dispute], from all of which the Court concluded that the Plaintiff has no property interest in any part of the said [Mr. Jakes's] property.
On appeal, Mr. Michael argues that the trial court erred in granting Mr. Jakes's motion for summary judgment for three reasons. First, he asserts the court erred in its decision on his claim of title by adverse possession or right to use by prescriptive easement. Mr. Michael argues that there is a factual dispute about how long the current driveway has been used as a driveway. Second, Mr. Michael argues that the court erred in granting Mr. Jakes summary judgment because the seven year statute of limitations in Tenn. Code Ann. § 28-2-103 prohibits such a judgment. Third, Mr. Michael argues that the court erred in granting summary judgment on his forcible entry and detainer claim. Mr. Michael, in his amended complaint, argued that Mr. Jakes's action of coming in and erecting a fence on the property that Mr. Michael had peaceably possessed for eleven (11) years, again, violated Tenn. Code Ann. § 28-2-103(a), arguing that statute prevents Mr. Jakes from dispossessing Mr. Michael once he has adversely possessed the property for more than seven (7) years.
Mr. Jakes makes several arguments in opposition to Mr. Michael's assertions. With respect to the prescriptive easement and adverse possession issues, Mr. Jakes first argues that Mr. Michael never possessed the driveway or the strip of land adjacent to it because his casual use and actions on the land did not constitute possession. Second, he argues that Mr. Michael cannot meet the prescriptive period because he cannot "tack" possession by former owners of his lot to any land claimed without color of title. Mr. Jakes also argues that Mr. Michael has not met the requirements for prescriptive easement. As for the statute of limitations arguments made by Mr. Michael, Mr. Jakes argues that Tenn. Code Ann. § 28-2-103 does not apply because Mr. Michael never possessed the land and Mr. Jakes's counter-complaint was not a possessory action. About the forcible entry issue, Mr. Jakes states that the court was correct in its ruling because Mr. Michael was simply trespassing.
II. Summary Judgment
This case comes before this court as an appeal from the grant of a summary judgment motion to the defendant. A trial court's award of summary judgment enjoys no presumption of correctness on appeal. Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001); Penley v. Honda Motor Co., 31 S.W.3d 181,183 (Tenn. 2000). Accordingly, appellate courts must make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997).
Summary judgment is appropriate when the undisputed facts, and the inferences reasonably drawn from them, support only one conclusion — that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).
The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Belk v. Obion County, 7 S.W.3d 34, 36 (Tenn.Ct.App. 1999). In order to be entitled to a judgment as a matter of law, a moving party must either affirmatively negate an essential element of the non-moving party's claim or establish an affirmative defense that conclusively defeats the non-moving party's claim. Byrd, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn.Ct.App. 2000).
Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56's requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Nelson v. Martin, 958 S.W.2d 643, 647 (Tenn. 1997). Mere conclusory generalizations will not suffice. Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn.Ct.App. 1984). The non-moving party must convince the court that there are sufficient factual disputes to warrant a trial: (1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute; (2) by rehabilitating evidence challenged by the moving party; (3) by producing additional evidence that creates a material factual dispute; or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.06 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly observed, the "failure of proof concerning an essential element of the cause of action necessarily renders all other facts immaterial." Alexander v. Memphis Individual Prac. Ass'n, 870 S.W.2d 278, 280 (Tenn. 1993); see Strauss v. Wyatt, Tarrant, Combs, Gilbert Milom, 911 S.W.2d 727, 729 (Tenn.Ct.App. 1995).
Thus, this court must examine the evidence in the light most favorable to Mr. Michael. In reviewing the evidence, we must determine whether factual disputes exist and whether a disputed fact is material to the claim or defense. Byrd, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102,104 (Tenn.Ct.App. 1998). A disputed fact is material for summary judgment purposes if it must be decided in order to resolve a substantive claim or defense underlying the motion. Byrd, 847 S.W.2d at 215. Thus, whether a disputed fact is material so as to defeat summary judgment must be determined by reference to the applicable law.
III. Title by Adverse Possession and Easement by Prescription
This case involves claims under two similar, but distinctly different, doctrines and their application to two separate pieces of property. The first piece of property involved is the driveway, which leads from Mr. Michael's attached garage to Eatons Creek Road and provides ingress and egress to his house. The second piece of property is the strip of land adjacent to the driveway, referred to by the parties as the Northeast Section.
While the two doctrines, prescriptive easement and adverse possession, have some elements in common, see House v. Close, 48 Tenn. App. 341, 346 S.W.2d 445 (1961), there are, nevertheless, some fundamental differences.
Adverse possession of real estate is a possession thereof inconsistent with the right of the true owner, and when such possession is accompanied by certain acts and circumstances, the title will vest in the possessor.
10 Thompson on Real Property § 87.01, at 73-74 (David A. Thomas ed., 1994). One may succeed to ownership rights by "acting openly as though one were the owner against the interests of the real owner . . . ." 7 Thompson on Real Property, supra, at § 60.03(b)(6)(i).
On the other hand, an easement is an interest in another's real property that confers on the easement's holder an enforceable right to use that real property for a specific use. Bradley v. McLeod, 984 S.W.2d 929, 934 (Tenn.Ct.App. 1998) (citing Brew v. Van Deman, 53 Tenn. (6 Heisk.) 433, 436 (1871)). Unlike title by adverse possession, an easement is not an interest in the ownership of the underlying real property. As this court has stated:
Easement by prescription differs distinctly from title by adverse possession. The latter may ripen into an absolute fee simple title. The former does not arise from absolute possession and control, but from a persistent and continuous use of a privilege less than that of ownership. The most common form of easement is a right of passage only which leaves the owner of the underlying estate free to use the property in any way that does not interfere with the easement right.
Star Enter. v. Warner, No. 01-A-01-9502-CH-00036, 1995 Tenn. App. LEXIS 432, at *14-*15, 1995 WL 381652, at *4 (Tenn.Ct.App. June 28, 1995) (no Tenn.R.App.P. 11 application filed).
This court has recognized that the "use and enjoyment" which will give rise to an easement by prescription is substantially the same in quality and characteristics as the possession required to establish title by adverse possession, in that both must be open, continuous and adverse. House, 48 Tenn. App. at 345, 346 S.W.2d at 447. However, as the quoted passage from Star Enterprise indicates, there is a distinction between the exercise of possession and control necessary to establish adverse possession and the continuous use element of easement by prescription. See also Clanton v. Boyce, No. 86-152-II, 1986 Tenn. App. LEXIS 3493, at *7, 1986 WL 14801, at *3 (Tenn.Ct.App. Dec. 31, 1986) (no Tenn.R.App.P. 11 application filed) (stating that "Appellants are confusing the question of adverse possession with continuous use that may be necessary to acquire other rights in property").
Both title by adverse possession and creation of an easement by prescription require that the adverse possession or use, as the case may be, take place for a specified duration, or prescriptive period. In Tennessee, the prescriptive period for common law adverse possession without color of title is twenty (20) years. Catlett v. Whaley, 731 S.W.2d 544, 546 (Tenn.Ct.App. 1987) (citing Tidwell v. Van Deventer, 686 S.W.2d 899 (Tenn.Ct.App. 1984) and Smith v. Adkison, 622 S.W.2d 545 (Tenn.Ct.App. 1981)); Moore v. Brannan, 42 Tenn. App. 542, 565, 304 S.W.2d 660, 670 (1957).
"`Color of title' is something in writing which, at face value, professes to pass title but which does not do it, either from want of title in the person making it or from the defective mode of conveyance that is used." Thompson on Real Property, supra, at § 87.12. The trial court herein found that Mr. Michael had conceded he could not claim any color of title, and he has not asserted any such claim on appeal. It is undisputed that the property at issue is included in Mr. Jakes's lot.
Other prescriptive periods apply in circumstances not present herein. Tenn. Code Ann. § 28-2-101 requires only seven years adverse possession, but applies to lands granted by the state where there is a recorded assurance of title. Similarly, Tenn. Code Ann. § 28-2-105 requires thirty years of registered color of title and seven years of adverse possession. Both these shorter prescriptive periods require color of title. Moore, 42 Tenn. App. at 561-65, 304 S.W.2d at 670.
Similarly, a party claiming easement by prescription must show that his use and enjoyment of the alleged easement continued for twenty (20) years. Bradley, 984 S.W.2d at 935; Pevear v. Hunt, 924 S.W.2d 114, 116 (Tenn.Ct.App. 1996); Town of Benton v. Peoples Bank of Polk County, 904 S.W.2d 598, 602 (Tenn.Ct.App. 1995) (citing McCammon v. Meredith, 830 S.W.2d 577, 580 (Tenn.Ct.App. 1991)).
Obviously, Mr. Michael's use or possession of the disputed property for eleven (11) years since his purchase of his lot does not demonstrate continued use for the required period. However, under certain circumstances, the prescriptive period can be established through combining successive possessions or uses. Ferguson v. Prince, 136 Tenn. 543, 556, 190 S.W. 548, 552 (1916). The procedure by which successive possessions or uses are allowed to be combined to establish the requisite prescriptive period is called tacking. Thompson v. Hulse, No. 03A01-9908-CV-00269, 2000 Tenn. App. LEXIS 31, at *7, 2000 WL 124787, at *3 (Tenn.Ct.App. Jan. 26, 2000) (no Tenn.R.App.P. 11 application filed). The circumstances under which prior possessions can be tacked is discussed below.
IV. Adverse Possession
The basis for the transfer of title by adverse possession is a presumption that there has been a grant of the land to the possessor. "The doctrine on which this presumption rests is that, where one has remained in uninterrupted and continuous possession of land for twenty (20) years, a grant or deed will be presumed." Ferguson, 136 Tenn. at 556, 190 S.W. at 552. The presumption of title from long possession has also been explained as follows:
The doctrine of presumption of title rests upon the simple fact of long-continued use and enjoyment, and requires no aid for "color of title." Possession of land is prima-facie evidence of title; the law supposes that it had a legal origin, and when undisturbed for the period of twenty years, it becomes, in view of the law, an assurance of title of no less force or efficacy than the actual grant whose place it supplies. The presumption is not founded upon the idea that as a matter of fact a grant once existed, nor is it aided by the fact that the possession may have been held under some defective form of assurance: it rests alone upon a principle of public policy, to quiet the title of those who can show no other title than long-continued possession and use.
Freeman v. Martin Robowash, Inc., 61 Tenn. App. 677, 685, 457 S.W.2d 606, 609-10 (1970) (quoting Cannon v. Phillips, 34 Tenn. 211, 214 (1834), and citing similar holdings after Cannon). Thus, title by common law prescription or adverse possession does not require color of title and is not based upon an assertion of title by legal writing or anything other than possession for the requisite time and under the requisite circumstances. Keel v. Sutton, 142 Tenn. 341, 219 S.W. 351 (1919); Hallmark v. Tidwell, 849 S.W.2d 787, 792-93 (Tenn.Ct.App. 1992).
As stated earlier, the prescriptive period for adverse possession in Tennessee is twenty (20) years. Catlett, 731 S.W.2d at 546. Mr. Michael testified that he purchased the house in 1987, eleven (11) years prior to the filing of this suit. However, for purposes of establishing adverse possession for the requisite twenty (20) years, successive possessions may be considered. In Ferguson v. Prince, when speaking of the twenty year period for adverse possession, the Tennessee Supreme Court stated:
The possession may be continuously in one person, or there may be several successive possessions. In the case of successive possessions they must be connected without any hiatus, but there need be no privity of contract or other legal privity between the successive occupants, in this matter radically differing from successive possessions used in making out a defense under the statute of limitations.
Mr. Jakes cites Erck v. Church for the proposition that the successive adverse possessions herein cannot be tacked. That case, however, involved discussion of the requirements for tacking in order to meet the seven year statute of limitations now codified in Tenn. Code Ann. § 28-2-103. For purposes of asserting rights under the statute:
There must be a privity of estate connecting the successive possessions, and a transfer of the possessory right by grant, inheritance, devise, or contract, verbal or written. The mere fact of successive possessions appearing, and nothing more, will not constitute such privity.
Erck v. Church, 87 Tenn. 575, 588, 11 S.W. 794, 797 (1889). Ferguson clearly distinguished the tacking requirements to show twenty (20) years of adverse possession under the common law doctrine from the requirements for tacking under the seven year statute of limitations. Thus, Erck is not applicable to the issue of Mr. Michael's common law adverse possession. Mr. Jakes also cites Lemm v. Adams, 955 S.W.2d 70 (Tenn.Ct.App. 1997), for his "no tacking" position. Lemm dealt primarily with whether actual intent to possess adversely was required and held that it was not, relying on cases beginning with Erck. In that case, Mr. Adams relied on the seven year statute of limitations as a bar to a suit by the title owner for injunctive relief and damages for trespass. The issue of tacking was not discussed since Mr. Adams had possessed the disputed strip of property for fourteen (14) years. Mr. Jakes also cites Liberto v. Steele, 188 Tenn. 529, 221 S.W.2d 701 (1949). That case involved a claim of common law adverse possession for more than twenty (20) years, but the requirements for tacking successive possessions were not discussed. However, the opinion noted that the adverse holder and his predecessors in title had used and occupied the disputed strip continuously for more than forty (40) years, 188 Tenn. at 530-31, 221 S.W.2d at 702, thereby implying a tacking of successive possessions. Liberto, like Lemm, dealt primarily with the question of whether mistakes to the true boundary precluded a finding of adverse possession, finding that it did not. Because Mr. Michael claims possession himself for the eleven (11) years he has owned his lot, the issue of tacking is not presented in his statute of limitations claim. Therefore, Erck does not apply to that issue either.
Ferguson, 136 Tenn. at 556, 190 S.W. at 552; see also Catlett, 731 S.W.2d at 545-46 ; Arrowood v. Williams, 586 S.W.2d 131, 135 (Tenn.Ct.App. 1979); Derryberry v. Ledford, 506 S.W.2d 152, 156 (Tenn.Ct.App. 1973); Clayton, 1986 Tenn. App. LEXIS 3493, at *7, 1986 WL 14801, at *2 (applying the Ferguson holding). Therefore, Mr. Michael may tack the possession of his predecessors in an attempt to demonstrate twenty (20) years of adverse possession. Each of the prior possessions, however, must meet the requirements of adverse possession, as must Mr. Michael's.
But see Hicks v. Cole, No. 4, 1987 Tenn. App. LEXIS 2536, at *7, 1987 WL 7341, at *3 (Tenn.Ct.App. Mar. 6, 1987) (no Tenn.R.App.P. 11 application filed) (holding that claimants could not tack possession of previous owner of their property because the deed to them did not undertake to transfer any possessory rights in the disputed property that the predecessor might have had, relying on Erck).
We are not convinced that Mr. Michael would be unable to meet the privity requirements if they applied. This case does not involve separate possessions that are unrelated to each other. When Mr. Michael and his immediate predecessor in interest acquired title to the Michael Lot, the driveway was in existence, and the placement and paving of the driveway were under a mistake as to the true boundary. For purposes of tacking successive possessions in this circumstance:
Where a grantee takes possession of adjoining lands not described in the grantee's deed in the belief that it is part of the granted land and conveys the land by deed description but delivers possession to the adjoining land also, the continuity of possession will not be broken and the two possessions will be considered as one possession for the purpose of acquiring adverse possession title.
Thompson on Real Property, supra, § 87.14, at 598. Thompson cites Derryberry v. Ledford, 506 S.W.2d 152 (Tenn.Ct.App. 1973), for the proposition that "Tacking by successive grantees of adjoining land was permitted though land claimed by adverse possession was not included in the deed." Derryberry involved successive conveyances of a farm and the belief that a later disputed plot was part of the farm, although it was not covered in the deeds. The Court found that the each of the parties in the chain of title and succession of conveyances had the right to tack regardless of the fact the plot was omitted from the description in the deed to the farm. The relevant question appears to be whether "the adverse possessor intended to and actually did turn over possession of undescribed land together with that described in the deed." Thompson on Real Property, supra, § 87.14, at 178. This statement of the general rule is not inconsistent with Tennessee cases examining the type of relationship or type of conduct necessary to establish privity. Even as far back as Erck, "privity" in this context referred to the intent or agreement to pass possession of property held adversely without color of title. This court stated in Peoples v. Hagaman that the rule in Erck that successive adverse possessions cannot be tacked without some form of legal privity was limited to those cases only wherein the deed itself is relied on solely to create privity. The Hagaman court determined that the question of whether prior possessions can be tacked "turns upon the intention of the parties appearing from parol evidence or implied from circumstances." Peoples v. Hagaman, 31 Tenn. App. 398, 407, 215 S.W.2d 827, 831 (1948).
Adverse possession requires that the possessor show that the possession was exclusive, adverse, continuous, open and notorious or actual and visible for the entire prescriptive period, under a claim of right to the property. Panter v. Miller, 698 S.W.2d 634, 636 (Tenn.Ct.App. 1985); Tidwell, 686 S.W.2d 902. The owner must have knowledge of the adverse claim, or it must be so open and notorious that he will be presumed to have notice of the claim. Kirkman v. Brown, 93 Tenn. 476, 479-80, 27 S.W. 709, 710 (1894) ; Tidwell, 686 S.W.2d at 899 (citing Sequatchie Coal Iron Co. v. Coppinger, 95 Tenn. 526, 32 S.W. 456 (1895)).
Mistake as to the property line does not make the possession other than adverse. Peoples v. Hagaman, 31 Tenn. App. 398, 403, 215 S.W.2d 827, 829 (1948); see Liberto, 188 Tenn. at 531, 221 S.W.2d at 703 (holding that mistake as to true boundary does not make the possession other than adverse); Lemm, 955 S.W.2d at 73 (holding that intent to hold adversely to another is not required); Cross v. McCurry, 859 S.W.2d 349, 352 (Tenn.Ct.App. 1993). The clearest statement of this principle is found in Gibson v. Shular, 29 Tenn. App. 166, 194 S.W.2d 865 (1946), wherein this court adopted as the "proper rule" the doctrine that:
In the absence of positive proof or unambiguous circumstances showing that a possession is or is not adverse, the exclusive possession and use of the land are presumed to be adverse, it is not necessary to show an intention to hold and claim the property in spite of the fact that the legal title may be in another. The possession of one who holds property as his own is adverse to all the world, although he never heard of an adverse claim. The possession, use, and dominion may be as absolute and exclusive where there is no dispute as to boundary, and hence the occupant has no actual intention to claim adversely to anyone, as where such an intention exists. . . . The fact that the occupant might, if he knew that he was on his neighbor's land, recognize and accede to the latter's title, does not affect the adverse character of his possession, where, because there has never been any question or doubt as to the location of the boundary, he possesses and uses the property as his own, and does not recognize or accede to any superior title.
Id. 29 Tenn. App. at 170-71, 194 S.W.2d at 866-67.
The possession must be of such a character as to leave no doubt of claim of ownership by adverse possession and to give notice to the public of the possession and the claim. Cooke v. Smith, 721 S.W.2d 251, 254 (Tenn.Ct.App. 1985); Blankenship v. Blankenship, 658 S.W.2d 125, 127 (Tenn.Ct.App. 1983). The possessors must have openly and adversely claimed ownership of the land and utilized it as their own. Catlett, 731 S.W.2d at 546. Whether the claimant has treated the property in such a manner as to establish adverse possession is largely a question of fact.
Mr. Jakes's primary argument is that the acts of Mr. Michael and his predecessors do not constitute the type of "actual possession, to the exclusion of all others" necessary to establish adverse possession and that Mr. Michael confuses such possession with "occasional or regular casual use." Mr. Jakes argues that the driveway was never used for storage or as the base of any structure but was only used for access. Further, he argues that even regular temporary or occasional use, such as mowing grass, is not possession. Finally, he asserts that Mr. Michael and his predecessors did not enclose or otherwise mark the boundary of the property they allege they possess, and adverse possession can extend only to those portions effectively possessed. Mr. Jakes appears to argue that fencing is necessary, where it is possible, in order to adversely possess property.
Although some early Tennessee cases were interpreted as establishing a rule that fencing or other enclosure is necessary to establish adverse possession, the Tennessee Supreme Court clarified that interpretation as early as 1915 in Bensdorff v. Uihlein, 132 Tenn. 193, 177 S.W. 481 (1915). That case involved the owner of a storehouse paving a triangular parcel as an entry to the storehouse after abandonment of the parcel by the previous owner. The possessor paved the area with bricks, later replacing that with a granolithic pavement, and "used this lot as an entrance to their storehouse, kept up the pavement, and otherwise asserted ownership and dominion over the same." Id. 132 Tenn. at 196, 177 S.W. at 482. The Court reiterated the basic principles of earlier holdings that actual possession must be established from such use and possession as the property, from its situation, nature, and character, is susceptible. Id. 132 Tenn. at 197-199, 177 S.W. at 482-83. The court further explained:
See also Derryberry, 506 S.W.2d at 157 (holding that the possessor must only put land to such use and occupation as it is, by its nature and character, susceptible).
The idea underlying the whole doctrine of adverse possession is that the possession should be maintained in an open and notorious manner, so as to warn the true owner that a hostile claim is being asserted to his land. We think the possession in this case was plain, open, and notorious, and amply sufficient to put the owner of this property on notice. . . . [T]he placing of the pavement thereupon unmistakably indicated that some one was claiming the land, improving it, and asserting dominion over it.
Id. 132 Tenn. at 199-200, 177 S.W. at 483.
Thus, the question is whether Mr. Michael and his predecessors have, for at least twenty (20) years, exercised such dominion over the disputed property or acted toward it in such a way as to unmistakably indicate they were claiming ownership of it. Because this determination, both as to the character of the claimed possession and its duration, are questions of fact, we must examine the facts of the case before us, in the context of the summary judgment procedure used herein.
It is undisputed that both the Michael Lot and the Jakes Lot were at one time owned by Mr. Jakes. He sold the Michael Lot in March of 1978 to Mr. Friedmann, and the deed is dated April 5, 1978. Thereafter, Mr. Friedmann built the house that now stands on the property. In 1981, Mr. Friedmann sold the property to Mr. Loftin. At the time that Mr. Loftin purchased the Michael Lot, there was a gravel driveway from the street to the house located thereon. Mr. Loftin believed that this driveway was part of his property and in 1983 paved the driveway. Mr. Loftin stated that the concrete driveway as it exists today is in the same location as when it was poured. Mr. Michael purchased the property in 1987 from Mr. Loftin. Thus, as long as Mr. Michael has owned the Michael Lot, the disputed property has been crossed by part of a paved driveway, which Mr. Michael has used for ingress and egress to his house and garage. When Mr. Michael purchased his property he assumed that the driveway and the land adjacent to it were within the calls of his deed and, according to him, he has exercised possession and control consistent with ownership. Mr. Michael testified that, since he has owned his house and the Michael Lot, he has used the driveway and the strip adjacent to it as his exclusive property. He mows the grass on that strip and cuts back the trees located there. Additionally, he uses that strip of property to store vehicles and stack wood.
Mr. Herbert E. Yunker, a neighbor who has lived near the Michael Lot since it was first sold to Mr. Friedmann, testified by affidavit that a gravel driveway existed when Mr. Friedmann began construction of a house on the Michael Lot in 1978 and that the current driveway is located in the same place as the old gravel driveway. Mr. Yunker also testified that he has observed Mr. Michael using and caring for the strip of property adjacent to his driveway and that he observed Mr. Michael parking his tractor, several cars, a trailer and a boat there until a fence was built running parallel to the concrete driveway (referring to the fence built by Mr. Jakes after this dispute arose).
Mr. Michael also filed a supporting affidavit from Mr. James A. Zimmerle, who has lived next to the Michael Lot for more than thirty-seven (37) years. He testified that a tobacco barn used to stand in the exact location as Mr. Michael's current garage and a dirt road ran from Eatons Creek Road to the tobacco barn along the same path as the current concrete driveway. The dirt road, which was later graveled by Mr. Friedmann and concreted by Mr. Loftin, has been the only access to the house and garages and was used during the construction of the house, according to Mr. Zimmerle. Mr. Zimmerle also testified that he observed that Mr. Michael maintained the strip of property adjacent to the driveway in a manner that led him to believe that Mr. Michael owned that land by parking his tractor, several cars, a trailer and a boat on the property and mowing the grass on that property until the fence was built on that land.
In response to these assertions Mr. Jakes filed his affidavit in which he testified that: (a) when he originally bought the property that included the Michael Lot, there was no barn, or a driveway leading to a barn, on any part of the land; (b) there was no driveway on the Michael Lot when it was first owned by Mr. Friedmann or while Mr. Friedmann was constructing the house, that Mr. Friedmann completed building his house in October of 1978, and if he put a driveway in it would have had to be after mid-1979; and (c) if Mr. Michael parked cars on the strip adjacent to the driveway they were not visible to Mr. Jakes and he did not know that they were there.
Courts have found the necessary possession in a number of factual situations which bear similarity, in one or more aspect, to that presented herein. See, e.g., Bensdorff, 132 Tenn. at 200-01, 177 S.W. at 483 (holding that covering property with bricks and later pavement is sufficient to support a claim of adverse possession). In Lamons v. Mathes, we found that the placing of pavement over the land claimed and using it as a means of access to other property of the claimant was sufficient to put the owner on notice that a hostile claim was being asserted to his land. Lamons v. Mathes, 33 Tenn. App. 609, 232 S.W.2d 558 (1950). In Peoples v. Hagaman, this court stated that the encroachment of a garage and a well-defined driveway was clear and obvious notice of encroachment and was also sufficient to constitute possession. Peoples, 31 Tenn. App. at 402, 215 S.W.2d at 828, 829-30 (holding that "the construction of a garage and the grading and using of a well-defined driveway are at least as effective in giving notice to the true owner of an adverse use of his property as the construction of a fence"). Similarly, in Davis v. Inman, No. 01-A-01-9706-CH00254, 1999 Tenn. App. LEXIS 322, at *5, 1999 WL 326157, at *2 (Tenn.Ct.App. May 25, 1999) (no Tenn.R.App.P. 11 application filed), this court found that constructing a decorative wood fence, planting trees and flowers, conducting activities with children, and generally treating land as a yard was sufficient to constitute possession, even though the claimant's activities on the land beyond the decorative fence did not amount to possession. See Arrowood, 586 S.W.2d at 133-34 (holding that adverse possession claimants had used disputed property as a lane for movement of cattle, and the old fence had been universally recognized as the boundary for many years); see also Lemm, 955 S.W.2d at 70-71 (holding that a holder continuously used land inside incorrect fencing, including using and maintaining a road); Catlett, 731 S.W.2d at 545-46 (holding that claimants' predecessor pastured cattle on disputed land and cut and removed timber, demonstrating sufficient dominion and control); Derryberry, 506 S.W.2d at 157 (stating that land in dispute was unimproved and not under cultivation, but claimants and predecessors exercised claims of ownership); Gibson, 29 Tenn. App. at 169, 194 S.W.2d at 865 (holding that predecessors in title to both parties had treated fence as the boundary line by cultivating up to it and mutually repairing it).
We do not disagree that fencing or enclosing property is an act that is most effective in demonstrating adverse possession. Nor do we disagree that many opinions speak in terms of an adverse holder who mistakenly places a fence or otherwise encloses property in error. However, we do not agree that failure to enclose is fatal to a claim of adverse possession. The test is whether the claimant has asserted ownership and dominion over the property or whether the claimant's acts toward the land indicate someone is claiming it. Bensdorff, 132 Tenn. at 200-01, 177 S.W. at 483. Stated another way, the question is whether the holder has utilized the disputed property as his or her own, Catlett, 731 S.W.2d at 541, or whether the claimant has acted openly toward the property as if he were the owner. For example, improvement of the disputed property is an indication of the assertion of ownership. See Bensdorff, 132 Tenn. at 198, 177 S.W. at 482.
The determination of whether the claimant has exercised sufficient dominion or control depends on a number of circumstances, and the decision should be made in the context of the entire factual background, not just on whether specific actions were taken. Tennessee Stonehege, Inc. v. Poteat, No. 01-A-01-9002-CV-00087, 1990 Tenn. App. LEXIS 622, at *17, 1990 WL 125536, at *6 (Tenn.Ct.App. Aug. 31, 1990) (no Tenn.R.App.P. 11 application filed). For example, the issue in Hightower v. Pendergrass, 662 S.W.2d 932 (Tenn. 1983), was which of two adjoining landowners owned a barn. The history of the relationship between the original two families who bought and split the land involved and the use of the barn was important in understanding the nature of the possession. When new neighbors had a survey done, they discovered that the property line ran through the barn which they had been partially using with the permission of the adjoining landowner. From a number of factual circumstances, the court found that the adjoining landowners had established adverse possession of the barn, in part because they and their predecessors had paid the utility bills on it for twelve (12) years and paid all costs for maintaining it, including insurance. Id. at 936. Representations had been made to the new neighbors and their predecessors that the adverse claimant owned the barn, and use by the neighbors had been with permission. See also Tennessee Stonehenge, 1990 Tenn. App. LEXIS 622, at *1, 1990 WL 125536, at *1 (involving a complicated history including filing and approval of development plat that encroached on common ground of development owned by others; clearing land and cutting roads, including over the common ground, and completion and marketing of lots constituted adverse possession where the owners of the common ground were apprized of the replatting of the development, the encroachment, and the intentions of the claimant).
The fact that an adverse claimant could have done more to indicate a claim of ownership does not mean the courts can fail to evaluate what actions were taken and their effect in the entire factual context. Catlett, 731 S.W.2d at 545-46. The question is whether the claimant treated the property as his own to the extent that others would know he or she was asserting ownership. Cooke, 721 S.W.2d at 254-55 (holding that claimant had been in open, actual and notorious possession of the land, with no claim of ownership from anyone else; claimant cleared and farmed the land and made improvements to it; for many years people in the neighborhood recognized the land as belonging to claimant; persons claiming title had exhibited no activity toward the land, and if they had inquired they would have learned of the claimant's adverse possession); Panter, 698 S.W.2d at 636 (stating that "bulldozing and clear-cutting around one's claimed line and placing posted signs on rural unimproved land constitutes notice to the world of an adverse claim just as much as fencing in city property . . .").
Similarly, we do not disagree with the general proposition asserted by Mr. Jakes that if an adverse holder has no color of title, his possession extends only to that portion of the title holder's land that the adverse holder actually possesses. We interpret this argument as simply stating the following principle:
On the other hand, a person holding under color of title may be able to claim adverse possession to the entire tract owned by the title holder even though he or she actively possessed only a portion of the tract. Mr. Michael has made no claim to Mr. Jakes's property other than that portion under his driveway and the Northeast Section.
Even though it be considered that the inclosure of the ground by a fence is unnecessary, nevertheless, the extent of the ground claimed must be indicated in some way and be of such character as to clearly show that such ground is claimed by the party asserting to the right thereto.
Thompson on Real Property, supra, at § 87.05, at 119.
With regard to the land under the driveway, we find that Mr. Michael has presented undisputed evidence that he and his predecessors exercised such dominion over that property and acted toward it in such a way as to unmistakably indicate they were claiming ownership of it. Grading, paving, maintaining and using the entire driveway, including that portion on Mr. Jakes's land, demonstrate exercise of ownership, not just use of the land under the driveway for access. The driveway was constructed, improved, and maintained to provide access to the Michael Lot, conduct consistent with ownership. We disagree with Mr. Jakes's position that Mr. Michael and his predecessors only used, but did not possess, the land under the driveway. We also disagree with his position that, as a matter of law, the type of possession exercised did not sufficiently denote claim of ownership so as to establish adverse possession.
As to the land under the driveway, the boundary of the driveway itself gave notice of the portion of land effectively possessed. As to the strip of land adjacent to the driveway, because of our ruling on sufficiency of proof as to duration, we need not address here whether Mr. Michael exercised dominion and use of the property to the extent that he adversely possessed it.
We also hold that there is a genuine issue of material fact as to whether Mr. Michael has met the requirements for duration of adverse possession of the driveway on the Michael Lot so as to have fee simple title in the land. Mr. Michael stated, through the affidavits that he presented, that the driveway has been in place and used and maintained by owners of the Michael Lot for over twenty (20) years. Mr. Zimmerle stated in his affidavit that a dirt road ran from Eatons Creek Road to the tobacco barn along the same path as the current concrete driveway. He also testified that the dirt road, which was later graveled and concreted, has been the only access to the unattached garage and the attached garage and house and was used during the construction of the house. Mr. Yunker stated that the gravel driveway existed when Mr. Friedmann began building the home and that the old gravel driveway was in the same spot as the new concrete driveway. Additionally, Mr. Loftin, who sold the house to Mr. Michael, stated that the concrete driveway that exists today is in the same location and condition that it was in when it was first poured.
Mr. Friedmann purchased what is now the Michael Lot in March of 1978. This suit was filed on September 25, 1998. There is a factual dispute as to when the driveway first existed. Although Mr. Jakes claims it was created after Mr. Friedmann began building his house, which was fewer than twenty (20) years prior to the lawsuit, other testimony places the driveway on the property earlier so that more than twenty (20) years' use and possession is shown. We hold that because Mr. Michael has presented affidavit testimony that creates a factual dispute as to whether the driveway has existed for twenty (20) years, there is a genuine issue of material fact that the land under the driveway has been adversely possessed for the prescriptive period. Therefore, we reverse the grant of summary judgment as to the land beneath the driveway. The factual dispute must be resolved after trial.
However, the grant of summary judgment as to the strip of property adjacent to the driveway, the Northeast Section, was proper on the issue of title by fee simple from adverse possession because Mr. Michael did not present any evidence that that strip has been adversely possessed for twenty (20) years. The only affidavit testimony Mr. Michael presented on that strip was that he had used the property openly and notoriously for the duration of his possession, eleven (11) years. None of the testimony Mr. Michael presented indicated that Mr. Michael's predecessors so used the property. In fact, it does not appear that Mr. Michael was claiming title to the Northeast Section by twenty (20) years of adverse possession since in his amended complaint he states that he had maintained that property since June 23, 1987. Therefore, we hold that the trial court correctly granted the motion for summary judgment on this issue.
V. Statute of Limitations Defense
Tennessee statutes include several statutes of limitation dealing with interests in land and adverse holding. See Tenn. Code Ann. § 28-2-101 et seq. Mr. Michael relies upon one of those, Tenn. Code Ann. § 28-2-103, which 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.
This statute protects an adverse holder without color of title. Peoples, 31 Tenn. App. at 398, 215 S.W.2d at 827. Unlike Tenn. Code Ann. §§ 28-2-101 and 28-2-105, no color of title is required to claim protection under Tenn. Code Ann. § 28-2-103. Shearer v. Vandergriff, 661 S.W.2d 680 (Tenn. 1983); Cross, 859 S.W.2d at 352. Thus, Mr. Michael's lack of color of title does not deprive him of the protection of the statute.
A party adversely possessing land for the requisite seven years obtains a possessory interest in the real property so possessed. "This possessory right, or defensive title as it is sometimes called, continues as long as the actual possession is maintained." City Nat'l Bank and Trust Co. of Miami, Fla. v. The City of Knoxville, 158 Tenn. 143, 146, 11 S.W.2d 853, 854 (1928). The possessory right is complete by reason of the statute and is unrelated to title. Id. 158 Tenn. at 147, 11 S.W.2d at 854. Thus, if Mr. Michael has adversely held the disputed property since his purchase of the Michael Lot, he has a possessory interest in that property, contrary to the trial court's ruling that he had no interest.
Because the statute creates a possessory right, it gives the adverse holder the right to sue for trespass or for an injunction to prevent repossession. Tuggle v. Southern Ry. Co., 140 Tenn. 275, 204 S.W. 857 (1918). It creates a defensive right in the adverse possessor against anyone, including the title owner, seeking to dispossess the adverse possessor. Foster v. Hill, 510 S.W.2d 520, 522 (Tenn.Ct.App. 1973); Tennessee Stonehenge, 1990 Tenn. App. LEXIS 622, at *4, 1990 WL 125536, at *1. After the required seven years of adverse possession, "[u]ntil the possession [of the adverse holder] . . . is surrendered, the right to possession of said lot is not remitted to the holder of the legal title." City Nat'l Bank and Trust Co. of Miami, Fla., 158 Tenn. at 147, 11 S.W.2d at 854.
For purposes of the case before us, 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).
Whether the party claiming rights under the statute of limitations has demonstrated adverse possession for the requisite seven years is, of course, a factual question in the first instance. To establish a defense for the recovery of land under the statute, the adverse holder's possession must be actual, adverse, continuous, exclusive, open and notorious for the entire seven year period. Stearns Coal Lumber Co. v. Kitchen Lumber Co., 27 Tenn. App. 468, 477, 182 S.W.2d 4, 7 (1944). The character of the possession and the acts sufficient to indicate the assertion of ownership are the same under the statute of limitations as they are under common law adverse possession.
Tenn. Code Ann. § 28-2-103 protects an adverse holder without color of title only to that portion of the land which is being held adversely. Shearer, 661 S.W.2d at 682; Peoples, 31 Tenn. App. at 398, 215 S.W.2d at 827. Tenn. Code Ann. § 28-2-103(b) itself incorporates that principle by providing that the adverse possession shall not be deemed to extend beyond the actual possession of the adverse holder until some muniment of title is recorded. See Moore, 42 Tenn. App. at 542, 304 S.W.2d at 660. In the case before us, neither party alleges that Mr. Michael had a muniment of title. Therefore, any possessory interest that he has by virtue of Tenn. Code Ann. § 28-2-103 applies only to the area he actually adversely possessed for the requisite seven years.
For the same reasons that led us to determine that Mr. Michael and his predecessors exercised ownership over the land under the driveway, we find that Mr. Michael adversely possessed the land under his driveway for the requisite seven year period and is entitled to the protection of Tenn. Code Ann. § 28-2-103. There is no genuine issue of material fact as to whether Mr. Michael has used this driveway and, therefore, used the land under it for the driveway, for more than seven years. During the eleven (11) years Mr. Michael has owned the Michael Lot, he has used the driveway to the exclusion of others, he has maintained the driveway, and his exercise of ownership over the driveway was visible so as to constitute notice to the public that it was part of the Michael Lot.
To the extent the sufficiency of Mr. Michael's assertion of the statute of limitations was raised at oral argument, we find that Mr. Michael met the applicable requirement. The statute of limitations provision found in Tenn. Code Ann. § 28-2-103 must be specially plead to be available. Hallmark, 849 S.W.2d at 792. "While it is not necessary to plead the exact language of the statute, the defense should be expressly pleaded in language sufficient to remove any reasonable doubt that the pleader is relying upon his possessory rights." Peoples, 31 Tenn. App. at 401, 215 S.W.2d at 828 (citations omitted). The original complaint alleged possession for more than seven years. In Mr. Michael's answer to Mr. Jakes's counter-complaint Mr. Michael stated as an affirmative defense, "counterclaimant has waived any right to assert the claims made in his counterclaim as a result of his failure to abate and enjoin [prior owners] from adversely using any part of that land lying within the boundaries of that tract of land . . . for more than seven (7) years." In his amended complaint, which the court considered, Mr. Michael stated "under T.C.A. § 28-2-103(a) [Mr. Michael] is entitled to possession of the property which he has adversely possessed since June 23, 1987 and has been ejected from by [Mr. Jakes's] forcible entry and detainer." We think that Mr. Michael, in his pleadings, has expressly plead language sufficient to remove any reasonable doubt that he is relying on the statute of limitations defense.
With regard to the land adjacent to but not covered by the driveway, the Northeast Section, there is a dispute of material fact about the character of the possession by Mr. Michael. He asserts he used it as part of his yard. Whether his use of that strip of land was sufficiently exclusive, continuous, open and notorious to constitute adverse possession must be determined after trial. There are facts in dispute which are relevant to whether Mr. Michael exercised dominion and control over that property or whether his conduct toward that strip of land provided sufficient indication that he was claiming it and treating it as his own. In addition, the extent of the property adversely possessed, if any, must be determined after trial.
Because we reverse the trial court and hold that Mr. Michael's actions indicating a claim of ownership to the land under the driveway and possessing the driveway to the exclusion of others constitute adverse possession of that land, Mr. Michael is entitled to the protection of Tenn. Code Ann. § 28-2-103. Consequently, Mr. Jakes is barred from bringing suit to eject Mr. Michael, from trespassing upon that land, and from otherwise interfering with Mr. Michael's possessory right. The consequence is that, while Mr. Jakes retains title to the disputed land, if the adverse possession continues for twenty (20) years, Mr. Michael will obtain title by prescription. See Shearer, 661 S.W.2d at 682 (explaining the effect of § 28-2-103's bar on actions to abate adverse use of a right of way).
Mr. Jakes has asserted that Mr. Michael cannot use the statute of limitations defense because Mr. Jakes's countercomplaint only sought declaratory relief, not ejectment, and was not an action for possession. We are not persuaded because the protection granted by the statute includes any interference with the holder's possessory rights. Mr. Jakes cannot accomplish indirectly that which he is precluded from accomplishing directly by the statute. Tenn. Code Ann. § 28-2-103 applies to a suit where the relief sought would have the effect of defeating the purpose of the statute, which is to protect the adverse holder in his possession. Hightower, 662 S.W.2d at 936. A suit to dispossess the holder is barred where it seeks an injunction or declaration. Teeples, 500 S.W.2d at 458 (reversing a trial court's judgment in favor of plaintiffs and granting the defendants, who held a possessory interest under § 28-2-103, their requested relief of restraining the plaintiffs from trespassing upon said land or otherwise interfering with the defendants' rights of possession); see also Tennessee Stonehenge, 1990 Tenn. App. LEXIS 622, at *4, 1990 WL 125536, at *1 (holding that Tenn. Code Ann. § 28-2-103 was a good defense to an action by the title holder seeking to have "encroachments" removed).
The frequently repeated statement that Tenn. Code Ann. § 28-2-103 is defensive in nature is usually followed by the statement that it does not give the adverse holder title to the adversely held land. See Hightower, 662 S.W.2d at 936. Mr. Michael does not herein seek to use the statute to obtain title. Instead, he merely seeks the protection of the statute against Mr. Jakes's counterclaim that he has no interest in the disputed property. He is able to claim the rights given him by the statute in the face of a claim he has no rights.
VI. Prescriptive Easement
Mr. Michael also claims an interest in the land under his driveway under a theory of prescriptive easement. To establish a prescriptive easement the use and enjoyment of the land must be adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period. Bradley, 984 S.W.2d at 934; see Pevear, 924 S.W.2d at 116; House, 48 Tenn. App. at 345, 346 S.W.2d at 447; Cumberland Bend Inv., L.P. v. Ambrose Printing Co., Inc., No. 01-A-01-9810-CH-00543, 1999 Tenn. App. LEXIS 646, at *3, 1999 WL 767484, at *1 (Tenn.Ct.App. Sept. 29, 1999) (no Tenn.R.App.P. 11 application filed); Bingham v. Knipp, 02A01-9803-CH-0083, 1999 Tenn. App. LEXIS, at *6, 1999 WL 86985, at *2 (Tenn.Ct.App. Feb. 23, 1999) (no Tenn.R.App.P. 11 application filed); Star Enter., 1995 Tenn. App. LEXIS 432, at *8, 1995 WL 381652, at *4. The claimant must prove that his use and enjoyment of the alleged easement continued for twenty (20) years. Bradley, 984 S.W.2d at 934; Town of Benton v. Peoples Bank of Polk County, 940 S.W.2d 598, 602 (Tenn.Ct.App. 1995); Pevear, 924 S.W.2d at 116.
Apparently, Mr. Michael does not claim a right to use the Northeast Section, the strip adjacent to the driveway, by prescriptive easement. In his statement of additional facts, Mr. Michael asserts he and his predecessors had used the driveway for more than twenty (20) years, but claims use of "that part of Jakes Lot lying northeast of Michael's concrete driveway" for more than eleven (11) years (since his purchase of the Michael Lot).
As this court has explained:
Easements can be divided into two broad classes, easements appurtenant, and easements in gross. In an easement appurtenant, there are 2 tracts of land, the dominant tenement, and the servient tenement. The dominant tenement benefits in some way from the use of the servient tenement. Easements in gross are simply a personal interest or right to use the land of another which does not benefit another property, or dominant estate, thus easement in gross usually involve only one parcel. An easement appurtenant to land is favored over an easement in gross in Tennessee.
Pevear, 924 S.W.2d at 116. Obviously, Mr. Michael's claim is to an easement appurtenant to his property, the dominant tenement, across part of Mr. Jakes's land, the servient tenement.
An easement gives the holder thereof the right to use another's property for a specific purpose. Our determination that Mr. Michael has a possessory right in the land under the driveway, pursuant to Tenn. Code Ann. § 28-2-103, ensures his continued use of the driveway, unimpeded by Mr. Jakes. Therefore, we find it unnecessary to determine whether he has a prescriptive easement to use the driveway for ingress and egress.
VII. Forcible Entry and Detainer
Mr. Michael amended his complaint to include an action for forcible entry and detainer against Mr. Jakes for Mr. Jakes's actions of coming on the property in dispute and erecting a fence. In response, Mr. Jakes argues that Mr. Michael never had possession of the property and, therefore, cannot sue for forcible entry and detainer. In his amended complaint, Mr. Michael asserted that "Under T.C.A. § 28-2-103(a) Plaintiff (Mr. Michael) is entitled to possession of the property which he has adversely possessed since June 23, 1987, and has been ejected from by Defendant's Forcible Entry and Detainer."
We have found that there is enough evidence before us to create a genuine factual issue as to whether Mr. Michael had possession of the strip of property adjacent to the driveway, where Mr. Jakes erected the fence. If he had such possession for seven years, he may rely on the statute of limitation to give him a possessory right that can be protected through a forcible entry and detainer action or an action for trespass. Foster, 510 S.W.2d at 522; Tennessee Stonehenge, 1990 Tenn. App. LEXIS 622, at *4, 1990 WL 125536, at *1. The only relevant factors for the court in a forcible entry and detainer action are: (1) whether the plaintiff was in possession; and, (2) whether he lost possession by the defendant's forcible entry. Foster, 510 S.W.2d at 522.
Because the question of Mr. Michael's entitlement to the protection of Tenn. Code Ann. § 28-2-103 with regard to the Northeast Section must be decided after trial, so must the issues surrounding the forcible entry and detainer action. We reverse the trial court's grant of summary judgment dismissing that claim.
VIII. Judgment
In summary, the trial court's grant of summary judgment dismissing Mr. Michael's adverse possession claim, with respect to the land under the driveway, is reversed and remanded for trial on the issue of the duration of possession by Mr. Michael and his predecessors. The trial court's grant of summary judgment on the adverse possession claim with respect to the strip of property adjacent to the driveway is affirmed. The trial court's grant of summary judgment dismissing the statute of limitations claim with respect to adverse possession of both the land under the driveway and the strip adjacent to it are reversed. Mr. Michael is granted judgment with respect to the statute of limitations claim on the property beneath the driveway and is entitled to the protection of the statute. The claim of adverse possession for seven years of the strip adjacent to the driveway is remanded for the trial court to determine whether Mr. Michael's activities on this property met the required elements of adverse possession. The grant of summary judgment on the forcible detainer action is also reversed and remanded for trial.
Costs of this appeal are taxed to the appellee, Ellis P. Jakes, for which execution may issue.