Vincent v. Johnston

• Decision Date: 24 January 2014
• Docket Number: No. E2013-00588-COA-R3-CV,E2013-00588-COA-R3-CV
• Parties: TERESA VINCENT v. JERRY S. JOHNSTON, SR.
• Court: Tennessee Court of Appeals

TERESA VINCENT
v.
JERRY S. JOHNSTON, SR.

No. E2013-00588-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

October 8, 2013 Session
FILED: JANUARY 24, 2014

Appeal from the Chancery Court for McMinn County No. 2011-CV-457 Jerri S. Bryant, Chancellor

This boundary line dispute involves a five-acre parcel of real property ("Disputed Property") in McMinn County to which the petitioner and respondent, who own adjoining parcels, both claim ownership. The petitioner filed a petition to quiet title, requesting that she be declared the owner of the Disputed Property, and for declaratory judgment as to damages she claimed as a result of the respondent's alleged trespass, encroachment, and harvesting of timber. The respondent filed a counter-petition, alleging that he was the rightful owner of the Disputed Property; raising affirmative defenses of waiver/estoppel, champerty, and adverse possession; and requesting damages for the petitioner's alleged encroachment and destruction of boundary markers. Following a bench trial, the trial court declared the petitioner the owner of the Disputed Property, dismissed the respondent's counter-petition, and dismissed all claims for damages. The respondent appeals. We affirm the trial court's finding that title to the Disputed Property is vested in the petitioner. We determine, however, that the respondent has established the statutory defense of adverse possession, pursuant to Tennessee Code Annotated § 28-2-103 (2000), only to the extent that certain improvements encroach upon the Disputed Property, and we reverse upon this ground. We remand to the trial court for determination as to the extent of the encroachments. We affirm the trial court's judgment in all other respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II., J., delivered the opinion of the Court, in which D. MICHAEL SWINEY and JOHN W. MCCLARTY, JJ., joined.

Andrew J. Brown, Cleveland, Tennessee, for the appellant, Jerry S. Johnston, Sr.

Travis D. Henry, Cleveland, Tennessee, for the appellee, Teresa Vincent.

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OPINION
I. Factual and Procedural Background

The petitioner, Teresa Vincent, purchased 122.8 acres in McMinn County ("Vincent Property"), which were conveyed to her in fee simple via warranty deed from Bowater, Inc. ("Bowater") dated February 5, 2010, and recorded in the Register's Office for McMinn County in Plat Cabinet A, Slide 21B on September 16, 2010. Ms. Vincent's deed incorporated the property description from a survey prepared by William D. McKenzie, Registered Land Surveyor, on March 16, 1982 ("McKenzie Survey"). Bowater had used what became the Vincent Property for harvesting timber, and the land remained primarily wooded and undeveloped at the time of trial.

At the time Ms. Vincent acquired her property, the respondent, Jerry S. Johnston, Sr., owned approximately 200 acres of forested land to the west and southwest of the Vincent Property ("Johnston Property"). A portion of the chain of title for the Johnston Property dates back to a conveyance from the Tennessee Valley Authority ("TVA") to Mr. Johnston's grandfather, Tyrus Wright, dated December 17, 1948, and recorded in the Register's Office for McMinn County on February 27, 1950. Mr. Johnston testified that while much of his grandfather's original tract had been sold in parcels, he had been acquiring land for several years in an attempt to reconstruct his grandfather's farm. According to Mr. Johnston, he acquired the parcel that he claims includes the Disputed Property through a June 26, 1987 warranty deed, by which grantors Claude and Margaret Tatum conveyed a life estate in the property to Mr. Johnston's mother, Marie Green, with a remainder to Mr. Johnston.¹ Ms. Green subsequently transferred to Mr. Johnston her interest in the relevant portion of the Johnston Property via warranty deed dated December 16, 1993, and recorded in the Register's Office for McMinn County on February 14, 1994 ("1993 Deed"). At trial, Mr. Johnston relied upon the property description regarding the first of two tracts described in the 1993 Deed for his claim of recorded title to the Disputed Property. The Johnston Property is primarily woodland and includes a campground consisting of approximately twenty-six acres set along the Chickamauga Lake, which is fed by the Hiwassee River.

The Disputed Property consists of five acres situated at the southwestern corner of the Vincent Property and the southeastern corner of the Johnston Property. As the property is primarily wooded, it is undisputed that prior to this action, Mr. Johnston's campground tenants regularly rode four-wheelers on dirt trails over the Disputed Property, the southern

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tip of which leads to the lake. The property line along the lake is designated as the 685.44 contour on all relevant surveys. The lake is further designated as TVA property. Testimony and photographs also demonstrated that Mr. Johnston built a boat ramp with two boat docks in 1988 where the Disputed Property adjoins the lake. Mr. Johnston and his tenants testified that the Disputed Property contained several improvements, including an asphalt road, metal carport with camper space, and a frame building or cabin. The extent, however, to which these improvements were located on or extended into the Disputed Property was challenged by Ms. Vincent.

Ms. Vincent, who is a licensed real estate agent, asserted in her petition, inter alia, that she had no indication Mr. Johnston was claiming the Disputed Property until after closing on her land purchase. Between the time that her offer was accepted by Bowater in late June or early July 2009 and when the sale closed in February 2010, she and her husband, David Vincent, visited the Vincent Property often.² Their visits included walking, picnicking, and planning for future building. The Vincents both testified that they sometimes walked across the Disputed Property during this time period but did not see Mr. Johnston on the Disputed Property. Ms. Vincent stated that usually in the wintertime, the water level changed such that Mr. Johnston's tenants could access the shore by traversing the Disputed Property.

The instant dispute occurred following closure on the sale of the Vincent Property in February 2010. The Vincents erected a cable across the dirt road leading to the Disputed Property in an attempt to prevent use of four-wheelers in the area. Ms. Vincent claimed that the first indication she had that Mr. Johnston was claiming the Disputed Property was when he moved the cable and brought in a bulldozer to pack dirt approximately three feet high. This measure effectively blocked Ms. Vincent's access to her property. Testimony indicated that contemporaneously, the Vincents were clearing an area that included part of the Disputed Property when Mr. Johnston stopped a bulldozer operator and instructed him that the Disputed Property was part of the Johnston Property.

Following these incidents, Ms. Vincent retained Registered Land Surveyor Charles R. ("Randy") Brown to survey the Disputed Property. Mr. Brown's survey ("Brown Survey"), completed on September 9, 2011, indicated to Ms. Vincent that the Disputed Property was part of the Vincent Property. Mr. Johnston subsequently retained Registered Land Surveyor Jimmy L. Richmond, who completed his survey of the Disputed Property on July 12, 2012 ("Richmond Survey").

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Ms. Vincent filed a Petition to Quiet Title and for Declaratory Judgment on December 16, 2011, requesting that she be declared the owner of the Disputed Property. She alleged that Mr. Johnston had encroached and trespassed over her land and had intentionally and/or negligently removed timber belonging to her. By her petition, Ms. Vincent sought relief that Mr. Johnston be ordered to remove all improvements encroaching on her property and be held liable for damages. Mr. Johnston responded by filing an answer and counter-petition on April 25, 2012, asserting that he was the owner of the Disputed Property and alleging that Ms. Vincent had encroached on his property. Mr. Johnston raised the affirmative defenses of waiver/estoppel, champerty, and adverse possession. Mr. Johnston requested that the court declare him to be the owner of the Disputed Property and assess damages against Ms. Vincent for encroachment and destruction of boundary markers.

Concomitantly with his counter-petition, Mr. Johnston filed a motion for temporary injunction, requesting that Ms. Vincent be ordered to refrain from destroying, moving, or encroaching upon boundary markers. The parties subsequently submitted an Agreed Mutual Temporary Injunction, entered by the trial court on May 10, 2012, inter alia, enjoining both parties from altering the Disputed Property or interfering with its current use, including recreational use by Mr. Johnston's tenants.

Ms. Vincent filed an answer to the counter-petition on November 8, 2012, asserting as affirmative defenses that Mr. Johnston had not paid taxes on the Disputed Property and that his action was barred by Tennessee Code Annotated § 28-2-109, the statute of frauds, and the doctrine of unclean hands. Following a bench trial conducted over two non-consecutive days on November 14 and 28, 2012, the trial...