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Ahler v. Scarborough

Court of Appeals of Tennessee, Knoxville

July 17, 2019

ALBERT J. AHLER
v.
CHARLES STEFFAN SCARBOROUGH ET AL.

          Session May 20, 2019

          Appeal from the Circuit Court for Roane County No. 15-CV-111 Elizabeth Asbury, Chancellor

         Plaintiff filed a complaint for declaratory judgment seeking to declare Old Stage Road a public road. Plaintiff sought to use the disputed road to access his property; his property does not abut the road. The plaintiff, asserting that he was also there on behalf of the public, also sought to have the road declared public in order to access defendants' private property for recreation. Defendants filed a counterclaim seeking a declaratory judgment. Defendants argued that absent a ruling related to defendants' property rights, the plaintiff and those he represents were likely to interpret any ruling favorable to them as a declaration of their right to trespass upon defendants' private property for recreational purposes, instead of a public road to gain access to some lawful destination. After a trial, the court held that defendants had shown that public use of the area in question had been abandoned. The disputed road was held to be the private property of defendants. Plaintiff appeals. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          Robert Wilkinson, Oak Ridge, Tennessee, for the appellant, Albert J. Ahler.

          C. Douglas Fields, Crossville, Tennessee, for the appellees, Charles Steffan Scarborough and Anne K. Scarborough.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J. and Thomas R. Frierson, II, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         In 1823, George Gordon received a grant to construct a roadway; known as Old Stage Road, it became one of the early routes to Middle Tennessee. The road traverses the Whites Creek Gorge down the mountain to the foot of Walden's Ridge, at U.S. Highway 27, near the present community of Eagle Furnace. The earliest map of the road in record is an 1834 map showing the road denominated as Gordon's Road. Mr. Gordon charged a toll to use the road for 35 years. Thereafter, the road became open for public use. The most recent topographical maps have edited Old Stage Road such that it is no longer reflected as a road.

         Plaintiff owns approximately 105 acres; his tract of land is approximately 975 feet from the disputed road. Defendants' property consists of approximately 360 acres in Roane and Rhea Counties. Approximately 164 acres of defendants' property is subject to a Deed of Conservation Easement with the Tennessee Parks and Greenways Foundation. A portion of defendants' property includes the disputed Old Stage Road.

         In 2014, plaintiff petitioned Roane County Road Committee requesting that Old Stage Road be opened. The road is not listed as a county road, and the county did not take any action to re-open the road. Plaintiff alleges that

[a] called meeting of the Roane County Road Committee was held in June 2014. There were approximately 30 people there to consider if Old Stage Road was a county road. Meeting concluded with '[i]t is not a county road, but it is a public road.' Minutes of this meeting were taken but 'lost.'

         On September 15, 2015, plaintiff filed a complaint for declaratory judgment against Mr. and Mrs. Scarborough seeking to declare Old Stage Road a public road for his and the public's use. Plaintiff desires to use Old Stage Road, because it is the easiest means of accessing his property. However, he admits that it is not his only access. The second available access to his property is allegedly difficult to traverse even with a four-wheel drive vehicle. Previously, there was an additional means of accessing his property off of U.S. Highway 70, but it was closed by the state and no one is allowed to use it any longer. Plaintiff ultimately aims to access his property using Old Stage Road by way of Black Creek Road.

         The public seeks access to the road in order to swim, fish, hunt, etc. in the creek and the surrounding area. However, the relevant portions of the creek, and the area surrounding it, are defendants' private property. Defendants argued that there is therefore no interest in establishing a public road to access any destination other than their private property. Defendants maintain that even if a public road were deemed to exist, that the lands beside Whites Creek and under Whites Creek are their private property and not subject to access, except by trespass, from any road sought to be created or recreated. Defendants argued that at the heart of this matter is an underlying effort to assert a public road in order to open up defendants' private property to public use. Defendants have not opened their land or dedicated it as any kind of public area.

         Defendants answered plaintiff's complaint; in a subsequent motion to dismiss, defendants alleged that Gordon Dale Fourman and Tennessee Parks and Greenways Foundation were necessary parties. Pursuant to an order entered October 18, 2016, the court determined that the proper remedy would not be dismissal; it instead granted defendants leave to file counterclaims, and plaintiff the opportunity to amend with instruction to add the two additional parties: Gordon Dale Fourman and Tennessee Parks and Greenways. The court further noted that the order is limited to the addition of only these two parties based on the understanding that plaintiff only seeks to declare the portion of road as public that extends to Willet Mountain Road, and that that portion will not extend beyond the property of Gordon Dale Fourman.

         On November 16, 2016, defendants filed their counterclaims seeking a declaratory judgment. Defendants stated that absent a ruling related to defendants' property rights, the plaintiff and those he represents were likely to interpret any ruling favorable to them as a declaration of their right to trespass upon defendants' property for recreational purposes, instead of a public road to gain access to some lawful destination. Accordingly, if a public road is found to exist, defendants asked the court to render a declaratory judgment on the following issues:

1. Whether users of any public road found to exist have any legal right to leave the boundaries of the road and enter upon Counter-Petitioners['] land to access the creek or any other portion of their property for any reason without Counter-Petitioners['] permission to do so[.]
2. Whether Counter-Petitioner[s'] property rights extend to the ground over which ...

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