Carl Sims, Clyde Johnson, John French and Sam Lyle, Trustees of Deep Springs Baptist Church, Plaintiffs-Appellants v. Mary Ruth Brown and C. L. Brown, Defendants-Appellees

No number in original

Court of Appeals of Tennessee, Eastern Section

Reported at 1989 Tenn. App. LEXIS 191

March 17, 1989, Filed

PRIOR HISTORY: Jefferson Chancery C. A. #60, Hon. C. S. Rainwater, Jr., Chancellor, Affirmed and Remanded.

COUNSEL: A. Benjamin Strand, Jr., of Dandridge for Appellants; Joe M. Felknor of Knoxville for Appellees

JUDGES: Houston M. Goddard, Judge, Clifford E. Sanders, P.J.(E.S.), William H. Inman, Sp.J., CONCUR

OPINION BY: GODDARD

OPINION: Houston M. Goddard, J.

A single issue is presented by this appeal. Was the Chancellor in error in finding that the owner of a certain tract of land in Jefferson County containing approximately one-half acre had not dedicated it as a burial ground?

At the trial level the Plaintiffs, who are the Trustees of the Deep Springs Baptist Church, also advanced the theory of adverse possession, but this theory has been abandoned on appeal.

In 1896 Cecil L. Brown's grandfather conveyed to the "Deacons of the Baptist Church at Deep Springs" a certain tract of land "for the benefit of the public." This tract contained 0.74 acres and is known as the old cemetery. Title to this tract was not in dispute below. Adjoining the old cemetery to the west is a tract containing 0.573 acres which was in dispute, as well as a third parcel which lies to the west of the second tract and to the south of both tracts. This tract contains approximately one-half acre and lies principally between the old Lyle Cemetery Road and the re-located road which straightened a curve. (See appendix.)

As to the second tract the proof shows that in April, 1951, Mr. Brown conveyed to the Trustees of the Deep Springs Baptist Church tract two, although the deed was not recorded until July, 1985, after this controversy arose.

The Chancellor found this deed was sufficient to vest title in the Plaintiffs and decreed that they were the owners of that tract.

His determination in this regard is not contested in this appeal.

The third tract was conveyed by Mr. Brown to Mrs. Brown in June of 1970, [n1] along with other property. The proof shows that at least five and perhaps seven bodies have been buried on the third tract, that church members have seeded it, mowed through the years, and that they have planted shrubbery at either end of a horse-shoe driveway which borders the tracts on the north, south and east. [n1 - The deed excepted the "grave yard."]

The Chancellor found that the Plaintiffs had not carried the burden of showing they had acquired the property by adverse possession, and this determination, as already noted, is not contested in this appeal.

With regard to dedication, Carl Sims, one of the Trustees of the Church, gave the following testimony:

Q   All right. Prior to the County doing this work did you have a discussion with Cecil L. Brown?

A   Yes.

Q   Tell us where the discussion took place.

A   In the cemetery.

Q   Do you recall when it took place?

A   It took place the last Sunday in May, 1965.

Q   Was that Decoration Sunday?

A   Decoration Sunday.

Q   Now, we've had discussion, testimony, here today that Mr. Brown is in the penitentiary but I take it even back then he used to get out occasionally.

A   Yes, he did.

Q   Tell us what discussion you had with Cecil L. Brown the last Sunday in May 1965 standing in the cemetery.

. . . .

A   I approached and asked Cecil since they had changed the road and since there was a small portion of property between lands that the cemetery owned and the new road. . . . I asked him if we were able to buy the land from him that we'd like to build a road around the cemetery and include this land in the cemetery property, and. . . . with the church's permission if we could get the property from him, buy the property. He said he owned the land, that he would give the land, that we didn't have to buy it, and I asked him. . . . I said, well, Cecil, I'd like to begin work on it if the church approves my idea as soon as we can get a deed. He said, you don't need a deed.

Q   Did the church take action on this after your discussion with him?

A   They did.

Q   After the church voted on this did the church undertake to make any changes or do anything. . . . any improvements to the property?

A   We did.

Q   What did you do?

A   We did a lot of grading once the road was around and completed and everything. We graded and we set shrubs and we sewed and seeded and made a nice area there.

Q   Did Mr. Brown at anytime prior to the sending of this letter that ultimately prompted this lawsuit tell you that you were only supposed to use that property for parking?

A   Cecil mentioned this when we were discussing that land. He said, you need this for parking, and I said, well, Cecil, if we can build a road around it two cars wide that will take care of the parking problem. I said, we're crowded for room.

Q   Was there any further discussion with him about burying people or not burying people?

A   No, he said you go ahead with your road.

This testimony is refuted by Randall Brown, a brother of Cecil, who stated that his brother had told him he only gave permission for the Church to use the property for parking. The brother's testimony is corroborated by proof that on Decoration Day, most likely in 1966 or 1967, the brother, speaking for Cecil, told those assembled that Cecil was permitting the Church to use the property for parking.

At the outset, it should be noted that this is not a private burial ground, and the law relative thereto enunciated in Stoker v. Brown, 583 S.W.2d 765 (Tenn.1979) and Hines v. State, 126 Tenn. 1, 149 S.W. 1058 (1911), is not controlling.

In Cole v. Dych, 535 S.W.2d 315, 319 (Tenn.1976), Mr. Justice Henry, in addressing dedication of an easement, reviews a number of Tennessee cases dealing with dedication, as follows:

We are dealing with an easement acquired by dedication as found by the Chancellor and the Court of Appeals.

A bench mark in the law dealing with the dedication of easements is McKinney v. Duncan, 121 Tenn. 265, 118 S.W. 683 (1908) wherein Justice John K. Shields, subsequently Chief Justice and United States Senator from Tennessee declared:

. . . Dedication is the appropriation or gift by the owner of land, or an easement [*6] therein, for the use of the public. It may be express, where the appropriation is formally declared, or by implication arising by operation of law from the conduct of the owner and the facts and circumstances of the case. To establish it by implication, there must be proof of facts from which it positively and unequivocally appears that the owner intended to permanently part with his property and vest it in the public, and that there can be no other reasonable explanation of his conduct. In other words dedication is a question of intention, and the intent must be clearly and satisfactorily proven. 121 Tenn. at 271, 118 S.W. at 684.

Another case which has been cited down through the years is Johnson City v. Wolfe, 103 Tenn. 277, 52 S.W. 991 (1899), where Justice Beard quoted with approval from Elliott on R. & S. as follows:

The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. 103 Tenn. at 282, 52 S.W. at 992.

In Woolard v. Clymer, 35 S.W. 1086 (Tenn.Ch.App.1895) the Court held the law to be "well settled that, when a road runs across private property, and is used by the public as a common road, without interruption, for 50 years, the owner acquiescing in such use, the law will presume a dedication . . . for such purpose." 35 S.W. at 1088.

These early cases have continuing validity. No formal document, deed or act is required to complete the dedication. The controlling criterion is the intention to dedicate and, while this must be unequivocal, it may be gleaned from the surrounding facts and circumstances. Among these circumstances is long use by the public or a portion thereof. Indeed, from long use, without objection of the owner, it may be inferred or presumed that such use and enjoyment had a legal origin. McCord v. Hays, 202 Tenn. 46, 302 S.W.2d 331 (1957).

In Doyle v. City of Chattanooga, 128 Tenn. 433, 161 S.W. 997 (1913) the Court held:

A user by the general public . . . may operate as an acceptance on its part, binding the dedicator by way of consummating the dedication, and placing it beyond revocation on his part. 128 Tenn. at 440, 161 S.W. at 998.

In the narration of facts, supra, it is pointed out that R. L. Maples fixed and established the road in its present route. This action on his part was tantamount to a rededication and, upon the acceptance and use by those going to and from the cemetery, the dedication became unqualified and complete and could not be withdrawn. See McDavid v. McGuire, 526 S.W.2d 474 (Tenn.App.1973).

The fact that all owners of the subservient estate maintained gates or other forms of obstructions to prevent unauthorized entry does not alter the character of this roadway. The maintenance of gates is not necessarily inconsistent with the existence of an easement. Generally speaking, the owner of land subject to a right-of-way may maintain gates, if necessary to his use and enjoyment and where such obstructions do not unreasonably interfere with the use of the way. Ogle v. Trotter, 495 S.W.2d 338 (Tenn.App.1973); Luster v. Garner, 128 Tenn. 160, 159 S.W. 604 1913. In Burkitt v. Battle, 59 S.W. 429 (Tenn.Ch.App.1900), the Court recognizes the right to dedicate with a reservation of the privilege of maintaining gates.

A substantial part of the respondents' case is premised upon the permissive use of this roadway. Again, we are not dealing with a prescriptive right. It is not necessary that the use be hostile or adverse to the claim of the owner. Where permissive use defeats a claim based on adverse possession, it tends to establish dedication.

Finally, since we are not dealing with a prescriptive right, the time element is of secondary importance to the crucial element of intent. No particular period is controlling. Use for twenty years might be insufficient to establish dedication in one case and yet it might be established in another in one year. Dedication is not dependent upon the duration of use. Use for a long period of time is, however, a circumstance tending to show the fact of dedication. Scott v. The State, 33 Tenn. 629 (1854).

An excellent statement of the law in this regard is found in Johnson City v. Wolfe, supra:

No specific length of time is essential to constitute a valid dedication, all that is required is the assent of the owner of the soil to the public use and the actual enjoyment by the public for such a length of time that the public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment. (Emphasis in original.)

It is interesting to note that substantially the language italicized in this quotation appears in 23 Am.Jur.2d Dedication, Sec. 30, with cases from Pennsylvania, South Dakota and Texas (but not Tennessee) cited as authority. We think this Tennessee case is unquestionably the correct rule of law.

In Nicely v. Nicely, 33 Tenn.App. 589, 232 S.W.2d 421 (1949), the Court declared a dedication at the end of five years use, along with other circumstances, including road grading with public funds.

Finally, in Payton v. Richardson, 49 Tenn.App. 514, 356 S.W.2d 289 (1961), the Court, citing Johnson City v. Wolfe, supra, held:

The manner of its use is more material than the length of time the use has continued. 356 S.W.2d at 291.

Our review of non-jury cases under Rule 13 of the Tennessee Rules of Appellate Procedure is de novo with "a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." We conclude the evidence does not preponderate against the finding of the Chancellor that there was no dedication. We reach this conclusion because we are convinced that the record does not clearly and satisfactorily show an intent to dedicate.

Moreover, "[T]here can be no dedication of property to private individuals. Any dedication must be for the benefit of the public at large." Bunns v. Walkem Development Co., 53 Tenn. 680, 385 S.W.2d 917 (1964).

In this regard, although there is no specific proof, it may be inferred from the record that the graveyard is for the benefit of the members of Deep Springs Baptist Church and their families. There is no proof that the public at large has an unqualified right to bury in the cemetery.

As to the status of the few graves on the property found by us to be that of Mrs. Brown, we note that she filed a counter-complaint seeking an order requiring the Plaintiffs to remove the graves. The Chancellor dismissed her counter-complaint and she did not appeal this action. Additionally, in oral argument counsel for Mrs. Brown represented that she was agreeable for family members to remove the remains of their kinsmen should they desire.

For the foregoing reasons the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged against the Plaintiffs and their surety.