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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
November 19, 2002 Session STELLA KELTNER, ET AL. v. OPEN LAKE SPORTING CLUB
Direct Appeal from the Chancery Court for Lauderdale County No. 10,448 Jon Kerry Blackwood, Chancellor

No. W2002-00449-COA-R3-CV - Filed February 12, 2003

This is a dispute over ownership of the Right Hand Arm portion of Open Lake. The trial court awarded summary judgment to Open Lake Sporting Club. Having determined that there are genuine issues of material facts, we reverse and remand for further proceedings. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed; and Remanded DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S., and ALAN E. HIGHERS, J., joined. Kenneth R. Shuttleworth and William C. Sessions, Memphis, Tennessee, for the appellants, Stella Keltner and Norris Nix. Joseph W. Barnwell, Memphis, Tennessee, for the appellee, Open Lake Sporting Club. OPINION This appeal arises from a cause of action to quiet title to a body of water known as Right Hand Arm, which runs out of Open Lake in Lauderdale County, Tennessee. The lake is adjacent to the Mississippi River and apparently was formed during the New Madrid earthquake in 1811-12. The main body of Open Lake is owned by the defendant, Open Lake Sporting Club ("OLSC"). Right Hand Arm is a narrow portion of the lake jutting eastward from the main body of water and continuing through the property owned by the plaintiff Stella Keltner (Keltner). The largest portion of Right Hand Arm is situated in property now owned by the United States Fish and Wildlife Service. OLSC is a sporting club which was organized in 1905. In the same year, it acquired property including the main part of Open Lake. OLSC asserts it received the property by conveyance through three separated deeds. One conveyance was by deed executed by A. Booth and Company in January 26, 1905. A second deed was executed by the Anderson-Tulley Company in 1905. The third

conveyance was from Adam Scott and wife in the same year. In its counter-complaint, OLSC contends that, [t]he deed describes Open Lake and Right Hand Arm as follows: "all that part of the waters of the Big Open Lake including what is called the `right arm' on the land lying North of and East of said Big Open Lake . . ." Several members of OLSC have cabins on its property and have erected duck blinds for hunting on the lake. Keltner owns two separate tracts of land contiguous to the south and east of Open Lake. The tract to the east of the lake comprises the eastern boundary of Open Lake. It consists of 576 acres, through which flows Right Hand Arm. Keltner traces her chain of title to the property to a conveyance by A. B. White to R. F. Gaines and J. C. Marley in November of 1887. The tract now owned by the United States Fish and Wildlife Service was conveyed to the United States by the Anderson-Tulley Company and is situated to the east of the Keltner property. In 1995, Keltner leased the property to Norris Nix (Nix). Keltner submits that prior to 1995, the tract was leased for several decades to OLSC, giving OLSC's members the right to use the property for hunting and fishing and for ingress and egress to the portion of Right Hand Arm located on the United States' property. She contends that this right was extinguished upon expiration of the lease. OLSC denies this lease. In its counter-complaint, OLSC asserts that the only leases it ever had were a 1981 squirrel hunting lease and a 1994 lease for recreational activities. Keltner's predecessor in interest, Charlie Keltner, was a member of OLSC. In 1952, OLSC authorized the expenditure of $3,000 for the construction of a dam at the entrance of Right Hand Arm and appointed Charlie Keltner and another member to determine its precise location. OLSC contends that this dam interrupts the water connection between Open Lake and Right Hand Arm, and that it was constructed with the understanding that other OLSC members would be permitted access to Right Hand Arm through Keltner's property. This arrangement, according to OLSC, was in effect for over fifty years. In its counter-complaint, OLSC further asserted open and notorious use of the disputed waters, a pathway across the Keltner tract to the main portion of Right Hand Arm, and a twelve acre tract bordered on the north, south and west by Open Lake and on the east by the Keltner property. The actions giving rise to this lawsuit began in 1996, when counsel for OLSC advised Stella Keltner by letter that she should cease to exercise any ownership rights of Right Hand Arm, including the granting of any rights to a third party. Thus after nearly one-hundred years of peaceful co-existence and a mutually beneficial relationship between OLSC and the plaintiff's predecessor in interest, this dispute arose over who may have access to the Keltner property.

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In April of 1997, Keltner and Nix filed a complaint for declaratory judgment to quiet title and determine their rights under the1945 deed conveying the property to Keltner's predecessors in interest. Keltner submits that pursuant to this deed, her predecessors in interest acquired the right to unrestricted access to and ownership of the portion of Right Hand Arm that is located within the undisputed property boundary. She further contends that OLSC has no right to use the portion of Right Hand Arm situated on her property for any reason. In her complaint, she prayed for a judgment declaring her title to the disputed portion of Right Hand Arm and for an injunction prohibiting the members of OLSC from using or trespassing upon her property for any reason without her express permission. OLSC does not dispute Keltner's ownership of the land, or that her predecessors in interest had clear and unencumbered title to the property. 1 However, OLSC contends that Keltner has no ownership interest in the waters of Right Hand Arm. OLSC contends that Keltners obtained title to the land lying to the north and south side of Right Arm, but not to Right Hand Arm itself. It asserts that it obtained title to all of Right Hand Arm, the largest portion of which is currently on property of the United States.2 Although in its counter-complaint OLSC quotes from the Anderson-Tulley deed to establish its ownership of Right Hand Arm, it later asserted that it acquired the eastern portion of Right Hand Arm through the 1905 conveyance from the Anderson-Tulley Company, and the southern end, which is at dispute here, through the conveyance from the A. Booth Company. OLSC contends that the Chancery Court of Lauderdale County previously decreed that Open Lake was owned by OLSC. Keltner asserts that the Anderson-Tulley Company did not own and therefore could not have conveyed the disputed portion of Right Hand Arm to OLSC, and that the chancery court did not decree that OLSC owns Right Hand Arm. In June of 1997, OLSC filed a counter-complaint to quiet title and for injunctive relief. OLSC prayed the court to declare it the owner of all the waters of Right Hand Arm, to find it has an easement by prescription across the Keltner property to reach the waters of Right Hand Arm and the twelve acre tract, and for an injunction requiring Keltner to permit its members to have access to Right Hand Arm and the tract. In its answer to Keltner's first set of interrogatories, OLSC asserted that it was abandoning its claim for prescriptive easement, and that it would amend its pleadings accordingly. Both parties moved for summary judgment. The trial court awarded summary judgment to OLSC in January 2002. Keltner filed a timely notice of appeal to this Court.

In its answer and counter-complaint, OLSC alleges that Stella Keltner is not the sole owner of the tract of land. In her answer, Stella Keltner admits that Sharon Keltner and Clay Keltner each own a one-eighth undivided interest of the Keltner property. OLSC asserts ownership of the main portion of Right H and Arm, which is situated in property currently owned by the United States, based on the 1905 conveyance from the Anderson-Tulley Company. We note that this portion of Right Ha nd A rm is not a subject of dispute between the parties to this cause of action. Thus this Opinion does not address whether OLSC is correct in this assertion or whether the U nited S tates must be jo ined as a party to this action.
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Issues Presented The issues as presented by Keltner for our review are: (1) [Whether] the chancery court erred in denying the Keltners' motion for summary judgment because as an incident of ownership, and by operation of law, the Keltners acquired ownership of that portion of Right Hand Arm that is within the Keltner property line under the doctrine of riparian rights. [Whether] the chancery court erred in granting Open Lake's motion for summary judgment as there are material facts in dispute as to Open Lake's claim that it is the owner of the portion of Right Hand Arm that is within the undisputed property boundary of the Keltners. A. Open Lake recognized as long ago as May 3, 1943, that the waters of Right Hand Arm located within the Keltner property boundary were owned by the Keltners' predecessors in interest. The chancery court erred in granting Open Lake's motion for summary judgment as a genuine issue of material fact exists as to whether the Anderson-Tulley Company could grant an interest in and to waters it did not own. The chancery court erred in granting Open Lake's motion for summary judgment because there exist genuine issues of material fact as to the ability of Open Lake to trace its ownership interest in the Right Hand Arm body of water back to a grantor with proper title. Standard of Review Summary judgment should be awarded when the moving party can demonstrate that there are no genuine issues regarding material facts of the cause of action and that it is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993); McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). Mere assertions that the nonmoving party has no evidence does not suffice to entitle the movant to summary judgment. McCarley, 960 S.W.2d at 588. The moving party must either conclusively demonstrate an affirmative defense or affirmatively negate an element which is essential to the nonmoving party's claim. Id. If the moving party can demonstrate that the nonmoving party will not be able to carry its burden of proof at trial on an essential element of its case, summary judgment is appropriate. Id.

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When a party makes a properly supported motion for summary judgment, the burden shifts to the nonmoving party to establish the existence of disputed material facts or that the moving party is not entitled to summary judgment as a matter of law. Id.; Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The nonmoving party cannot merely rely on the pleadings, but must demonstrate that essential elements of a claim exist by: 1) pointing to evidence that creates a factual dispute; 2) re-enforcing evidence challenged by the moving party; 3) offering additional evidence which establishes a material dispute; 4) submitting a Tenn. R. Civ. P. 56.06 affidavit explaining the need for additional time for discovery. McCarley, 960 S.W.2d at 588. We review an award of summary judgment de novo, with no presumption of correctness afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002). In determining whether to award summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in favor of the non-moving party. Staples, 15 S.W.3d at 89. Summary judgment should be awarded only when a reasonable person could reach only one conclusion based on the facts and inferences drawn from those facts. Id. If there is any doubt about whether a genuine issue exists, summary judgment should not be awarded. McCarley, 960 S.W.2d at 588. The interpretation of a written legal document such as a deed is a matter of law. Pointe, LLC v. Lake Mgmt. Ass'n, 50 S.W.3d 471, 474 (Tenn. Ct. App., 2000)(perm. app. denied). Our review of a trial court's conclusions on issues of law is de novo, with no presumption of correctness. See Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996); Tenn. R. App. P. 13(d). Riparian Rights We first address Keltner's assertion that she owns the waters of Right Hand Arm by virtue of the doctrine of riparian rights.3 The doctrine of riparian rights provides that owners of land through which a natural watercourse runs have the right to use the water for useful purposes. Black's Law Dictionary 1192 (5th ed. 1979). Thus riparian owners are presumed to have the right to use of the water abutting their property, although they may not own the body of water itself. When a deed is silent as to the use of the water abutting the land which it conveys, but conveys the land with all appurtenances, there is a presumption that the right to the use and enjoyment of the water is part of the grant. Pointe, 50 S.W.3d at 475. This presumption arises from the fact that the inherent value of riparian land is derived from the proximity of the water. Id. Unless the deed specifically excludes riparian rights, or unless it is clear from the property description in the deed that the right to the use of the water is excluded, riparian rights will be presumed as an appurtenance. Id. at 476-77. Such rights depend not on ownership of the land

Technica lly, the term "littoral" refers to land adjacent to a lake or sea, while the term "riparian" refers to land adja cent to a river. C urrent usage, however, generally applies "riparian" to land abutting either a rive r or a lake. Pointe, LLC v. Lake M gm t. Ass'n, 50 S.W .3d 471, 475 n.2 (Tenn. Ct. App. 2000 ).

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beneath the water, but on the contact between the land and the water. See Stanley v Ring, No. W2001-00950-COA-R3-CV, 2002 WL 1751409, at * 4 (Tenn. Ct. App. Mar. 20, 2002) (no perm. app. filed). Thus we agree with Keltner that in the absence of language in the deed of conveyance excluding riparian rights to the waters of Right Hand Arm, such rights as held by the conveyor are presumed to have passed as part of the conveyance of property. The extent of riparian rights is a question of reasonableness. 93 C.J.S. Waters

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