Jerry D. Adcock and wife, Nancy M. Adcock v. James F. Witcher, Jr.

JERRY D. ADCOCK and wife, )
NANCY M. ADCOCK, )
) Appeal No.
Plaintiffs/Appellants, ) 01-A-01-9505-CH-00220
)
v. ) Davidson Chancery Court No.
) 91-3888-III
JAMES F. WITCHER, JR., )
)
Defendant/Appellee. )
FILED
Nov. 15, 1995
Cecil Crowson, Jr.
COURT OF APPEALS OF TENNESSEE
Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT, PART THREE
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
JIMMY P. LOCKER
105 Sycamore Street
Ashland City, TN 37015
ATTORNEY FOR PLAINTIFFS/APPELLANTS
DARREL L. WEST
144 Second Ave., North
The Pilcher Building , Suite 300
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
OPINION
This is an appeal by plaintiffs/appellants, Jerry and Nancy
Adcock, from the judgment of the trial court in favor of
defendant/appellee, James F. Witcher.
The diagram below, while not drawn to scale, depicts the
shapes and the layout of the relevant tracts of land. Reference
to this diagram will be helpful in understanding the following
facts.
Prior to 1974, the Allens owned Tracts One, Two, and Three,
the Witcher Tract, the Emmons Tract, and the Driveway Tract. In
1978, appellants purchased the 30 acre tract referred to as the
Adcock Tract. In two separate sales, the Allens sold all of
their land to the Emmons. While living on the Emmons Tract, Mr.
Emmons built a log home on the Witcher Tract. Mr. Emmons also
built a driveway up to the house. The driveway stretched the
length of the Driveway Tract. In 1982, the Emmons conveyed the
Witcher Tract and the house to the Richards. The Emmons
expressly granted the Richards an ingress/egress easement over
the Driveway Tract. The Emmons' real estate agent hired Rocky L.
Montoya to survey the property and to carve out the five acre
Witcher Tract and the Driveway Tract. After selling the property
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to the Richards, the Emmons only used the driveway to the east of
the creek once or twice and only to go to the house on the
Witcher Tract.
In order to purchase the property, the Richards executed a
deed of trust in favor of Collateral Investment Company
("Collateral"). The Richards later defaulted on their loan.
Collateral initiated foreclosure proceedings and purchased the
Witcher Tract at the foreclosure sale. The deed evidencing the
sale described both the Witcher Tract and the easement over the
Driveway Tract. Later, in 1985, Collateral sold the Witcher
Tract with its easement to appellee. The deed evidencing the
sale expressly granted appellee an easement over the Driveway
Tract. At the time appellee purchased the property, the house
had been vacant for approximately two years. Appellee worked
extensively on improving the home, the yard, and the Driveway
Tract.
In 1983, the Emmons executed a deed of trust in favor of
Commerce Union Bank ("the Bank"). The deed of trust covered all
of the Emmons property except the Emmons Tract and that portion
of the Driveway Tract lying to the west of the Little Marrowbone
Creek. Like the Richards, the Emmons defaulted on their loan.
The Bank purchased the property at a foreclosure sale. The Bank
divided the property into Tracts One, Two, and Three. At an
auction in 1984, the Bank sold Tracts One and Two to appellants
and Track Three to Curtis Flansburg. The contracts for sale each
contained the following language: "Subject to easement for
ingress and egress of record . . . ." The contracts did not
include an agreement to grant the purchaser an easement or a
statement that the property included an easement. In addition,
appellants' deeds stated that the land was "subject to the rights
of others to ingress and egress easement from Little Marrowbone
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Road of record . . . ." Appellants, however, claimed that the
Bank assured them that they had the right to use the driveway to
access Tracts One and Two. Later, in 1987, the Bank sold its
interest in the Driveway Tract to Flansburg. Finally, in 1991,
appellee purchased Tract Three and Flansburg's portion of the
Driveway Tract.
In December 1990, Timothy and Sherry Adcock, appellant's
son and daughter-in-law, moved a mobile home onto the
southwestern corner of Tract Two. At trial, Jerry Adcock
testified that he only used the Driveway Tract once or twice a
year prior to December 1990. In addition, he stated that,
although he did not use Tract Two that often, when he did go onto
the land he accessed it through the Adcock Tract.
In order to get to his home, Timothy Adcock filled in a
portion of a drainage ditch dug by Appellee. As a result, a
portion of appellee's driveway washed away. Appellee also
claimed that Timothy and Sherry Adcock's presence caused other
damage. Appellee verbally barred the Adcocks from using the
driveway. Despite appellee's notice, the Adcocks continued to
use the driveway claiming that Commerce Union Bank had granted
them an easement.
On 2 December 1991, appellants filed a complaint against
appellee and his wife. Appellants asked the court to enter a
decree stating that they had an easement over the Driveway Tract
and to award them damages. Appellee filed a complaint against
appellants and Timothy and Sherry Adcock on 23 December 1991.
The complaint asked the court to issue an injunction against
appellants and to award appellee damages. On 9 March 1992,
appellants and Timothy and Sherry Adcock filed their answer, and
Timothy and Sherry Adcock filed a cross-complaint seeking
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damages. The chancery court issued an order on 19 April 1993
transferring the cases for consolidation. The chancellor
dismissed Mrs. Witcher from the case because another court had
granted the couple a divorce. The chancery court heard the case
without the intervention of a jury and issued a memorandum
opinion on 2 February 1995. The chancellor held that appellants
failed to establish that they had a right to use the driveway.
In support of this conclusion, the court found that the deed to
Tract Two did not expressly grant appellants an easement. Also,
the chancellor held that there was no use of the driveway to
access Tract Two at the time of the conveyance and that the
easement was not necessary to the beneficial enjoyment of Tract
Two. Because both of these factors are essential to the creation
of an easement by implication, the chancellor held that there was
no easement. Finally, the court denied both parties request for
damages. On 16 February 1995, the chancellor entered a final
judgment permanently enjoining appellants from using the
driveway. From this judgment, appellants filed their notice of
appeal on 7 March 1995.
Appellants present one issue, whether the trial court erred
in finding that they do not have an easement over the Driveway
Tract. Appellants base their argument on three theories: 1)
express grant of easement; 2) easement by implication; and 3)
easement by estoppel. We will address each theory in the order
listed.
Express Grant of an Easement
A party may create an easement by express grant. In order
to do so, however, the grant "must contain all the formal
requisites of a grant of land. . . ." 10 Tenn. Jur. Easements
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§3 (1994); see also 25 Am. Jur. 2d Easements and Licenses §20
(1966). Words of grant are necessary to create an express
easement, and the instrument conveying the interest must contain
a description of the servient estate. Nunnelly v. Southern Iron
Co., 94 Tenn. 397, 410-14, 29 S.W. 361, 365-66 (1895); Miller v.
Street, 663 S.W.2d 797, 798 (Tenn. App. 1983). Further, an
"enforceable permanent easement may not be conferred orally. . .
." City of Whitwell v. White, 529 S.W.2d 228, 230 (Tenn. App.
1974).
The facts of this case include a long list of conveyances,
but only four of them convey an interest in an easement. The
first conveyance was between the Allens and the Emmons in 1974.
As evidenced by the installment deed, the Allens conveyed Tracts
One, Two, and Three, the Witcher Tract, and that portion of the
Driveway Tract lying east of the creek to the Emmons. The Allens
retained the Emmons Tract. At this point in time, there was a
driveway located on the Emmons Tract. This driveway extended
from the road approximately three-fourths of the way back to the
creek. The Allens granted the Emmons an easement interest in
this driveway.
In 1975, the Allens transferred the Emmons Tract with the
driveway to the Emmons. As a result, the rule of merger by unity
of title came into play. The rule is stated as follows: "'When
the owner of an estate enjoys an easement over another estate and
acquires title to the latter, the easement is thereby
extinguished.'" Vanderbilt University v. Williams, 152 Tenn.
664, 673, 180 S.W. 689, 691 (1925) (citing 19 C.J. Merger by
Unity of Title p. 945). In this case, the Allens granted the
Emmons an easement over the driveway portion of the Emmons Tract
in 1974. The Emmons then acquired title to the Emmons Tract.
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Thus, the rule of merger extinguished their easement interest.
Given the above, as of 1975, no one had an easement interest
in the Driveway Tract. This state of the land lasted for 7
years. In 1982, the Emmons conveyed the Witcher Tract to the
Richards. Under the terms of the deed, the Emmons expressly
granted the Richards an easement over the Driveway Tract. The
deed contained words of grant and described the land including
the easement by metes and bounds. The third conveyance occurred
in 1984. In that year, Collateral purchased the Witcher Tract at
a foreclosure sale. The trustee's deed properly granted
Collateral an easement. Then, in 1985, appellee purchased the
Witcher Tract. The deed granted appellee an easement and
described it appropriately.
It is apparent that no one ever granted appellants an
express easement over the Driveway Tract. Further, after the
Emmons' easement was extinguished, no party ever granted
appellants' predecessors in title an easement over the Driveway
Tract. Also, the deed to Tract Two, evidencing the conveyance to
appellants, specifically stated that the land was "subject to
rights of others to ingress and egress easement from Little
Marrowbone Road. . . . " Finally, in order to grant a party an
easement, the grantor must have some interest in the servient
estate. In this case the Bank, Adcock's purported grantor, only
had an interest in that portion of the Driveway Tract lying to
the east of the creek. Therefore, the Bank could not have
granted appellants an easement stretching the entire length of
the Driveway Tract. Clearly, appellants have no right to an
easement based upon the theory of express grant.
Easement by Implication
7
The reasoning behind implied easements is that a
grantor intends to include in a conveyance whatever is necessary
for the beneficial use and enjoyment of the property conveyed.
25 Am. Jur. 2d §24 Easements and Licenses (1966); see La Rue v.
Greene County Bank, 179 Tenn. 394, 407, 166 S.W.2d 1044, 1049
(1942). Implied easements, however, are not favored in the law,
and it is the policy of the courts to restrict the doctrine. In
order to establish an easement by implication, the party
asserting the right has the burden of proving all of the
necessary elements.
The first element is unity of title to both the dominant and
servient estates. Such unity must exist when the grantor conveys
the dominant estate to the party claiming an easement. Cole v.
Dych, 535 S.W.2d 315, 318 (Tenn. 1976); Line v. Miller, 43 Tenn.
App. 349, 352, 309 S.W.2d 376, 377 (1957). Also, there must be
use of the purported easement prior to the separation which is
continuous and obvious. Allison v. Allison, 29 Tenn. App. 99,
104-05, 193 S.W.2d 476, 478 (1945). In Jones v. Whitaker, 112
Tenn. App. 551 (1930), the court explained this requirement as
follows:
"The authorities are agreed and such is the rule
in [Tennessee] that when the owner of an entire tract
of land of two or more adjoining parcels, employs a
part thereof so that one derives from the other a
benefit or advantage of a continuous and apparent
nature, and sells the one in favor of which such
continues and apparent quasi easement exists, such
easement being necessary to the reasonable enjoyment of
the property granted will pass to the grantee by
implication. . . ."
Jones, 12 Tenn. App. at 554 (citing Powers v. Ward, 200 Ky., 478,
34 A.L.R., 230). As is apparent from the above quote, the third
element is that the easement be reasonably necessary to the
dominant estate at the time of the conveyance. See La Rue, 166
S.W.2d at 1050. The Tennessee Supreme Court held that it does
not have to be a strict or absolute necessity. Instead, the
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court stated that the an implied easement "should not arise
except where it is of such a necessity that it must be presumed
to have been within the contemplation of the parties." Id.
The facts of this case fail to satisfy the requirements of
all three elements. First, when the Bank conveyed Tract Two, the
purported dominant estate, to appellants, the Bank did not have
title to the entire servient estate, the Driveway Tract.
Instead, the Bank only had title to Tract Two and that portion of
the Driveway Tract lying to the east of the creek. Because the
Bank did not have title to the dominant estate and the entire
servient estate at the time it conveyed the dominant estate to
appellants, unity of title, element one, did not exist.
Next, there was never a continuous and obvious use of the
driveway to access Tract Two. Neither the bank nor any of the
other landowners ever used the driveway to access Tract Two. The
evidence in the record shows that previous owners only used the
driveway to access the Witcher Tract and the Emmons Tract.
Further, as the trial court found, prior to appellants ownership
of Tract Two, there was never a mobile home located on the
property. Therefore, no one could have used the driveway to
access the home.
Finally, the trial court held that appellants failed to
prove that the driveway was reasonably necessary to the enjoyment
of Tract Two. We agree with the holding of the trial court.
Appellants have access to Tract Two through the Adcock Tract and
Tract One. There is no necessity present. In fact, the only
factor present is mere inconvenience which does not rise to the
level of reasonable necessity.
Easement by Estoppel
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In order to prevail on an estoppel theory, the party
asserting a right to an easement must establish the following:
1) the owner of the servient estate made some misrepresentation
or failed to speak to the party; 2) the party must have believed
the communication; and 3) the party must have relied on the
communication. Charton v. Burgess, 1989 WL 105655, at *3 (Tenn.
App. 13 September 1989); Donegan v. Bryson, 1987 WL 18464 at, *2-
*3 (Tenn. App. 16 October 1987); see Moses v. Sanford, 70 Tenn.
655, 659 (1879); Moore v. Queener, 464 S.W.2d 296, 302 (Tenn.
App. 1970). "The principle of an estoppel of this character is
that the party who is to be effected by it has, by his own word
or conduct, misled another into a course of action that, if the
estoppel is not enforced, will work an injury to him who is thus
misled." Moses, 70 Tenn. at 659.
In this case, there were misrepresentations, but they were
not made by appellee. Instead, it was the Bank, a non-party, who
represented to appellants that they would be able to use the
driveway to get to Tracts One and Two. There is no evidence in
the record that appellee made any misrepresentations to
appellants. Further, there is no evidence that appellee knew of
the misrepresentations made by the Bank. Because appellee failed
to make any misrepresentations on which appellants detrimentally
relied, this court may not estop appellee from denying the
existence of an easement.
For the foregoing reasons, we find that there are no legal
or equitable arguments sufficient to merit a finding that
appellants have an easement over the Driveway Tract. Therefore,
the judgment of the trial court is affirmed, and the cause is
remanded to the trial court for any further necessary
proceedings. Costs on appeal are taxed to appellants.
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______________________________
Samuel L. Lewis, Judge
Concur:
______________________________
Henry F. Todd, P.J., M.S.
______________________________
William C. Koch, Jr., J.
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