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Butler v. Burrow

Court of Appeals of Tennessee, Nashville

January 7, 2020

MARTHA L. BUTLER
v.
JAMES L. BURROW ET AL.

          Session: October 9, 2019

          Appeal from the Chancery Court for Sumner County Nos. 2016-CV-110 and 2016-CV-12 Joe Thompson, Chancellor

         This 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.

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

          Bruce N. Oldham, Gallatin, Tennessee, for the appellants, James L. Burrow, Clearview Creekbank, L.L.P., and Clearview Farms, L.L.P.

          Philip C. Kelly and Gwynn K. Smith, Gallatin, Tennessee, for the appellees, Martha L. Butler, Dennis Lee Clark, and Karen Kae Clark.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Richard R. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Plaintiff 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.

         There 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.

         In the 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.

         Plaintiffs 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.

         Defendants 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.

         Shortly 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").

         The 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.

         The 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.[1]

         Mrs. 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 disputed property.

         Plaintiffs' 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 property.

         Mr. Burrow testified that he helped his father erect the fence on the disputed property in 1978.[2] 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 Farms property.

         To 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' property.

         As for 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 monetary damages.

         After 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 driveway.

         The 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 the berm.

         Defendants 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 ...


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