Phillips v. Shrader

• Decision Date: 14 December 2011
• Docket Number: No. 09CH0635,09CH0635
• Parties: CAROL PHILLIPS v. TODD SHRADER
• Court: Tennessee Court of Appeals

CAROL PHILLIPS v. TODD SHRADER

No. 09CH0635

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

Dated: December 14, 2011

August 17, 2011 Session

Appeal from the Chancery Court for Anderson County

William E. Lantrip, Chancellor

No. E2010-02339-COA-R3-CV-FILED-DECEMBER 14, 2011

This is a dispute between two neighbors over the use of land. The plaintiff, Carol Phillips, charged the defendant, Todd Shrader, with trespass.¹ She sought an injunction and damages, along with removal of encroaching structures. The trial court dismissed Ms. Phillips's action, finding it barred by Tenn. Code Ann. § 28-2-103. Ms. Phillips appeals. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., and D. MICHAEL SWINEY, JJ., joined.

J. Stephen Hurst, LaFollette, Tennessee, for the appellant, Carol Phillips.

Philip R. Crye, Jr., Clinton, Tennessee, for the appellee, Todd Shrader.

OPINION

I. BACKGROUND

The parties own adjacent tracts of land in Anderson County, Tennessee, near Lake City. Both tracts were formerly owned by Leonard T. Carden ("Leonard C."). In 1993, Leonard C. had a survey prepared by George A. McGrew, Jr., and divided his property into two tracts. The following year, in December 1994, he conveyed a lot containing 1.59 acres("the Back Lot") to his brother and sister-in-law, Bruce and Nancy Carden (collectively "the Cardens"). Leonard C. retained ownership of a smaller lot ("the Front Lot") containing 0.58 acres where his residence was located. He continued to reside on the Front Lot until his death in May 2008. Mr. Shrader acquired the Front Lot from the devisees of Leonard C. in November 2008. Ms. Phillips acquired the Back Lot from the Cardens in a February 2000 deed.²

Both tracts adjoin a county road now known as Mountainside Lane.³ Access to Mountainside Lane for both tracts is along a common drive known as Ponderosa Lane. The surveys of record reveal that Ponderosa Lane meanders in and out of the Back Lot and the property of Ms. Phillips located adjacent to it. While the ownership of the land over which Ponderosa Lane runs has changed over the years, the location of the road has not been altered.⁴

Mr. Shrader's tract contains a one-story residence with an attached carport/garage. The deeds by which he obtained his property both describe a tract containing 2.75 acres -the total amount of property originally held by Leonard C.⁵ Apparently, neither of the deeds contains an exception for the Back Lot that was conveyed out of the 2.75 acres when Leonard C. sold part of the property to the Cardens in 1994.

In his answer and counterclaim to Ms. Phillips's lawsuit, Mr. Shrader admitted that the common boundary was located approximately where Ms. Phillips contended, that the encroachments complained of had existed for many years, and that a road known as Ponderosa Lane was located on Ms. Phillips's property that provided access to both tracts of land. He pled the bar of the applicable statute of limitations contained in Tenn. Code Ann. § 28-2-201, et seq. Mr. Shrader alleged that the area located between the surveyed boundary line and Ponderosa Lane had been used adversely by him and his predecessors in title for over seven years.

During her testimony at the trial held on July 6, 2010, Ms. Phillips testified that herproperty line passes through the "lean-to garage" attached to Mr. Shrader's house. She acknowledged that the carport/garage existed when she moved to her property in 1993 or 1994. She claimed, however, that the driveway leading into the carport/garage did not exist at that time and that Leonard C. parked his vehicle near Mountainside Lane. Ms. Phillips asserted that she and her husband built Ponderosa Lane and that she constructed the driveway from Ponderosa Lane to the carport/garage. According to Ms. Phillips, Leonard C. used Ponderosa Lane and the driveway to access his carport/garage with her verbal permission until he died.

In regard to Mr. Shrader's use of the property, Ms. Phillips testified that he moved into the former residence of Leonard C. "a little time after" Leonard C. died, "like three or four months after." She complained that Mr. Shrader was constantly walking and driving over her property. Ms. Phillips asserted that Mr. Shrader had trespassed by having an outbuilding and a large propane tank on her property and by driving a Pemberton Truck Lines tractor-trailer over her land.

Bruce Carden ("Bruce C.") indicated that he is not an acquaintance of Mr. Shrader and could only recall meeting him once before Mr. Shrader moved into Leonard C.'s former home. He stated that he had been familiar with the land involved in this action all of his life, having been raised in the area. He testified that he and his wife built a house on the Back Lot, where they lived for about two and one-half years until the house burned down after being struck by lightening. In 2000, the Cardens sold the Back Lot to Ms. Phillips and her then husband.⁶

According to Bruce C., the carport/garage on his brother's house had existed for at least 40 years, occupying the same footprint on the ground as it did when it was constructed. He noted that the only change in its appearance since it was built was that Leonard C. had enclosed the sides to keep the rain out. Bruce C. asserted that the carport/garage had always been used to park vehicles. He further noted that Ms. Phillips's testimony that Leonard C. parked his vehicles beside Mountainside Road was not truthful.

Additionally, Bruce C. explained that the gravel driveway to the carport/garage had existed as long as he could remember, or for 50 years or better, and that it was used continuously all those years to access Leonard C.'s house. He recalled playing on these roads as a child. He observed that the road now known as Ponderosa Lane had been used for years to access multiple residences, including his house that burned down, Ms. Phillips's residence, the Leonard C. house, and a mobile home that his brother rented out for about 25 years (located behind the Cardens' house).

Bruce C. testified that during the time that the Cardens owned the Back Lot, Leonard C. neither sought nor was given permission to use Ponderosa Lane or the driveway. He noted his full awareness that part of Leonard C.'s carport/garage encroached across the boundary and that his brother's use of the driveway likewise encroached. Despite this knowledge, however, no action was taken to stop the encroachments.⁷

According to Bruce C., the masonry barbecue on the property was about 30 years old; the propane tank that serviced the house had been there eight years or more; and a telephone pole located at the corner of the carport/garage bearing a ham radio antennae had existed for about 15 years. Bruce C. testified that the area between the line that bisected the carport/garage and the edge of Ponderosa Lane was part of the yard for the house and was used and maintained by Leonard C. continuously while he was alive.

Nancy K. Carden ("Nancy C.") likewise noted that the driveway to the area of the carport/garage had existed about 45 years. She related that the structure was built about 1969 or 1970, while the Cardens were living in California, because she first remembered seeing it when they came back for a visit. She discussed the mobile home that was located behind where she and her husband built their home, observing that it was lived in continuously for 20 or 25 years and was accessed from the county road by Ponderosa Lane. She recalled that Leonard C. always used Ponderosa Lane to access his house. According to Nancy C., no one ever sought permission from anyone to use Ponderosa Lane.

At the conclusion of the trial, the trial court noted from the bench that the testimony of the Cardens was found to be credible. It was determined that Ponderosa Lane and the driveway into the carport/garage on the Front Lot had existed and been used as such for over 30 years, that the barbecue pit had existed for 35 to 40 years, and that the propane tank had been placed and used by Leonard C. for about eight years. In the written opinion, the trial court noted as follows:

I have reviewed the briefs filed by the parties and authorities cited. I am of the opinion that T.C.A. 28-2-103 precludes this action brought by the plaintiff.

The plaintiff acquired the property from Bruce and Nancy Carden in 2000.

The Cardens had acquired this property from Leonard Carden in 1994. At the time of conveyance the carport/garage was already in existence and a wagon wheel⁸ was used as a marker insider the structure to signify the boundary line of the property acquired by Bruce and Nancy Carden. Obviously the structure was there and encroached upon the land conveyed. There was also testimony which I find convincing that Leonard Carden used the road, driveway and carport from and after this conveyance in 1994.

I also find that Leonard Carden used the land in front of his home which is not included in his deed for the location of a barbeque pit, a propane tank and further maintained the area.

The testimony of both Bruce and Nancy Carden confirm that they were aware of the adverse use of their property but took no action. This use of the property continued from 1994 until Leonard Carden's death in 2008.

The plaintiff acquired her property in February, 2000 and the acts of Leonard Carden continued with respect to the use of the plaintiff's land. Indeed the proof was clear that this use of the driveway and garage had been continuing for greater than 20 years. There is no evidence whatsoever of any permission sought from the plaintiff or granted by the plaintiff. As previously noted I found the testimony of the plaintiff's predecessors to be credible. Their testimony confirms the use of the disputed area by Leonard Carden during his life.

I also find that there has been a tacking of possession from Leonard

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