Billy Frank Henley and Joe H. Marlow v. Dale Dotson and wife Elsie Dotson

• Court: Court of Appeals of Tennessee
• Decided: October 3, 1997
• Docket: 01A01-9611-CH-00523
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

BILLY FRANK HENLEY and, ) From the Chancery Court JOE H. MARLOW, ) for Coffee County, Tennessee ) The Honorable Gerald L. Ewell, Sr., Chancellor Plaintiffs/Appellees, ) vs. ) ) Coffee Chancery No. 95-165 DALE DOTSON and wife, ) Appeal No. 01A01-9611-CH-00523 ELSIE DOTSON, ) ) AFFIRMED Defendants/Appellants. ) ) Aubrey L. Harper ) McMinnville, Tennessee ) Attorney for Defendants/Appellants

FILED ) ) ) Robert F. Hazard Tullahoma, Tennessee October 3, 1997 ) Attorney for Plaintiffs/Appellees

Cecil W. Crowson RULE 10 MEMORANDUM OPINION

This matter appears appropriate for consideration pursuant to Rule 10(b) of the Rules of the

Court of Appeals of Tennessee.1

The plaintiffs in this case, Billy Frank Henley (“Henley”) and Joe H. Marlow (“Marlow”),

own tracts of farm land in Coffee County, Tennessee. Henley acquired his land in 1992 from his

brother, Clarence Henley, and his sister-in-law, Nona Mae Henley. Clarence and Nona Mae Henley

had acquired the property from his parents in 1974. His parents had owned the property since 1957.

Marlow acquired one tract of land at issue in 1973 and another tract of land at issue in 1975. The

plaintiffs claim that a road separates their land from that of the defendants, Dale and Elsie Dotson

(“Dotson”).

Henley and Marlow brought this action after Dotson placed a gate across the road, inserted

metal posts in the roadway separating Dotson’s property from Marlow’s property, and inserted fence

posts parallel to the roadway in property alleged to be owned by Henley. Henley and Marlow sought

to have the road declared a public road, and petitioned the trial court to enjoin Dotson from

obstructing it.

1 Rule 10 (Rules of the Court of Appeals of Tennessee). -- (b) Memorandum Opinion. The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. Dotson countered that the road at issue is merely a farm lane with no public use. Dotson

further contended that a 1995 survey indicates that a significant portion of the road at issue is located

within the boundaries of Dotson’s property.

At the bench trial, the plaintiffs proffered the testimony of several witnesses, including

Henley’s parents, that as far back as 1918 the road had been publicly used as a means of access to

homes located in the vicinity. They testified that this use continued after the county ceased

maintaining the road, until Dotson closed it.

The plaintiffs also presented testimony that for at least seventy years the road had been

treated as the boundary between the plaintiffs’ property and Dotson’s property. Although he

disputed that the road was a boundary, Dotson acknowledged that, since Dotson was a child, the

plaintiffs and their predecessors had farmed the land up to the road.

In a cursory opinion, the trial court held that the road was a “public right-of-way” and

enjoined Dotson from obstructing the roadway. Dotson then filed a motion with the trial court,

seeking a ruling on the ownership of the land adjacent to the road, which had been farmed by the

plaintiffs for many years but which Dotson’s 1995 survey indicated belonged to Dotson. In a

Supplemental Decree, the trial court ruled that the road served as the boundary between the

plaintiffs’ and the defendants’ property, in effect ruling that the disputed land belonged to the

plaintiffs. From these rulings, Dotson now appeals.

On appeal, Dotson asserts that the evidence was insufficient to support the trial court’s

findings that the road is a public right-of-way and that the road is the boundary line between the

parties’ property. Dotson also asserts that it was inappropriate for the trial court to rule that the road

serves as the boundary line, because this determination was not requested in the plaintiffs’

Complaint.

Our review of the trial court’s order is de novo upon the record with a presumption of

correctness of the findings of fact by the trial court. Tenn. R. App. P. 13(d). From our examination

of the record, the evidence preponderates in favor of the trial court’s finding that the road constitutes

a public right-of-way. The evidence is sufficient to support the trial court’s finding that an implied

dedication has been made. See Reeves v. Perkins, 509 S.W.2d 233 (Tenn. App. 1973); Rogers v.

Sain, 679 S.W.2d 450 (Tenn. App. 1984). Therefore, the trial court appropriately ordered removal

of obstructions placed on the road and on the plaintiffs’ property.

2 The evidence is also sufficient to support the trial court’s finding that the road serves as the

boundary between the properties of Henley and Dotson. “To establish title by adverse possession,

there must be an occupation of the property under a claim of right or title which is open, actual,

continuous, exclusive, adverse and notorious for the prescriptive period of 20 years.” Catlett v.

Whaley, 731 S.W.2d 544, 546 (Tenn. App. 1987). Furthermore, “[t]here is no question but that the

taking of possession of parties, where neither had as much as twenty years possession, but together

their period of adverse possession had been far more than twenty years, without interruption, the title

and right by prescription prevailed.” Hill v. Hill, 403 S.W.2d 769, 781, 55 Tenn. App. 589, 617

(Tenn. App. 1965).

The record indicates that, for decades, Henley and his family have farmed the land bordering

the road. This continued, uninterrupted, while title to the land was passed to various members of

Henley’s family. The evidence preponderates in favor of the trial court’s finding that the road

separates the properties of Henley and Dotson.

On appeal, Dotson also argues that the trial court improperly ruled that the road was the

boundary between the plaintiffs’ and defendants’ properties, because the plaintiffs failed to request

a boundary determination in their Complaint. This argument is puzzling in view of Dotson’s motion

filed on May 6, 1996, specifically requesting the trial court to make a ruling regarding this issue. It

appears that the issue was tried by the implied consent of the parties. See Derryberry v. Ledford,

506 S.W.2d 152, 155-156 (Tenn. App. 1973). Moreover, any objection Dotson may have had was

waived by the filing of a motion requesting the trial court to rule on this issue.

The decision of the trial court is affirmed. Costs are taxed to the Appellant, for which

execution may issue if necessary.

HOLLY KIRBY LILLARD, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

ALAN E. HIGHERS, J.