Richard E. Riegel, Jr. v. Patricia A. Wilkerson ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 22, 2014 Session
RICHARD E. RIEGEL, JR. v. PATRICIA A. WILKERSON
Direct Appeal from the Chancery Court for Madison County
No. 69727 James F. Butler, Chancellor
No. W2013-01391-COA-R3-CV - Filed February 11, 2014
This is an easement case in which the Appellant, the servient estate owner, appeals
the trial court’s grant of injunctive relief in favor of the Appellee, the dominant estate owner.
Specifically, the trial court found that Appellant had interfered with Appellee’s use of the
easement by erecting a gate across it. The trial judge ordered the Appellant to remove the
gate, and enjoined her from further interference with the Appellee’s use of the easement.
Discerning no error, we affirm and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M., K IRBY, J., joined.
Scott G. Kirk, Jackson, Tennessee, for the appellant, Patricia A. Wilkerson.
Jay Dustin King, Jackson, Tennessee, for the appellee, Richard E. Riegel, Jr.
OPINION
Appellee Richard E. Riegel, Jr. owns a tract of real property located at 385 Raines
Spring Road in Jackson. Mr. Riegel purchased his property from Nancy Williams LaPlace
on or about August 6, 2007. Mr. Riegel’s approximately thirty-four-acre property is part of
a one-hundred-acre tract that was purchased by Ms. LaPlace and her late husband from Mr.
Billy Haynes. At the time the LaPlaces purchased the property, they entered into a Deed for
Joint Easement with Mr. Haynes, which states, in relevant part:
Haynes hereby grants and conveys to LaPlace a perpetual non-
exclusive easement for ingress and egress over and across the
following described property [Exhibit “B” to the Deed for Joint
Easement is a meets-and-bounds description of the 100 acres
purchased by the LaPlaces; Exhibit “C” to the Deed for Joint
Easement is a plat-map of the easement that is being conveyed].
TO HAVE AND TO HOLD said perpetual non-exclusive
easement for egress and ingress, unto the said [LaPlaces], their
heirs and assigns forever.
This easement for ingress and egress is for the benefit of
the 100.00 acres conveyed by Haynes to LaPlace as recorded in
Deed Book 575, Page 197. . . and this easement for ingress and
egress shall run with the land and benefit this property and
burden the property retained by Haynes [i.e., the fifty-acre tract,
of which Ms. Wilkerson ultimately purchased a portion]. . . .
The Deed for Joint Easement was recorded in the Register’s Office of Madison County in
Deed Book 575, Page 199. The August 6, 2007 Warranty Deed from Ms. LaPlace to Mr.
Riegel states that “[t]his property has access to and is subject to a joint ingress and egress
easement as described in Deed Book 575, page 199. . . .” This easement is the subject of the
instant appeal.
Appellant Patricia A. Wilkerson purchased her property from Paul and Kelly Little
on or about March 27, 2003. Ms. Wilkerson’s approximately six-acre property is part of a
fifty-acre tract that was purchased by the Littles from Mr. Haynes. The Warranty Deed from
Mr. Haynes to the Littles specifically states that the property is encumbered by a fifteen-foot-
wide, ingress/egress easement:
The above property [i.e., the approximately six-acre portion of
the fifty-acre tract purchased by Ms. Wilkerson] is encumbered
by a 15 foot wide easement for egress and ingress along the
north of a line from the southeast corner of the above described
tract to a point south 84 degrees 38 minutes west 751.9 feet from
the southeast corner.
This deed was recorded at Book 531, Page 328 in the Madison County Register’s Office.
The deed from Haynes to Little also references a second fifteen-foot, ingress/egress easement
along the south property line. These “mirror” easements were granted to allow both the
Littles and Haynes access to their respective properties. At trial, Mr. Little testified, in
relevant part, as follows:
Q. Mr. Little, at the time you said that you bought the property,
-2-
the easement was created so that you and Mr. Haynes—Mr.
Haynes would be able to get to his farmland and you would be
able to build a house up there (i.e., the house that was ultimately
purchased by Ms. Wilkerson)?
A. Yes, sir.
Q. Now, the boundary line between the property he sold you,
the easement was 15 feet on either side of the boundary line is
what I’m asking you.
A. Yeah.
***
Q. So [Mr. Haynes] retained 15 feet, the ability to use 15 feet
on your side of the property line; is that correct?
A. That’s correct.
Q. And you retained 15 feet on [Mr. Haynes’] side of the
property line?
A. That’s correct.
Mr. Little further testified that although the original easements were fairly equally
located on his and Mr. Haynes’ property (i.e., approximately 15 feet on each), there were
some erosion issues on Mr. Haynes’ easement. When the LaPlaces purchased this property
from Haynes, they did some work on the road and Mr. Little testified that as a result, the road
was limited to ten-feet wide, with the majority of the road on his property, which was
ultimately sold to Ms. Wilkerson. So, it appears from the record that although Haynes and
Little each initially enjoyed a fifteen-foot easement on the other’s property, the total of thirty-
feet was eventually narrowed to just ten-feet of useable easement, which was located mostly
on Ms. Wilkerson’s side of the boundary line. Mr. Little testified that this road work was
completed well before Ms. Wilkerson purchased the property from him. An August 18, 2006
survey performed by Jack McAdoo on behalf of Ms. Wilkerson (Trial Exhibit 5) indicates
that although the used portion of the easement is more on Ms. Wilkerson’s property, it does
not extend past the original grant of a fifteen-foot easement on her side of the boundary line.
Regardless, the easement (wherever it lies) is now used by both Ms. Wilkerson and Mr.
Riegel to access their respective properties.
The Warranty Deed from the Littles to Ms. Wilkerson describes the property being
conveyed, in relevant part, as “a portion of same real property conveyed to [the Littles],
appearing of record in Deed Book 531, Page 328 in the Register’s Office of Madison
County.” Although the deed from the Littles to Ms. Wilkerson references the conveyance
from Mr. Haynes to the Littles, which as described above specifically notes the easement, the
-3-
deed from the Littles to Ms. Wilkerson does not specifically reference the easement recorded
at Book 531, Page 328. Rather, Ms. Wilkerson’s deed states that the property is
unencumbered except for various utility and transmission line easements, and an “easement
of record in Deed Book 182, page 343. . .,” and a “[r]ight-of-way easement of record in Deed
Book 171, page 549.” The easement at issue in this case was recorded at Book 531, Page
328 and so is not specifically referenced in the Little to Wilkerson deed. Ms. Wilkerson
avers, in pertinent part, that because her deed does not reference the easement, she cannot be
held to abide by its terms.
According to the record, the easement was an old field road that was used by Mr.
Haynes to access his property. After the Littles purchased the property, they used the
easement for a driveway to their house, which was ultimately sold to Ms. Wilkerson. Ms.
Wilkerson’s driveway extends beyond the easement as it forks toward her property. After
Mr. Riegel purchased his property, certain issues concerning the use of the easement arose
between him and Ms. Wilkerson. As a result, on October 19, 2012, Mr. Riegel filed a
complaint for temporary and permanent injunction against Ms. Wilkerson. The complaint
specifically alleged:
4. [Ms. Wilkerson] and/or her agents have repeatedly interfered
with [Mr. Riegel] and/or his agents[’] ingress and egress to his
property despite the fact that he is specifically granted an
easement for the purpose of ingress and egress. [Ms. Wilkerson]
has gone so far as to place a gate across the easement and
disallow access to the property.
5. Furthermore, [Ms. Wilkerson] and/or her agents have trapped
agents of [Mr. Riegel] in the property with the gate and [by]
blocking his/her vehicle from behind with another vehicle in
order to harass them by taking pictures and video.
6. [Ms. Wilkerson] and/or her agents have approached agents
for [Mr. Riegel] in a threatening manner and continued to harass
them as they tried to gain access to [Mr. Riegel’s] property.
7. [Ms. Wilkerson] and/or her agents have repeatedly called the
Madison County Sheriff’s Department on tenants of [Mr.
Riegel] and made it impossible for him to rent the property.
Based upon these factual averments, Mr. Riegel asked the court to grant a temporary and
permanent injunction against Ms. Wilkerson, to enjoin her from interfering with his use of
the easement.
After the trial court denied Ms. Wilkerson’s motion for summary judgment (which
-4-
decision is not the subject of the instant appeal), the case was heard on May 6, 2013. By
order of May 14, 2013, the trial court granted Mr. Riegel an injunction, requiring Ms.
Wilkerson to remove the gate she had erected across the easement. The trial court also
enjoined Ms. Wilkerson from further interfering with Mr. Riegel’s use of the easement. On
September 18, 2013, the trial court filed an amended order, denying attorney’s fees to either
party. The amended order states, in relevant part, that:
There is an easement starting at Raines Springs Road
which goes to the southwest along the boundary line for 751.9
feet. All parties who are dominant tenants have a right to use
the easement. Both parties in this current action are considered
dominant tenants and therefore have the right to use the
easement.1
The Court further finds that the driveway is within the
boundary lines of the easement and can be used by either party.
The Court further finds that this easement runs with the
land and the fact that it is not in [Ms. Wilkerson’s] Deed is
irrelevant. It was of record prior to her Deed and the recording
of the easement is notice to the world that the easement exists.
[Ms. Wilkerson] is entitled to use the easement but cannot
control it to the detriment of [Mr. Riegel]. The gate erected by
[Ms. Wilkerson], whether locked or not, is an impediment to the
use of the easement by [Mr. Riegel].
The Court further finds that [Mr. Riegel’s] use of the
property is irrelevant. There are no restrictions stated in the
easement regarding its use.
Based upon the foregoing findings, the court ordered Ms. Wilkerson to remove the gate
within thirty days of the order, and also granted a permanent injunction, enjoining Ms.
Wilkerson “from interfering with [Mr. Riegel’s] right to use the easement. . . .”
1
There is some confusion in the record as to which party is the servient tenant and which is the
dominant tenant. The trial court refers to both Ms. Wilkerson and Mr. Riegel as dominant tenants. However,
from our review, we conclude that Ms. Wilkerson’s property is the servient estate in this case because the
easement, as it is now used, lies primarily on her property. Initially, and as discussed above, there were
“mirror” easements on both Mr. Riegel’s property and Ms. Wilkerson’s. However, due to erosion and the
like, the parties’ predecessors in interest began to use the fifteen-foot easement that ran across Ms.
Wilkerson’s property. In this regard, the current manifestation of the easement can be considered a joint
easement as both parties use it for ingress/egress. However, initially, Ms. Wilkerson’s property was the
servient tenement; accordingly, we will call her the servient tenant and will call Mr. Riegel the dominant
tenant for purposes of this appeal.
-5-
Ms. Wilkerson appeals. She raises two issues for review as stated in her brief:
1. [Mr. Riegel] failed to prove by a preponderance of the
evidence that he was in need of injunctive relief.
2. Whether the trial court erred in finding [that Mr. Riegel] was
entitled to injunctive relief.
In the posture of Appellee, Mr. Riegel asks this Court to award his attorney’s fees and costs
in defense of this appeal.
Because this case was tried by the court, sitting without a jury, this Court conducts a
de novo review of the trial court's decision with a presumption of correctness as to the trial
court's findings of fact, unless the evidence preponderates against those findings. Wood v.
Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). For the evidence to preponderate
against a trial court's finding of fact, it must support another finding of fact with greater
convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App.
2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.
Ct. App. 1999). This Court reviews the trial court's resolution of legal issues without a
presumption of correctness. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001).
The issues in this case involve the interpretation and use of an easement. An easement
is “an interest in property that confers on its holder a legally enforceable right to use another's
property for a specific purpose.” Hall v. Pippin, 984 S.W.2d 617, 620 (Tenn. Ct. App. 1998);
see also Fowler v. Wilbanks, 48 S.W.3d 738, 740 (Tenn. Ct. App. 2000); Pevear v. Hunt,
924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). Such an interest in land can be created in a
number of ways: (1) by express grant, (2) by implication, and (3) by reservation. Pevear, 924
S.W.2d, at 115.
The easement in this case is undisputedly an express easement appurtenant. “An
express easement is a grant of an interest in land which must comply with the requirements
of the statute of frauds at Tenn. Code Ann. § 29-2-101.” Smith v. Evans, No. M2007-02855-
COA-R3-CV, 2008 WL 3983117, at *2 (Tenn. Ct. App. Aug. 27, 2008) (citing Cellco P'ship
v. Shelby County, 172 S.W.3d 574, 593 (Tenn. Ct. App. 2005); Mitchell v. Chance, 149
S.W.3d 40, 47 (Tenn. Ct. App. 2004); Nunnelly v. Southern Iron Co., 29 S.W. 361, 365–66
(Tenn. 1895). “To create an easement by express grant, there must be a writing containing
plain and direct language evincing the grantor's intent to create a right in the nature of an
easement rather than a license .” Smith v. Evans, 2008 WL 3983117, at *2 (citing 25
Am.Jur.2d Easements and Licenses § 15 (2008); Adcock v. Witcher, 1995 WL 675852 at *2
(Tenn. Ct. App. Nov. 15, 1995)). “The scope of such an easement is set forth in express
-6-
terms, either in the granting documents or as matter of incorporation and legal construction
of terms of relevant documents . . . [.]” Smith v. Evans, 2008 WL 3983117, at *2 (citing 25
Am.Jur.2d Easements and Licenses § 15). In an easement appurtenant, there are two tracts
of land, the dominant tenement, and the servient tenement. The dominant tenement benefits
in some way from the use of the servient tenement. Cellco, 172 S.W.3d at 588 (internal
citations omitted).
“In the construction of instruments creating easements, it is the duty of the court to
ascertain and give effect to the intention of the parties.” Burchfiel v. Gatlinburg Airport
Authority, No. E2005-02023-COA-R3-CV, 2006 WL 3421282, at *3 (Tenn. Ct. App. 2006)
(citing 28A C.J.S. Easements § 57 (1996)). The intention of the parties with regard to the
purpose and scope of an easement conveyed by express grant is determined by the language
of the deed. See Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939) (“If the easement
is claimed under a grant, the extent of the easement is determined by the language of the
grant.”). “[T]he easement holder's use of the easement must be confined to the purpose stated
in the grant of the easement.” Columbia Gulf Transmission Co. v. The Governors Club
Prop. Owners Ass'n, No. M2005-01193-COA-R3-CV, 2006 WL 2449909, at *3 (Tenn. Ct.
App. Aug. 21, 2006). “[I]t is not a personal right, and cannot be used, even by the dominant
owner, for any purpose unconnected with the enjoyment of his estate. The purpose of this
rule is to prevent an increase of the burden upon the servient estate, and it applies whether
the easement is created by grant, reservation, prescription, or implication.” Cellco, 172
S.W.3d at 596 (citing Adams v. Winnett, 156 S.W.2d 353, 357 (Tenn. 1941) (internal
quotations omitted)); see Rector v. Halliburton, No. M1999-02802-COA-R3-CV, 2003 WL
535924, at *4 (Tenn. Ct. App. Feb. 26, 2003) (noting that easement owner may not materially
increase the burden on the servient estate or impose a new and additional burden).
Here, Mr. Riegel asked the trial court to grant an injunction, ordering Ms. Wilkerson
to remove her gate and to cease any future interference with his use of the easement. This
request unquestionably placed the enforceability of the easement at issue. See Union
Tanning Co. v. Lowe, 148 Tenn. 407, 255 S.W. 712, 714 (Tenn. 1923) (holding that plaintiff
must establish title in himself before he can enjoin trespass of that right); Smith Mech.
Contr. v. Premier Hotel Devel., 210 S.W.3d 557, 565 (Tenn. Ct. App. 2006) (concluding that
a party should bring underlying cause of action upon which the injunction would be based
in the same action as the request for injunctive relief). The question of whether the easement
is enforceable as against Ms. Wilkerson is a question of law, which we will examine de novo.
Throughout these proceedings, Ms. Wilkerson has argued that because her deed does
not expressly reference the disputed easement, see supra, her property is not servient to it.
We respectfully disagree. As explained in 25 Am. Jur. 2d Easements §93:
-7-
A person who purchases land with knowledge or with
actual, constructive, or implied notice that it is burdened with an
easement in favor of other property ordinarily takes the estate
subject to the easement. On the other hand, a bona fide
purchaser of land without knowledge or actual or constructive
notice of the existence of an easement in such land generally
takes title free from the burden of the easement. This rule is
broad enough to include all easements, whether created by
implication, prescription, or express grant. However, one who
purchases land burdened with an open, visible easement is
ordinarily charged with notice that he or she is purchasing a
servient estate.
Under the general rule that a purchaser of land subject to
the burden of an easement takes the estate subject to the
easement if he or she has notice of its existence at the time of
purchase, the proper recordation of the instrument containing the
grant of the easement is sufficient notice.
Id. (footnotes omitted); see also 25 Am. Jur. 2d Easements and Licenses § 96 (“As a general
rule, if the dominant tenement is transferred in separate parcels to different persons, each
grantee acquires a right to use easements appurtenant to the dominant estate, provided the
easements can be enjoyed as to the separate parcels without any additional burden on the
servient tenement.”). Accordingly, although Ms. Wilkinson’s deed from the Littles does not
expressly mention the easement, it is well settled that the “grantee of a servient tenement
takes the property subject to all duly recorded prior easements whether such easements are
mentioned in the grantee's deed or not. . . .” 28A C.J.S. Easements §134; Tenn. Code Ann.
§ 66-26-102 (stating that recorded instruments are “notice to all the world from the time they
are noted for registration.”); see also Goetz v. Knoxville, Power & Light, 290, S.W. 409
(Tenn.1926); Jones v. Ross, 388 S.W.2d 640 (Tenn. Ct. App. 1963). It is undisputed that the
predecessor deed to Ms. Wilkinson’s, i.e., the deed from Haynes to the Littles, specifically
states that the property is encumbered by the easement, and this deed was duly recorded in
the Register’s Office of Madison County. However, even if we assume, arguendo, that Ms.
Wilkerson could not be charged with actual notice of the easement by recording, Tennessee
case law indicates that an easement may be imposed on subsequent purchasers of a divided
tract where the easement was created during the unity of title. For example, in Barrett v.
Hill, No. 01A01-9806-CV-00295, 1999 WL 802642 (Tenn. Ct. App. Oct. 7, 1999), Barrett
discovered that her sewer line was disconnected from the public utility. The line ran across
the lot of Barrett's neighbor, Hill. Hill would not allow Barrett to reconstruct a line across
Hill. Id. at * 1. Barrett sued Hill to enforce what she claimed was an implied easement to run
her sewer line across Hill's property. Id. at *2. Both lots had once been part of a single tract
-8-
owned by Roy Byrn. Before Byrn subdivided the property, someone had installed a sewer
line to service the Barrett lot across what became the Hill lot. Id. at *1. This court held that
Byrn had created an implied easement across the Hill lot in favor of the Barrett lot:
Where, during the unity of title, an apparently permanent and
obvious servitude is imposed on one part of an estate in favor of
another part, which servitude is in use at the time of severance
and is necessary for the reasonable enjoyment of the other part,
on a severance of the ownership a grant of the right to continue
such use arises by implication of law. Similarly, where the
owner of property, one part of which has been subjected to such
a use for the benefit of another part, sells both parts to different
purchasers, the respective portions granted are subject to or
benefitted by, as the case may be, an easement corresponding to
such use.
Id. at *3 (quoting Lively v. Noe, 496 S.W.2d 852, 854-55 (Tenn. Ct. App.1970)). This Court
had “no difficulty” concluding that Byrn, the common grantor, had notice such that the
easement would have been enforced against him. Id. at *4. The more difficult question was
whether the easement created during Byrn's ownership could be enforced against Hill. The
trial court held that Hill did not have notice, but this Court concluded that it did not matter–
the easement was enforceable against Hill whether or not Hill had notice. Id. at *4. Our
rationale was as follows:
We think this question is answered in Tennessee by the nature
of this easement. . . .
***
The easement created in this case is appurtenant to the
land. An easement appurtenant attaches to, passes with, and is
an incident of ownership of the parcel that is the dominant
tenement. The successor in title to an appurtenant easement may
enforce it. An incorporeal appurtenance to a parcel of land, such
as an easement, passes with title to the land, and the successor
in title becomes the owner of the use protected by the easement
and has the right to enforce it.
[E]asements by implication ordain the perpetuation of the prior
use “on the general principle that property is usually passed
along with its burdens.” Where a single owner sells portions of
-9-
his or her property to two different purchasers, “the respective
portions granted are subject to or benefitted by, as the case may
be, an easement corresponding to such use.” Thus, not only did
the easement's benefits pass with title to the dominant tenement,
but its burdens also passed with title to the servient tenement.
In conclusion, we find that an easement by implication
was created at the time of the severance of ownership of the two
parcels in 1970 by which the Barrett property has the right to use
the Hill property for the purpose of running a sewer line to the
city sewer line.... Because the easement is appurtenant to the
Barrett property, this right to use the Hill property passed with
the land and is enforceable by Ms. Barrett.
Id. at *5 (citations and internal quotation marks omitted). If the burden of an implied
easement passes to a subsequent purchaser who may have no way of discovering its
existence, on the basis of the Barrett case, we conclude that the burden of an express
easement appurtenant would all the more so pass to a subsequent purchaser. At least in the
case of an express easement, it could be discovered by looking at all conveyances made
against the common tract by the common grantor. Accordingly, the trial court correctly held
that Ms. Wilkerson could be charged with the burden of the easement. The next question is
whether the evidence supports the finding that Ms. Wilkerson interfered with Mr. Riegel’s
use of the easement such that he was entitled to an injunction against her. We now turn to
address that question.
Interference with Easement
[T]he owners of the land under and surrounding an easement
also have restrictions on the use of their land:
The owner of the servient estate, while he may use his property
in any manner consistent with the existence of the easement, ...
cannot make any alterations in his property by which the
enjoyment of the easement will be materially interfered with.
28A C.J.S. Easements § 175 (1996).
The owner of the servient estate has no legal right to interfere with an easement
holder's enjoyment and use of the easement. Charles v. Latham , No.
E2003-00852-COA-R3-CV, 2004 WL 1898261 (Tenn. Ct. App. Aug. 25, 2004) (citing
Cooper v. Polos, 898 S.W.2d 237, 242 (Tenn. Ct. App. 1995)).
-10-
Although the respective rights of the owners of the dominant
and servient estates must be construed so as not to unreasonably
interfere with each other, Miller v. State, 124 Tenn. 293, 137
S.W. 760, 35 L.R.A.N.S., 407 (1910), the owner of the
dominant easement has all the rights incident or necessary to
proper enjoyment of the easement. 25 Am.Jur.2d Easements &
Licenses §§ 72–75. The use of the servient estate must be
consistent with that of the dominant estate. Brown v. Alabama
Power Co., 275 Ala. 467, 156 So. 2d 157 (1963).
U.S. ex rel. and for Use of Tennessee Val. Authority v. Hughes, 408 F.2d 619, 621(6th
Cir.1969).
In Tennessee, the rights of the owner of the easement are
paramount to those of the landowner, at least to the extent of the
easement. Cox v. East Tennessee Natural Gas Co., 136 S.W.3d
626, 627–28 (Tenn. Ct. App.2003); Carroll v. Belcher, 1999
WL 58597, at *3. The owner of the servient estate cannot take
actions that unreasonably interfere with easement holder's rights
under the easement, including any alterations in the landowner's
property. Cox, 136 S.W.3d at 628 (citing Carroll v. Belcher,
1999 WL 58597, at *3).
Rogers v. Roach, No. M2011–00794–COA–R3–CV, 2012 WL 2337616, at *9 (Tenn. Ct.
App. 2012).
In order to prevail on a claim against a servient landowner for unreasonable
interference with the use of an easement, the dominant landowner [here, Mr. Riegel] has the
burden to show: (1) the “existence/creation of easement;” (2) “interference with the
easement's use;” and (3) “actual damage to the easement holder's use.” 20 Causes of Action
2d 177 (2002) (discussing the “Cause of Action for Servient Estate Owner's Unreasonable
Interference with Easement of Way by Placement of Obstruction on Easement”). In addition,
evidence, such as testimony, is required to establish the “unreasonable interference with the
easement.” See 20 Causes of Action 2d 177 (2002). We have previously determined that Mr.
Riegel has a valid easement over Ms. Wilkerson’s property, and that Ms. Wilkerson had
notice of the existence of the easement through the recording of the Haynes to Little deed,
or because the easement was made appurtenant to the land when the title was unified, see
discussion supra. Accordingly, the remaining question is whether the preponderance of the
evidence supports the trial court’s finding that Ms. Wilkerson interfered with Mr. Riegel’s
use of the easement so as to justify the grant of the injunction against her.
-11-
Generally, in cases involving the unreasonable interference with a dominant
landowner's use of an easement, the question “is whether, under the specific facts presented,
the [obstruction] is necessary to the use and enjoyment of the landowner's land and whether
it does not unreasonably interfere with the easement holder's use of the right of way.” Roach,
2012 WL 2337616, at *9 (citing Reynaud v. Koehler, No. E2004-02999-COA-R3-CV, 2005
WL 1868816, *2 (Tenn. Ct. App. Aug. 8, 2005)). As in the instant appeal, the typical
interference case involves the erection of fences or gates. In these cases, “an owner of land
subject to a right-of-way easement may maintain gates, if necessary to his use and enjoyment
and where such obstructions do not unreasonably interfere with the use of the way.” Cole v.
Dych, 535 S.W.2d 315, 320 (Tenn.1976). Thus, placement of an obstruction in an easement
is not sufficient to prevail in an action for interference; instead, the dominant landowner must
show that the obstruction “unreasonably interfere[s]” with the use of the easement. Id.
Furthermore, as discussed in detail above, both the servient tenement holder and the
dominant tenement holder must abide by the purpose of the easement. Columbia Gulf
Transmission Co., 2006 WL 2449909, at *3; Cellco, 172 S.W.3d at 596 (citation omitted);
Rector v. Halliburton, 2003 WL 535924, at *4. It is undisputed that the easement at issue
in this case is for ingress/egress and nothing more. Because the use of the easement is a
relevant inquiry in cases involving alleged interference, we were initially troubled by the trial
court’s finding that Mr. Riegel’s “use of the property is irrelevant. There are no restrictions
stated in the easement regarding its use.” After reviewing the record, however, we infer that
the trial court was speaking of Mr. Riegel’s use of the property in the future. Mr. Riegel
currently lives out of state and has previously leased his property. At the time of the trial,
there were no tenants on the land. However, Mr. Riegel testified that it is his desire to lease
the property to a therapeutic, equine-riding center, which he described as a “501(c)(3)
charity.” Mr. Riegel opined that Ms. Wilkerson does not want his property to be used in this
way, or in any commercial way, because of the additional traffic that a commercial or public
use would generate. Mr. Riegel stated that he could not “put people on the property because
they feel like they don’t have access to the property without being challenged with the gate.”
As set out above, this easement is for ingress/egress only. However, there is no indication
in the record that Mr. Riegel or his tenants have used the easement for anything other than
its stated purpose. Although the trial court allowed Mr. Riegel to be cross-examined on the
question of how many vehicles would use the easement should he open the commercial
venture, this testimony was strictly hypothetical as Mr. Riegel has not (according to the
record) taken any steps toward opening any business on the property. Consequently, the
record does not contain any evidence that, at present, Mr. Riegel, his tenants, or invitees have
unduly interfered with or burdened Ms. Wilkerson's reasonable enjoyment of her property.
This Court is not prescient, and speculation is not within its purview. Accordingly, we
cannot base our decision on some event that may occur in the future. In this appeal, we are
concerned only with the question of whether Ms. Wilkerson’s gate unreasonably interferes
-12-
with Mr. Riegel’s current use of the easement.
Turning to the record, according to Ms. Wilkerson’s testimony, she erected the
offending gate prior to the date that Mr. Riegel purchased his property from the LaPlaces.
Ms. Wilkerson stated that the gate was put up to deter people from coming to the stables
located on the then-LaPlaces’ property, which is now owned by Mr. Riegel. She stated that
the gate had never been locked and that it could be opened by anyone that wanted to pass.
However, the record clearly indicates that the gate is located on the easement and that one
must get out of their car, open the gate, drive through, and then close the gate behind them
in order to get to the Riegel property. When asked whether there is “any other way of ingress
or egress to Mr. Riegel’s property other than this easement . . . ,” Bruce Richardson, a
licensed surveyor who is familiar with the easement, testified that there is not another route
to Mr. Riegel’s property.
Mr. Riegel testified that his previous tenants had been harassed by Ms. Wilkerson
when they attempted to use the easement, and that Ms. Wilkerson had told Mr. Riegel that
he needed to “put in a new driveway south of her driveway.” Ms. Wilkerson provided no
evidence to contradict Mr. Riegel on this point. The record is clear that Mr. Riegel’s
property has an easement across the area where Ms. Wilkerson has put her gate; however,
as correctly noted by the trial court, Ms. Wilkerson’s driveway continues beyond the 751.9
foot easement. Therefore, there is room for her to move the gate onto her own property
(outside the easement) if she wishes to protect her property from intruders or excessive
traffic. Accordingly, the gate (in its present location) is not necessary to the use and
enjoyment of Ms. Wilkerson’s land so as to necessitate the interference it causes to Mr.
Riegel’s right of way. Roach, 2012 WL 2337616, at *9. This is particularly true in light of
the lack of evidence concerning any undue burden to Ms. Wilkerson’s property caused by
excessive traffic, commercial use, and the like. From the totality of the circumstances, and
the entire record in this case, we conclude that the evidence does not preponderate against
the trial court’s finding that Ms. Wilkerson’s gate unduly interferes with Mr. Riegel’s use of
the easement. Accordingly, we conclude that the trial court did not err in requiring Ms.
Wilkerson to remove her gate from its current location, or from enjoining her from
interfering with Mr. Riegel’s use of the easement in the future.
Attorney’s Fees
Mr. Riegel has asked this Court to award his attorney’s fees and costs associated with
this appeal. Tennessee Code Annotated Section 27-1-122 provides:
When it appears to any reviewing court that the appeal from any
court of record was frivolous or taken solely for delay, the court
-13-
may, either upon motion of a party or of its own motion, award
just damages against the appellant, which may include but need
not be limited to, costs, interest on the judgment, and expenses
incurred by the appellee as a result of the appeal.
However, “[i]mposing a penalty for a frivolous appeal is a remedy which is to be used only
in obvious cases of frivolity and should not be asserted lightly or granted unless clearly
applicable, which is rare.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010).
Although we have decided the issues before us in Mr. Riegel's favor, we are not persuaded
that this appeal is frivolous or taken solely for delay. We, therefore, decline to award his
attorney's fees and costs.
Conclusion
For the foregoing reasons, we affirm the order of the trial court. The case is remanded
for such further proceedings as may be necessary and are consistent with this Opinion. Costs
of the appeal are assessed against the Appellant, Patricia A. Wilkerson, and her surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
-14-