Johnson v. City of Mt. Pleasant

• Decision Date: 24 December 1985
• Docket Number: No. 9742,9742
• Citation: 713 S.W.2d 659
• Parties: Joe E. JOHNSON, III, et al., Plaintiffs-Appellants, v. CITY OF MT. PLEASANT, Tennessee, et al., Defendants-Appellees. 713 S.W.2d 659
• Court: Tennessee Court of Appeals

Page 659

713 S.W.2d 659

Joe E. JOHNSON, III, et al., Plaintiffs-Appellants, v. CITY OF MT. PLEASANT, Tennessee, et al., Defendants-Appellees.

No. 9742

713 S.W.2d 659

Court of Appeals of Tennessee,

Western Section, at

Nashville.

Dec. 24, 1985.

Application for Permission to Appeal

Denied April 28, 1986.

Fred E. Cowden, Jr., Nashville, for plaintiffs-appellants.

Thomas W. Hardin, Columbia, for defendants-appellees.

CRAWFORD, Judge.

Plaintiffs-appellants, Joe E. Johnson, III, and Nan J. Chunn, brought suit seeking the recovery of certain real property from defendant City of Mt. Pleasant, Tennessee, and other defendants. From a judgment on an adverse jury verdict, plaintiffs-appellants appeal.

On July 10, 1950, defendant City of Mt. Pleasant, acquired 1.6 acres of land by a quit claim deed from International Minerals and Chemical Corporation. The land was bounded on the north by land owned by plaintiffs' predecessors in title and to the east it was bounded by Sugar Creek and on the west it was bounded by the L & N Railroad. The City constructed a sewage treatment plant on the 1.6 acres and surrounded the property with a fence. There is no evidence in the record that the City had the property surveyed prior to the construction of the sewage treatment plant. In 1969, the City made additional improvements to the sewage treatment plant and moved the fence so that it occupied 40,632.1 square feet of property in dispute. Again, there is no evidence that the City had the property surveyed prior to the fence being moved. In 1977, plaintiffs acquired property by deed which was bordered on the south by the property on which the sewage treatment plant was built. In 1978, the City built a new sewage treatment plant and constructed an intercepter line across certain property claimed by plaintiffs in order to route the sewage from the City. On July 17, 1979, plaintiffs advised the City that the intercepter line was more than likely on their property. Plaintiffs employed a surveyor to establish the common boundary line between their property and the City's property.

On September 11, 1979, the City leased the old sewage treatment plant to the defendant Tennessee Oil and Refining. Plaintiffs initially filed an inverse condemnation suit against the City alleging that the municipality had constructed a sewer line across their property and seeking money damages. Before defendants filed an answer plaintiffs amended their complaint and alleged: that in 1950 the City had taken a portion of the property then owned by plaintiffs' predecessors in title without condemnation of the same for the purpose of constructing the first sewage plant; that the City had ceased using the property as a sewage treatment plant and had leased the same to the defendant Tennessee Oil and Refining for purposes other than sewage treatment; that the cessation of the use of the property for sewage and leasing the same to the defendant Tennessee Oil and Refining, constituted an abandonment of the property; and that upon the abandonment of the property the plaintiffs became entitled to possession of the property and to the rents and profits derived from the lease of the property by the City. On November 23, 1983, the trial court granted summary judgment in favor of the defendant City holding that the City's possession of a certain portion of the property and the enclosure of the same with a fence in 1950 and the failure of the plaintiffs' predecessors in title to institute suit established fee simple title to the property in the City under the doctrine of adverse possession.

On November 28, 1983, plaintiffs filed a second amended complaint alleging that the City had expanded further into the plaintiffs' property in 1969 and that the plaintiffs were entitled to possession of at least that portion of the property acquired by the City in 1969 together with certain property outside the fence. At the conclusion of all the proof, plaintiffs moved the court to instruct the jury that the boundary line was located along the line as established by the surveys prepared by plaintiffs' surveyor, Bill Richardson. The court refused to so instruct the jury and submitted the question concerning the location of the boundary line to the jury. The jury determined that the boundary line between plaintiffs' property and the defendant City's property was located along the fence line as established by the City in 1969 and the trial judge dismissed the suit.

On this appeal, plaintiffs present four issues for review:

1. Where the boundary line in dispute is established by a surveyor, an expert witness, and no evidence to the contrary is introduced, the court should instruct the jury that the boundary line is located at the point established by the surveyor.

2. A municipality which takes property for public purposes without condemning the same acquires only an illegally obtained possessory right to the property and upon the cessation of the use of the property for the purpose for which the property was originally taken an abandonment occurs and the rights to the property revert to the landowner or his successors in title.

3. A municipality which takes property for a public purpose without condemning the same acquires only an easement to the property.

4. The adverse possession statutes of the State of Tennessee cannot apply to a governmental entity which acquires property for public purpose without condemning the same since the landowner or his successors in title have no right to eject the municipality from the property and can only regain possession of the property when the public use for which the property was originally acquired ceases.

Plaintiffs' suit for recovery of the property from the City was an action in ejectment. See T.C.A. Sec. 29-15-102 (1980). If he is to succeed, the complainant in an ejectment action must show that he has both legal title and a right to immediate possession. Brier Hill Collieries v. Gernt, 131 Tenn. 542, 175 S.W. 560 (1914); see Bertha v. Smith, 26 Tenn.App. 619, 175 S.W.2d 41 (1943). The burden of proof is upon complainant in an action for ejectment to establish his title and his right of possession. Bertha v. Smith, supra. The complainant must prove that he has a perfect title to recover even against the defendant who has no title or who is a trespasser. Hubbard v. Godfrey, 100 Tenn. 150, 47 S.W. 81 (1898); Lowry v. Whitehead, 103 Tenn. 396, 53 S.W. 731 (1899); Davidson v. Foley, 57 Tenn.App. 22, 414 S.W.2d 123 (1966). The complainant in an ejectment suit must establish title by deraigning title to a common source under which both parties claim or by seven years adverse possession under a registered color of title or by 20 years actual adverse possession. See Harris v. Buchignani, 199 Tenn. 105, 285 S.W.2d 108 (1955); Davidson v. Foley, supra; Atkinson v. Atkinson, 23 Tenn.App. 269, 130 S.W.2d 157 (1939). The reason underlying the rule forbidding either party to deny the common source of title is that one cannot dispute the title under which he claims. Scales v. James, 9 Tenn.App. 306 (1928). In ejectment the complainant must recover on the strength of his own title and cannot rely on the weakness of his adversary's title. Hilton v. Anderson, 149 Tenn. 622, 261 S.W. 984 (1923); Tipton v. Smith, 593 S.W.2d 298 (Tenn.App.1979); Bertha v. Smith, supra.

We will now consider the issues:

1. Where the boundary line in dispute is established by a surveyor, an expert witness, and no evidence to the contrary is introduced, the court should instruct the jury that the boundary line is located at the point established by the surveyor.

Plaintiffs contend that the boundary line was established by their expert witness, Richardson, that no evidence to the contrary was introduced and thus that the court should have instructed the jury that the boundary line is located at the point established by Richardson. Defendant City contends that the record contains additional evidence regarding the location of the boundary line so that reasonable minds could differ as to the location of said boundary line. First the City notes that Joe E. Johnson, Jr., plaintiffs' predecessor in title testified that he did not know where the boundary line was and that he never had the property surveyed. Second, the City contends that plaintiffs' deed recites as their south boundary: "bounded by the City." Third, the City contends that the engineering plat prepared by the engineering firm of Barge, Waggoner, Sumner and Cannon purports a boundary line supportive of the jury's verdict. Fourth, the City maintains that the jury's verdict is supported by the testimony of Rochester Porter, a waste water plant employee since 1959, who testified that until 1970 there was a tree line on the north side of the sewage treatment plant beyond the fence. Mr. Porter testified that this tree line was on the property of plaintiffs' predecessors in title. Porter also testified that there was a piece of railroad railing in the ground at the end of the tree line near Sugar Creek. Finally, the City contends that its warranty deed and predecessors' deeds were admitted into evidence and are further evidence of the location of the boundary line.

Richardson testified that the boundary line that separates plaintiffs' property from the City's property was located some distance within the fence surrounding the old sewage treatment plant. As to the City's assertions that there is other evidence in the record as to the location of the boundary line, the fact that plaintiff's...