Introduction

When boundary-line friction spills into court, Tennessee doctrine gives owners two well-traveled paths: title by adverse possession and use-rights by prescription. The Court of Appeals’ decision in Philip L. Lozano III v. Charlotte R. Sappo et al. is a careful reminder that these paths are doctrinally distinct and that our tax-payment statute—Tenn. Code Ann. § 28-2-110(a)—is a blunt instrument ill-suited to lop off prescriptive-easement claims at the Rule 12 stage. The chancellor dismissed both adverse-possession and prescriptive-easement counts on the ground that the complaint did not allege twenty years of tax payments on the disputed strips. The appellate court vacated in part, holding the statute does not clearly bar a prescriptive easement on the face of the pleadings and, in any event, is an affirmative defense the movants failed to establish at this early juncture.¹

Equally important is the court’s short course on what it takes to plead prescription. The opinion walks through each element—adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescence of the servient owner for at least twenty years—and concludes the complaint cleared Tennessee’s liberal notice-pleading bar. That conclusion preserves the claim for factual development while affirming dismissals the appellant did not brief, a pointed lesson in issue preservation on appeal.²

Background

The parties own homes separated by an unimproved public alley in Nashville. Lozano alleged that his asphalt driveway and a privacy hedge had long “abut[ted] and intrude[d]” over narrow, irregular strips on the neighboring Sappo and Jones parcels. After Sappo removed the hedge and installed a fence and cameras, Lozano sued, eventually adding the Joneses and asserting adverse possession, prescriptive easement, and several tort claims. The neighbors moved to dismiss under Rule 12.02(6).

The trial court granted most of the motions. As relevant here, it dismissed both adverse-possession and prescriptive-easement counts based on § 28-2-110(a), which bars actions by claimants (and their predecessors) who failed to have the interest “assessed and to pay any state and county taxes thereon for a period of more than twenty years.”³ The court viewed the dispute as outside the narrow, judge-made exception for small, contiguous strips between adjacent taxpayers and held the complaint deficient as to several tort claims, allowing only private nuisance to proceed.⁴

The Tax-Payment Statute: What It Says—and What It Doesn’t

Section 28-2-110(a) is a revenue-protection statute. It was enacted “to facilitate the collection of property taxes by requiring persons claiming an interest in real property to have that interest assessed and to pay the taxes thereon.”⁵ It reaches persons “having any claim to real estate or land of any kind” and those claiming “any legal or equitable interest therein,” but only if the claimed interest is “subject to assessment for state and county taxes.”⁶ Our Supreme Court has applied the statute to bar, for example, claims to severed mineral estates because such interests are expressly taxable and separately assessable by statute.⁷ And our courts routinely cite § 28-2-110(a) when adverse possessors fail to show the requisite twenty years of tax payment on the land they seek to own.⁸

A prescriptive easement is different. It is a legal interest in land, but not an ownership interest. It is a right to use, not to possess or enjoy the entire bundle of sticks.⁹ Tennessee’s assessment statutes generally assess real property to its owner—the fee holder—not to users of discrete use-rights.¹⁰ That textual reality matters. If a prescriptive easement is not “subject to assessment,” the tax-payment statute cannot be the silver bullet that defeats the claim. The trial court’s reliance on Pinnacle Towers Acquisition LLC v. Penchion to say otherwise was misplaced: there, the fee owner voluntarily arranged for the assessor to carve out a tax bill for an express easement area; the court described the bill the easement holder paid as a partial payment of the taxes on the fee, not a separate tax on the easement estate.¹¹

Even assuming § 28-2-110(a) could ever bar a prescriptive easement, the statute operates as an affirmative defense. The party invoking it bears the burden to “clearly establish” the claimant’s failure to pay taxes.¹² An affirmative defense can defeat a complaint at Rule 12 only when the defense “clearly and unequivocally appears on the face of the complaint.”¹³ Here, the pleadings—and the exhibits deemed part of them—were silent on tax assessment and payment, so there was nothing for the court to take judicial notice of or to weigh. As in prior decisions reversing Rule 12 dismissals under the statute, the absence of tax allegations could not be weaponized against the plaintiff.¹⁴

Pleading Prescription: Elements Applied at the Rule 12 Stage

To state a prescriptive-easement claim in Tennessee, a plaintiff must allege twenty years of use that is adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescence of the servient owner.¹⁵ Lozano’s complaint, read liberally as Rule 12 requires, did just that. He alleged that he and his predecessors had, for more than two decades, used the paved way for ingress and egress and for parking, and had maintained the hedge and driveway—trimming, limbing, resurfacing, and clearing—openly and under a claim of right.¹⁶ He further alleged that Sappo had actual knowledge because he expressly notified her of his claimed use-right.

The neighbors characterized these allegations as conclusory or intermittent. But Tennessee’s pleading rules do not demand evidentiary detail at the complaint stage, only enough factual content to “articulate a claim for relief.”¹⁷ And while “a prescriptive right cannot be acquired by intermittent use,” the activities described—daily access, parking, and routine maintenance of a defined corridor—are the archetype of continuity when measured over two decades.¹⁸ As to the “knowledge and acquiescence” element, actual notice is not the only path: use so open and notorious as to charge the owner with knowledge will suffice, a theory the complaint’s allegations plausibly support with respect to the Jones parcel.¹⁹

Finally, the suggestion that Lozano’s use was not “exclusive” because Sappo set trash bins in the area or because the driveway intersects a public alley misapprehends the term. “Exclusive” in this context describes the right, not the headcount; the claimant’s use cannot depend upon a like right in the general public.²⁰ An easement used by both dominant and servient owners can still be “exclusive” for prescriptive purposes if the claimant’s right is independent and hostile to the servient title.

What Survived—and What Didn’t

The Court of Appeals vacated the dismissal of the prescriptive-easement count and remanded for further proceedings. Because the record “is devoid of any evidence related to payment of property taxes on the properties at issue,” § 28-2-110(a) could not be the basis for Rule 12 dismissal; the defense, if viable at all against easements, must await proof.²¹ And because the complaint plausibly alleged each prescriptive element, there was no alternative Rule 12 ground to affirm.

Everything else stayed dismissed—not on the merits, but on waiver. Lozano briefed only the prescriptive-easement ruling; he did not argue to revive adverse possession or his tort counts beyond private nuisance. Tennessee’s appellate rules require litigants to present developed argument on each issue, and unbriefed issues are deemed waived even if listed in a heading.²² The opinion is thus a cautionary tale twice over: plead with care, preserve with care.

Practice Notes

If you represent a would-be prescriptive user, do not treat § 28-2-110(a) as a pleading trap. The statute is an affirmative defense and, absent a complaint that affirmatively pleads “we never paid taxes,” it cannot defeat the claim at Rule 12. Be prepared, however, to confront the statute on summary judgment with assessor testimony and tax records if your opponent raises it later, particularly in cases involving unusual, separately assessed interests such as minerals.

If you represent the servient owner, resist the reflex to fold prescription into adverse possession. They are sister doctrines with different consequences and, as Lozano illustrates, different relationships to the tax statutes. Focus instead on factual weak points: periods of permission that interrupt hostility; gaps that undercut continuity; or uses so sporadic that they look intermittent rather than habitual. And on appeal, brief every dismissed claim you want revived; courts will not rescue unargued issues.