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Tennessee Private Condemnation Easement Disallowed Against Pearcy Tennessee River Resort

Real Estate Lawyer
Photo: Flickr and Mark Engelbrecht

As a Tennessee real estate litigation attorney, I enjoyed reading a recent Tennessee Court of Appeals case covering easements.  In Vise v. Pearcy Tennessee River Resort, Inc., a landowner attempted to force a neighboring property to grant it an easement across its land.  While Vise had enjoyed access to its land by alternate routes for farming purposes, the plaintiff wanted a course to create an easement via a private condemnation action so it could use its land for another purpose: an RV park.  The neighboring landowner refused to participate.

The Court of Appeals addressed whether the trial court properly concluded that the Appellants were not entitled to an easement under Tennessee Code Annotated Section 54-14-101 or Section 54-14-102. Both Sections 101 and 102 of Chapter 14 provide for a private condemnation action of another‘s lands. Tennessee Code Annotated Section 54-14-101(a)(1) provides for a condemnation action ―[w]hen the lands of any person are surrounded or enclosed by the lands of any other person or persons who refuse to allow to the person a private road to pass to or from the person‘s land….‖ Id. § 54-14-101(a)(1).
Tennessee Code Annotated Section 54-14-102 provides:

Any person owning lands, ingress or egress to and from which is…obstructed entirely from a public road or highway by the intervening lands of another, or who has no adequate and convenient outlet from the lands to a public road in the state, by reason of the intervening lands of another, is given the right to have an easement or right-of-way condemned and set aside for the benefit of the lands over and across the intervening lands or property

Id.

 

The trial court found that ―[b]ecause the [Appellants] have ingress and egress access which is adequate and convenient, they are not entitled to obtain an easement under Tenn. Code Ann § 43-14-101 et seq.‖ The trial court further found that the Appellants ―have an adequate and convenient access to their property to use the property for farming – the same use of the land prior to access over [the Appellee‘s] property.

Tennessee Code Annotated Section 54-14-102 is to be strictly construed against the right of the private individual to expropriate the private property of another. Jones v. Ewell, No. M1999-00883-COA-R3-CV, 2000 WL 298246, at *2, (Tenn. Ct. App. March 23, 2000) (quoting Draper v. Webb, 418 S.W.2d 775, 776 (Tenn. Ct. App. 1967)). While petitioners in a private condemnation action are entitled to the best use of their property, they have no right to take [another‘s] property for such use…or any use but that authorized by the statute. Id. (quoting Vinson v. Nashville, C. & St. Louis Railway, 321 S.W.2d 841, 844 (Tenn. Ct. App. 1958)).

The Vise case is similar to Draper v. Webb. In Draper, private landowners planned to subdivide their property. Id., 418 S.W.2d 775, 776. In order to obtain more convenient access to the section of the property that the petitioners planned to subdivide, the Draper Appellants sought to condemn a right-of-way over an adjoining landowner‘s property. Id. The Court of Appeals concluded that, while the petitioners were entitled to make the best use of their property, the condemnation statute did not allow them to improve the use of their property by taking another‘s land if their existing access was adequate and convenient for the purposes for which the land was currently being used. See Id.

It is undisputed that by using the blacktop road the Resort constructed, Vise can currently access their property for the purposes of farming. Furthermore, there is no evidence in the record to suggest that the Appellants have been denied access to their property for farming purposes. In fact, during Mr. Vise‘s testimony, when asked if ―anybody, the TVA or [the Appellees], ever had any access denials by anyone for farming purposes, he answered “Not for farming purposes.” It is also undisputed that Vise was seeking to make better use of their property by developing it as an RV park.  This was not allowed. The Court refused to allow an easement against the will of the Resort.

The Court similarly refused to permit condemnation pursuant to Tennessee Code Annotated 54-14-101.  Strictly construing the statute, the Court concluded that a refusal of access to property is a necessary element before a petitioner may bring a condemnation action pursuant to Tennessee Code Annotated Section 54-14-101.  Because there was no refusal to allow access for farming, there was no grounds to permit an easement.

If you are in need of a lawyer to help with a Tennessee case involving adverse possession or property disputes in general, please contact me at (901) 527-2125 or E-mail Me.

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Tennessee Court of Appeals Looks at Failure to Pay Taxes and Tennessee Adverse Possession

As a Tennessee real estate litigation attorney, I read with interest a recent case by the Tennessee Court of Appeals: Randall W. Summers v. Jimmy Stubblefield, No. 13208 (Tenn. Ct. App. Mar. 17, 2015). The case involved a dispute (for more than 20 years) by two adjacent landowners.  One land owner moved to set boundaries to the two parcels and the Defendant put forth the defense set forth in Tenn. Code Ann. 28-2-110:

Any person having any claim to real estate or land of any kind, or to any legal or equitable interest therein, the same having been subject to assessment for state and county taxes, who and those through whom such person claims have failed to have the same assessed and to pay any state and county taxes thereon for a period of more than twenty (20) years, shall be forever barred from bringing any action in law or in equity to recover the same, or to recover any rents or profits therefrom in any of the courts of this state.

The proof showed that the plaintiff had paid taxes on a 20 acre assessment, far from the 125 acres he claimed to own.  Therefore, the plaintiff was unable to file a claim against the defendant seeking title to the property.

However, the twist in this case is that the defendant filed a counter-claim against the plaintiff seeking ownership to the land in question.  The above-cited statute does not prevent a person from defending an action filed against him for ownership of the property. The defendant tried to use theories of adverse possession and payment of taxes to claim the land.  Defendant failed.

In Tennessee, an adverse possessor with “assurance of title” is presumed to be the legal owner of real property when he has paid taxes on the property for 20 years.  The opinion cleared explained that tax maps cannot be used to establish boundary lines of assurance of title in Tennessee.  State ex rel Summers v. Whetsell, 2006 WL 1408403, at *3 (Tenn. Ct. App. May 22, 2006).

The defendant claimed to own the property in question, but defendant could not identify a deed or specific instrument of record that gave him title to Jackson Place.  He could only point to statements he had heard from relatives over the years.  There were no deeds; there were no writings. While defendant did refer to a tax map as proof of ownership, as noted above, in Tennessee a tax map cannot be used to establish a boundary line.

Defendant also sought to claim title by actual common law adverse possession.  Proving Tennessee adverse possession is difficult as it requires a showing by clear and convincing evidence (a higher than normal standard).  The use of the property must be (1) exclusive, (2) adverse, (3) continuous, (4) open, and (5) notorious for twenty years.  In this case the only proof was that the defendant cut wood, painted a fence, and asked hunters to leave.  This was insufficient.

If you are in need of a lawyer to help with a Tennessee case involving adverse possession or property disputes in general, please contact me at (901) 527-2125 or E-mail Me.

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West Tennessee Deed Reformation Attorney Comments on Recent Case

As a Tennessee real estate litigation attorney, I read with interest a recent case by the Tennessee Court of Appeals: Bank of America, N.A. v. David F. Meyer, No. 2013CV19 (Tenn. Ct. App. Jan. 27, 2015).  The Meyer case involved a deef of trust that allegedly incorporated only one of two parcels of land (the Trust Deed gave the address for a 2.0 acre tract that contained a home, but the legal description contained the description for a 16.8 acre tract without the home).  Bank of American sued to reform the deed of trust.  The homeowner opposed. The opinion looks at Tennessee Deed Reformation law.

I found the case interesting for a few reasons.  First, the homeowner tried to argue Bank of America lacked standing to sue for reformation because the note was originally entered into with Countrywide.  The Court of Appeals, however, took judicial notice of the 2008 takeover of Countrywide by Bank of America.  Judicial notice was taken pursuant to Rule 201 of the Tennessee Rules of Evidence.  Citing to Counts v. Bryan, 182 S.W.3d 288, 292 (Tenn. Ct. App. 2005), the Court held that the merger/takeover by Bank of America was an appropriate fact for judicial notice.

Second, the case looked at the ability to reform a deed of trust, such as the one at issue in the case.  Citing the case of Wallace v. Chase, No. W1999-01987-COA-R3-CV, 2001 WL 394872, at *3 (Tenn. Ct. App. Apr. 17, 2001), the Court of Appeals noted:

[a] court of chancery in Tennessee has the power to reform and correct errors in deeds produced by fraud or mistake.  To be the subject of reformation, a mistake in a deed must have been mutual or there must have been a unilateral mistake coupled with fraud by he other party, such that the deed does not embody the actual intention of the parties.  Formation may be granted agains the original parties, their privies, those claiming under them with notice, and third person who will suffer no prejudice thereby.

Id.  The Court of Appeals considered the error at issue a “drafting error,” which allowed correction.  “[A] party’s failure to catch a drafting error when reading over a written contract does not normally rise to the level of ‘gross negligence’ that will bar reformation.”  Sicker v. Vanderploeg, 212 S.W.3d 277, 290 (Tenn. Ct. App. 2006).

If you are in need of a lawyer to help with reformation to a deed, please contact me at (901) 527-2125 or E-mail Me.