Cross v. McCurry

• Decision Date: 05 May 1993
• Citation: 859 S.W.2d 349
• Parties: Lawrence L. CROSS, Jr. and Judy A. Cross, Plaintiffs-Appellees, v. Thomas Douglas McCURRY and Virginia Louise Duncan McCurry, Defendants-Appellees, and Herbert Hoover Hobbs, Defendant-Cross Complainant-Appellant.
• Court: Tennessee Court of Appeals

Page 349

859 S.W.2d 349

Lawrence L. CROSS, Jr. and Judy A. Cross, Plaintiffs-Appellees, v. Thomas Douglas McCURRY and Virginia Louise Duncan McCurry,

Defendants-Appellees,

and

Herbert Hoover Hobbs, Defendant-Cross Complainant-Appellant.

Court of Appeals of Tennessee,

Eastern Section.

May 5, 1993.

Permission to Appeal

Denied by Supreme Court

Aug. 2, 1993.

Russell W. Adkins with Wilson, Worley, Gamble & Ward, Kingsport, for appellant.

Richard A. Tate, Blountville, for appellees Lawrence L. Cross, Jr., and Judy A. Cross.

Patrick Ledford and Laura T. Kidwell with Moore, Stout, Waddell & Ledford, for appellees Thomas Douglas McCurry and Virginia Louise Duncan McCurry.

OPINION

SANDERS, Presiding Judge (Eastern Section).

The Defendant, Hobbs, has appealed from a chancery decree fixing compensatory damages but denying punitive damages for Plaintiffs' building encroaching on Defendant's property and ordering Defendant to execute a quitclaim deed to Plaintiffs for the property involved.

In 1983, Defendant-Appellant Herbert Hoover Hobbs (Hobbs) conveyed a five-acre tract of land located in the 13th Civil District of Sullivan County to Defendants- Appellees Thomas McCurry and wife, Virginia McCurry (the McCurrys). The five-acre tract almost completely surrounded a one-acre tract which the McCurrys already owned. The five-acre tract also adjoined a 32-acre tract which Hobbs owned. The northerly boundary line of the five-acre tract adjoined the southerly boundary line of the 32-acre tract which Hobbs still owned. As pertinent to this litigation, a strip of the five-acre tract, which was approximately 212 feet long and 63 feet wide, lay between the southerly boundary line of Hobbs's 32-acre tract and the northerly boundary line of the one-acre tract which the McCurrys owned prior to their purchase of the five-acre tract from Hobbs. Also pertinent is the fact that a barbed wire fence which was on the Hobbs property was located eight feet to the north of the boundary line of the five-acre tract sold to the McCurrys and Hobbs's 32-acre tract.

In 1984 Mr. McCurry decided to construct a building on the strip of land which lay between his original one-acre tract and Hobbs's 32-acre tract. Apparently unaware the fence was eight feet from the boundary line between the two properties and assuming it was on the boundary line, Mr. McCurry constructed the northerly side of the building four feet eight inches (4'8") over on the Hobbs property. In the process of construction, Mr. McCurry's workmen damaged Mr. Hobbs's fence which was adjacent to the building. Mr. McCurry rebuilt the fence with a combination of boards and barbed wire. In the process he also closed a gap in the fence which Mr. Hobbs used to access his property from a roadway which ran along the west side of the McCurry property.

In 1988 the McCurrys sold their property to the Plaintiffs-Appellees Lawrence Cross and wife, Judy Cross (the Crosses). The Crosses were unaware of the encroachment of their building on the Hobbs property until March, 1990, when Mr. Hobbs informed them their building was partially on his property. Shortly after Mr. Hobbs told the Crosses their building encroached on his property, they had the property surveyed, which verified that the north side of their building was four feet eight inches (4'8") over the boundary line on Mr. Hobbs's property and the fence was eight feet north of the boundary line.

The Crosses then filed suit against Mr. Hobbs and the McCurrys in October, 1990. Their complaint alleged the McCurrys and Hobbs knew or should have known an encroachment existed, and the market value of the Crosses' property was diminished as a result of the encroachment. They alleged the McCurrys had misrepresented the location of the northern boundary of the 5.2-acre tract. They alleged Mr. Hobbs had knowledge of the encroachment and had failed to take timely and appropriate measures to correct the situation. The Crosses asked that the existing fence be declared the boundary line or, in the alternative, the McCurrys be ordered to pay appropriate damages, or Mr. Hobbs be barred by the statute of limitations or by laches from requiring them to relocate or remove the building from his property.

Mr. Hobbs, for answer, said the Crosses knew or should have known the location of the true boundary lines of their property and he had personally alerted Mr. McCurry to the encroachment at the time of the construction of the building. He likewise averred that the market value of his property had decreased as a result of the encroachment. Mr. Hobbs subsequently filed a counterclaim and cross claim against the Crosses and the McCurrys, alleging, among other things, that the McCurrys acted willfully or wantonly in their construction of the building. He prayed for a declaration that the true boundary line between the two tracts is as described in the deed from him to the McCurrys, and not the fence line. He asked for an injunction requiring the removal of the building and for compensatory damages for the unlawful possession of his property as well as for the destruction of the fence and trees on the property. He also asked for punitive damages against the McCurrys.

For answer, the McCurrys conceded they were of the opinion the existing fence represented the northern property line of the 5.2-acre tract but they denied ever having related this fact to the Crosses. They also denied Mr. Hobbs ever informed them of the encroachment. The McCurrys also alleged Mr. Hobbs's action was barred by the statute of limitations.

Following the trial, the court found the structure built by the McCurrys encroached on Mr. Hobbs's property but its construction was not willful or reckless and an injunction for its removal was not the appropriate remedy. He declared the existing fence should be the new boundary line between the Crosses' and Hobbs's properties. He ordered Mr. Hobbs to execute a quitclaim deed conveying the strip of land between the fence and the boundary line of the properties to the Crosses. The McCurrys were ordered to pay Mr. Hobbs $200 as compensation for the property. He also ordered McCurrys to construct a metal gate in the fence at the end of the road lying west of the Crosses' property for entry to the Hobbs property. He ordered the McCurrys to pay the attorneys' fees incurred by the Crosses and to pay the cost of the cause.

Mr. Hobbs has appealed, presenting the following issues for review: (A) whether or not the chancellor had the constitutional authority to order Mr. Hobbs, against his will, to convey his land to the Crosses; (B) whether or not $200 was adequate compensation for his land; and (C) whether or not the court was in error in finding the McCurrys did not act recklessly.

The Appellees, McCurrys, have also presented the following issues for review: (A) whether or not T.C.A. § 28-3-105 bars the claims of both Mr. Hobbs and the Crosses relating to the encroaching building and (B) whether the lower court erred in ordering them to pay the attorneys' fees incurred by the Crosses.

Since the McCurrys present the issue of the applicable statute of limitations which would affect the claims of both the Crosses and Mr. Hobbs, we consider that issue first. The McCurrys insist T.C.A. § 28-3-105, the three-year statute of limitations for injuries to real property, is applicable here. We cannot agree and hold the applicable statute of limitations is T.C.A. § 28-2-103 which applies in cases of adverse possession without color of title. The statute, as pertinent here, provides:

28-2-103. Seven year period runs from the time of right accrued--Extent of possession.--(a) No person or anyone claiming under him 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.

In Shearer v. Vandergriff, 661 S.W.2d 680 (Tenn.1983) the supreme court, in addressing the applicable statute of limitations in adverse possession cases, said, at 682:

T.C.A. § 28-2-101 and T.C.A. § 28-2-102 protects [sic] persons who are holding adversely under a color of title from suits to oust them from the entire boundary of lands on which they are adversely holding a portion, and T.C.A. § 28-2-103 protects an adverse holder without color of title only to that portion of land which is being held adversely. Peoples v. Hagaman, 31 Tenn.App. 398, 215 S.W.2d 827 (1948).

The record shows Mr. McCurry was under the impression the fence was on the property line. As a result of his mistaken belief, Mr. McCurry did two things--he constructed his building some four feet across the property line upon Mr. Hobbs's property, and he destroyed a portion of Mr. Hobbs's barbed wire fence and replaced it with a board and barbed wire fence, at the same time eliminating a gap in the previous fence line and thus enclosing part of the strip of land in question. Either of these acts would serve to classify Mr. McCurry, and Mr. Cross after him, as adverse holders of Mr. Hobbs's property.

In the case of Peoples v. Hagaman, 31 Tenn.App. 398, 215 S.W.2d 827 (1948) this court, in addressing the operation of the statute, said, at 829, 215 S.W.2d 827.

The rule is 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.... As the chancellor held, the construction of a garage ... [is] at least as effective in giving notice to the true owner of an adverse use of his property as the construction of a fence.

In addition to T.C.A. § 28-2-103, there is another statute of limitations which comes into play in the circumstances before us. T.C.A. § 28-1-114 reads in part:

28-1-114. Counterclaim or third party complaint--Limitation of action.--(a) A counterclaim or third party complaint is not barred by the applicable sta...