James Fletcher and Ronald Lanier Fletcher v. Kenneth Sterlin Vasser ( 1997 )

JAMES FLETCHER and )
RONALD LANIER FLETCHER, )
)
Plaintiffs/Appellees, )
) Appeal No.
) 01-A-01-9606-CH-00252
VS. )
) Coffee Chancery
) No. 95-17
KENNETH STERLIN VASSER, )
Defendant/Appellant.
)
) FILED
February 5, 1997
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF COFFEE COUNTY
AT MANCHESTER, TENNESSEE
THE HONORABLE GERALD L. EWELL, SR., JUDGE
JOHN B. INGLESON
3017 Poston Avenue
Nashville, Tennessee 37203
Attorney for Plaintiffs/Appellees
J. STANLEY ROGERS
ROGERS, RICHARDSON & DUNCAN
100 North Spring Street
Manchester, Tennessee 37355
Attorney for Defendant/Appellant
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
LEWIS, J.
OPINION
The holder of an easement across his neighbor’s property sought to
replace two gates with cattle guards. The Chancery Court of Coffee County denied
the request. We affirm.
I.
The contending parties are first cousins. Mr. Vasser owns a 112 acre
tract of land lying east of the farms of James Fletcher and Ronald Lanier Fletcher in
the Beech Grove area of Coffee County. Mr. Vasser gains access to his property by
way of a twelve foot easement across the two tracts owned by the plaintiffs. The
easement was established in a 1959 deed.
There are two gates across the easement. One is located at a point
near the public road at the boundary between the lands of James and Ronald Lanier
Fletcher, and the other is located at the approximate mid point of the easement where
James Fletcher has a cross fence on his property. Apparently the gates have been
in existence for as long as the easement has.
Mr. Vasser bought his property from the other members of his family
approximately two years before the trial below. He raises cattle and hay on the
property and is restoring his parents’ old home. Although he works in Murfreesboro,
he uses the easement frequently, from one time to several times a day.
The Fletchers sued Mr. Vasser to require him to close the gates when
he uses the easement. He counter-claimed for the right to replace the gates with
cattle guards so that he would not have to open and shut the gates each time he goes
-2-
in or out over the easement. The Chancery Court of Coffee County denied the relief
sought by Mr. Vasser.
II.
We start with the general proposition that gates may be installed across
an easement in the absence of a provision to the contrary. Luster v. Garner, 128
Tenn. 160, 159 S.W. 604 (1913); Long v. Garrison, 1 Tenn. App. 211 (1925). In Mize
v. Ownby, 189 Tenn. 207, 225 S.W.2d 33 (1949) our Supreme Court affirmed a lower
court’s decision allowing the owner of an easement to replace the gates with cattle
guards. The question, then, is under what circumstances may the owner of the
easement insist on installing cattle guards instead of gates.
In Mize the Supreme Court recognized the right where the owner of the
easement agreed to install the guards at his own expense and to pay for any injuries
to the cattle held behind the fence. He also agreed that if the guards did not work he
would take them up and restore the gates.
While Mr. Vasser did agree to install the cattle guards at his own
expense, we fail to find in the record any agreement on his part to pay for any cattle
that may be injured trying to cross the guards or to restore the gates if the guards did
not work.
There is also an element of uncertainty about whether cattle guards
would work under the circumstances present in this case. The field that would be
enclosed by the cattle guards is used by James Fletcher to hold young calves that he
is weaning from their mothers. In his opinion at least, the cattle guards would not
deter the calves or other cattle from trying to cross. He testified that he knew of
instances where cattle had broken their legs trying to cross cattle guards. The only
-3-
contrary evidence came from Mr. Vasser who said without objection that the
manufacturer of the guards told him that they had not had any trouble with them. We
think it would be impossible to conclude from this record that the use of the cattle
guards would be appropriate.
Therefore, the decision of the court below is affirmed and the cause is
remanded to the Chancery Court of Coffee County for any further proceedings that
may become necessary. Tax the costs on appeal to the appellant.
________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
SAMUEL L. LEWIS, JUDGE
-4-
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
JAMES FLETCHER and )
RONALD LANIER FLETCHER, )
) Appeal No.
Plaintiffs/Appellees, ) 01-A-01-9606-CH-00252
)
) Coffee Chancery
VS. ) No. 95-17
)
) Affirmed
KENNETH STERLIN VASSER, ) and
) Remanded
Defendant/Appellant. )
JUDGMENT
This cause came on to be heard upon the record on appeal from the
Chancery Court of Coffee County, briefs and argument of counsel; upon consideration
whereof, this Court is of the opinion that in the decree of the Chancellor there is no
reversible error.
In accordance with the opinion of the Court filed herein, it is, therefore,
ordered and decreed by this Court that the decree be affirmed. The cause is
remanded to the Chancery Court of Coffee County for the enforcement of the decree
and for the collection of the costs accrued below.
Costs of this appeal are taxed against Kenneth Sterlin Vasser, Principal,
and Rogers, Richardson, and Duncan, Surety, for which execution may issue if
necessary.
ENTER _______________________.
_________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_________________________________
SAMUEL L. LEWIS, JUDGE
_________________________________
BEN H. CANTRELL, JUDGE