Pyron v. Colbert, 6

• Decision Date: 24 July 1959
• Docket Number: No. 6,6
• Citation: 46 Tenn.App. 287,328 S.W.2d 825
• Parties: Ralph D. PYRON and Wife, Irma Pyron, Appellants, v. Raymond O. COLBERT, Appellee.
• Court: Tennessee Court of Appeals

Page 825

328 S.W.2d 825

46 Tenn.App. 287

Ralph D. PYRON and Wife, Irma Pyron, Appellants, v. Raymond O. COLBERT, Appellee.

No. 6 Shelby Equity.

Court of Appeals of Tennessee, Western Section.

July 24, 1959.

Certiorari Denied by Supreme Court Oct. 2, 1959.

W. C. Rodgers, Memphis, for appellants.

Feuerstein & Feibelman, Memphis, for appellee.

BEJACH, Judge.

This cause involves an appeal by Ralph D. Pyron and Irma E. Pyron, his wife, from a decree of the Chancery Court of Shelby County dismissing an injunction bill filed by them against appellee, Raymond O. Colbert, and dissolving a temporary injunction which enjoined Colbert from constructing a fence along the north line of his property at 4389 Highway 61 S. in Shelby County, Tennessee, and thereby cutting off a part of the driveway which the Pyrons had previously used for entrance to and exit from their property at 4375 Highway 61 S. For convenience, the parties will be referred to, as in the lower court, as complainants and defendant, or called by their respective names.

The assignments of errors filed by complainants, as appellants in this court, style the cause 'Ralph D. Pyron, et ux., Appellants vs. Raymond O. Colbert, et ux., Appellees'; but the wife of Raymond O. Colbert was not a party to this suit, either in the lower court or in this court. It is true that complainants, by amendment to their original bill filed July 22, 1958, allege, 'Complainants now show to the Court, that they are entitled to have the wife of defendant Raymond O. Colbert made a party hereto by reason of the fact that he sets up in his answer that she is a joint owner of said property with him, which appears as a fact, as shown by their deed, dated October 2, 1954, of record in Book 3381 on page 48 in the Register's office in Shelby County, Tennessee, a photostatic copy of which is hereto attached marked Exhibit A, to which particular reference is made as a part hereof'; but no process was issued for Mrs. Colbert and no appearance was entered for her.

It may be that the failure to make Mrs. Colbert a party defendant would not be fatal, if complainants were entitled to prevail in this cause. In the unreported case of McCollum v. Melton, May 23, 1957, with no petition for certiorari filed, this court held on authority of Gardner v. Quin, 154 Tenn. 167, 289 S.W. 513; Hux v. Russell, 138 Tenn. 272, 197 S.W. 865; and Stegall v. City of Chattanooga, 16 Tenn.App. 124, 66 S.W.2d 266, that, without joining his wife as party complainant, a husband could maintain a suit for damage to property held by him and his wife as tenants by the entireties. It is not necessary to decide, in the instant case, whether or not the converse of that situation would also be true; that is, whether a suit may be maintained against the husband alone without joining the wife as defendant. In the instant case, the Chancellor denied relief to complainants, not because of the failure of complainants to make Mrs. Colbert a defendant, but because the contentions of complainants were otherwise without merit. This court agrees with the ruling of the Chancellor, which makes it immaterial whether or not Mrs. Colbert should have been made a party defendant.

This cause was started while Hon. Rives A. Manker was Chancellor of Part I of the Chancery Court of Shelby County, and the issues were made by pleadings filed during his term of office; but the stipulation to try the cause on oral evidence was filed after Chancellor Robert A. Hoffmann had taken office; and the hearing of the cause was before him.

In their bill filed July 2, 1958, complainants alleged that they purchased their property at 4375 Highway 61 S., in Shelby County, Tennessee January 22, 1952, and that they purchased along with said property the sole and only driveway or roadway thereto into Highway 61, and that it was represented to them that said driveway was a part of the property which they were purchasing. Their bill alleges that said driveway was built, maintained, and improved by their predecessor in title, more than ten years before the filing of the bill, and that complainants and their predecessor in title have had open, notorious, and adverse possession of same during said period of ten years. The bill alleges that defendant purchased the property at 4389 Highway 61 S., which is immediately south of and adjoins complainants' property, about three years before the filing of the bill, and that complainants did not know until a short time before the filing of the bill that defendant claimed any right to or interest in the property occupied by said driveway; but that after they did learn of such claim, a survey was made which shows a part of the driveway in question to be on the property of defendant. A copy of the survey is exhibited with the bill, and was proved at the trial; but complainants claim that by adverse user for more than seven years, they are entitled to retain the use of said driveway over that portion of defendant's land which it occupies. The bill alleges that defendant had recently erected a fence along the north line of his property which enclosed that portion of the driveway included in his land and had thereby completely destroyed complainants' means of ingress and egress from and to the highway. A temporary injunction was sought and obtained which required the removal of defendant's fence pending the hearing of this cause.

On July 7, 1958, Raymond O. Colbert, as defendant, filed a demurrer and answer. He demurred on the ground that complainants' bill and the survey attached thereto clearly show that complainants have neither ownership nor color of title to the property of defendant and his wife, and that there is no allegation that any rights have been obtained by prescription. Defendant's answer denies adverse user by reason of part of the driveway being on his land, and claims that the use thereof was a permissive use. In his answer, defendant refers to and makes a part of same, an affidavit of his predecessor in title, Bruce Embry, which affidavit is attached to and made an exhibit to the answer. The affidavit of Bruce Embry states that from 1947 until October 1954 he was the owner of the tract of land now owned by defendant, and that the north line of his property was the south line of the property of Warren Hazel, who later sold to Ralph D. Pyron and wife. The affidavit says that in the spring of 1951, Warren Hazel, assisted by his father-in-law, R. T. Leech, constructed a driveway across the northeast corner of what was then affiant's property; that neither he nor Mr. Hazel knew exactly how much of affiant's property was traversed by the driveway, but that construction was done with the clear understanding that Mr. Hazel acquired no title to affiant's property, that the use of same was a permissive use, and that neither Mr. Hazel nor his successor in title, Mr. Pyron, ever used this property adversely to affiant. The affidavit of Bruce Embry is corroborated by an affidavit of R. T. Leech, father-in-law of Warren Hazel, which corroborates the affidavit of Bruce Embry, and which affidavit of R. T. Leech is also made an exhibit to and part of defendant's answer. At the hearing of the cause, both Bruce Embry and R. T. Leech testified as witnesses in behalf of defendant and reiterated the statements made in their said affidavits.

A stipulation was filed September 11, 1958 which agreed that the cause might be tried on oral testimony. The cause was so tried January 22, 1959, and on March 2, 1959, a bill of exceptions preserving the testimony was filed.

From the testimony adduced, it appears that all of the land owned by both complainants and defendant was formerly owned by Walter N. Hazel, that he conveyed the land now owned by defendant to Bruce Embry, that he subsequently conveyed to his son, Warren Hazel, the land now owned by complainants, and that he still owns land to the north of complainants' property. The land now owned by defendant was conveyed to Embry in 1946. Embry built on his property in 1946 and 1947, and Warren Hazel built on his in 1948. While Warren Hazel was building, by permission, he used the property of Embry for ingress and egress; and, after he had finished building his home, he constructed a driveway, which is the driveway now in dispute. Said driveway was constructed by Warren Hazel with the assistance of his father-in-law, R. T. Leech, who testified as a witness for defendant. It appears from his testimony that he and his son-in-law realized that they had encroached on the property of Embry, in building the driveway, and so advised him; whereupon, it was agreed that Warren Hazel might continue to use, permissively, the land of Embry occupied by the driveway. Walter N. Hazel, father of Warren Hazel, testified that when complainant, Ralph D. Pyron, purchased his land from Warren Hazel, that he, Walter N. Hazel, said to complainant Ralph Pyron, 'Ralph, there is a question about the line, Mr. Emery's line there, I said, if they come over and take part of that you just come over on mine that much further, because the deed calls for 200 feet from Embry's north line, and he would just bring it that much further on me if that happended.' The property at that time had not been surveyed. Walter N. Hazel also testified that his son, Warren Hazel, is in the Air Corps and located at Smyrna, Tennessee. He testified further that he helped his son-in-law build the driveway, and that he heard a conversation between his son-in-law and Bruce Embry, the substance of which was, 'Warren had talked to Embry about it and said, 'We must be over a little bit.' And he said, 'Yes, I think we are. As long as we live here that is all right."

Defendant Raymond Colbert testified that when he bought his property from Bruce Embry, Embry said, 'Now you understand that half of this drive is on you. We know that. He said when Warren bought the property and put the driveway in, that he got over a little too far. He said...