Donald Hughes v. Clifford R. Barbee

Citation: Not availableDocket: E2012-01330-COA-R3-CV

Court: Court of Appeals of Tennessee; April 9, 2013; Tennessee; State Appellate Court

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Donald and Donna Hughes filed a lawsuit against Clifford R. Barbee and Anna Melissa Barbee, seeking an injunction to prevent the defendants from obstructing a public roadway. The Chancery Court of Bledsoe County ruled on May 29, 2012, that the road in question had been recognized as a public road for many years. The court found that the defendants failed to demonstrate that the road had been abandoned and ordered that it be opened for public use. The defendants appealed the decision, but the Court of Appeals affirmed the trial court's ruling, finding the evidence supported the lower court's findings.

The background indicates that the plaintiffs own approximately 300 acres adjacent to the Lockharts’ 137-acre property, while the defendants own 13 acres next to the Lockharts. The disputed road runs through these properties, with part designated as Snowy Lane, a county road, while the contested portion is unnamed. In 2005-2006, property owners, including the Lockharts and defendants, funded improvements to Snowy Lane, which became a county road. In 2008, the defendants blocked access to the unnamed portion, prompting the lawsuit.

During the trial, Candace Stults, the Bledsoe County property assessor, testified about historical and current tax maps showing the road's existence and its changes over the years. The maps indicated a public right-of-way through the defendants’ property, supporting the plaintiffs' claim of public use. Testimony from Gary Lockhart further challenged the accuracy of the current map's representation of the road's position as of 2006.

The Lockharts acquired their property from Fred and Ruth Cooke. Mr. Lockhart testified about prior discussions with Fred Cooke regarding a road that served as a right-of-way for neighboring properties, connecting through Cooke's land to what is now owned by the Plaintiffs, the Crookses. He noted that the road was in generally passable condition when they purchased the property in 1989, with a width varying between twelve to fifteen feet. The Lockharts constructed their house in 1990 and built a driveway using materials and machinery to enhance the existing trail.

Mr. Lockhart observed regular usage of the road by various individuals, including hunters and off-road vehicle users, and confirmed seeing Defendant Clifford Barbee using the road without having granted permission. He stated that the road remained in reasonable condition until it was obstructed by the Defendants, after which an alternate route was utilized. The road connects to public or county-maintained roads, specifically linking to Jones Gap and Snowy Lane, a county road for which the Lockharts and other landowners contributed to its maintenance.

Mrs. Lockhart corroborated her husband's testimony, indicating frequent use of the road by themselves and others, noting that users did not seek her permission to access it.

Mrs. Lockhart testified that since building their driveway in 1989, she and her husband have regularly used Snowy Lane, a county road, to access their property. This road extends less than a mile from Hendon Road to their property line. Prior to the obstruction by the Defendants, the Lockharts used the road frequently, with Mrs. Lockhart walking it two to three times a week and observing regular use by four-wheelers, especially on weekends. She noted that there is a section of the road that collects water for approximately nine months each year. 

Mrs. Lockhart also indicated that several adjacent property owners, including the Defendants, had improved a portion of the road to elevate it to county road status, while the Lockharts did not contribute to these improvements, as they are not adjacent property owners. 

Herbert W. Welch, aged 81, testified about his familiarity with the road, stating he had used it for hunting throughout his life, describing its condition as poor. He acknowledged his memory was not reliable, particularly recalling that he had not used the road extensively in recent years due to a stroke. 

Wilma Rylander, 77, recalled her family's history with the property when her father operated a sawmill and frequently used the road for hauling lumber, although she had not visited the property in about 30 years. 

Terry Hughes, the Plaintiff's brother, who has lived in the community all his life, asserted that the road was commonly used for hunting and recreational vehicles. He emphasized the inconvenience of using an alternate route, which would add five to six miles to travel. Mr. Hughes characterized the road as an old, well-traveled path, indicating its long-standing presence in the area.

Glenn Sparks, 63, testified about his 20 years of experience using a dirt road referred to as "the Road," which he accessed 15-20 times without needing permission until the Defendants obstructed it by cutting trees and digging holes. Sparks noted that the Road was generally passable, even though it was old and had some rough spots. He assisted in clearing the obstruction at the request of the Plaintiffs. 

Donald Hughes, a long-time resident since 1985, also described frequent use of the Road for various activities, estimating 15-20 uses per year, particularly in summer. He confirmed that he never faced any restrictions on using the Road until the Defendants blocked it and mentioned that his family had used the Road for years without significant issues. Hughes did not participate in efforts to improve the Road to county standards.

Defendant Clifford R. Barbee, a resident for approximately 11 years, claimed he never saw anyone use the Road across his property and believed it was a logging trail. He reported an incident in May 2008 when he discovered a bulldozer had crossed his property, leading him to block access. Barbee stated there was no established roadway before the Plaintiffs bulldozed it and recounted the process by which Snowy Lane was developed into a county road, confirming his financial contribution of $3,500 for the project, while asserting that the Plaintiffs did not contribute any funds.

Registered land surveyor Donald Gene Reid testified regarding the existence of easements on the Defendants’ property during a trial. He noted an easement for utility access running from the Lockharts’ house to the Dale McCartney property and another easement extending approximately 3,200 feet from the Greg Johnson property across the Dale McCartney property to Hendon Road. Reid found no recorded easements beyond these and acknowledged he could not ascertain unrecorded easements. 

On May 29, 2012, the Trial Court ruled that a certain road traversing Defendants’ property was a public road that had been used by the public for many years. The court also determined that Defendants failed to demonstrate the road had been abandoned, ordering it opened for public use. In its opinion, the court deemed Mr. and Mrs. Lockhart as "disinterested parties" and credible witnesses.

Defendants appealed, raising two primary issues: whether the Trial Court erred in classifying the road as public and whether it erred in ruling that Defendants did not prove abandonment. The appellate review is de novo with a presumption of correctness for the trial court's factual findings unless countered by overwhelming evidence. Legal conclusions are reviewed without such a presumption.

To establish a public right-of-way, there must be an offer of dedication and public acceptance, which can be express or implied. Intent to dedicate can be inferred from the landowner's actions, such as opening the road to public use, acquiescing to its public use, and the road's maintenance by public authorities. The Trial Court's recognition of the Lockharts' credibility is significant, as the appellate court affords considerable deference to the trial court's assessment of witness credibility.

In Estate of Walton v. Young, the Tennessee Supreme Court emphasized that trial courts’ credibility assessments of witnesses are generally upheld on appeal unless clear and convincing evidence suggests otherwise. The appeal record indicates an implied dedication and acceptance of the Road as a public right-of-way, supported by testimonies from Ms. Ryder, Mr. Welch, and Mr. Sparks, among others, all confirming public usage of the Road for various activities prior to its obstruction by Defendants in 2008. The first tax map for Bledsoe County included the Road, and the county property assessor noted that marking it indicated public usage. Defendant Clifford Barbee acknowledged seeing and using a trail at the location in question. The Trial Court found the Lockharts to be credible witnesses, having the opportunity to evaluate their demeanor firsthand. The Court affirmed the Road's status as a public road traversing properties owned by both the Plaintiffs and Defendants. The Court also assessed whether Defendants proved public abandonment of the Road, stating that the burden to establish abandonment lies with those asserting it. Mere non-use is insufficient to demonstrate abandonment, and there must be clear evidence of intent to abandon, alongside decisive actions indicating such intent.

In Jacoway v. Palmer, the Tennessee Court of Appeals addressed a dispute concerning the status of a public right-of-way following a property purchase by the defendants, Clifford and Anna Melissa Barbee, in 1999. The Barbees claimed they did not observe a roadway when purchasing the property; however, this was contradicted by Clifford Barbee’s testimony, which indicated the presence of a visible trail. The defendants also asserted that they were unaware of any public interest in the road until 2006, despite its long-standing status as a public right-of-way. The court emphasized that their lack of awareness did not meet the burden of proof required to demonstrate abandonment of the road.

The defendants argued that the Lockharts’ use of an alternate route indicated an intention to abandon the original road. The court rejected this claim, noting that the Lockharts had utilized both routes until the defendants obstructed access to the road. It was determined that the obstruction efforts were ineffective in terminating public rights to the roadway.

Additionally, the defendants suggested that the plaintiff, Hughes, not contributing to improvements on Snowy Lane implied abandonment of the road. The court refuted this, clarifying that Hughes had never been asked to contribute and that the rationale for contributions did not pertain to the abandonment issue.

After reviewing the evidence, the court upheld the trial court's findings, concluding that the defendants did not provide sufficient evidence of abandonment. Consequently, the trial court's order was affirmed, and the case was remanded for the collection of costs, which were assessed against the appellants and their surety.