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Posted by: Landry Butler on Feb 28, 2017

Court: TN Court of Appeals

Attorneys 1:

William S. Nunnally, Greeneville, Tennessee, for the appellant, Donna Babb Frinks.

Attorneys 2:

Patricia Eileen Horvath, Dandridge, Tennessee, Pro Se.

Judge(s): FRIERSON

This case involves alleged trespass via placement of a dock over lakefront real property that is beneath the lake’s fluctuating water line several months of the year. Prior to congressional approval of construction for Douglas Dam in 1942, the property at issue was part of a 488-acre farm owned by the plaintiff’s mother. In 1942, the Tennessee Valley Authority (“TVA”) acquired a flowage easement with the right to flood up to contour line 1007 adjacent to what is now Douglas Lake. TVA subsequently paid $35,628.50 to the plaintiff’s mother to condemn the respective easement rights. In 1944, a third party purchased approximately 245 acres above contour line 1002, creating a subdivision in the 1950s with tracts of land adjacent to the lake. In 2006, the plaintiff learned that she had inherited from her mother title to real property below contour line 1002, located between “lakefront” tracts of land and the lake itself. Upon receipt of a November 2006 letter sent by the plaintiff’s counsel to affected landowners, notifying them of the plaintiff’s claim to the land upon or above which their docks were located, many of the landowners purportedly purchased title to the affected land from the plaintiff. However, the defendant landowner did not respond to the letter. On October 3, 2012, the plaintiff filed a complaint, alleging that the defendant was trespassing by virtue of a dock placed on property to which the plaintiff held title. The defendant had placed her dock immediately following the purchase of her tract in November 1992. The trial court subsequently consolidated this action with two similar lawsuits filed by the plaintiff against other landowners. Following a bench trial, the trial court dismissed the complaint against this defendant upon finding that the defendant had established adverse possession of the property on which the defendant’s dock sits when water levels are down and that the defendant’s possession was continuous even when the dock was floating. The plaintiff timely appealed. Although we determine that the trial court erred in concluding that the defendant had established adverse possession for the twenty-year period required by common law, we further determine this error to be harmless because the defendant successfully established the seven-year period required for the statutory affirmative defense provided by Tennessee Code Annotated § 28-2-103. Discerning no reversible error, we affirm.