Opinion
C.A. No. 03A01-9803-CH-00094.
December 17, 1998.
Appeal from HAMILTON CHANCERY, HON. R. VANN OWENS, CHANCELLOR.
AFFIRMED AND REMANDED
D. MITCHELL BRYANT, Cleveland, for Appellant.
ARVIN H. REINGOLD, Chattanooga, for Appellees.
The appellant, Bromley Sammons, and the appellees, Fletcher and Jean Miller, own adjoining tracts of land in Hamilton County, Tennessee. Mr. Sammons' eastern property line adjoins the Millers' western property line. Mr. Sammons first filed an action regarding the subject boundary line in 1983, but that action was dismissed for failure to prosecute. At some time, the action was reinstated and then dismissed several times before it was finally heard by the trial court in November 1997.
Mr. Sammons contends that the Millers' fence is on his property and should be removed. The Millers assert that they have acquired title to the real property in dispute, a triangular strip measuring approximately one-tenth of an acre, through adverse possession and prescription. After a bench trial, the trial court resolved the issues in favor of the Millers.
The sole issue on appeal is whether the trial court erred in finding that the Millers had acquired title to the property in question through adverse possession and prescription. We affirm the judgment of the trial court.
The Millers bought their property on Harrison-Ooltewah Road in Hamilton County, Tennessee in 1957, and at that time, Mr. James Cagle owned the property where Mr. Sammons now resides. According to the Millers, a dilapidated, partial fence ran between their property and Mr. Cagle's property from the rear of the property. In 1962, the Millers approached Mr. Cagle about replacing and extending the old fence between their two properties with a new fence because the Millers wanted an enclosed space for a pony they were buying for their daughter for Christmas. According to the Millers, Mr. Cagle acknowledged that he wanted a "line fence," but neither he nor the Millers knew where the actual boundary line was. However, when the fence was erected, it appears that all believed they were establishing a "line fence" close to the actual property line.
In 1977, Mr. Sammons moved to the property that adjoins the Millers' property. Mr. Sammons leased the property before purchasing it in March 1979. According to Mr. Sammons, he discussed with Mr. Miller the matter regarding the boundary line between the property, and Mr. Miller admitted that he did not know where the boundary line was. Mr. Miller stated that he had an agreement with the prior owner of the property to put up the fence. During his testimony, Mr. Sammons admitted that he was aware "that there was some discrepancy" about the fence line before he purchased his property.
Numerous witnesses testified regarding the existence and placement of the fence. After considering the conflicting testimony of the witnesses, the trial court ruled in favor of the Millers. The trial court concluded that the fence was built in the early 1960s by both property owners and neither was certain of the actual location of the boundary line, although the Millers believed that the fence was along their western property line. The court further concluded that "[t]he fence was placed along the line of a partial fence which had been in place many years previous to 1962." Although a surveyor hired by Mr. Sammons in 1979 found that the fence was entirely on his property, the trial court noted that the Millers have "refused to acquiesce in the surveyor's findings and have held the property adversely to the plaintiff since 1979." Therefore, the court concluded that the Millers have obtained title to the property in question. (To reach this conclusion, it is necessary to conclude further that the Millers also held adversely to Mr. Sammons' predecessor in title. We note that the record is sufficient to support such a finding.)
The appellant argues that the evidence preponderated against the trial court's finding that the Millers had obtained title to the property by adverse possession and prescription. He contends that the Millers offered no proof to rebut his claim that the fence is approximately thirty-seven feet onto his property, but instead asserted that they had acquired title to the strip of property by adverse possession and prescription. He further argues that since he did not acquire the land until 1979 and he filed suit against the Millers in 1983, he was within the seven-year statute of limitations for adverse possession (T.C.A. § 28-2-103). Furthermore, he asserts that to show ownership by prescription, the Millers "would have been required to prove, by clear and convincing evidence, their adverse possession of this property extended back until at least 1963, twenty years prior to the filing of the initial lawsuit."
There would be some merit in this argument except for the adverse possession of the Millers as to Mr. Sammon's predecessor in title.
The Millers argue that title to the land passed to them by adverse possession and prescription. They contend that they erected the fence in 1962 for a pony they gave their daughter for Christmas. They assert that title to the property passed to them seven years after the fence was erected. They dispute Mr. Sammons' contention that the elements of adverse possession must have been established with respect to him. They contend that once they acquired title to the property, their title to the property "remained effective against subsequent purchasers of the Cagle property," which included Mr. Sammons. Moreover, the Millers reject Mr. Sammons' contention that their use of the property in question did not extend back twenty years before the initial lawsuit in 1983. The Millers maintain that the fence was built in 1962, over twenty years before Mr. Sammons filed his initial action regarding the boundary.
Our standard of review under Rule 13(d)of the Tennessee Rules of Appellate Procedure, is "[u]nless otherwise required by statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." See also Tennessee Farmers Mut. Ins. Co. v. American Mut. Liab. Ins. Co., 840 S.W.2d 933, 936 (Tenn.App. 1992). A principle of law concomitant with Rule 13(d) is that where the evidence is conflicting, findings of the trial court which are dependent on determining the credibility of witnesses are entitled to great weight on appeal because the trial judge had the opportunity to observe the manner and demeanor of the witnesses while testifying.Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn.App. 1990) (citingTown of Alamo v. Forcum-James Co., 205 Tenn. 478, 483, 327 S.W.2d 47, 49 (1959)). The trial court will not be reversed on an issue that hinges on witness credibility "unless there is found in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court's findings." Id. (citation omitted).
Since our Supreme Court's decision in Erck v. Church, 87 Tenn. 575, 11 S.W. 794 (1889), the law in Tennessee has been that "where a purchaser of land accidentally or by mistake encloses a contiguous strip, believing he is placing the fence on the boundary, and holds the enclosed strip for [seven] years, his possession is adverse, and will avail against the true owner."Lemm v. Adams, 955 S.W.2d 70, 72 (Tenn.App. 1997); Peoples v. Hagaman, 31 Tenn. App. 398, 403, 215 S.W.2d 827, 829 (1948). Furthermore, it is sufficient that the possession was due to ignorance or mistake as to the true location of the boundary line.Liberto v. Steele, 188 Tenn. 529, 533, 221 S.W.2d 701, 703 (Tenn. 1949); Foster v. Hill, 510 S.W.2d 520, 522 (Tenn.App. 1973). Title is not vested in an adverse holder after seven years, but the adverse holder does have a defense when another party seeks to dispossess him of the property. Id. However, legal title to real property may be acquired by prescription, which is twenty years' actual adverse possession with or without color of title. Moore v. Brannan, 304 S.W.2d 660, 667-68 (Tenn.App. 1957); See also Hallmark v. Tidwell, 849 S.W.2d 787 (Tenn.App. 1992) and the cases cited therein.
Numerous witnesses provided conflicting testimony regarding the existence and placement of the fence. The evidence indicates a fence was built in the early 1960s along where a partial fence had already been in place for several years and the Millers have held the property in question since the early 1960s. Mr. Sammons admitted during his testimony that he was aware of "some discrepancy" regarding the boundary line before he purchased his property in 1979, yet did not actively pursue an action to establish the boundary until several years thereafter.
After considering the evidence, the trial court resolved all issues in favor of the Millers and entered judgment accordingly. We are of the opinion that the evidence supports the judgment of the trial court. Accordingly, we affirm the judgment of the trial court in all respects. Costs of this appeal are taxed to the appellant, and this case is remanded to the trial court.
___________________________ Don T. McMurray, Judge
CONCUR:
___________________________________ Houston M. Goddard, Presiding Judge
___________________________________ Herschel P. Franks, Judge
PER CURIAM JUDGMENT
This appeal came on to be heard upon the record from the Chancery Court of Hamilton County, briefs and argument of counsel. Upon consideration thereof, this Court is of opinion that there was no reversible error in the trial court.
We affirm the judgment of the trial court in all respects. Costs of this appeal are taxed to the appellant, and this case is remanded to the trial court.