Charlie Lee Ingram v. Rebecca and Randy Wasson

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 28, 2011 Session
CHARLIE LEE INGRAM
v.
REBECCA AND RANDY WASSON
Appeal from the Circuit Court of Perry County
No. 3411 Jeffrey S. Bivins, Judge
No. M2010-02208-COA-R3-CV - Filed November 21, 2011
This appeal concerns the existence of an easement. The dispute between the two adjoining
landowners began after the defendant landowners blocked the plaintiff neighboring
landowner’s access to a roadway crossing over the defendants’ property. The plaintiff
landowner filed this action seeking condemnation or a finding of an implied easement for
access to the roadway over the defendants’ property, arguing that his property was
landlocked. Upon the admission into evidence of several affidavits, the trial court found both
an easement implied from prior use and, in the alternative, an easement created by necessity.
The defendant landowners now appeal. We affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. FA RMER, J., and
J. S TEVEN S TAFFORD, J., joined.
Thomas I. Bottorff, Brentwood, Tennessee, for the Defendant/Appellants Rebecca and Randy
Wasson.
Michael E. Spitzer, Hohenwald, Tennessee, for the Plaintiff/Appellee Charlie Lee Ingram.
OPINION
F ACTS AND P ROCEEDINGS B ELOW
This appeal arises from a dispute between adjoining landowners. Both parties’ tracts of land
were included in a 200-acre parcel of land in Perry County, Tennessee, purchased in August
of 1971 by Vacation Lands of America, Inc. (“VLA”) from Arthur G. Taylor. After the deed
was recorded in September 23, 1971, the land was subdivided into several different tracts.
Almost immediately, on October 28, 197l, VLA sold a thirty-acre tract of the subdivided land
to Mr. Alvin Jones, referred to in this Opinion as Parcel 12. Parcel 12 was the southernmost
or lowest parcel in VLA’s 200-acre tract and was the only VLA tract that adjoined Lick
Creek Road, a public road. VLA’s deed to Mr. Jones, recorded on November 11, 1971,
states: “This conveyance is subject to a road easement of 50 feet on the East boundary line
of the above described property.” The fifty foot road easement referred to in the Jones deed
connected Parcel 12 to what will be herein referred to as ridge road.1 Parcel 12 was
conveyed several more times until Plaintiff/Appellee Charlie Lee Ingram (“Ingram”)
acquired it on January 22, 2001.
In addition to Parcel 12, VLA sold several other parcels of land, including parcels referred
to herein as Parcel 7 and Parcels 6.0, 6.1, 6.2, and 6.3 (collectively “Parcel 6"). Parcel 7,
located in the most northern part of VLA’s original acreage, was purchased on December 6,
1971 by John Burns and Delbert Hart. Three original deeds to Parcel 7 contain the same
language regarding the fifty foot road easement on the eastern boundary line. At the time of
the proceedings below, Ingram owned Parcel 7 as well as Parcel 12, and
Defendant/Appellants Randy and Rebecca Wasson (collectively “the Wassons”) owned
Parcel 6, which is sandwiched between Ingram’s Parcel 12 and Parcel 7. The underlying
issue in this case concerns a roadway, referred to in the record as “hollow road,” that passes
from Parcel 12 owned by Ingram traveling north through the middle of Parcel 6 owned by
the Wassons and into Ingram’s Parcel 7.2 For ease of reference, Exhibit 1 from the
proceedings below, showing the tracts at issue, is appended to this Opinion.3
1
The record refers to ridge road in lower case letters.
2
The record refers to hollow road in lower case letters.
3
Exhibit 1, appended at the end of this Opinion, denotes Panel 12 (“PC 12”) and Parcel (“PC 7”), both owned
by Ingram, as well as Parcel 4 (“PC 4”), owned by Ingram but not at issue in this appeal, and Parcel 3 (“PC
3”) and Parcel 10 (“PC 10”), also not at issue in this appeal. Parcel 6 is not specifically denoted in Ex. 1,
but is the 81.70 acre tract of land that is surrounded by PC 12, PC 7, PC 4, PC 3 and PC 10. Hollow road
is the line going north/south through roughly the center of Parcel 6.
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In approximately 2004, a series of disputes arose between Ingram and the Wassons. These
disputes culminated in the Wassons taking actions to allegedly “block” Ingram’s access to
hollow road, which runs north-south through the center of the Wassons’ Parcel 6.
As a result, on June 15, 2005, Ingram filed a complaint against the Wassons in the General
Sessions Court for Perry County, Tennessee. The complaint sought an easement by
necessity, or in the alternative, condemnation of a right-of-way for Ingram’s benefit. The
complaint alleged that, on two occasions, the Wassons had blocked his access to hollow road.
It stated: “Parcel 7 is surrounded or enclosed by the lands of other people who refuse to
allow [Ingram] a private road to pass to or from his lands; and that [hollow road] is the most
adequate, convenient, and economical location for a private access road [to Ingram’s
property] located on Parcel 7 from Lower Lick Creek Road.”
On June 27, 2005, Ingram filed a motion for temporary injunctive relief, seeking to enjoin
the Wassons from obstructing his access to hollow road. In an affidavit filed in support of
the motion for a temporary restraining order, Ingram stated that hollow road has been in
existence and used by owners of the landlocked Parcel 7 for over seventy years and had been
used by him since his purchase of the tract in 2002. On July 12, 2005, after a hearing, the
General Sessions Court issued a temporary injunction against the Wassons, pending a final
disposition of the parties’ dispute. The Wassons appealed this order and, on October 17,
2005, the matter was transferred to the trial court below, the Circuit Court of Perry County,
Tennessee (“trial court”). Once the matter was transferred to the Circuit Court, the Wassons
filed an answer as well as a counter-complaint for damages and injunctive relief.4
On November 21, 2007, the Wassons filed a motion to dismiss and to dissolve the temporary
injunction. The Wassons filed two affidavits in support of the motion. After a hearing, the
Wassons’ motion to dismiss was denied. On July 1, 2008, the trial court held a hearing on
the Wassons’ motion to dissolve the temporary injunction.5 Shortly after the hearing, the trial
court entered an order finding that Ingram “does not have any other clear, easy or acceptable
present access to his 100 acre tract identified as parcel 7 other than the hollow road” and
ordered that the temporary injunction remain in effect pending a final hearing. The order
4
Subsequently, the trial court entered an order directing Ingram to amend his complaint to name additional
adjoining landowners as defendants, in view of the possibility that relief might be considered as to their
property. No issue on appeal is raised concerning any landowners other than Ingram and the Wassons.
5
The trial court’s order setting a hearing on the Wassons’ motion to dissolve the temporary injunction refers
to a hearing before the trial judge and a jury of view. However, the order on the Wassons’ motion does not
refer to a jury of view, and we have found no report by a jury of view in the record. For a discussion of the
use of a jury of view in a private condemnation suit, see Wolfe v. Jaeger, No. W2008-00923-COA-R3-CV,
2009 WL 723529, at *4 (Tenn. Ct. App. Mar. 19, 2009). The issue is not raised on appeal.
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states that the trial court’s decision was based on “the motion, statements of counsel for each
party, the judge traveling to and viewing the property6 with each party having the opportunity
to point out their respective positions, and upon the entire record.”
Subsequently, Ingram filed a second amended petition seeking condemnation or the
declaration of an easement by necessity. On November 13, 2008, Ingram filed a motion for
summary judgment on the theory of easement by necessity. In support of the motion, Ingram
filed three affidavits, a memorandum, and a statement of material undisputed facts.
On June 1, 2009, the trial court denied Ingram’s motion for summary judgment, finding that
there was a genuine issue of material fact. A trial date was set. However, the parties later
agreed that it was unnecessary to conduct a trial in which the parties called witnesses and
offered live testimony. The parties agreed that the trial court would make its decision based
on the evidence previously submitted by both parties in conjunction with Ingram’s summary
judgment motion and the Wassons’ motion to dismiss the temporary injunction. This
included the affidavits of various witnesses; the method on which the parties agreed
necessarily involved the trial court’s evaluation and assessment of the credibility of testimony
given by affidavit.7 The order gave the parties an opportunity to submit additional proof,
apparently by affidavit as well. Both parties did so. The Wassons filed an affidavit by a fact
witness and a report by an expert, a land surveyor. Ingram filed an additional affidavit by
a fact witness. The Wassons also filed a cross-complaint against other neighboring
landowners.
On December 16, 2009, the trial court conducted a hearing in which the lawyers argued the
case based on all of the pleadings, orders, affidavits, exhibits, and the record as a whole. The
affidavit testimony and other evidence considered by the trial court is summarized below.
The Wassons submitted the affidavit of Defendant/Appellant Rebecca Wasson. Ms. Wasson
described the series of transactions by which she came to own the tracts that comprise Parcel
6, initially with her first husband, Michael Garland, and then with Mr. Wasson. During much
of this time, Parcel 12 (through which part of hollow road runs) was owned by Robert and
Carolyn Van Swol (“the Van Swols”). Ms. Wasson asserted that, in 1986, she and her then-
husband Michael Garland and the Van Swols constructed the hollow road at issue. Ms.
Wasson stated that, even prior to 1986, she used the hollow road on Parcel 12 as a driveway,
6
At this point, the case was assigned to Judge Robbie Beal, who viewed the property at issue. The case was
later transferred to Judge Jeffery S. Bivins, who issued the decision being appealed herein. The record does
not indicate that Judge Bivins viewed the property at issue.
7
No issue on appeal is raised as to the agreed trial by affidavit testimony.
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with the permission of the Van Swols, based on her friendly relationship with them when
they owned Parcel 12. Ms. Wasson described several property disputes in the area since her
purchase of the land in 1972. In particular, she described a dispute that arose in 1995
between the then-owners of Parcel 12 and 7 over the use of hollow road, which ultimately
culminated in a meeting of the interested parties. Ms. Wasson stated that she was in
attendance at this meeting, and the dispute was resolved by allowing the owner of Parcel 7
to use hollow road to access Parcel 12 and the public road. After Ingram acquired Parcel 12
in 1997, Ms. Wasson said, at one point Ingram had called her in Memphis to ask if he could
hunt and plant some corn on their property, which she allowed for a limited time, and then
later withdrew her permission. Ingram later acquired Parcel 7 in 2002, she said. Ms. Wasson
suggested in her affidavit that Ingram asked for permission to complete some road work on
the Wassons’ property in order to access Parcel 7.8 She states that at that point, she felt
“something might be amiss” and later discovered that Ingram had extended the old logging
trial to reach Parcel 7. She indicated that Ingram had crossed their property on numerous
occasions, and had allowed other persons to do so, all without the Wassons’ permission.
The Wassons submitted the affidavit of L. Brooks Garland (“Mr. Garland”), a lawyer, who
did a title search and attempted to trace the existence of both ridge road and hollow road,
based on deeds in the Perry County Register of Deeds.9 From his review, Mr. Garland
opined that ridge road has been in existence for at least 69 years and that VLA “recognized
its existence and intended that it be used as an access road from Old Hollow Road to the
parcels it sold.” In his affidavit, Mr. Garland found the first reference to hollow road in a
1993 deed from Parcel 12’s former owners, the Van Swols, to the Wassons in which the
Wassons were granted a right-of-way easement over Parcel 12 via both ridge road and hollow
road. Attached as exhibits to Mr. Garland’s affidavit were the source documents on which
he relied, including recorded maps and numerous deeds.
Ingram submitted the affidavit of Mr. Wayne Leeper, a neighbor of Ingram. Mr. Leeper
stated that, in the 1960s, he and his father farmed the land that belonged to Ingram and to the
Wassons at the time of the trial. He stated that he and his father “always accessed the
property by the hollow road that [Ingram] uses and which leads from Lick Creek Road.” Mr.
Leeper also said that he was familiar with several old ridge roads leading from Lick Creek
Road, but “there has never been any roadway that was used to gain access to the Ingram 100
8
Ms. Wasson intimated, but did not say expressly, that she did not grant Ingram permission to complete the
road work; she said only that she was surprised to find that Ingram had cut a road beyond the place where
they had previously crossed the creek, but had not visited in nearly two years.
9
It is not stated in the record whether Mr. Garland is related to Ms. Wasson’s former husband, Michael
Garland.
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acre tract [Parcel 7] other than the existing hollow road that Ingram currently uses.” Mr.
Leeper asserted that, at the time VLA purchased the entire 250-acre tract, “the hollow road
used by [Ingram] was the only access available and used for the back tract which [Ingram]
currently owns. . . . [and] in the 60’s that you could travel the hollow road and go out the
hollow up a back ridge and onto Owl Creek” in a jeep, but he was unsure that it was passable
at this time.
Ingram filed the affidavit of Mr. Ellis McKnight10 (“Mr. McKnight”), another resident of
Perry County familiar with the land at issue. Mr. McKnight stated that, in the 1950s, he
“would use the hollow road from Lick Creek Road and to the present 100 acre tract owned
by Lee Ingram [Parcel 7] and hunt in this area.” He said that he was aware of “many hollow
and ridge roads leading off from Lick Creek Road, but [he was] not familiar with any road
which was used to gain access to the Ingram 100 acre tract [Parcel 7] other than the current
road [Ingram] uses in this hollow.”
Ingram filed another affidavit by a long-time resident of Perry County, Mr. Ray Hinson (“Mr.
Hinson”). Mr. Hinson stated that the hollow road in question was formerly a wagon road that
could be traveled all the way out from Lick Creek Road along the base of the ridge and into
Parcel 7. He expressed confidence that the “hollow road which is currently being used, and
was the same one used in 1941, was also the road that accessed the property when [VLA]
purchased the property and real estate agent Bob Mathis” had an interest, either as seller or
owner. Mr. Hinson recalled that in approximately 1947, when he was about fourteen, he and
his stepfather attempted to cut timber off a tract adjoining Parcel 7. Due to the steep hills,
they were forced to use the hollow road to drive the timber down, as well as to access his
stepfather’s corn crops, as it was the only way to access Parcels 6 and 7.
Ingram filed an additional affidavit by real estate agent Jonathan Mark Mathis. Mr. Mathis
stated that he was a real estate agent for many years with his father, and that he and his father
marketed the property for VLA when VLA owned all of the parcels at issue. Mr. Mathis said
that he was involved as the selling agent for Parcel 7, and that he eventually purchased that
parcel in 1992. Mr. Mathis stated: “From the beginning of the purchase by [VLA] in 1971
and to the date of my father’s and my purchase of [Parcel 7], the access to [Parcel 7] was
along a hollow roadway that ran at the base of a ridge and along the current roadway used
for access to that property.” Subsequently, as a real estate agent, Mr. Mathis sold Parcel 7
three times, one of which was to Ingram. Each time Mr. Mathis showed the property, he
used the hollow roadway, and to his knowledge each time he showed it for VLA, there had
10
In the Wassons’ brief, Ellis McKnight is referred to as “Ms. McKnight” and as “she.” This Court is unsure
of Ellis McKnight’s gender. However, since Ingram presumably solicited McKnight’s affidavit and refers
to McKnight as “Mr. McKnight” and “he,” for the purpose of this appeal we will do the same.
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never been any other access to the property other then the access road currently used by
Ingram, “the existing roadway in the hollow,” apparently referring to hollow road.
The Wassons filed the affidavit of their former neighbor, Carolyn Van Swol.11 Ms. Van
Swol stated that what Ingram referred to as hollow road existed in 1979, but at that time there
was an “old grown-up logging trail on [Parcel 12] that . . . was blocked with many growing
trees and downed trees. It was barely recognizable as any kind of trail at all and it was not
passable.” Ms. Van Swol stated that due to the inability to pass, the Van Swols and the
Wassons had a mutual agreement under which each allowed the other to cross the other’s
fields to access Parcels 12 and 6, respectively. Ms. Van Swol stated that, at some point, the
logging trail was cleared and extended to create what is now hollow road, but she was not
clear on when this was done. Ms. Van Swol stated that ridge road was clear of trees and
brush and easily transversed; there was no time frame for this assertion. In her affidavit, Ms.
Van Swol claimed that Mr. Mathis told her that the only way to access Parcel 7 was via Owl
Hollow Road, a public road, but that she gave Mr. Mathis’s father permission to use hollow
road at some unspecified time.
Ingram filed a second affidavit by real estate agent Jonathan Mark Mathis, who represented
VLA in 1971. In this second affidavit, Mr. Mathis refuted several of the assertions in the
affidavit by Ms. Van Swol. Of relevance, Mr. Mathis claimed in the second affidavit that
it was the obvious intent of VLA “that the Hollow Road be the access for all tracts as we
marketed them for sale.” He insisted that, “[i]n showing the properties, I never accessed
Parcel 7 by any route other than by way of the Hollow Road. . . .”
In addition, the record includes the affidavit of Scottie Brewer, a registered land surveyor.12
In his affidavit, Mr. Brewer said that he reviewed the deeds to the Wassons and Ingram tracts
as well as neighboring tracts, and that he surveyed the property. Mr. Brewer stated that he
“looked for express easements for access . . . [and] did not find any express easement granted
to Ingram or his predecessors in title that would allow him to gain access from any adjoining
property owner and to [Parcel 7] which is, otherwise, landlocked.” Mr. Brewer stated
11
The affidavit of Carolyn Van Swol that is contained in the appellate record seems to be missing the
signature page and possibility more pages, as the affidavit abruptly ends at paragraph 10 and does not seem
to be signed or notarized. However, it appears that her affidavit was considered by the trial court. No issue
on appeal is raised as to any deficiencies in Ms. Van Swol’s affidavit.
12
The record does not reflect which party submitted the affidavit of Scottie Brewer. In Mr. Brewer’s
affidavit, he refers to having prepared numerous surveys for the Wassons, and his affidavit was filed
approximately the same time as the Wassons’ answer and their other supporting affidavits. However, the
Wassons claim in their appellate brief that Ingram filed the affidavit of Brewer without giving the Wassons
prior notice.
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“without reservation that the hollow roadway . . . is the only access to [Parcel 7] which is
accessible with a two (2) wheel drive vehicle” and that he “did not find any roadbed leading
from the ridge road along the properties of Heartwood Forestland that leads down the steep
grade and into the Ingram tract identified as [Parcel 7].” With respect to the fifty foot road
easement mentioned in VLA’s deed to Alvin Jones, Mr. Brewer stated that, in his survey, he
discovered “no roadway, but only an all terrain vehicle trail, that leads from the southeast
corner of Wasson [Parcel 6] and the northeast corner of [Parcel 12] and to a 4 wheel drive
passable ridge road which begins approximately 381.71 feet from the northeast corner of”
Parcel 12. He stated bluntly that he “found no express easement from any direction for
access to the landlocked [Parcel 7].”
The record also included numerous deeds and several maps as to the parcels of land at issue.
A video of the property was submitted as well.
On July 27, 2010, the trial court issued an oral ruling. The oral ruling was reduced to writing
in a judgment13 dated September 22, 2010, which incorporated by reference a transcript of
the oral ruling. In the lengthy written order, the trial court carefully outlined the basis for its
finding that Ingram had established by a preponderance of the evidence both an implied
easement and an easement by necessity along hollow road across the Wassons’ Parcel 6, for
ingress and egress to Parcel 7.
In its analysis of the implied easement, the trial court cited Cellco Partnership d/b/a/ Verizon
Wireless, et al. v. Shelby County, Tennessee, et al., 172 S.W.3d 574 (Tenn. Ct. App. 2005),
and specifically the factors for an implied easement that were recited in that case. These
elements are: (1) separation of title; (2) prior to the separation, long-established and obvious
use, showing that the use was intended to be permanent; (3) a showing that the easement is
essential to the beneficial enjoyment of the land granted or retained; and (4) continuous
servitude, as distinguished from temporary or occasional. Id. at 589. With respect to the first
element, separation of title, the trial court stated that it needed “only go back in time to the
property at issue being owned by [VLA]” to find separation of title. With respect to the
second element, that the easement be “long established and obvious or manifest as to show
that it was meant to be permanent” at the time of the title was separated, the trial court stated
that it considered the affidavits of Mr. Leeper, Ms. Van Swol, and Mr. Garland, but that it
gave “greater weight” to the affidavits of Mr. McKnight, Mr. Hinson, and Mr. Mathis
because they did not appear to have a direct stake in the outcome of the litigation. See id. at
589. After “balancing” this testimony, the trial court found that Ingram “has carried his proof
13
The original document was entitled Final Judgment, however, the word “Final” was marked through and
initialed by the trial judge.
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by a preponderance of the evidence that there has been a long established and obviously
manifest use involved in the ‘hollow road’ to show that it was meant to be permanent.”
With respect to the third element of an easement by implication, the necessity that the
easement be essential to the beneficial enjoyment of the land, in the context of the case, the
trial court interpreted this element as whether or not Parcel 7 is in fact landlocked. After “a
careful review of the deeds” and after considering “the Affidavits14 of Scottie Brewer, the
Defendant’s land surveyor, the Court cannot find any express easement or any type of
easement which would prove that the land was anything other than landlocked.”
With respect to the fourth element for an implied easement recited in Cellco, that the
easement be continuous rather than temporal or occasional, the trial court concluded that “the
Court cannot find any evidence to show that ‘hollow’ roadway was intended to be a
temporary road or for occasional use, . . . [based] on the Affidavit testimony of Mr. Leeper,
Mr. McKnight, Mr. Hinson, and Mr. Mathis.” The trial court noted that it had considered the
Wassons’ argument that any use of hollow road was an easement in gross, but stated that it
found to the contrary, specifically, that it found “an easement appurtenant.” Thus, the trial
court held that that there was an easement by implication in favor of Ingram’s use of hollow
road over the Wassons’ property.
As to an easement by necessity, the trial court also looked to Cellco, enumerating the
following elements: (1) the titles to the tracts in question must have been held by one person;
(2) the unity of title must have been severed by the conveyance of one of the tracts; and (3)
the easement must be necessary for the owner of the dominant estate to use his land, with
necessity existing at both the time of the severance and at the time of exercise of the
easement. Cellco, 172 S.W.3d at 592. It found that the first two elements were clearly
established. With respect to the third element, the trial court stated:
Upon the proof, the Court finds that even if the Appellate Court held that the
“hollow road” was not in existence at the time of the severance of title, the use
of the “hollow road” would be necessary because Parcel 7 is landlocked . . .
[and] the Court specifically finds that the proper location of the easement by
necessity would be the present “hollow road” that is at issue in this case.
14
The appellate record includes only one affidavit by Scottie Brewer. There is no explanation in the record
as to why the trial court refers to more than one and the parties do not offer an explanation in their briefs.
However, we note that Ingram does briefly reference a letter written by Mr. Brewer on June 25, 2007
attached to the map survey. The statement by the trial court may be a reference to this letter by Mr. Brewer.
At any rate, no issue on appeal is raised regarding the trial court’s reference to the “affidavits” of Mr.
Brewer.
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The trial court explained that, to make this finding, it relied on the affidavit of Scottie
Brewer, to the effect that hollow road is the only roadway that would allow two-wheel drive
vehicles to pass. The trial court also found no evidence of a reasonable, alternative route for
Ingram to obtain access to and from his property other than via hollow road.
Two days later, on September 24, 2010, the trial court made the September 22, 2010 order
final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.15 Citing Brown v.
John Roebuck & Assocs., Inc., et al., No. M2008-02619-COA-R3-CV, 2009 WL 4878621,
2009 Tenn. App. LEXIS 853 (Tenn. Ct. App. Dec. 16, 2009), the trial court found that the
September 22, 2010 order resolved a single, separable claim. The trial court noted that still
pending was Ingram’s claim for damages stemming from the Wassons’ alleged interference
with his easement to use hollow road. It found no just cause for delay in making the
September 22, 2010 order final, explaining its reasoning as follows:
A review of these factors [in Brown] in the instant case leaves this Court to
conclude that there are no just reasons for delay in this case. First, there are no
additional unadjudicated claims between these parties other than the possible
award of damages to the Plaintiff for the Defendants’ interference with the
Plaintiff’s use of the easement. Second, the need for review in no way would
be mooted by the Court resolving the potential damages claim remaining in
this action. Third, the appellate court would not have to consider the same
issue a second time. The Plaintiff has asserted no additional theories under
which he would be entitled to the easement at issue in this case. Fourth, there
is no counterclaim which could result in a set off against the judgment sought
to be final in this case. Finally, as miscellaneous factors, this Court would note
that if the Court of Appeals were to reverse the judgment in this case, there
would be no need for a damages trial. Additionally, if the Court were to
reverse this judgment, it could result in Plaintiff having to pursue other claims
against new parties, resulting in additional litigation. To require the Plaintiff
to litigate those potential claims, particularly now in light of the fact that they
have obtained a favorable judgment from this Court, seems to be a substantial
waste of judicial resources, time, and money on behalf of numerous parties.
15
Rule 54.02 of the Tennessee Rules of Civil Procedure states in relevant part,
When more than one claim for relief is present in an action, whether as a claim,
counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the
court, whether at law or in equity, may direct the entry of a final judgment as to one or more
but fewer than all of the claims or parties only upon an express determination that there is
no just reason for delay and upon an express direction for the entry of judgment. . . .
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For all these reasons, the Court concludes that there is no just reason for delay
in this case.
See Brown, 2009 WL 4878621, at *8; 2009 Tenn. App. LEXIS 853, at *22-23 (listing the
factors relied on by the trial court).
On January 18, 2011, the trial court entered an approved Statement of the Evidence, pursuant
to Rule 24(e) on the Tennessee Rules of Appellate Procedure. In pertinent part, the
Statement of the Evidence provided:
1. The issue presented to the trial court on December 16, 2009 was
limited strictly to whether or not a common law implied easement or an
easement by necessity was created along an existing, long traveled “hollow
road” when Vacation Lands of America, a common owner of both Plaintiff
and Defendants, developed their property into various tracts and land locked
their remaining property, including the Plaintiff’s 100 acre tract by selling their
only tract with road frontage prior to the sale of the 100 acre tract and failing
to make any express reservation for access to the remaining tracts.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, the Wassons argue that the trial court erred in ruling that Ingram has a common
law implied easement for access to Parcel 7 via hollow road which runs through Parcel 6,
owned by the Wassons, and in finding a common law easement by necessity in favor of
Ingram.
In a property dispute, 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); Fowler v. Wilbanks, 48 S.W.3d 738, 740 (Tenn. Ct. App. 2000). In order for the
evidence to preponderate against the trial court’s findings of fact, the evidence must support
another finding of fact with greater convincing effect. Rawlings v. John Hancock Mut. Life
Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001).
“[I]t is the role of the trier of fact to evaluate all the evidence and assess the credibility of the
witnesses.” Mix v. Miller, 27 S.W.3d 508, 514 (Tenn. Ct. App. 1999) (citing Norman v.
Hoyt, 667 S.W.2d 88, 91 (Tenn. Ct. App. 1983)). Ordinarily, where the trial judge observed
the witnesses’ in-person testimony, we accord “considerable deference” to those findings,
because the trial court is best suited to making those credibility determinations. Tenn-Tex
Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425 (Tenn. 1989). In this case,
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however, none of the witnesses gave live testimony in court; by agreement, all of the
testimony was submitted by affidavit. The standard of review differs in such situations:
[A]ppellate review of documentary proof, such as depositions or other forms
of testimony presented to the trial court in a “cold” record, differs
considerably. When reviewing documentary proof, all impressions of weight
and credibility are drawn from the contents of the evidence and not from the
appearance of witnesses and oral testimony at trial.
Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Under these
circumstances, the appellate court may make an independent assessment of the witnesses’
credibility, in that the appellate court is “in just as good a position as the trial court to judge
the credibility of witnesses who provided the proof.” Id. at 783-84; Elmore v. Travelers Ins.
Co., 824 S.W.2d 541, 544 (Tenn. 1992).
A NALYSIS
Appellate Jurisdiction
Before turning to the issues raised on appeal, we note that, under Rule 13(b) of the Tennessee
Rules of Appellate Procedure, this Court considered whether it has subject matter jurisdiction
to hear this appeal. Lack of appellate jurisdiction cannot be waived. Meighan v. U.S. Sprint
Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). This Court may consider its own
jurisdiction sua sponte, even if it is not raised by the parties. In re Estate of Boykin, 295
S.W.3d 632, 635 (Tenn. Ct. App. 2008). “Unless an appeal from an interlocutory order is
provided by the rules or by statute, appellate courts have jurisdiction over final judgments
only.” Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990). A final judgment
resolves all of the issues in the case, “leaving nothing else for the trial court to do.” In re
Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (quoting State ex rel. McAllister
v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997)). Rule 54.02 is an exception to this
rule; it permits a trial court to direct the entry of a final order as to fewer than all of the
claims or parties upon an express finding that there is no just reason for delay. Newell d/b/a
Solowell v. Exit/In, Inc., et al., No. M2003-00434-COA-R3-CV, 2004 WL 746747, at *1,
2004 Tenn. App. LEXIS 209, at *3-4 (Tenn. Ct. App. Apr. 7, 2004).
The determination of whether Rule 54.02 certification is proper is not always easy. This
Court looks de novo at whether the judgment certified as final under Rule 54.02 is in fact as
to a separate claim, appropriate for such certification. See, i.e., Christus Gardens, Inc. v.
Baker, Donelson, Bearman, et al., No. M2007-01104-COA-R3-CV, 2008 WL 3833613, at
*3-5 (Tenn. Ct. App. Aug. 15, 2008). This Court may conclude that Rule 54.02 certification
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was improvidently granted where “the issue which the trial court declared final and
appealable is inextricably linked with the remaining issues not yet decided.” Crane v.
Sullivan, No. 01A01-9207-CH-00287, 1993 WL 15154, at *2 (Tenn. Ct. App. Jan. 27, 1993).
The trial court’s finding under Rule 54.02 that there is no just cause for delay, and the
ultimate certification as final, is reviewed under an abuse of discretion standard. Newell,
2004 WL 746747, at *2 (listing factors to be considered).
As noted by the trial court, remaining for resolution is Ingram’s claim for damages against
the Wassons for blocking his access to the road in question. In addition, we note that the
Wassons asserted cross-claims against other neighbor defendants, asserting other means for
Ingram to access his property. Certainly the resolution of the remaining claims pivots off the
decision on the claim in this appeal, namely, an easement by implication or necessity to
hollow road on the Wassons’ property in favor of Ingram. However, our analysis of the
claim at issue in this appeal is not affected by the trial court’s resolution of the issues that
remain pending in the trial court. Thus, the claim at issue in this appeal is not so
“inextricably linked” with the claims remaining below that we are unable to resolve the
issues on appeal. We agree with the trial court’s conclusion that the claim on appeal was
separable for the purpose of Rule 54.02 certification. In addition, we find no abuse of
discretion by the trial court in finding no just cause for delay, and in its Rule 54.02
certification of the judgment as final. Therefore, we consider the issues raised in this appeal.
Easement
“An easement is a right an owner has to some lawful use of the real property of another.”
Cellco, 172 S.W.3d at 588 (quoting Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App.
1996)). In Tennessee, an easement may be created in several ways, including: (1) express
grant, (2) reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain.
Pevear, 924 S.W.2d at 116.
The trial court in this case found two types of easement, an “easement by implication” and
an “easement by necessity.” Both types of easement were addressed in this Court’s decision
in Cellco. See Cellco, 172 S.W.3d at 588-93. Differentiating between the two types of
easements can be confusing.
Some clarification can be achieved by reference to the Restatement (Third) of Property (“The
Restatement”). The Restatement states that the intent to create an easement, or servitude,
“may be express or implied. No particular form of expression is required.” Restatement
(Third) of Prop.: Servitudes § 2.2 (2008). The terms or circumstances surrounding the
conveyance of an interest in land may give rise to an implied easement or servitude. Id. at
cmt (b).
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In this case, both types of easement found by the trial court are, in fact, implied easements.
See 25 Am. Jur. 2d, Easements and Licenses §§ 19-38 (2004) (types of easements created
by implication); see also Cellco, 172 S.W.3d at 591 (easement of necessity “is a type of
easement by implication”) (quoting Gowan v. Crawford, 599 So. 2d 619, 621 (Ala. 1992)).
The first type, referred to by the trial court and in Cellco as an “easement by implication,”
is termed in the Restatement as a “Servitude[] Implied From Prior Use.” Restatement
(Third) of Prop.: Servitudes § 2.12. See also Am. Jur. 2d, Easements and Licenses § 22
(“Easements Implied from Preexisting Uses: Generally”). The Restatement describes it as
follows:
Unless a contrary intent is expressed or implied, the circumstance that
prior to a conveyance severing the ownership of land into two or more parts,
a use was made of one part for the benefit of another, implies that a servitude
was created to continue the prior use if, at the time of the severance, the parties
had reasonable grounds to expect that the conveyance would not terminate the
right to continue the prior use.
The following factors tend to establish that the parties had reasonable
grounds to expect that the conveyance would not terminate the right to
continue the prior use:
(1) the prior use was not merely temporary or casual, and
(2) continuance of the prior use was reasonably necessary to
enjoyment of the parcel, estate, or interest previously benefited
by the use, and
(3) existence of the prior use was apparent or known to the
parties, . . .
Restatement (Third) of Prop.: Servitudes § 2.12. The Restatement explains that the rule
regarding easements implied from prior use is based on the assumption that people intend to
buy and sell land with the existing access arrangements, and it furthers the policy of
protecting the reasonable expectations and the intent of parties to such transactions. Id. at
cmt (a). Compare 25 Am. Jur. 2d Easements and Licenses §§ 25-29 (listing requisites for
easement by implication from preexisting use), Cellco, 172 S.W.3d at 589 (listing elements
for easement by implication).
The second type of easement found in this case by the trial court was referred to by the trial
court and in Cellco as a common law easement by necessity or “way” of necessity. See
Cellco, 172 S.W.3d at 591-92. Similarly, the Restatement refers to this type of easement as
a servitude or easement “created by necessity.” See Restatement (Third) of Prop.:
Servitudes § 2.15 (“Servitudes Created By Necessity”); see also 25 Am. Jur. 2d Easements
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and Licenses § 30 (“Ways of Necessity”). The Restatement describes this type of easement
as follows:
A conveyance that would otherwise deprive the land conveyed to the
grantee, or land retained by the grantor, of rights necessary to reasonable
enjoyment of the land implies the creation of a servitude granting or reserving
such rights, unless the language or circumstances of the conveyance clearly
indicate that the parties intended to deprive the property of those rights.
Restatement (Third) of Prop.: Servitudes § 2.15; see also Cellco, 172 S.W.3d at 592 (listing
prerequisites for a finding of an easement by necessity). The Restatement explains that the
rule on an easement created by necessity is based in part on the presumed intent of the parties
to convey, or retain, all rights necessary to permit the enjoyment of the subject property,
including the right of access. Restatement (Third) of Prop.: Servitudes § 2.15 cmt (a). It is
also based on public policy favoring utilization of land and the avoidance of the cost of
requiring a landlocked property owner to acquire access rights from a neighboring
landowner. Id.; see also Cellco, 172 S.W.3d at 591-92.
As can be seen, there is considerable overlap between an easement implied from prior use
and an easement created by necessity.16 Both are implied, both arise from a conveyance, both
hinge on a finding of necessity. Hence, the confusion. To distinguish between them, an
easement created by necessity “does not depend on a prior use” and the fact that any prior use
“is permissive is irrelevant to the question [of] whether [an] easement [created by] necessity
will be deemed to exist.” 25 Am. Jur. 2d Easements and Licenses § 32. Moreover, an
easement created by necessity “need not be in existence at the time of the conveyance” and
may allow for a route of access where one previously did not exist. Id.; see Cellco, 172
S.W.3d at 591.
With these parameters in mind, we consider the issues raised on appeal.
Easement Implied From Prior Use
As the first issue raised on appeal, the Wassons assert only that “the trial court erred in ruling
that [Ingram] has a common law implied easement to access” Parcel 7. Such an issue raised
on appeal gives the appellate court little insight into the argument the Wassons seek to make.
The argument portion of the Wassons’ brief on this issue asserts that VLA “created an
express access easement by reservation” in its deed of Parcel 12 to Mr. and Mrs. Jones.
16
To help distinguish between the two types of implied easement, we will utilize the terminology used in the
Restatement (Third) of Property.
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Specifically, the Wassons rely on language found in the 1971 deed from VLA to Alvin Jones
conveying Parcel 12 and later also found in three deeds conveying what is today Parcel 7 to
Hart and Burns. The language on which the Wassons rely provides: “This conveyance is
subject to a road easement of 50 feet on the East boundary line of the above described
property.” The Wassons argue that “it was VLA’s intention for the 50 foot road easement
to continue from Parcel 12, across the [Wassons’] Parcel 6 tracts to and through what today
is [Ingram’s] Parcel 7.” They rely on the testimony of Mr. Garland. The thrust of the
Wassons’ argument is somewhat unclear, but they appear to argue that, because of the
express road easement for “ridge road” along the eastern boundary of their Parcel 6, Ingram’s
Parcel 7 is not in fact landlocked, so the element of necessity for the easement implied by
prior use was not proven.
As relied upon by the Wassons, Mr. Garland’s affidavit stated that VLA “utilized an
abundance of caution in providing this road right of way easement to assure a connection
to [Ingram’s] and [the Wassons’] parcels to the south of [Ingram’s] Parcel 7 in case some of
the old ridge road bed lay on what is now, the Heartwood Forestland Property.” The trial
court acknowledged the affidavit testimony by Mr. Garland, and stated explicitly that it gave
greater weight to the testimony of other witnesses, including the surveyor relied upon by
Ingram, Scottie Brewer. In his affidavit, Mr. Brewer states that he “looked for express
easements for access . . . [and] did not find any express easement granted to Ingram or his
predecessors in title that would allow him to gain access from any adjoining property owner
and to the . . . Parcel 7 which is, otherwise landlocked.” From our review of the record, the
map, as presented, shows several large trees obstructing the alleged ridge road roadway and
Mr. Brewer’s affidavit asserts that four wheel drive or an ATV would be required to access
ridge road along the eastern boundary of the Wassons’ property. From our careful review
of the record as a whole, we find no errors in the trial court’s decision to credit the testimony
of Mr. Brewer over that of Mr. Garland. Consequently, we find no error in the trial court’s
finding that it could not “find any express easement or any type of easement which would
prove that [Ingram’s] land was anything other than landlocked.”
In the alternative, as to the trial court’s finding of an easement implied from prior use, the
Wassons argue that the required elements were not proven. They rely on the elements recited
in Cello that must be established in order to find an easement implied from prior use:
(1) A separation of the title; (2) Necessity that, before the separation takes
place, the use which gives rise to the easement shall have been long
established and obvious or manifest as to show that it was meant to be
permanent; and (3) Necessity that the easement be essential to the beneficial
enjoyment of the land granted or retained. Another essential is sometimes
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added to these -- namely, that the servitude be continuous, as distinguished
from temporary or occassional [sic].
Cellco, 172 S.W.3d at 589; Haun v. Haun, No. E2004-01895-COA-R3-CV, 2005 WL
990566, at *4; 2005 Tenn. App. LEXIS 252, at *9-10 (Tenn. Ct. App. Apr. 28, 2005);
Johnson v. Headrick, 237 S.W.2d 567, 570 (Tenn. Ct. App. 1948); Allison v. Allison, 193
S.W.2d 476, 477 (Tenn. Ct. App. 1945).
The Wassons do not dispute the first element, separation of title, to their parcels by virtue of
the division of a larger tract, once owned by VLA. The Wassons argue that Ingram failed
to prove the second element, that prior to the separation, the use at issue was “long
established” and “manifest as to show that it was meant to be permanent.” Cellco, 172
S.W.3d at 589. The Wassons contend that VLA did not own the property long enough to
satisfy this requirement, and that the evidence did not show that the prior use was “manifest”
or “obvious.”
To evaluate the trial court’s finding on this element, we look at the evidence upon which it
relied. The trial court stated that it gave “greater weight” to the affidavits of real estate agent
Jonathan Mark Mathis. Mr. Mathis’ affidavit stated that, at the time of the severance, he and
his father were the real estate agents acting on VLA’s behalf. Mathis asserted that ever since
he became acquainted with the property and began showing it for VLA, he had never known
of any access other than hollow road. Mr. Mathis said that each and every time that he
showed the property for sale, his access to it was along hollow road. Mr. Mathis claimed that
“[i]t was [VLA’s] obvious intent that the Hollow Road be the access for all tracts as we
marketed them for sale . . . . there was no plat of the development filed but the hollow road
was the access we and [VLA] owners used to develop and show each tract.”
Mr. Mathis’ affidavit testimony was indirectly corroborated by some of the affidavits filed
by Ingram in this cause. For example, neighbor Wayne Leeper stated: “At the time [VLA]
purchased the entire 250 acre tract, the hollow road used by Lee Ingram was the only access
available and used for the back tract which Lee Ingram currently owns.” Perry County
resident Ray Hinson stated: “This hollow road which is currently being used, and was the
same one used in 1941, was also the road that accessed the property when [VLA] purchased
the property. . . .” Another Perry County resident, Ellis McKnight, stated that he was “not
familiar with any road which was used to gain access to [Parcel 7] other than the current road
[Ingram] uses in this hollow.”
We find that the trial court did not err in crediting the testimony in these affidavits. We also
find that this is sufficient proof for the trial court to find that the second element was
established by a preponderance of the evidence.
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The third element of an easement implied from prior use requires that the continuance of the
prior use be reasonably necessary to the beneficial enjoyment of the land granted or retained.
Cellco, 172 S.W.3d at 592; Fowler, 48 S.W.3d at 741. As the Wassons concede, when a
conveyance results in the dominant parcel being landlocked, this satisfies the “reasonably
necessary” requirement. Cellco, 172 S.W.3d 592; Fowler, 48 S.W.3d at 741 (affirming the
trial court’s holding that landlocked property rendered the use of a gravel access road
“reasonably necessary” to the enjoyment of a plaintiffs’ land). The Wassons contend that the
trial court erred in declining to find that the alternate modes of access advocated by the
Wassons meant that Ingram was not in fact landlocked. Specifically, the Wassons point to
the alleged ridge road along with the eastern boundary of their property. The trial court
below stated that, in finding that Ingram’s property was landlocked, it carefully reviewed the
deeds and the affidavits of Scottie Brewer. Mr. Brewer surveyed the property, and stated in
his affidavit that he “did not find any roadbed leading from the ridge road along the
properties of Heartwood Forestland that leads down the steep grade into [Parcel 7].” Mr.
Brewer refers to Ingram’s parcel as landlocked, and states that there may have been many
other roadbeds, but the only one accessible with a two wheel drive vehicle is in fact hollow
road. We note that a previous trial judge assigned to this matter viewed the property in
question, concluded that Ingram “does not have any other clear, easy or acceptable present
access to [Parcel 7] other than the hollow road,” and continued the temporary injunction
based on that observation. From our review of the proof, we find no error in the trial court’s
finding that the element of reasonable necessity was proven by a preponderance of the
evidence.17
Consequently, based on our careful review of the record as a whole, we agree with the trial
court’s finding of an easement implied from prior use in favor of Ingram as to hollow road.
Easement Created by Necessity
The Wassons recognize the different elements required to prove an easement created by
necessity, and argue that the trial court erred in finding such an easement. Again, the
Wassons’ argument is not entirely clear, but they appear to contend that the element of
necessity was not shown, for many of the same reasons addressed above. The Wassons point
17
We note that Cellco seemed to allude to a fourth element requiring the easement be continuous as
distinguished from temporary or occasional. See Cellco, 172 S.W.3d at 589. However, this appears to be
subsumed within the other three long-established elements. Id. (requiring that the easement be “long
established” and “obvious or manifest as to show it was meant to be permanent”); see also Restatement
(Third) of Prop.: Servitudes § 2.12 (listing three factors to establish easement implied from prior use); 25
Am. Jur. 2d Easements and Licenses §§ 25-29. Therefore, we do not address it separately.
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to an exhibit in the record on a 2009 transaction for which Mr. Brewer acted as a surveyor
and, in doing so, apparently referred to the “ridge road” at issue in this case. They note that
the deeds to the properties at issue do not mention hollow road. The Wassons seek to
minimize or discredit the affidavit testimony of Ellis McKnight, Ray Hinson, and Wayne
Leeper, submitted by Ingram. Prior to the acquisition of the overall tract by VLA, the
Wassons argue, there was “only an easement in gross” as to hollow road. They again point
to the language in some of the deeds referring to a 50 foot road easement on the eastern
boundary, namely, the alleged ridge road.
As noted above, if a parcel is landlocked, the element of reasonable necessity is typically
met. Peach v. Medlin, No. W2003-02152-COA-R3-CV, 2004 WL 948481, at *12; 2004
Tenn. App. LEXIS 302, at *34 (Tenn. Ct. App. Apr. 28, 2004)(“On a conveyance which
leaves the land conveyed or retained surrounded by the land of the grantor or grantee and
third persons, a way of necessity is implied in favor of the landlocked parcel.”). We have
reviewed the evidence to which the Wassons point, the reference to Mr. Brewer’s survey, the
language in the deeds, and the evidence as to ridge road. We have also reviewed the
evidence on which the trial court relied in finding reasonable necessity, including but not
limited to the affidavit of Mr. Brewer. For the reasons outlined in our analysis above of an
easement implied from prior use, in this analysis of an easement created by necessity, we find
that the element of reasonable necessity was proven by a preponderance of the evidence. For
those reasons, we conclude that the trial court did not err in finding an easement created by
necessity as to hollow road in favor of Ingram.
C ONCLUSION
The decision of the trial court is affirmed. Costs on appeal are assessed against
Appellants Rebecca and Randy Wasson and their surety, for which execution may issue if
necessary.
_______________________________________
HOLLY M. KIRBY, JUDGE
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