Blakemore v. Matthews

• Decision Date: 13 July 1926
• Docket Number: 2.
• Parties: BLAKEMORE v. MATTHEWS ET AL.
• Court: Tennessee Supreme Court

285 S.W. 567

154 Tenn. 334

BLAKEMORE v. MATTHEWS ET AL.

No. 2.

Supreme Court of Tennessee.

July 13, 1926

Certiorari to Court of Appeals.

Suit by J. M. Blakemore against Mrs. Lou Matthews and husband. Decree for complainant was affirmed by the Court of Appeals, and defendants bring certiorari. Reversed and rendered.

Senter & Adams, of Humboldt, for plaintiff in error.

G. C Sherrod, of Humboldt, and Robt. P. Adams and W. R. Landrum both of Trenton, for defendants in error.

McKINNEY J.

The bill was filed by the complainant, J. M. Blakemore, asserting the right to use and enjoy a right of way over a tract of land belonging to the defendants Mrs. Lou Matthews and husband, Lee Matthews, and to enjoin them from obstructing it.

The chancellor granted the complainant the relief sought, and upon appeal his decree was affirmed by the Court of Appeals.

The cause was brought to this court by petition for certiorari which was granted, and the cause argued at the bar of this court.

It is not alleged in the bill that the road in question was ever dedicated to the public, either expressly or impliedly, and the suit is not predicated upon that theory. But if it were the complainant would not be entitled to relief since the evidence does not clearly and satisfactorily prove an intention on the part of the owner of the property to dedicate same to the public. McKinney v. Duncan, 121 Tenn. 265, 118 S.W. 683. Neither is the proof satisfactory as to an acceptance of the dedication.

The theory of the bill is that complainant has been in the continuous, open, and adverse possession of said roadway for more than 20 years, and has therefore, under the doctrine of prescription, obtained an indefeasible right in and to same.

Had complainant sustained the allegations of his bill he would have been entitled to the relief which was decreed him by the chancellor, but he has wholly failed to support his allegations of adverse possession by competent testimony.

The complainant's idea seems to be that, where it appears that one has traveled over the private road of another without objection, for more than 20 years, an indefeasible easement is thereby acquired in said road. Entertaining this idea, the complainant offered no testimony to show that his use of said road was based upon a claim of right, or that he occupied same adversely to the defendants, or that he was in the exclusive possession of said road, or that he notified the defendants, either expressly or impliedly, of his claim of right to use said road. He limited his testimony to the fact that he had been continuously using said road for more than 20 years.

We have been unable to find any decision of this court holding that, in the circumstances of this case, a prescriptive right was acquired, and, upon principle, it seems to us that to so hold would be most unjust and inequitable. It would mean that one who had been kind enough to permit his neighbor, without consideration, to use his private roadway for 20 years would thereby lose his right to withdraw such implied consent where conditions arose making it no longer desirable, and notwithstanding the fact that he was without notice or knowledge that the licensee was claiming any right or interest in such road.

Where persons travel the private road of a neighbor in conjunction with such neighbor and other persons, nothing further appearing, the law will presume that such use was permissive, and the burden is upon the party asserting a prescriptive right to show that his use was under claim of right and adverse to the owner of the land. Connor v. Frierson, 98 Tenn. 183, 38 S.W. 1031.

The case cited above sustains our conclusion, as will appear from the following quotation therefrom:

"As heretofore stated, the theory of complainant's bill was that he was entitled to a prescriptive right of way over defendant's lands by a continuous, notorious, adverse use for more than 20 years. This was denied by the answer. Instead of submitting to the jury an issue pertinent to this, the vital question in the case, the jury was required to ascertain whether the road in question 'had been used as the way of ingress to and egress from the lands now owned by the complainant, and, if so, then for what length of time.' To the first of these issues the jury replied 'Yes,' and to the second, 'For a period of 25 years.' These are the issues and responses on which complainant's claim to a decree was and is predicated. They fall, however, far short of maintaining the contention of his bill, that he was entitled to an easement by prescription over the lands of defendant. They were entirely consistent with the idea that this use of this road was by permission of defendant, and without claim of right on the part of complainant. By the responses to these issues there were found but two of the series of facts necessary to make out and establish this contention. To complete his claim to this easement, he was bound to show that his use was under claim of right and adverse to the defendant. Elliott Ro. & St. 137. No issue was put to the jury embracing these essential elements in a prescriptive

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