MARTHA L. BUTLER
JAMES L. BURROW ET AL.
Session: October 9, 2019
from the Chancery Court for Sumner County Nos. 2016-CV-110
and 2016-CV-12 Joe Thompson, Chancellor
appeal arises from an action for trespass, injunctive relief,
and to quiet title pursuant to a theory of common law adverse
possession. The multiple parties are adjoining neighbors
and/or affiliated businesses. The centerpiece of this
litigation concerns the ownership of a strip of railroad
property that is 66 feet wide and comprises 2.9 acres. The
railroad removed the track and abandoned the property in
1977, after which all that remained was a berm on which the
former track lay. After the track was removed, one of the
neighboring owners erected a fence along the center of the
entire length of the railroad property. Since that time, the
neighboring property owners considered the fence to be the
new property line and used the 33 feet of the property on
their side of the fence as their respective property.
However, the neighboring property owners never paid taxes on
the abandoned railroad property. In 2015, one of the three
defendants acquired the abandoned property by quitclaim deed
from the railroad and removed the fence and leveled the berm
in order to install a road to serve a residential development
planned for an adjacent 42-acre tract. Thereafter, the owners
of two separate adjoining properties filed suit against the
three affiliated defendants seeking an injunction and to
recover damages caused by flood water that had been diverted
onto the plaintiffs' property due to the removal of the
berm. The plaintiffs also asserted claims for trespass and to
quiet title to the 33 feet of the former railroad property
that adjoined their property. The defendants filed
counterclaims alleging that the temporary injunction halted
development of the road and caused them to suffer damages.
Following a bench trial, the court ruled that the plaintiffs
acquired half of the abandoned railroad property through
adverse possession. The court also awarded damages against
the defendants for removing the fence the plaintiffs used to
contain their cattle and for flood damage that resulted from
the removal of the berm. The court also ordered the
defendants to replace the berm. The defendants appealed. We
have determined that Tenn. Code Ann. § 28-2-110(a) bars
the plaintiffs' claim of adverse possession because it is
undisputed that they did not pay taxes assessed on the
railroad property for more than 20 years. Therefore, we
reverse the trial court's determination that the
plaintiffs own half of the railroad property and hold that
the defendant who acquired the property from the railroad by
quitclaim deed in 2015 is the rightful owner of the entire
2.9-acre tract. We also reverse the award of damages to the
plaintiffs for replacement of the fence and restoration of
the entire berm; however, we affirm the trial court's
determination that the defendants are jointly and severally
liable for diverting water onto the plaintiffs' property
by removing the railroad berm, and remand this claim for the
trial court to award damages and/or determine the appropriate
measures the defendants should take to remedy the flooding
caused by the removal of the berm. Further, the defendants
claim for damages resulting from the temporary injunction is
remanded to the trial court for further proceedings
consistent with this opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part, Reversed in Part, and
N. Oldham, Gallatin, Tennessee, for the appellants, James L.
Burrow, Clearview Creekbank, L.L.P., and Clearview Farms,
C. Kelly and Gwynn K. Smith, Gallatin, Tennessee, for the
appellees, Martha L. Butler, Dennis Lee Clark, and Karen Kae
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Richard R. Dinkins and W. Neal McBrayer, JJ.,
G. CLEMENT JR., P.J., M.S.
Martha L. Butler ("Mrs. Butler") owns a two-acre
tract, and Plaintiffs Dennis and Karen Clark ("the
Clarks") own a 10.4-acre tract, both of which are
adjacent to the southern boundary of the abandoned railroad
property ("the disputed property"). Defendant
Clearview Farms, L.L.P. ("Clearview Farms") owns a
42-acre tract that is adjacent to the northern boundary of
the disputed property. Thus, the disputed property is
contiguous with and runs between Plaintiffs' properties
and Clearview Farms' property.
were initially two defendants in this action, Clearview
Creekbank, L.L.P. ("Clearview Creekbank") and its
general partner, James L. Burrow ("Mr. Burrow").
When the action was commenced, it was Plaintiffs'
understanding that Mr. Burrow owned the 42-acre tract on the
northern border of the disputed property and that Clearview
Creekbank had recently acquired a quitclaim deed to the
disputed property from the railroad. However, as explained
later, Plaintiffs discovered that Mr. Burrow quit claimed the
42-acre tract in 2015 to Clearview Farms of which Mr. Burrow
is the general partner.
initial complaint, Plaintiffs alleged that one of the
neighboring property owners erected a fence in 1977 down the
center line of the disputed property, and Mrs. Butler and the
Clarks each acquired ownership of the half of the disputed
property that adjoined their respective properties through
common law adverse possession. For her part, Mrs. Butler also
alleged Mr. Burrow caused her property to flood by leveling
the railroad berm. The Clarks additionally claimed they held
a prescriptive easement to a driveway that crossed the
disputed property and that they suffered damages due to a
deep trench Mr. Burrow carved out that prevented the
Clarks' use of the driveway. The Clarks additionally
alleged they suffered damages when Mr. Burrow bulldozed the
fence that kept their livestock contained for years.
also requested injunctive relief pertaining to Mr.
Burrow's ongoing work to remove the berm and his
obstruction of the Clarks' use of their driveway. Prior
to Defendants filing their answer, and following a hearing,
the court granted a temporary injunction enjoining Mr. Burrow
from blocking or impeding the Clarks' driveway. The court
also permitted Mr. Burrow to continue his grading work on the
disputed property as long as it did not increase flooding on
Mrs. Butler's property.
filed an answer and counter-complaint against the Clarks and
Mrs. Butler. According to the counter-complaint, Clearview
Creekbank intended to build a road on the property it
acquired from the railroad to provide access to a future
residential development on the 42-acre tract owned by
Clearview Farms. Defendants also sought to recover damages
resulting from the temporary injunction that impeded
construction of the road on the disputed property.
thereafter, the court granted Clearview Farms' petition
to intervene. In its intervening complaint, Clearview Farms
alleged that Plaintiffs caused it to suffer damages by
delaying the residential development. Plaintiffs then amended
their complaint to add Clearview Farms as a defendant and
filed answers to Defendants' counter-complaint and
Clearview Farms' intervening complaint. (Hereafter,
Clearview Farms, Clearview Creekbank, and Mr. Burrow will be
collectively referred to as "Defendants").
court held a bench trial on October 30, 2017, and November
17, 2017, during which 15 witnesses testified. Testimony and
evidence relevant to this appeal established that a railroad
company acquired the disputed property in 1890 and used the
property until 1977 when the railroad removed the railroad
tracks and abandoned the property.
owners of the neighboring properties in 1977 and throughout
the 1980s were: James A. Burrow, the father of defendant
James L. Burrow, who owned the 42-acre tract to the north;
F.C. and Laura Butler, the in-laws of Mrs. Butler, who owned
the 10.4-acre tract to the south; and Mrs. Butler, who owned
the adjoining two-acre tract.
Butler testified that Mr. Burrow's father, James A.
Burrow, constructed a fence in the early 1980s down the
center line of the disputed property. As a consequence, 33
feet of the disputed property was on James A. Burrow's
side of the fence, the north side, and 33 feet of the
disputed property was on the Butlers' side of the fence,
the south side. Mrs. Butler also stated that after the fence
was constructed, she and her in-laws treated the fence as the
new northern boundary line to their combined 12.4 acres. In
2009, the 10.4-acre tract formerly owned by Mrs. Butler's
in-laws was sold to the Clarks. Significantly, during their
testimony, Mrs. Butler and Mrs. Clark each conceded that the
disputed property was not included in their deeds. They also
conceded that they did not pay any taxes assessed on the
testified that in 2015, after Clearview Creekbank acquired a
quitclaim deed to the disputed property, Mr. Burrow blocked
the Clarks' driveway that ran across the disputed
property. Mrs. Butler testified that the driveway used by the
Clarks to access their property had been used as a driveway
by her family, continuously and uninterrupted, since 1960.
Mrs. Butler testified that Mr. Burrow also
"bulldozed" the fence and removed a portion of the
railroad berm on the disputed property. And as a consequence,
during heavy rains in May and July 2016, water flowed in a
north to south direction over the portion of the disputed
property where the berm was removed and onto Plaintiffs'
property, causing significant flood damage to Mrs.
Butler's home and shop. Plaintiffs testified that
previous to the removal of the berm, flood water had never
flowed in a north to south direction over the disputed
Burrow testified that he helped his father erect the fence on
the disputed property in 1978. Mr. Burrow acquired the 42-acre
tract formerly owned by his father and subsequently quit
claimed the entire tract to Clearview Farms in 2015. That
same year, Clearview Creekbank acquired the disputed property
from the railroad via quit claim deed. Mr. Burrow, who was
the general partner of both businesses, explained that he
planned to build a road on the disputed property to serve the
residential development he was planning for the Clearview
accomplish this goal, when Clearview Creekbank acquired the
disputed property in 2015, Mr. Burrow had the fence removed.
Mr. Burrow also testified that he did not remove a berm on
the portion of the disputed property as Plaintiffs claimed
because there was no berm on that portion of the property.
Mr. Burrow suggested that Plaintiffs' property flooded
because Sumner County road crews dug a ditch along East
Harris Road that diverted water onto Plaintiffs'
Defendants' damages claims, Mr. Burrow claimed they were
forced to halt construction of the road on the disputed
property as a result of the injunction obtained by
Plaintiffs, which caused Defendants to suffer significant
considering all the evidence at trial, the court ruled:
It is uncontroverted that since the early 1980's, the
parties held their property adversely to the interests of the
railroad, that the interests of the Plaintiffs and the
interests of the Defendants to 33 feet of property along the
center line of the railroad were held exclusively, actually,
adversely, continuously, openly, and notoriously. Thus the
Plaintiffs and the Defendants acquired their interests in the
[disputed property] by adverse possession. The deed acquired
by the Defendants from the railroad was ineffective to convey
any property so held by the Plaintiffs.
Similarly, the court credits the testimony of Martha Butler
that the driveway used by her in-laws to access their home
(now owned by the Clarks) has been in continuous and
uninterrupted use since it was acquired by F.C. and Laura
Butler in 1960. There was no evidence presented that the
railroad or anyone else granted permission for use of this
court also awarded monetary judgments against Defendants,
jointly and severely, finding that Mrs. Butler was entitled
to $8, 721.61 for flood damage caused by removal of the berm,
the Clarks were entitled to $10, 552 for removal of the
fence, and Plaintiffs were entitled to $16, 473.51 to restore
filed a motion to alter or amend contending Plaintiffs'
claim of adverse possession was barred by Tenn. Code Ann.
§ 28-2-110(a) because only the railroad company, not
Plaintiffs or their predecessors in interest, paid property
taxes on the disputed property for more than 20 years.
Plaintiffs responded, arguing, inter alia, that
Defendants did not prove Plaintiffs' failure to pay taxes
for more than 20 years, and even so, § 110(a) did not
apply to bar their claim of adverse possession because their
claim fit the exception to the statute outlined in
Cumulus Broadcasting, Inc. v. Shim-the tracts were
contiguous, a ...