Corporacion Euanitos, S.A. v. Montlake Properties, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 7, 2009 Session
CORPORACION EUANITOS, S.A., ET AL. v. MONTLAKE PROPERTIES,
INC. ET AL.
Appeal from the Chancery Court for Hamilton County
No. 08-0129 W. Frank Brown, III, Chancellor
No. E2008-01548-COA-R3-CV - FILED JANUARY 28, 2010
Corporacion Euanitos, S.A. (“Plaintiff”)1 sued Montlake Properties, Inc.; Montlake Property
Owners Association, Inc.; and Luken Properties, LLC seeking, in part, a restraining order and
a permanent injunction prohibiting the defendants from pumping water from a lake,
Montlake, located in Hamilton County. After a trial, the Trial Court entered its order finding
and holding, inter alia, “[t]hat Luken Properties, LLC, has an easement right to withdraw
water from Montlake.” Plaintiff appeals to this Court. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J. joined.
John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Corporacion Euanitos, S.A.
Carol M. Ballard and William H. Horton, Chattanooga, Tennessee, for the appellees,
Montlake Properties, Inc.; Montlake Property Owners Association, Inc.; and Luken
Properties, LLC.
1
While Betty Henn and Jo-Net Corporation were named plaintiffs in this suit, neither Betty Henn nor
Jo-Net Corporation are involved in the appeal now before us. For ease of reading only, we refer in this
Opinion to Corporacion Euanitos as the plaintiff in the singular.
OPINION
Background
In July of 1970, Montlake, Inc. conveyed to Mowbray Mountain Utility District
(“Utility District”) a parcel of real property and:
a permanent easement and right of way for water line fifteen (15) feet wide
including sufficient working room to install, repair and maintain the same,
including the perpetual right to enter upon the real estate hereinafter described
at anytime that it may seem fit and construct, maintain and repair underground
water lines or mains for the purpose of conveying water over, across, through
and under the lands hereinafter described together with the right to excavate
and refill ditches and/or trenches for the location of said water lines and/or
mains and the further right to remove trees, bushes, underground and other
obstructions interferring [sic] with the location of said water lines and/or
mains.
Further Montlake, Inc. hereby grants, bargains, sells and conveys unto
Mowbray Mountain Utility District of Hamilton County, Tennessee, a
permanent easement or right to draw water from “MONTLAKE” owned by the
grantor for so long as water shall be present in said lake.
The easement conveyed to the Utility District by Montlake, Inc. (“the Easement”) is shown
on a plat recorded in February of 1985 in Plat Book 40, page 7. The Utility District conveyed
the Easement to Luken Properties, LLC (“Luken Properties”) in February of 2007.
Plaintiff acquired several parcels of land at Montlake during the 1990s and
thereafter. Of those parcels, two are relevant to the issues involved in this case, Lots 61 and
65. The deeds to Plaintiff for Lots 61 and 65 show that the parcels were acquired subject to
the Easement as noted on the plat recorded in Plat Book 40, page 7.
In February of 2008, Plaintiff sued Montlake Properties, Inc.; Montlake
Property Owners Association, Inc. (“Property Owners Association”); and Luken Properties
seeking, in part, a restraining order and a permanent injunction prohibiting the defendants
from exercising the Easement to extract water from Montlake. Plaintiff raised, among other
things, claims that the Easement had been abandoned, that equipment abandoned by the
Utility District created an attractive nuisance, and that extracting water from Montlake was
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causing erosion and pollution. The case was tried in May of 2008.
Herschel Pollard testified that he is the founder, president, and sole owner of
Plaintiff. Mr. Pollard resides primarily in Florida. Mr. Pollard testified that his lots “go out
to a point in the lake, to the, you might say, the southeast of the lake.” Mr. Pollard testified
that there are six lots that encompass the property around Montlake and that those six lots are
owned by him, Jo-Net, and Betty Henn. He stated that there are no other owners of any lots
that abut Montlake. Mr. Pollard personally purchased the first of his lots in approximately
1988. Mr. Pollard testified that he rents one of his houses at Montlake on an annual basis and
leases the other periodically.
Plaintiff, the corporation, did not purchase land at Montlake until 1998.
Plaintiff owns Lot 65 and at the time it purchased this lot, the golf course had been built, the
pumping station existed, the platform existed, the dams were being built, and the stream ran
through the golf course. Lot 65 has no house on it, and Mr. Pollard testified that he intended
to preserve lot 65 and never build a house on it.
Lot 65 is adjacent to a lot containing what Mr. Pollard characterized as “[a]n
abandoned pumping shed” owned by the Utility District. Mr. Pollard was shown the
pumping shed on one occasion by Utility District employees, and he described it as a tin
building that contained concrete tanks. Mr. Pollard further testified that there also is a steel
platform that hangs out over the lake with pipes running down from the platform into the lake
where the pipes connect to large suction pumps. Mr. Pollard testified that the pumping
station has not been used since Plaintiff purchased its first lot. He further stated that the old
suction pumps have since been removed and new pipes were installed in the lake. Mr.
Pollard first noticed the new pipes around Christmas of 2007.
Mr. Pollard estimated that the platform that hangs out over the lake is
approximately 65 feet above the surface of the lake. When asked about his concerns with
regard to the platform, Mr. Pollard testified:
Well, prior to this addition of the new equipment, I was concerned about it as
an attractive nuisance. In my opinion, it was an attractive nuisance. There
were trespassers going on it on a constant basis, daily basis, who came on the
property and came down the steps to the platform. Some of them merely came
to view the lake; some came to fish; some came to do some target practice with
their high-powered rifles. Some people - - some of the younger men came to
prove their manhood and leap from the platform into the water, and this
happened on quite a constant basis. And there were other problems as well.
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Mr. Pollard posted no trespassing signs, but the signs were torn down.
Mr. Pollard testified that people swim and fish in Montlake and stated: “Of
course, I’ve prohibited [my children from swimming] strictly because of the extreme hazard
that Montlake Golf Course created there with their electrical installation.” Mr. Pollard was
told that two 210-volt pumps were installed about 25 feet in the lake and that these pumps
are intended to pump 100 gallons per minute each out of the lake and transport it to the
pumping station. A document titled “Owners Guide To Installation And Operation Of …
Submersible Pumps” was introduced at trial. This owner’s guide contains the following
language: “WARNING: The pump is intended for use in a well. Motor frame must be
connected to power supply ground or fatal electrical shock may result. Do not use this pump
in swimming pools.” Mr. Pollard stated: “they are numerous, and I do mean numerous
incidents of electrical shock, drowning in that area.” Mr. Pollard further stated:
I’ve been aware of the danger of submerged electrical pumps for many years.
And anybody who reads the newspapers is aware of that. I’m a boater, and I
know the very grave danger of electrical shock, grounding, with regard to
underground electrical appliance connections with boats. And I know the
same danger exists in open ponds when you drop submerged pumps into
ponds. It only takes about eight millivolts to stop the heart. And there are
many, many instances of electrical-shock drowning in this area from that very
cause.
However, Mr. Pollard admitted when questioned further that he stopped swimming in the
lake and stopped allowing his children to do so before finding out about the pumps. He
admitted that he stopped his and his children’s swimming in the lake due to chemical
pollution.
When asked about his concerns regarding pumping water from Montlake, Mr.
Pollard stated:
Well, I had multiple concerns. During the twenty-odd years that I had owned
property up there, I had seen a progressive decline of the quality of the lake in
terms of its flora and fauna, and also, in my opinion, of its geological stability.
But it seemed to me that, obviously - - here again, this is my opinion - - that
the lake was becoming progressively polluted, and I was afraid that if water
were taken out of the lake and taken back up to the golf course and if it came
back down the same path, down the creek and back to the lake, over and over
in the cycle, that the lake would eventually become a chemical soup.
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A photograph was introduced at trial that Mr. Pollard:
took from my terrace in the summer of 2004 when there was a rain, and we got
a pretty good downpour there for a few minutes, and it shows that the waterfall
is flowing freely and it’s carrying a large amount of silt into the lake from the
golf course and it’s turning the lake brown.
When asked what he had observed with regard to the natural rise and fall of
Montlake, Mr. Pollard stated:
During the dry season, the water level drops dramatically. This was even
before the entire flow of water was stopped, coming down. It’s a natural rise
and fall of the lake level. It’s been going on for many years I’m sure. When
it’s down like that, the water is chirted. There’s a lot of algae in the water.
Then later when we get some rain fall, it rises somewhat.
The fish population seems to get a bit lazy during the dry season. You
don’t see them a lot; they go down to the bottom of the lake, I suspect. Then
later, when there’s more water, they tend to be more up on the surface. That
was back when we had fish; we don’t have fish anymore.… Interestingly, if
you look back in the old photographs, you’ll see that down in the lake, it was
a Garden of Eden down there, with all sorts of trees. And when I purchased
the property, there was a lot of wildlife. We had deer and raccoons and foxes
that would come down to the water and drink. There was no difficulty going
down there and catch fish. I would catch at least several bass every evening.
And in the recent years, I would say over the last decade, every single
one of the trees down there, even the one[s] that were, oh, 50 years old or
more, have died and have rotted away. There are no more wild azaleas down
there. There is no more laurel down there. I haven’t seen a wild animal down
there in years. And, as I said, we don’t even have fish for a fry or crawfish
anymore, at least not that I’ve been able to.
Mr. Pollard, through his attorney, wrote a letter to the Utility District in 2004
asking it to abandon the pumping station. The Utility District did not respond to this request.
Henry G. Spratt, a professor of microbiology at the University of Tennessee,
Chattanooga testified as an expert witness for Plaintiff. Dr. Spratt described what he did in
connection with his analysis for this case as:
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a study that follows along with a series of other studies I’ve done in some local
ponds and local waterways, streams and wetlands. We’re looking at the
presence or absence or [sic] a group of bacteria that are capable of breaking
down aromatic chemical structures that are common to herbicides and other
types of pesticides.
Dr. Spratt described Montlake stating:
Montlake is an interesting structure, in that it’s one of the few, if not the only,
natural lakes in this area of Tennessee. It’s located up on the Cumberland
Plateau. It represents an area where the sandstone cap has collapsed down into
lower levels of mountain structure, and it makes virtually an almost perfect
circle structure of about two acres in size. And then it’s relatively deep. From
what I hear, hundreds of feet deep. And it’s been there for a number of years.
That’s what my geology forensic told me.
Dr. Spratt looked at contour maps of the area and determined that “there’s a main drainage
channel that runs from up higher on the plateau and drains directly into Montlake. And there
are no streams that lead out of Montlake.” The drainage channel that drains into Montlake
comes from the area of the golf course. Dr. Spratt was not aware of any other streams
leading into Montlake. In addition to looking at the contour maps, Dr. Spratt also walked
around Montlake “one full time and other bits and pieces, various areas.”
Dr. Spratt testified:
The studies that I have done in other wetlands and ponds included the use of
a radioactive label herbicide, to look at the presence of microorganisms that
are capable of totally breaking the herbicides down, like carbon dioxide in the
water, sulphur, salt water, whatever compounds are present, and removing that
chemical from the system.
And so this is - - in the area of our litigation, that is an ideal situation,
and so I’m interested in that, so I would like to try and clean up the problems.
And so I have this system in the lab set up where we collect samples, bring
them into the lab and we completely, within our licensure, using radioactive
compounds, using chambers.
I have a picture of a chamber, and it’s in those (indicating). We transfer
the soil, a small portion of soil and make a soil/saltwater mixture and that goes
into the chamber which then is trapped for carbon dioxide, and we add
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radioactive compound.
We can trap the carbon dioxide in a syringe, remove the solution and
periodically make up a time source. We see the increase in the radioactive
control coming off. And so I set up one of these experiments starting on May
16th, approximately May 16th. Collected samples from two of the ponds on
the golf course, one on the 18th fairway and one on the 3rd fairway.
I got three samples from the east pond at various places. Run a uniform
sample, collected water samples from the bluff and then also collected samples
from the edge of Montlake. Montlake is a little more difficult to sample
because there’s not much - - you can’t get to it very easily. I did not have a
boat. However, I did find three uniform samples, one in the lake.
When asked about his findings, Dr. Spratt testified:
The date [sic] that we count from the little device I showed you, the chambers,
we calculate the rate, the accumulation of carbon, 14CO2 [sic], over time. It
shows the end rate for the three - - the two ponds on the golf course. They’re
very similar to the rate for Montlake. And then there’s a killer control here,
too, but there has to be live bacteria. The killer control doesn’t do anything.
To summarize this data and calculate maximum rate, this graph shows
the maximum mineralization rate of my target herbicide. And the point here
to note is that these three bars - - the one on this side, the right side, is the 18th
fairway pond, the middle is the 3rd fairway pond, and Montlake is on the far
left - - these three rates are not significantly different, so they essentially are
the same. And the killer control is down here.
The only thing that was different on this graph is the killer control; it
was the only thing different from any of those two ponds. So this suggests that
those three ponds have the same record of prior exposure to the chemical range
structure similar to the target herbicide that I used.
Dr. Spratt also was provided with records of the chemicals that the golf course
has used for approximately two and a half years. He testified:
Of the chemicals that were added - - or reported in those records, I saw a
variety of fertilizers, at least one herbicide, at least two insecticides or
compound that had insecticide in it, and then one specific fungicide. I went
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through all of those two and a half years and made an accounting of the date
they were applied and approximately doses that were used.… Well, the
herbicide referred to on the - - and I believe this particular herbicide is noted
as pre[-]emergent, so they were used, for the most part, either in the early
spring or the - - there was one case of late - - two cases of late-fall
application.… The insecticides were added basically when insects might be
active, starting in April and running up right through the summer. June, July,
August, and September are the last application of all of these. There was one,
a different insecticide that was added in October on one occasion.… The
fungicide also ran basically that same time line, starting in late April and
through - - there was an application in December of last year, so that’s
varying.… [T]he insecticides appear to be [applied to the golf course] once a
month, maybe once every three weeks. The fungicide was, on occasion, once
every week; usually once every two weeks.
***
Now the chemicals that I presented earlier that lists the summary of the
chemicals that were added, the insecticide and the fungicide, I found data on
those two chemicals. And, particularly, since they’re being applied during the
warmer months of the year, they can interfere with the mating of fish, mating
of insects, and other aquatic organisms.
And I looked up those and, indeed, they are organic synesthetic
compound. This is a - - Talstar is the trade name. It’s bifenthrin, an
insecticide. Now, this compound, if you will look at the material safety data
sheet, it is hazardous to fish and aquatic organisms. And, basically, the rules
of use say it should not - - organic give [sic] any water course in any way. So
again, there are range structures here that have to be followed in order for this
compound to be harmless.… The other one is the fungicide Daconil,
chlosothalomil; it’s a fungicide. Again, it has a range structure here. In this
case, it’s generally very harsh in that regard because the cholerine is added to
the range. But that is another compound that was used during the active
growing season. And it also has material safety issues, hazardous to fish and
aquatic organisms.
Dr. Spratt testified that:
eventually some of that herbicide would make its way down into the Montlake,
the lowest point of the drainage. There are a variety of factors that have to
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occur. The time between the application and the rainfall, sometimes that can
affect transfer. It could be accelerated if it were applied and a heavy rain came
more or less immediately.
Also some of those, I believe on the 3rd hole, was actually closer to
Montlake, and so what’s applied there at the shorter resonance time on the golf
course, you have the conditions to wash it off in the stream.
When questioned, Dr. Spratt admitted that he had seen ducks and a turtle at the
golf course ponds. Dr. Spratt also agreed that fungicide is used on golf courses to control
fungus on the greens and that the greens encompass probably less than one percent of the
total square footage of the entire golf course. Dr. Spratt was unsure of the distance between
the closest green and Montlake but estimated that it might be 200 meters.
When asked, Dr. Spratt admitted that he was aware that the golf course would
use water from Montlake during the dry season and further agreed that the dry ground “will
absorb a good bit of [the water], and a lot of it will evaporate away.” Dr. Spratt further
admitted that a heavy rain also would drain residue from the herbicides into Montlake. He
testified that there appear to be several residential properties that also drain into Montlake,
and that any household fertilizers, herbicides, and insecticides used there also could drain
into Montlake. Dr. Spratt testified that there is a drainage ditch that runs from the top of the
plateau across the golf course and down into Montlake and that this drainage is, at maximum,
50 meters from the golf greens. When asked if there was the potential for residue running
off of the golf course and into the lake from rainwater whether the lake was being pumped
or not, Dr. Spratt stated “[t]hat’s the chance. It’s a possibility.”
Rick Gehrke also testified as an exert for Plaintiff. Mr. Gehrke has a Master’s
Degree in environmental science with concentrations in management and law. When asked
what type of investigation and analysis he did on the property at Montlake, Mr. Gehrke
stated: “The first thing I did was do some research on the property, looking at area maps,
looking at the rudders that’s left by the lake. I did some research into golf course operations
and chemical use, and spoke also with the state regulatory agencies about permitting
requirements.” Mr. Gehrke also went to Montlake and spent time:
looking for the layout of the land, looking for creek conveyance, which when
water leaves, it’s just an acidic source that you can see where there are
channels that water runs in. I’m looking at the arrangement of the pumping
station. Looking at the vegetation, slopes, stability of the rocks around Mr.
Pollard’s lake.
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When asked for his analysis regarding pumping water from Montlake into the
ponds on the golf course which then would drain back into Montlake, Mr. Gehrke testified:
I see two main issues there. One of them has to do with the pumping of the
water itself, because a natural lake is structured, obviously, to rising and falling
water levels. But when you take more water out of it than is naturally draining
or evaporating, especially even times when the water is low, it’s going to
impact the water quality by concentrating on the bottom, impacting stream
banks, because if you drop the water level faster than the plants can respond,
they’re going to die. If you stabilize [sic] the banks you’re introducing
erosion, which is going to further exacerbate clarity problems with the water,
things like that. Also, from my research into golf course operations, there are
a lot of chemicals that are typically used on a golf course, and any flood
coming off of a golf course is going to be carrying some of those with them.
Mr. Gehrke testified that water gets into Montlake “[t]hrough rainfall and through the
conveyance that we were talking about. There is a little stream that runs out at the golf
course and goes over a cliff on one side of the lake.”
When asked about how chemicals would affect plant and animal life in the
lake, Mr. Gehrke stated:
There is a group of chemicals that get used when you’re trying to maintain
basically a system that wouldn’t naturally occur, had to be sustained, and those
are fertilizers and generally nitrogen, phosphorus, potassium are the main ones.
You’ve also got fungicides and insecticides, and herbicides to control the
plants, only the plants that you want on there. These are things that you don’t
want on the golf course but you do want them in the lake if you want to have
a natural lake, so they’re designed to kill something in one place, and then goes
to where it’s not, then they’re going to have an impact that you don’t want in
a natural system.… Well, if you have an herbicide that’s meant to get rid of
what we call a weed on a golf course, that might be a plant that is wanted on
the banks of the lake. So you’ve got a double whammy on this life-form,
where they might be getting exposed to a chemical that they can’t handle or
that they can’t adapt having their root system stressed by the drop in water
level.
Mr. Gehrke admitted that he did not do any water testing at Montlake. He further admitted
that rain runoff from the golf course would add chemicals to the lake.
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Bill McGriff, the utility commissioner for the Utility District, testified at trial.
Mr. McGriff has been the utility commissioner since 1999. Montlake was the sole source of
water for the Utility District through the early 1980s. In the early 1980s, the Utility District
made arrangements to get water from the Soddy-Daisy Falling Water Utility District due to
concerns about the amount of water available in Montlake. The Utility District has not
pumped water from Montlake in years, but maintained the Easement to be used in case it was
needed. The Utility District did not dismantle any of its equipment at Montlake, but did
recently sell a tank. The Utility District has never taken any action while Mr. McGriff has
been on the commission to abandon the Easement.
Mr. McGriff testified that the Utility District was contacted by the golf course
owner, Mr. Luken, and that it commenced negotiations with Mr. Luken for transfer of the
easement in 2003 or 2004. The Utility District traded Mr. Luken the lot with the metal
building and the easements and water rights to Montlake in exchange for a parcel of property
adjacent to an existing stand-pipe tank and $50,000.
Carlin Carpenter, one of the original commissioners for the Utility District,
testified that he held this position when the Easement was recorded in 1970. When asked,
Mr. Carpenter testified that the Utility District never considered abandoning the Easement.
When asked how many gallons of water were pumped from Montlake on a daily basis during
the peak usage when Montlake was used by the Utility District, Mr. Carpenter stated: “The
maximum population was probably 400 to 450 customers, and the average usage was 2,000
to 2,500 gallons a minute. I don’t know the exact figures.” Mr. Carpenter agreed that it
probably was over a hundred thousand gallons a day pumped from Montlake. Mr. Carpenter
testified that the Utility District pumped the lake in the early 1980s, and the water level fell
below the intakes, which required the Utility District to have water hauled in by tanker. This
led to the Utility District making arrangements to get water from the Soddy-Daisy Falling
Water Utility District.
David Campbell, Jr., the superintendent of Montlake Golf Course, testified that
the pumps were put into Montlake six months to a year before trial. The pumps were
encased, and were installed by a contractor and put in with new electrical work done by an
electrician. Mr. Campbell testified that the pumps were designed for underwater pumping.
Mr. Campbell tested the pumps one time for 14 hours continually. He estimated that the
pumps combined can pump 100 gallons a minute.
When asked, Mr. Campbell testified that the golf course consists of 150 acres
that are cleared, and that the greens comprise only about two of those acres. Mr. Campbell
stated: “The pond, the animal life is great. We have fish and everything you can think of in
there. The plant[-]life is fine. Never had any problem with it. Just keep it mowed.” He
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testified that the golf course ponds have turtles and fish.
Mr. Campbell testified that the golf course uses its sprinkler system
approximately three times a week at certain times of the year. Based upon his experience
operating the golf course for the past two years, Mr. Campbell estimated that they would be
most likely to need to pump from Montlake in July and August for “15 to 20 days out of
those two months.”
Kim White, the president of Stone Fort, Inc., testified. Stone Fort, Inc. owns
Montlake Golf Course. Stone Fort, Inc. was known formerly as Montlake, Inc. Ms. White
testified that Mr. Luken purchased the golf course in the late 1990s. Ms. White was shown
a photograph of Montlake that showed some brown area around the lake. When asked if that
was from back water, she stated: “I don’t know, but I do know residents that have lived there
a long time that told me the reason that some of [the] vegetation was dead was that the water
level got so high the past couple of years, that it rotted the trees that were in the lake.”
Billy Joe Russell has owned property in the Montlake Properties Subdivision
since approximately 1981. He testified that he is a member of the Property Owners
Association. Mr. Russell agreed that the Property Owners Association supports the golf
course’s plan to pump water from Montlake because the golf course is an important part of
the community. Mr. Russell testified that he has not seen any problems with plant-life,
wildlife, or fish around the golf course ponds. When asked if he had seen any dramatic
change in the appearance of Montlake, Mr. Russell testified:
Well, the only thing I can tell you is when [Mr. Pollard] rents those houses and
there’s quite a few people up there, I’ve been up there before and there would
[be] 20 or 30 people down there around, swimming and doing whatever, you
know, and leaving garbage laying around, it’s develops from that. And some
of the nastiness, you might say, just comes off of that, you know. That’s all I
can say about that part of it.
You know, I haven’t seen the lake deteriorate none besides when the
water got high in the wintertime; we had a lot of damage to it and some of the
trees did get killed from the water getting so high. And then it went back
down and your vegetation starts to grow again.
Mr. Russell testified that he observed Montlake in the early 1980s when the
Utility District was pumping and the water level fell below the pumps. He testified:
Well, what it did was it got down below the pumps, about like where it was
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starting to suck air is what happened to it. They brought line in there, and they
still had 40 or 60 foot of water, but the pumps wouldn’t reach any further. So
that’s when they begin [sic] to haul it in to get the water over the pumps.
Charles Hunt, testified that he was the president of the Property Owners
Association for three years. Mr. Hunt testified that when the issue of water rights arose:
We were for it unanimously. We were for it because of the position of the golf
course in reference to the property of the people who owned houses on the golf
course. And it was imperative that the golf course do good for the property
owner, you know, that the property would still remain at a high value.
Mr. Hunt has not observed any change in the quality of the water in the golf course ponds,
nor has he seen any change in the plant or animal life around those ponds. Mr. Hunt testified
that he has observed the condition of the houses that Mr. Pollard rents after tenants leave and
stated that he had observed “[b]eer cans and beer bottles in the lake.”
After trial, the Trial Court entered its order on July 8, 2008 finding and holding,
inter alia, “[t]hat Luken Properties, LLC, has an easement right to withdraw water from
Montlake,” that the Easement had not been abandoned, that the Easement had not terminated,
and that Plaintiff had not proven nuisance. The Trial Court entered an order on November
12, 2008 amending its July 8, 2008 order to state that defendant’s counterclaim was
dismissed for lack of proof and that the July 8, 2008 order as amended constituted a final
order as to all issues. Plaintiff appeals to this Court.
Discussion
Although not stated exactly as such, Plaintiff raises four issues on appeal: 1)
whether the Trial Court erred in finding that the Easement had not been abandoned; 2)
whether the Trial Court erred in finding that the Easement had not terminated; 3) whether the
Trial Court erred in not finding that trespassers entering Plaintiff’s property over the
Easement constituted a nuisance; and, 4) whether recycling of water from the lake to the golf
course and then back to the lake constitutes nuisance.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).
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We first note what Plaintiff’s lawsuit is not about. Plaintiff’s lawsuit was not
about the continuing operation of the golf course. As stated in Plaintiff’s brief, Plaintiff
“sought a declaration that an easement claimed by the [defendants] was null and of no effect
or in the alternative an Order preventing [defendants] from using it.” Our resolution of the
issues raised by Plaintiff in this appeal is predicated upon the relief Plaintiff sought in the
complaint.
We first consider whether the Trial Court erred in finding that the Easement
had not been abandoned. Tennessee law provides “[t]he party asserting abandonment of an
easement must prove it by clear, unequivocal evidence.” Hall v. Pippin, 984 S.W.2d 617,
620 (Tenn. Ct. App. 1998)2 . Accord, e.g., Miller v. Street, 663 S.W.2d 797, 798 (Tenn. Ct.
App. 1983); Cottrell v. Daniel, 205 S.W.2d 973, 976 (Tenn. Ct. App. 1947). Thus, the
proper standard in an abandonment of an easement case is clear and unequivocal. Clear and
convincing evidence and clear and unequivocal evidence are one and the same. See Gambill
v. Hogan, 207 S.W.2d 356, 360-61 (Tenn. Ct. App. 1947) (equating “clear and convincing
evidence” to “clear and unequivocal evidence” and “clear, cogent and convincing evidence”).
Tennessee law is well settled regarding abandonment of an easement. An
easement may be abandoned, but the party attempting to prove abandonment must show both
“an intention to abandon the easement [and] also external acts carrying that intention into
effect.” Hall, 984 S.W.2d at 620. Accord, e.g., Phy v. Hatfield, 126 S.W. 105, 105 (Tenn.
1909); Boyd v. Hunt, 52 S.W. 131, 131 (Tenn. 1899); Cottrell, 205 S.W.2d at 975; Smelcer
v. Rippetoe, 147 S.W.2d 109, 113-14 (Tenn. Ct. App. 1940). Mere nonuse of the easement
“is not sufficient, by itself, to prove abandonment. Nonuse must be coupled with proof that
the easement holder or holders intended to abandon the easement.” Hall, 984 S.W.2d at 620-
21. Accord, e.g., Boyd, 52 S.W. at 131; Edminston Corp. v. Carpenter, 540 S.W.2d 260, 262
(Tenn. Ct. App. 1976); Cottrell, 205 S.W.2d at 975; Smelcer, 147 S.W.2d at 113-14.
The required external acts necessary to prove abandonment may be “either a
single act or a series of acts.” Hall, 984 S.W.2d at 621. Courts may consider several factors
in making a determination of whether an easement has been abandoned including:
(1) statements by the easement holder acknowledging the easement’s existence
and disavowing its use, (2) the easement holder’s failure to maintain the
2
On remand, new issues arose and were subsequently appealed. See Hall v. Pippin, No. M2001-
00387-COA-OT-CV, 2001 Tenn. App. LEXIS 124 (Tenn. Ct. App. Feb. 28, 2001); Hall v. Pippin, No.
M2000-001151-COA-R3-CV, 2002 Tenn. App. LEXIS 824 (Tenn. Ct. App. Nov. 26, 2002), modified by,
No. M2000-01151-COA-R3-CV, 2003 Tenn. App. LEXIS 113 (Tenn. Ct. App. Feb. 11, 2003). The issues
involved in the subsequent appellate history have no bearing on the holding we rely upon in this Opinion.
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easement in a condition permitting it to be used for access, (3) the easement
holder’s acquiescence in the acts of others that reduce the utility of the
easement, (4) the easement holder’s placement of a permanent obstruction
across the easement, or (5) the easement holder’s development of alternative
access in lieu of the easement.
Id.The Trial Court found and held that the Easement had not been abandoned.
The evidence in the record on appeal shows that the Utility District never did anything to
disavow the Easement. Rather, the testimony shows that even after it began to obtain water
from another source, the Utility District continued to view the Easement as a viable option
and a back-up plan. Both Mr. McGriff and Mr. Carpenter testified that the Utility District
never considered abandoning the Easement. In fact, the Utility District clearly evidenced the
continued existence of the Easement as a valid easement when it sold the easement rights to
Luken Properties. Furthermore, although Plaintiff argues that the Utility District did not
maintain the Easement in a condition to allow for access, the evidence in the record on
appeal shows that the Utility District never dismantled or removed its equipment, never took
steps or allowed anyone else to take steps to block access to the Easement, and did not place
or allow placement of a permanent obstruction in the Easement. The fact that the Utility
District had not used the Easement for some years was insufficient, by itself, to prove that
the Utility District had abandoned the Easement.
The Trial Court found that Plaintiff had failed to prove by clear and
unequivocal evidence that the Easement had been abandoned. The evidence does not
preponderate against the Trial Court’s findings with regard to this issue.
We next consider whether the Trial Court erred in finding that the Easement
had not terminated. Plaintiff argues that the Easement was granted only “for so long as water
shall be present in said lake,” and because the water in Montlake fell below the intake pumps
in the 1980s, the Easement terminated at that time. (emphasis deleted). Plaintiff is mistaken.
The language granting the Easement is not ambiguous on this issue. Under the
clear language of the Easement, the relevant factual question on this issue is whether water
was present in the lake. The evidence in the record on appeal shows that although the water
level fell below the intake valves, water still was present in Montlake at that time. Mr.
Russell, who has lived in the area since the early 1980s, testified that at that time Montlake
“still had 40 or 60 foot of water….” Thus, water was present in the lake and the Easement
did not terminate. The evidence does not preponderate against the Trial Court’s findings and
conclusion that the Easement had not terminated.
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Next we consider whether the Trial Court erred in not finding a nuisance. With
regard to this issue, the Trial Court specifically found:
Mr. Pollard says he is afraid of people using the platform to access the
lake. If they are electrocuted or become ill due to harm from the chemicals,
Mr. Pollard fears a lawsuit. The photos show that efforts have been taken to
secure the platform, Trial Exhibits 54 and 56, and to warn trespassers. Trial
Exhibits 44, 44A and 15. As we unfortunately learned recently from Six Flags,
not even fences and warning signs keep all persons from danger. In the
Verified Complaint, Plaintiffs alleged that trespassers would jump into the lake
from the cliffs about the lake. Luken does not control the cliffs.
Mr. Pollard’s testimony about the lake and environs was contradicted
by neighbors who live there all the time. Mr. Pollard primarily resides in
Florida. Mr. Pollard’s credibility was adversely affected by the ads for his
“vacation home.” Trial Exhibit 46, dated July 25, 2007, was the advertisement
used before Mr. Pollard learned of Luken’s proposed use of water from the
lake. Trial Exhibit 59, Mr. Pollard’s internet ad of May 27, 2008, is the same
advertisement. These advertisements carry a different message than Mr.
Pollard’s testimony[] at trial.
In Wells v. Tennessee Bd. of Regents, our Supreme Court observed:
Unlike appellate courts, trial courts are able to observe
witnesses as they testify and to assess their demeanor, which
best situates trial judges to evaluate witness credibility. See
State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v.
Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus,
trial courts are in the most favorable position to resolve factual
disputes hinging on credibility determinations. See Tenn-Tex
Properties v. Brownell- Electro, Inc., 778 S.W.2d 423, 425-26
(Tenn. 1989); Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn.
Ct. App. 1998). Accordingly, appellate courts will not
re-evaluate a trial judge’s assessment of witness credibility
absent clear and convincing evidence to the contrary. See
Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16
(Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc., 567
S.W.2d 169, 170 (Tenn. 1978).
Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
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We give great deference to the Trial Court’s credibility determinations. The
evidence does not preponderate against the Trial Court’s findings with regard to the issue of
nuisance, and we affirm the Trial Court on that issue.
Finally, we consider whether recycling of water from the lake to the golf course
and then back to the lake constitutes nuisance. With regard to this issue, the Trial Court
specifically found:
Plaintiffs employed Henry G. Spratt, Jr., Ph.D., to do some testing and
to testify about possible adverse effects of chemicals being absorbed in the
water. Dr. Spratt is a professor of biological and environmental sciences at
UTC. His CV was introduced as Trial Exhibit 1. Copies of the chemicals
used, and their times of usage, at the golf course were introduced as Trial
Exhibit 4.
Dr. [Spratt] introduced three graphs, Trial Exhibits 7, 8 and 9. On two
of the graphs, 7 and 9, the third fairway of Montlake Golf Course has higher
rates of simazine mineralization than the lake. The third fairway is closest to
adjoining owners and the creek that flows into the lake.
Dr. [Spratt] testified that rain could also be a source of water that flows
into the lake. There are adjoining neighbors who may also use fertilizers and
herbicides on their land. Those persons, through watering their yards and/or
rain, could also add to the chemical input into the lake.
The court did not credit Dr. [Spratt] with noting anything close to a
clear and present danger. There was nothing definite that the court could use
to conclude that the pumping of water from the lake to the retention pond near
the third fairway and its return to the lake would be, as opposed to theoretically
could be, so dangerous so as to prohibit Luken’s proposed removal of water
from the lake.
Richard Gehrke, who has a M.A. in Environmental Science, also
testified about the adverse effect of chemicals. He had not conducted any
water tests. He could not quantify how much worse the lake would be as a
result of the chemicals used on the golf course. He spoke on a theoretical
basis.
Mr. Campbell, an employee at the Montlake Golf Course, said he had
seen very little runoff from the course’s ponds to the creek. The use of
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chemicals at the course did not affect the fish in the pond or other wildlife at
the golf course. He talked about the new pumps having been installed by
contractors. A new electrical panel with appropriate grounding was installed.
The new pumps worked well during the testing period.
Again, we defer to the Trial Court’s credibility determinations. The evidence
does not preponderate against the Trial Court’s findings relative to this issue, and we find no
reversible error by the Trial Court as to this issue.
As the evidence does not preponderate against the Trial Court’s findings and
we find no error of law, we affirm the Trial Court’s November 12, 2008 order.
Conclusion
The judgment of the Trial Court is affirmed and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Corporacion Euanitos, S.A., and its surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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