328 S.W.2d 825 | Tenn. | 1959
This cause involves an appeal by Ralph D. Pyron and Irma E. Pyron, his wife, from a decree of the Chancery Court of Shelby County dismissing an injunction bill filed by them against appellee, Raymond 0. Colbert, and dissolving a temporary injunction which enjoined Colbert from constructing a fence along the north line of his property at 4389 Highway 61 S. in Shelby County, Tennessee, and thereby cutting off a part of the driveway which the Pyrons had previously used for entrance to and exit from their property at 4375 Highway 61 S. For convenience, the parties will be referred to, as in the lower court, as complainants and defendant, or called by their respective names.
The assignments of errors filed by complainants, as appellants in this court, style the cause “Ralph D. Pyron, et ux., Appellants vs. Raymond 0. Colbert, et ux., Ap-pellees”; but the wife of Raymond 0. Colbert was not a party to this suit, either in the lower court or in this court. It is true that complainants, by amendment to
It may be that the failure to make Mrs. Colbert a party defendant would not be fatal, if complainants were entitled to prevail in this cause. In the unreported case of McCollum v. Melton, May 23, 1957, with no petition for certiorari filed, this court held on authority of Gardner v. Quin, 154 Tenn. 167, 289 S. W. 513; Hux v. Russell, 138 Tenn. 272, 197 S. W. 865; and Stegall v. City of Chattanooga, 16 Tenn. App. 124, 66 S. W. (2d) 266, that, without joining his wife as party complainant, a husband could maintain a suit for damage to property held by him and his wife as tenants by the entireties. It is not necessary to decide, in the instant case, whether or not the converse of that situation would also be true; that is, whether a suit may be maintained against the husband alone without joining the wife as defendant. In the instant case, the Chancellor denied relief to complainants, not because of the failure of complainants to make Mrs. Colbert a defendant, but because the contentions of complainants were otherwise without merit. This court agrees with the ruling of the Chancellor, which makes it
This canse was started while Hon. Rives A. Hanker was Chancellor of Part I of the Chancery Court of Shelby County, and the issues were made by pleadings filed during his term of office; but the stipulation to try the cause on oral evidence was filed after Chancellor Robert A. Hoffmann had taken office; and the hearing of the cause was before him.
In their bill filed July 2, 1958, complainants alleged that they purchased their property at 4375 Highway 61 S., in Shelby County, Tennessee January 22, 1952, and that they purchased along with said property the sole and only driveway or roadway thereto into Highway 61, and that it was represented to them that said driveway was a part of the property which they were purchasing. Their bill alleges that said driveway was built, maintained, and improved by their predecessor in title, more than ten years before the filing of the bill, and that complainants and their predecessor in title have had open, notorious, and adverse possession of same during said period of ten years. The bill alleges that defendant purchased the property at 4389 Highway 61 S., which is immediately south of and adjoins complainants’ property, about three years before the filing of the bill, and that complainants did not know until a short time before the filing of the bill that defendant claimed any right to or interest in the property occupied by said driveway; but that after they did learn of such claim, a survey was made which shows a part of the driveway in question to be on the property of defendant. A copy of the survey is exhibited with the bill, and was proved at the trial;
On July 7, 1958, Raymond 0. Colbert, as defendant, filed a demurrer and answer. He demurred on the ground that complainants’ bill and the survey attached thereto clearly show that complainants have neither ownership nor color of title to the property of defendant and his wife, and that there is no allegation that any rights have been obtained by prescription. Defendant’s answer denies adverse user by reason of part of the driveway being on his land, and claims that the use thereof was a permissive use. In his answer, defendant refers to and makes a part of same, an affidavit of his predecessor in title, Bruce Embry, which affidavit is attached to and made an exhibit to the answer. The affidavit of Bruce Embry states that from 1947 until October 1954 he was the owner of the tract of land now owned by defendant, and that the north line of his property was the south line of the property of Warren Hazel, who later sold to Ralph D. Pyron and wife. The affidavit says that in the spring of 1951, Warren Hazel, assisted by his father-in-law, R. T. Leech, constructed a driveway across the northeast corner of what was then affiant’s property; that neither he nor Mr. Hazel knew exactly how much of affiant’s
A stipulation was filed September 11,1958 which agreed that the cause might be tried on oral testimony. The cause was so tried January 22, 1959, and on March 2, 1959, a bill of exceptions preserving the testimony was filed.
Prom the testimony adduced, it appears that all of the land owned by both complainants and defendant was formerly owned by Walter N. Hazel, that he conveyed the land now owned by defendant to Bruce Embry, that he subsequently conveyed to his son, Warren Hazel, the land now owned by complainants, and that he still owns land to the north of complainants’ property. The land now owned by defendant was conveyed to Embry in 1946. Embry built on his property in 1946 and 1947, and Warren Hazel built on his in 1948. While Warren Hazel was building, by permission, he used the property of Embry for ingress and egress; and, after he had finished building his home, he constructed a driveway, which is the driveway now in dispute. Said driveway was constructed
Defendant Raymond Colbert testified that when he bought his property from Bruce Embry, Embry said, “Now you understand that half of this drive is on you. We know that. He said when Warren bought the property and put the driveway in, that he got over a little too far. He said, he was running short of cash and all, and they just let it go on good terms.” He said that he had discussed the matter with Mr. Pyron and had told
Complainants, as witnesses, denied any notice to them that the driveway in question was encroaching on the property of defendant; but, evidently, the Chancellor decided that the preponderance of the evidence was with the defendants, and we concur.
On January 30, 1959, a final decree was entered which dismissed complainants’ original bill and their amendment thereto with prejudice and dissolved the temporary injunction previously granted. Said final decree recites:
“It appearing to the Court from all of the pleadings and proof in this cause that the allegations in the original bill and amendment thereto are not sustained by the proof; that the complainants have no rights whatever in the land of the defendant either by easement or estoppel; and that the com*296 plainants have no rights whatever to have enjoined the defendant against the fnll nse and enjoyment of his property, and that the defendant should be allowed the full use and enjoyment thereof free from the claims of complainants.”
From the final decree, complainants prayed and have perfected their appeal to this court. Here they have filed three assignments of error which are as follows:
“Assignment of Errors
“I.
“The Chancellor erred in finding and holding that appellants had not established a right to the driveway, in question, by reason of more than seven years claim, possession, and adverse user thereof, because this was established by all witnesses, and the law entitled them to continue possession and use thereof.
“II.
“The Chancellor erred in holding appellees not estopped to deny appellants the continued use of said driveway, because, even on appellees theory, the permission claimed, if granted at all, was granted after the completion or substantial construction of the driveway. And by reason, of their consent to, or acquiescence in the placement of the mouth or east end of said driveway on their lands, and the continued use thereof, for more than seven years, both by themselves and their predecessors in title, they are now estopped to complain or eject.
*297 “III.
“The Chancellor erred in admitting, over appellants objections, testimony or appellee’s witnesses Brace Embry, Mrs. Dolly Embry, Walter N. Hazel, Sr., R. T. Leech, and appellee Raymond 0. Colbert, to the effect that the nse of said driveway was by permission of Brace Embry, and Raymond 0. Colbert, because said testimony was immaterial, hearsay, and irrelevant as to appellants. ’ ’
By assignment of error No. I complainants content that they are entitled, as of right, to continued nse of the driveway in controversy, “by reason of more than seven years claim, possession and adverse user thereof.” This contention mnst be based on the provisions of what is known as the seven years “defensive” statute of limitations as set out in sec. 28-203, T. C. A. Obviously, the provisions of sec. 28-201 and 28-202, T. C. A., which provide for acquisition of indefeasible title by seven years adverse possession under color of recorded muniments of title, could not be applicable because no claim is here made that any part of the driveway which is in dispute in this lawsuit was included in either complainants’ deed or that of their predecessor in title, Warren Hazel. The provisions of sec. 28-203, T. C. A., are as follows:
“No person or anyone claiming under him shall have any action, either at law or in equity, for the recovery of any lands, tenements or hereditaments, but within seven (7) years after the right of action accrued; provided, however, that no possession of lands, tenements or hereditaments shall be deemed to extend beyond the actual possession of an adverse holder until the muniment of title, if any, under*298 which, such adverse holder claims such lands, tenements or hereditaments is duly recorded in the county in which the lands are located. ’ ’
Assignment No. I is utterly without merit. At the outset, complainants and their counsel ovérlook the fundamental fact that the very statute relied on by them provides a defensive remedy only, whereas they are undertaking" to use same in an offensive action. The defensive statute relied on may be used as a shield, but not as a sword. Even if complainants ’ user of that part of the driveway in controversy which is on defendant’s land had been of the kind and quality required by sec. 28-203, T. O. A., which the preponderance of the. evidence establishes it was not, and had extended for more than seven years, as the undisputed evidence shows it had not, it would require twenty years of such adverse user, and not seven years, before complainants would be entitled to use such adverse user as a sword instead of as a shield. Saunders v. Simpson, 97 Tenn. 382, 37 S. W. 195; Blakemore v. Matthews, 154 Tenn. 334, 285 S. W. 567; Slatten v. Mitchell, 22 Tenn. App. 547, 124 S. W. (2d) 310; Bowles v. Chapman, 180 Tenn. 321, 175 S. W. (2d) 313; Nashville Trust Co. v. Evans, 30 Tenn. App. 415, 206 S. W. (2d) 911; Callahan v. Town of Middleton, 41 Tenn. App. 21, 292 S. W. (2d) 501.
Furthermore, even if complainants were entitled; which they are not, to use seven years adverse user as a sword instead of as a shield, they have not proved seven years of adverse user. Complainants acquiréd their property by deed from Warren Hazel January 22, 1952 and the bill in this cause was filed July 2, 1958. That period of time is six years, five months, and ten days,
By assignment of error No. II, complainants contend that even if defendants have a legal right to that portion of the driveway which is on defendant’s land, he should, under the principle of equitable estoppel, be denied the right to deprive complainants of further and continued use of same. In support of this assignment, they cite Bloomstein v. Clees Bros., 3 Tenn. Ch. 433, and Daugherty v. Toomey, 189 Tenn. 54, 222 S. W. (2d) 197.
Assignment of error No. Ill complains of the action of the Chancellor in admitting in evidence, over the objection of complainants, the testimony of defendant’s witnesses, Bruce Embry, Mrs. Dolly Embry, Walter N. Hazel, Sr., R. T. Leech, and Raymond 0. Colbert, himself, to the effect that the use of the driveway in controversy over defendant’s land was by permission of Bruce Embry and Raymond 0. Colbert. Such testimony was, in
It results that all of appellants’ assignments of error will be overruled and the judgment of the lower court will be affirmed. The costs of the appeal, together with those of the lower court, will be adjudged against appellants Ealph D. Pyron and Irma E. Pyron, his wife, and their surety on the appeal bond.