Tennessee Reports

WILSON v. PRICE, 195 S.W.3d 661 (Tenn.App. 2005) Sylvia T.
WILSON v. Emily PRICE. Court of Appeals of Tennessee.
Assigned on Brief May 13, 2005. August 22, 2005.
Application for Permission to Appeal Denied by Supreme Court
February 6, 2006.

Appeal from the Chancery Court, Cumberland County, Vernon
Neal, Chancellor. Page 662



C. Douglas Fields, Crossville, Tennessee, for the
appellant, Sylvia T. Wilson.

Farrell A. Levy and Jennifer L. Chadwell, Knoxville,
Tennessee, for the appellee, Emily Price.

DAVID R. FARMER, J., delivered the opinion of the court,
in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY,
J., joined.



Plaintiff Price brought this cause of action for
ejectment. Defendant Wilson invoked the affirmative
defenses of adverse possession, the statutory limitations
period prescribed at Tennessee Code Annotated §
28-2-103, and laches. The trial court determined that
Defendant had not met the elements of adverse possession
upon finding Defendant’s use of Plaintiff’s property was
permissive. The trial court entered judgment for Plaintiff,
and Defendant appeals. We reverse in part, vacate in part,
and remand for entry of judgment consistent with this

Emily Price (Ms. Price) and Earl Price (Mr. Price;
collectively, “the Prices”) and Sylvia Wilson (Ms. Wilson)
and James Wilson (Mr. Wilson; collectively, “the Wilsons”)
owned adjoining lots in Lake Tansi, Tennessee (“the Price
property” and “the Wilson property”). Mr. Price and Mr.
Wilson are deceased, and the properties are currently owned
by Ms. Price and Ms. Wilson. Ms. Price and Ms. Wilson now
dispute ownership of a 17 by 250-foot strip of land located
within the adjoining properties.

Sometime prior to 1982, the Wilsons built a utility wall on
the disputed strip. They also constructed other
improvements including a garage and concrete pads.[fn1] The
Prices, who did not reside on their Lake Tansi property,
first noticed the wall in May 1986. They hired a surveyor
to resurvey the property to confirm the encroachment. In
June 1986, Mr. Price wrote to Mr. Wilson to inform him of
the encroachment. Mr. Wilson wrote:

I recently dropped by my lot on Lake Tansi and discovered
what appeared to be a concrete block wall and some sort of
concrete pad or ramp built on my property. In deference to
your professional status, I gave you the benefit of the
doubt and hired a surveyor, Mr. W.J. Moore, to make a
survey of my lot (# 411) at a cost of $275.00 for research
and surveying to ascertain who was in error. The survey
shows that the block Page 665 wall and concrete pad are
on my property by about 17 feet at a point near the lake
edge. My best trees were on that side of the lot but I am
sure that we can come to an equitable agreement on the
replacement value of them.

Mr. Wilson, I think that people should try to work out
problems of this nature between themselves if possible. I
am willing to try if you are. Please respond by return
mail within 5 days of receipt of this letter.

Mr. Wilson replied by letter on August 17, 1986, and stated:

We had our property line surveyed prior to making the
improvements that we have made over the years and now I am
trying to get the original surveyers [sic] back to
re-establish the property line in question.

Let me assure you, please, that we have no intention of
trying to lay claim to something that is not rightfully

If there is an ungency [sic] involved, such as your
selling the property or building a house on it, please do
not hesitate to call me. . . .

I hope we can clear this matter up soon and it is our
desire to expedite it as quickly as possible.

I will be in touch with you just as soon as I can get the
survey done.[fn2]

There was no further written communication regarding the
disputed property until February 6, 1993, when Mr. Price
summarized in writing the content of his telephone
conversation with Mr. Wilson. Mr. Price stated that he had
a buyer interested in purchasing his property and insisted
on resolving the issue pertaining to the strip of land. He
suggested two options: removal of the structures or
purchase of the strip of land by the Wilsons. Mr. Price
offered to sell the strip for $3,000, and Mr. Wilson
countered with $1,500. There is no indication in the record
that a resolution was reached between the men and, at the
trial of this matter, Ms. Wilson stated that she had no
knowledge of this conversation or offer to buy or sell the
land. Despite Mr. Price’s assertion in the letter that he
“need[ed] to have this resolved quickly or risk the loss of
the sale,” Mr. Price took no further action. Both Mr. Price
and Mr. Wilson subsequently died.

On May 5, 2003, Ms. Price filed an ejectment action against
Ms. Wilson for the removal of the wall and other
structures. Ms. Wilson answered on May 23 and denied the
structures were located on the Price property. She invoked,
in the alternative, the affirmative defenses of the
seven-year statute of limitations provided in Tennessee
Code Annotated section 28-2-103, adverse possession, and
laches. In 2004, as a result of this litigation, the
parties obtained a new survey, which revealed that the
Wilsons’ wall encroached on the Price lot by approximately
seventeen feet. Ms. Wilson stipulated that the improvements
on her lot encroached on Ms. Price’s property.

On April 27, 2004, the trial court, sitting without a
jury, found that Ms. Wilson’s defense failed for two
reasons. First, the trial court determined that Ms. Wilson
failed to establish adverse possession because her
possession was permissive and not hostile as required by
the statutes. Second, the trial court found that laches was
inapplicable. In June 2004, the trial court ordered Ms.
Wilson to remove the wall and granted Ms. Wilson easements
for the encroaching portions of the garage and concrete
pads. The ejectment order Page 666 and easements granted
by the trial court extended into property owned by the Lake
Tansi Property Owners Association, which was not a party to
the action. The trial court entered final judgment denying
Ms. Wilson’s motion to amend the judgment or for a new
trial on November 1, 2004. Ms. Wilson filed a timely notice
of appeal to this Court on November 24, 2004.

Issues Presented

Ms. Wilson raises the following issues, as we slightly
restate them, for our review:

(1) Whether the trial court erred by determining the
Wilsons’ use was permissive and not hostile.

(2) Whether the trial court abused its discretion by
determining that the equitable defense of laches does not
apply to this case.

(3) Whether the trial court erred in sustaining Ms.
Price’s action with regard to improvements on property not
owned by Ms. Price at the time of trial.

(4) Whether the Lake Tansi Property Owner’s Association
was an indispensable party to this lawsuit.

Ms. Price raises the additional issue of whether Ms. Wilson
is estopped from asserting adverse possession.

Standard of Review

Whether the use of another’s land has been adverse or
permissive is a question of fact. See Arrowood v. Williams,
586 S.W.2d 131, 134 (Tenn.Ct.App. 1979). We review a trial
court’s findings of fact de novo upon the record,
accompanied by a presumption of correctness, unless the
preponderance of the evidence is otherwise. Tenn. R.App. P.
13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
Questions of law, however, are subject to de novo review,
with no presumption of correctness. Gonzalez v. State Dep’t
of Children’s Servs., 136 S.W.3d 613, 616 (Tenn. 2004).


Adverse Possession

Although, based on the 2004 survey, the parties stipulated
that the disputed property was located on the Price
property, at trial Ms. Wilson testified that she believed
the property was rightfully hers and that she and Mr.
Wilson believed it was theirs when they constructed the
wall and other improvements. Ms. Wilson asserts, however,
as affirmative defenses, adverse possession and the statute
of limitations provided by Tennessee Code Annotated
§ 28-2-103.

Adverse possession is the possession of real property of
another which is inconsistent with the rights of the true
owner. The underlying idea of the doctrine of adverse
possession is “that the possession should be maintained in
an open and notorious manner, so as to warn the true owner
that a hostile claim is being asserted to his land.”
Bensdorff v. Uihlein, 132 Tenn. 193, 177 S.W. 481, 483
(1915). In order to assert adverse possession, a party must
demonstrate that her possession has been exclusive, actual,
adverse, continuous, open, and notorious for the required
period of time. Hightower v. Pendergrass, 662 S.W.2d 932,
935 n. 2 (Tenn. 1983). In Tennessee, twenty years is the
prescriptive period for common law adverse possession
without color of title. If a party has adversely possessed
the land for the prescriptive twenty-year period, title
vests in that party. Cooke v. Smith, 721 S.W.2d 251, 255-56
(Tenn.Ct.App. 1986). The burden is on the party claiming
ownership by adverse possession to demonstrate the
requisite elements by clear and convincing evidence.
O’Brien v. Page 667 Waggoner, 20 Tenn.App. 145, 96 S.W.2d
170, 176 (1936).

In addition to the twenty-year prescriptive period for
adverse possession, the legislature has prescribed a
seven-year statute of limitations for actions to recover
lands. The limitations period set forth in Tennessee Code
Annotated § 28-2-103 provides:

Seven-year period runs from time right accrued —
Extent of possession. — (a) No person or anyone
claiming under such person shall have any action, either
at low or in equity, for the recovery of any lands,
tenements or hereditaments, but within seven (7) years
after the right of action accrued.

(b) 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 which such adverse holder claims such lands,
tenements or hereditaments is duly recorded in the county
in which the lands are located.

Tenn. Code Ann. § 28-2-103(2000 & Supp. 2004).

In order to invoke the seven-year limitations period to
defend against an action for ejectment, the defendant must
demonstrate possession for a period of at least seven
years, and such possession must be adverse. Tenn. Code Ann.
§ 28-2-103 (2000); Menefee v. Davidson County, 195
Tenn. 547, 260 S.W.2d 283, 285 (1953). The statute provides
only a defensive remedy. Pyron v. Colbert, 46 Tenn. App.
287, 328 S.W.2d 825, 830 (1959).

In the case now before us, Ms. Wilson asserts the trial
court erred by determining her possession of the disputed
property was permissive and not hostile. Ms. Price, on the
other hand, submits that, in light of Ms. Wilson’s
testimony and the 1986 correspondence between Mr. Wilson
and Mr. Price, the trial court correctly determined that
Ms. Wilson’s encroachment was permissive and that,
accordingly, Ms. Wilson did not possess the property
adversely and could not assert the seven-year statute of

We turn first to Ms. Price’s assertion that Ms. Wilson’s
testimony demonstrates that the Wilsons’ use of the Prices’
land was not hostile. Ms. Price’s argument, as we
understand it, is that because the Wilsons believed the
disputed property was theirs when they constructed the
improvements, because Ms. Wilson continued to assert that
the property was rightfully hers, and because she never
intended to act in a “hostile” manner, the Wilsons’
encroachment on the Price property was accidental and not
“hostile” as required for a finding of adverse possession.
The Prices, however, misconstrue the meaning of the word
“hostile” as it pertains to adverse possession.

Unlike its general usage, hostility for the purposes of
adverse possession does not require ill will. “Hostility”
exists, in the legal sense, when one “holds the possession
as his, against the claims of any other.” Hightower v.
Pendergrass, 662 S.W.2d 932, 937 (Tenn. 1983). Moreover,
the hostile possession must be open such that it provides
notice to the world that the adverse possessor claims
ownership of that property. Cooke v. Smith, 721 S.W.2d 251,
254 (Tenn.Ct.App. 1986). Although fencing a property
demonstrates a clear claim of ownership, inclosure is not
necessary to demonstrate possession. Bensdorff v. Uihlein,
132 Tenn. 193, 177 S.W. 481, 482 (1915). Rather, the
possessor must use the property in a manner consistent with
its nature and purpose and in such a way as to give notice
to the rightful owner that another is asserting dominion
over his property. Id. at 483. Page 668

Additionally, a party is not required to harbor the intent
to possess another’s land in order to invoke the doctrine
of adverse possession. Liberto v. Steele, 188 Tenn. 529,
221 S.W.2d 701, 703 (1949). “The possession, use, and
dominion may be as absolute and exclusive where there is no
dispute as to boundary, and hence the occupant has no
actual intention to claim adversely to anyone, as where
such an intention exists.” Gibson v. Shular, 29 Tenn.App.
166, 194 S.W.2d 865, 867 (1946).

Ms. Wilson’s testimony in this matter reveals confusion as
to the meaning of “hostility” as it pertains to adverse
possession. For example, in an effort to clarify the
meaning of the word when testifying as to her hostility or
lack thereof, Ms. Wilson asked opposing counsel, “you mean
hostility toward [the Prices]?” When counsel answered in
the affirmative, Ms. Wilson replied, “[a]bsolutely, no.”
Later, Ms. Wilson explained her understanding of hostility
by defining it as “something we would do in order to
irritate [the Prices] or take something from them. Hostility
is with bad feelings, I think.”

Clearly, Ms. Wilson’s understanding of the word “hostile”
had little relationship to whether her use of property
belonging to Ms. Price was hostile in the sense of being
adverse to Ms. Price’s ownership interest. The Wilsons’
encroachment and use of the Price property, devoid of ill
will or bad feelings, was hostile to the Wilsons’ ownership
interests. Moreover, although when the Wilsons first
constructed the wall sometime prior to 1982 they believed
the land was within their boundaries, the 1986
correspondence between Mr. Price and Mr. Wilson clearly
demonstrates that, dating from 1986, the parties disputed
the boundary between their properties.

We next turn to whether the Wilsons used the Price
property with permission. Possession that might otherwise
appear hostile cannot support a claim of adverse possession
if carried out with the permission of the legal title
holder. Menefee v. Davidson County, 195 Tenn. 547, 260
S.W.2d 283, 285 (1953). Ms. Wilson asserts that the trial
court erred when it found the Wilsons’ possession of the
disputed strip of land to be permissive. She contends that
the evidence available is insufficient to support such a
finding. We agree.

There is nothing in the record to indicate that Mr. Price
gave Mr. Wilson permission to construct improvements on the
Price property. Further, there is nothing in the record to
demonstrate that Mr. Wilson believed Mr. Price had
communicated such permission. The 1986 correspondence
between Mr. Price and Mr. Wilson and Mr. Price’s 1993
letter to Mr. Wilson demonstrates that Mr. Price did not
give the Wilsons permission to erect or maintain structures
on the Price property. Rather, they indicate a disagreement
as to the boundary between the properties, and Mr. Price’s
1993 letter is a demand to remove the structures or
purchase the property. The matter clearly was never

We respectfully disagree with the trial court that the
evidence in this case suggests that the Prices’
acquiescence in the Wilsons’ encroachment on their property
implied a permissive use. Failure to actively object does
not imply permission. Lamons v. Mathes, 33 Tenn.App. 609,
232 S.W.2d 558, 563 (1950). As this Court has noted, “if
failure to object could be considered evidence of
permissive use the holder of the legal title could always
defeat an adverse claimant by merely showing that he had
never objected to the use of his property.” Id. As noted,
Mr. Price’s 1993 demand to Mr. Wilson to remove the
structures indicates not permission but objection. The
Prices simply failed to take Page 669 action to resolve
the adverse use of their property by the Wilsons until Ms.
Price commenced this cause of action in 2003.

Additionally, contrary to Ms. Price’s assertion otherwise,
we are unconvinced that the purported sale negotiation
between the neighbors amounted to Mr. Wilson’s admission of
superior title in Mr. Price. An offer to purchase disputed
land is not tantamount to an admission of superior title in
another. Headerick v. Fritts, 93 Tenn. 270, 24 S.W. 11
(1893). In Headerick, the Supreme Court of Tennessee
considered an ejectment action in which the defendant’s
predecessor in interest had offered to purchase the
disputed land from the plaintiff. The court distinguished
between cases in which superior title in another is
admitted and the offer is effort to buy real title, and
cases in which the offer represents an effort to quiet
title and prevent litigation. Id. at 12. In Headerick, the
parties entered into a contract, but never completed the
sale. Id. They allowed the transaction to go unconsummated
for six years. Id. The court concluded that the contract
did not represent an adverse possessor’s effort to buy
superior title, but was an attempt to “buy in a hostile
claim” in order to quiet title. Id. This matter presents
similar facts. The adverse possessor, Mr. Wilson, believing
he owned the disputed strip of land, made a counter-offer
to purchase the land in order to prevent litigation and
settle the dispute. The parties did not reach an agreement,
however, and took no further action for ten years. There is
nothing in the record to suggest, however, that Mr. Wilson
conceded title to the Prices. In sum, we reach a conclusion
like that reached by the court in Headerick. The 1993
letter describing the sales negotiations between Mr. Price
and Mr. Wilson does not evidence permissive use by way of
conceding to superior title, but demonstrates an effort to
settle the dispute and quiet title without litigation.

The Wilsons’ use of the disputed strip of land on the
Price property was open, exclusive, notorious, and hostile.
It continued uninterrupted for at least twenty years prior
to the commencement of this lawsuit. Additionally, there is
nothing in the record to support a finding that this use
was permissive. The evidence preponderates against the
findings of the trial court in this matter. Ms. Wilson has
established ownership of the disputed property by adverse


We next consider Ms. Price’s assertion that Mr. Wilson’s
1986 letter to Mr. Price functions to estop Ms. Wilson from
now arguing adverse possession. In urging this result, Ms.
Price advances a promissory estoppel theory. She contends
that she detrimentally relied on Mr. Wilson’s assurance
that he would not claim property not rightfully his, and
that Ms. Wilson should accordingly be estopped from
asserting adverse possession as a defense to Ms. Price’s
action. In essence, Ms. Price argues that Mr. Wilson’s 1986
statement that he was not claiming property not rightfully
his was a promise not to claim ownership by adverse
possession; that she relied on that promise to her
detriment; and that, accordingly, Ms. Wilson should be
estopped from asserting adverse possession as a defense.

Under the doctrine of promissory estoppel, also known as
detrimental reliance, a promise made by a promisor that
reasonably may be expected to induce action or forbearance
on the part of the promisee, and which does induce such
action or forbearance, is binding if injustice can be
avoided only by enforcement of the promise. Calabro v.
Calabro, 15 S.W.3d 873, 878 (Tenn.Ct.App. 1999) (citations
Page 670 omitted). The action or inaction of the promisee
is a substitution for consideration under the doctrine. Id.
at 879. The remedy granted for breach of such a promise,
however, may be limited as justice requires. Id. at 878.

In order to assert the doctrine of promissory estoppel,
the party must show that a promise was made and that he
reasonably relied on the promise to his detriment. Id. at
879. Although the existence of an expressed contract is not
required in a claim of promissory estoppel, the promise on
which the promisee relied must have been unambiguous and
not unenforceably vague. Id.

In this action, Ms. Price has failed to demonstrate an
unambiguous promise not to assert adverse possession on the
part of Mr. Wilson, that she reasonably relied on such a
promise, or that Mr. Wilson’s statement induced action or
forbearance. The Wilsons constructed a wall on property
claimed by both the Wilsons and the Prices. The Prices
failed to object to the wall for at least four years. Mr.
Wilson’s assertion that the Wilsons did not intend to claim
property not rightfully theirs clearly indicates that they
believed they owned the disputed property. At minimum, it
indicates they asserted ownership and put the Prices on
notice that ownership of the strip of property was in
dispute. In 1993, Mr. Price demanded removal of the
structures or purchase of the property. For ten years,
nothing happened. For over twenty years, the disputed strip
of land remained behind a substantial wall and under the
Wilsons’ care, maintained in a manner consistent with

There is nothing that would reasonably lead Ms. Price to
believe Ms. Wilson would not claim ownership by adverse
possession. Certainly, there is no evidence of a promise
made by Mr. Wilson that induced the Prices to forego an
action. Further, even assuming, ad arguendo, a promise by
Mr. Wilson not to assert ownership by adverse possession in
an offensive action, there is absolutely nothing in this
record to demonstrate that Ms. Price could reasonably rely
on such a promise to estop Ms. Wilson from asserting
adverse possession as a defense to an action brought by Ms.
Price. This argument is without merit.


Ms. Wilson asserts that the trial court lacked
jurisdiction over a portion of the disputed property that
is owned by the Lake Tansi Property Owners Association and
she challenges the trial court’s order pertaining to that
portion of the land. Ms. Price asserts this issue was not
raised in the trial court and, accordingly, may not be
raised for the first time on appeal. In general, issues may
not be raised for the first time on appeal. Cantrell v.
Walker Die Casting, Inc., 121 S.W.3d 391, 396 (Tenn.Ct.App.
2003). However, subject matter jurisdiction cannot be

Subject matter jurisdiction “relates to the right of the
court to adjudicate, or to make an award through the
remedies provided by law upon facts proved or admitted in
favor of, or against, persons who are brought before the
court under sanction of law.” 17 Tennessee Jurisprudence
Jurisdiction § 2 (1994). It concerns the authority
of a court to hear a controversy. Meighan v. U.S. Sprint
Communications, 924 S.W.2d 632, 639 (Tenn. 1996). Subject
matter jurisdiction relates to the nature of the claim and
relief sought. Id. If a court acts without subject matter
jurisdiction, its orders are void. Riden v. Snider, 832
S.W.2d 341, 343 (Tenn.Ct.App. 1991). Such orders are a
nullity and may be collaterally attacked. County of Shelby
v. City of Memphis,

Page 671 211 Tenn. 410, 365 S.W.2d 291, 292 (Tenn. 1963).

In this case, the trial court had no authority to exercise
jurisdiction over a portion of property not belonging to
either party. Accordingly, we vacate the trial court’s
order as it pertains to the portion of the 17 by 250-foot
strip of property owned by the Lake Tansi Property Owners


We vacate the trial court’s judgment with respect to the
portion of the 17 by 250-foot strip of property owned by the
Lake Tansi Property Owners Association. We reverse the
trial court’s finding of permissive use and its judgment
granting an easement to Ms. Wilson. We find that Ms. Wilson
has established ownership by adverse possession of the
portion of the disputed 17 by 250-foot strip of property
which the parties stipulated was located on the Price
property and which is not located on property belonging to
the Lake Tansi Property Owners Association. In light of our
holding in this matter, it is unnecessary to address the
defense of laches. We remand this matter for entry of
judgment consistent with this opinion. Costs of this appeal
are taxed to the Appellee, Emily Price.

[fn1] The parties dispute the dates on which the Wilsons
constructed these improvements, all of which encroach, to
some degree, on the disputed strip. The parties agree,
however, that the wall was in existence in 1982.

[fn2] At the trial of this matter, Ms. Wilson testified
that their subsequent survey showed no encroachment and
that Mr. Wilson notified Mr. Price of the survey. Ms.
Price, however, testified that she had never received
survey results or notification.

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