Billy Frank Henley and Joe H. Marlow v. Dale Dotson and wife Elsie Dotson ( 1997 )

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.
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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OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent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.
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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.
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