Downey Oil Company, Inc. v. Slyreal Properties, Inc.

05/07/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 21, 2020 Session
DOWNEY OIL COMPANY, INC., ET AL. v. SLYREAL PROPERTIES, INC.,
ET AL.
Appeal from the Chancery Court for Knox County
No. 192167-1 John F. Weaver, Chancellor
No. E2019-01169-COA-R3-CV
This appeal concerns a dispute over an easement agreement (“the Agreement”). In 1995,
Samir F. Mishu and Faud E. Mishu, d/b/a M&M Investments (“M&M”), conveyed the
eastern parcel of certain land it owned to Excellent Properties, L.P. (“Excellent”). The
parties also entered into the Agreement, which provided for a future easement that would
connect their properties. The easement’s precise location and dimensions were
undefined. Years passed, both properties put in curbing without cuts on their boundaries,
and the easement went unutilized. In 2015, Downey Oil Company, Inc. (“Downey”),
then lessee of the western parcel, sought for the first time to construct and use the
easement. Slyreal Properties, Inc. (“Slyreal”), then owner of the eastern parcel, refused.
Downey and M&M (“Plaintiffs,” collectively) brought suit against Slyreal, Pinnacle
Bank and Hugh Queener, trustee (“Defendants,” collectively) in the Chancery Court for
Knox County (“the Trial Court”). Defendants asserted adverse possession and
abandonment. After a trial, the Trial Court ruled for Defendants. Plaintiffs appeal. We
find and hold, inter alia, that Defendants failed to prove by clear and convincing
evidence that the easement was extinguished by adverse possession or that it was
abandoned by Plaintiffs. We reverse the judgment of the Trial Court, and remand for a
determination of the easement’s location and dimensions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Cathy H. Morton and Ryan W. Goddard, Maryville, Tennessee, for the appellants,
Downey Oil Company, Inc., Faud E. Mishu, and Samir F. Mishu.
Arnold A. Stulce, Chattanooga, Tennessee, for the appellees, Slyreal Properties, Inc.,
Pinnacle Bank, and Hugh Queener.
OPINION
Background
The two subject properties are located on the north side of Kingston Pike in West
Knoxville. Cogdill Road runs south along the western boundary to Kingston Pike.
Center Park Drive runs south along the eastern boundary to Kingston Pike at a traffic
light. As shown in Exhibit 37 of the record, the scene looks1 as follows:
1
Image cropped slightly for formatting purposes.
-2-
In 1990, M&M, a general partnership then owning both subject properties, leased
the western parcel to BP Oil Company (“BP”). In January 1995, M&M conveyed the
eastern parcel to Excellent, a limited partnership owned by Pamela and Jeff Wilson.
M&M and Excellent also entered into the Agreement, which provided for a future cross-
easement. The Agreement stated, in part:
1. M&M, for itself, its successors and assigns, does hereby grant and
convey unto Excellent for the benefit of Excellent, its contractors,
subcontractors, tenants, invitees, heirs, successors and assigns, the
permanent and perpetual non-exclusive right and easement to use
approximately five parking spaces located on the M&M Site substantially
as shown as a clouded area on the site plan attached hereto as Exhibit A for
the parking of personal vehicles having not more than four wheels, to have
access to such parking spaces in a manner substantially shown on Exhibit
A, and to use such parking spaces in common with the owner of the M&M
Site, its tenants, successors and assigns, and all persons claiming by or
through it.
2. Excellent, for itself, its successors and assigns, does hereby grant
and convey unto M&M, for the benefit of M&M, its contractors,
subcontractors, tenants, invitees, successors and assigns, the permanent and
perpetual non-exclusive right and easement to use the paved driveways
which may be constructed by Excellent, its successors and assigns on the
portion of the Corner Site shown and marked on Exhibit A as “Future
Easement” for the purpose of pedestrian and vehicular access, ingress and
egress between the M&M Site and Center Park Drive. M&M, its
successors and assigns shall be responsible for repairing any damage to the
paved portions of the Corner Site resulting from its use of this easement,
including, but not limited to, cracking and other damage which may be
caused by trucks or heavy equipment.
3. M&M, for itself, its successors and assigns, does hereby grant and
convey unto Excellent, for the benefit of Excellent, its contractors,
subcontractors, tenants, invitees, successors and assigns, the permanent and
perpetual non-exclusive right and easement to use the paved driveways
which may be constructed by M&M, its successors and assigns on the
southerly portion of M&M Site from the area shown and marked on Exhibit
A as “Future Easement” to the driveway exits at substantially the locations
shown and marked on Exhibit A as “Approx. Curb Cut Locations” for the
purpose of pedestrian and vehicular access, ingress and egress between the
Corner Site and Kingston Pike and Cogdill Road. Excellent, its successors
-3-
and assigns shall be responsible for repairing any damage to the paved
portions of the M&M Site resulting from its use of this easement, including
but not limited to, cracking and other damage which may be caused by
trucks or heavy equipment.
4. All covenants, easements, agreements, conditions and restrictions
set forth in this Easement are intended to be and shall be construed as
appurtenances and covenants running with the land, binding upon, inuring
to the benefit of, and enforceable by, the owners of the Corner Site and the
M&M Site, their respective tenants, successors, and assigns, upon the
terms, provisions and conditions hereinabove set forth. This Easement
shall have priority over any and all mortgages, deeds of trust, declarations,
easements, liens or encumbrances whatsoever covering any part of the
Corner Site or the M&M Site.
5. The owner of the M&M Site shall have the right to terminate this
Easement upon ninety (90) days prior written notice to the owner of the
Corner Site. In the event of such termination, the owner of the M&M Site
shall, at its sole expense, install curbing or a similar barrier on the boundary
between the Corner Site and the M&M Site so as to block the driveway
between the parcels. Otherwise, this Easement and the rights, interests and
obligations created hereunder, shall be perpetual and may be terminated or
modified only by written agreement of the owner of the Corner Site and the
owner of the M&M Site.
6. Excellent warrants and represents that it has (i) fee simple title to
the Corner Site and, (ii) the full right and authority to execute and perform
this Easement.
7. M&M represents and warrants that it has (i) fee simple title to the
M&M Site and (ii) full right and authority to perform this Easement.
The Agreement was executed along with a deed to Excellent, and these were
recorded together on January 25, 1995. While the Agreement referenced an Exhibit A
containing more details, the precise location and dimensions of the future easement were
never spelled out. At this stage, the property was “rough graded” but undeveloped. Later
in 1995, Excellent installed a concrete curb without cuts along its boundary with the
western parcel. In 1997, BP began developing the western parcel in order to build a gas
station and a convenience store. That year, BP placed curbing without cuts on its
boundary with Excellent. Neither BP nor M&M insisted on use of the easement at this
time. In 2002, M&M leased the western parcel to BP’s successor in interest, Downey. In
February 2005, Excellent deeded the eastern parcel to Venture Enterprises, Inc. (an entity
-4-
that later became Slyreal). An office building is located on the eastern parcel. In 2010,
Slyreal installed a wrought iron fence on its boundary with the western parcel. In Fall of
2015, Downey approached Slyreal about finally using the easement. After some initial
discussion, Slyreal vetoed the project.
In August 2016, Downey filed suit against Slyreal in the Trial Court seeking
declaratory judgment and injunctive relief. Slyreal filed an answer and counterclaim,
asserting adverse possession and abandonment of the easement, among other things.
After some more procedural history unfolded, including the substitution and addition of
parties, Plaintiffs consisted of Downey and M&M, while Defendants consisted of Slyreal,
as successor in interest to Venture Enterprises, Inc.; Pinnacle Bank, successor in interest
to CapitalMark Bank & Trust, a lender holding a deed of trust; and Hugh Queener,
substitute trustee. Trial was held on October 1, 2018, October 2, 2018, and January 9,
2019. We proceed to summarize the pertinent testimony from trial.
James Slyman, former President of Slyreal, and Laura Slyman, President of
Slyreal, testified that the easement would be unsafe and disruptive for their businesses,
particularly if it were placed in the prominent central position Plaintiffs wanted. Laura
Slyman stated: “If an easement was positioned as proposed in the middle of my parking
lot, it renders the right side of my parking lot basically unusable. It’s a complete
devastation to our parking, to our businesses, the safety.” Laura Slyman stated further
that “[w]e would not have purchased this building had we known that there was an
easement agreement.” We note that the easement had been recorded on January 25,
1995. For his part, Sam Mishu of M&M testified to his enthusiasm for the easement:
“It’s not easy to leave the gas station or any other business and make a left turn or go east
on Kingston Pike . . . [c]onnecting property next to each other, it’s a plus for everybody,
for the town, for the highway, to reduce accidents, everything.”
Pamela Wilson, a predecessor in interest to Slyreal and an original signatory to the
Agreement, testified in part as follows regarding what she perceived to be the benefits of
the easement and why curbing had been installed on the eastern property:
Q. There’s something I wanted to ask you about. Who built the curbs that
we see in the pictures that we have looked at, who built those curbs?
A. Are you talking on the corner site property?
Q. On the corner site property.
A. On the parking lots?
Q. On the parking lots.
A. They were a part of the original construction.
Q. And would that have been Excellent Properties that constructed that?
A. Correct.
Q. And why were those curbs built?
-5-
A. Code.
Q. Did you intend in any way to obstruct the easement or to interfere with
easement access when you built those?
A. Absolutely not.
***
Q. You have testified that the easement agreement we are looking at,
Exhibit 1, that you were given five parking spaces, correct?
A. Correct.
Q. Why were you given five parking spaces? Is there any reason behind
that?
A. Yes, sir. The other variance we were given was because we could not
cram 40 parking places on that property, and they let us get by with 39. So,
you know, whenever this cross easement was built, it was going take out
four parking places. So Mr. Mishu agreed to give us five parking spaces on
his side of the property line to make us up to 40. Because any time you
mess with anything that the city has already agreed to, they have got to re-
agree. So when they look at it again, it’s better for us to have the 40
parking places.
Q. I understand. You say this was going to remove some of your parking
spaces when the easement crossed you, and that was the connection
between the two parking lots?
A. Right.
Q. Would this have in your opinion destroyed your parking spots?
A. No.
Q. Why is that?
A. Well, we were going to get the other parking -- we were giving up four
to get five.
Q. So you would gain an additional spot?
A. We would gain an additional parking spot.
Q. Were you concerned about any sort of danger or condition about having
a connection where these hash marks are, these dotted lines, between what
was labeled as a future BP station, and subsequently became a BP station,
having access to Center Park Drive, were you concerned about danger to
you or your tenants?
A. No.
Dennis Ragsdale, an attorney who had performed work for Sam Mishu over the
years and who had drafted the Agreement, testified to why the easement was left
undefined:
-6-
THE COURT: Is there anything I can look to on Exhibit A to determine the
width of the easement?
THE WITNESS: No, sir. A basic driveway, they have a right to use those
driveways as they are constructed. And the reason for that, Your Honor, is
so as not to limit or hamstring the parties developing this property so that a
building can’t be placed in a certain area. So it allows flexibility to develop
the property as along as [sic] the there’s a provision for the ability for the
other property to connect and use the driveways.
THE COURT: Do I understand at the time of the easement agreement that
there was no specificity of where the easements would be on the BP
property?
THE WITNESS: Yes, sir. We didn’t know where the buildings were going
to be. Unfortunately, that’s the way it’s done with a lot of shopping
centers, for this reason.
In June 2019, the Trial Court entered its detailed memorandum opinion and order
of dismissal. Ruling in favor of Defendants, the Trial Court found: (1) M&M lacked
authority to enter into the Agreement with Excellent because M&M was then leasing the
western parcel to BP and could not burden its lessee in that manner;2 (2) that the
easement was extinguished by adverse possession; (3) that Plaintiffs’ action to enforce
the easement was barred by adverse possession; and, (4) alternatively, that Plaintiffs
abandoned the easement, all by clear and convincing evidence. In its memorandum
opinion, the Trial Court stated, in part:
[on M&M’s authority to enter into the easement agreement]
After M&M leased the property to BP in 1990, M&M had no right to enter
upon the property or otherwise interfere with BP’s quiet enjoyment of the
property. See Southern Bell Tel. & Tel Co. v. Yates, 232 S.W.2d 796, 798-
99 (Tenn. Ct. App. 1950). In other words, M&M could not burden the
leased property with the easement in favor of Excellent Properties for five
parking spaces and for traveling over the leased property. The copy of the
lease attached to the original and amended complaint shows that a
memorandum of the lease was recorded in Book 2505, Page 0882, pursuant
to paragraph five of the lease, but does not show the date of the recording.
However, the lease document, on its face, shows that M&M failed to
reserve any right in its favor to burden the leased property with the cross-
2
The Trial Court noted the parties did not raise this issue, stating: “The parties have not raised any issue
in this case as to how M&M, after having leased the western parcel to BP Oil Company, was able to enter
into an easement agreement burdening that same property. However, this Court includes discussion of
that scenario below.”
-7-
easement agreement that it executed with Excellent Properties five years
later. See Bradley v. McLeod, 984 S.W.2d 929, 935 (Tenn. Ct. App. 1998)
(deed showed on its face that it failed to reserve the right to an easement
across the property conveyed). For the term of the lease, and at the time of
the lease agreement, as between M&M and BP, M&M could not grant to
anyone parking spaces upon the leased property or grant to anyone the right
to pass over the leased property. However, the record lacks evidence as to
when the memorandum of lease was recorded. If it was recorded prior to
M&M’s deed to Excellent, the easement agreement would not be
enforceable by anyone against BP or its successors in interest. See Tenn.
Code Ann. § 66-24-101(15). Likewise, if Excellent had actual or inquiry
notice of the lease, the easement agreement would not have been
enforceable against BP irrespective of whether it had been recorded.
However, the record is deficient in this regard.
Putting aside whether M&M lacked the right and authority to
execute the crosseasement agreement in violation of its lease to BP, the
Court’s first inquiry is whether the lease agreement’s omission of the
location and dimensions of the right-of-way easement over Excellent’s
property is fatal to the creation of the easement. The easement agreement
calls for the easement to be “as shown and marked on Exhibit A as ‘Future
Easement.’” However, the words “future easement” were never written
upon Exhibit A and there is no delineation of location or dimensions
whatsoever other than the plaintiffs’
argument that two faint lines or hash marks shown on Exhibit A constitute
the beginning points of the easement at the common boundary between the
two properties. The plaintiffs further argue that the easement is to go
straight across the Excellent property to the curb cut to Center Park Drive.
Regardless, the failure of an instrument to set out the location and
dimensions of an easement may nonetheless result in an enforceable
easement, known as a general easement. See Mitchell v. Chance, 149
S.W.3d 40, 45-46 (Tenn. Ct. App. 2004).
***
[on adverse possession]
The difference in elevation and curbing are directly hostile to both property
holders’ rights under the easement agreement — the rights of vehicular and
pedestrian access, ingress and egress. If the circumstances of this case were
such that the driveway had been constructed between the properties, then
the occasion of its use would be relevant in determining whether the
holding was adverse — i.e., whether the plaintiffs were refused. Because
-8-
the difference in elevation was never addressed and the curbs were installed
after the easement agreement, it is plain to see that both property holders, as
the servient estate holders, were acting hostile to the other’s rights.
“The idea underlining the whole doctrine of adverse possession is
that the possession should be maintained in an open and notorious manner,
so as to warn the true owner tha[t] a hostile claim is being asserted to the
owner’s land.” Bensdorff v. Uihlein, 177 S.W. 481, 483 (Tenn. 1915). The
possession in this case was plain, open, notorious, and amply sufficient to
put Downey, M&M, Excellent and Slyreal on notice. The property holders’
installing of curbs, without cuts, along the common boundary, in the face of
the difference in elevation, unmistakably indicated that the servient
property holder was asserting dominion over the easement, contrary to the
rights of the dominant property holder. The plaintiffs argue that local laws
required the installing of curbs. However, no argument was made that local
laws prevented curb cuts or prohibited reducing the slope and elevation
difference to make the properties accessible to each other.
There is no question in this case but that Excellent constructed the
concrete curb separating its property in 1995 and that BP constructed the
concrete curb separating his property in 1997. Excellent knew about the
easement agreement, while there is no proof that BP had knowledge of the
easement agreement other than the oral notice from Mr. Mishu to the
construction superintendent in 1997. Mr. Mishu, however, did not know
anything about the capacity of the unidentified superintendent to BP. There
is no issue that each property owner intended to construct a concrete curb,
which is referred to in the easement agreement as a barrier. M&M
permitted its lessee, BP, to construct the curb. Downey continued to
maintain the curb in its uncut form. BP and Downey kept the leased
premises at a higher elevation without objection from M&M. No issue has
been raised in the case concerning “tacking” to establish the requisite
number of years for adverse possession in this case, there being no hiatus
periods. See Cumulus Broadcasting, Inc. v. Shim, 226 S.W.3d 366, 377
(Tenn. 2007).
“[F]encing or enclosing property is an act that is most effective in
demonstrating adverse possession.” Michael v. Jakes, 2002 WL 1484448
at *10 (Tenn. Ct. App. July 12, 2002). In this case, the property holders
marked or separated their properties with concrete curbs without cuts. The
possession of each property holder is adverse to the other irrespective of
notice of the easement agreement or intent. See Cumulus Broadcasting,
Inc. v. Shim, 226 S.W.3d at 378 (discussing Gibson v, Shuler, 194 S.W.2d
865, 866-67 (Tenn. Ct. App. 1946)). Contrary to the petitioners’ argument,
-9-
there is no reason for the above principle to be limited to boundary line
cases and not applied to the context of adverse possession as a whole.
***
[on abandonment]
Here, Mr. Mishu told BP’s apparent construction superintendent about the
easement during the development of the BP project, but BP proceeded with
the development as if the easement did not exist. Likewise, Mr. Mishu nor
anyone else did anything on behalf of M&M to facilitate use of the
easement on the property leased to BP or across the property conveyed to
Excellent, now owned by Slyreal. For over 20 years, no one sought to
develop or maintain the easement on either property. BP, as well as M&M
and Excellent, left the properties with a 5 1/2 foot grade difference rendering
the two properties impassable by vehicle from one property to the other.
Each property holder constructed a concrete curb across the other’s
easement further rendering the easement impossible for passage by vehicles
from the other property holder’s parcel. Moreover, for about 6 1/2 years,
Downey and M&M made no objection to Slyreal’s construction and
maintenance of a fence along the western boundary of Slyreal’s property.
The purpose of the fence was to stop customers of Downey from parking
their cars on Slyreal’s property and walking across Slyreal’s property to
Downey’s store. Finally, BP developed and continued to utilize ingress and
egress at Cogdill Road and at Kingston Pike without indicating any intent,
for more than 19 years, to use ingress and egress from Center Park Drive.
The evidence in this case is clear and convincing that the holders of the
BP/Downey property evidenced an intent to abandon and not use any
easement to Center Park Drive and, during the same period of time, to not
recognize any easement in favor of Slyreal or Excellent for parking spaces
or passage to Cogdill Road.
Plaintiffs timely appealed to this Court.
Discussion
Plaintiffs raise four issues on appeal, but we consider two of these issues
duplicative. We therefore restate and consolidate Plaintiffs’ issues into the following
three dispositive issues: 1) whether the Trial Court erred in finding that M&M had no
authority to enter into the Agreement; 2) whether the Trial Court erred in finding that the
easement was extinguished by adverse possession; and, 3) whether the Trial Court erred
in finding that Plaintiffs abandoned the easement.
- 10 -
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). Certain of the issues on appeal implicate the clear and
convincing burden of proof. “Clear and convincing evidence means evidence in which
there is no serious or substantial doubt about the correctness of the conclusions drawn
from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992).
“An easement is a right an owner has to some lawful use of the real property of
another.” Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996) (citing Brew v.
Van Deman, 53 Tenn. (6 Heisk) 433 (1871)). There are a number of ways an easement
can be created in Tennessee, including by these methods: (1) express grant, (2)
reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain. Id. at
115-16. There appears to be no dispute that the purported easement in this case, should
an enforceable one exist, is an express easement.
The purported easement lacks specific dimensions or a precise location. As noted
by the Trial Court, such an easement still may be enforced, however. Regarding general
easements, this Court has stated:
If the description of the easement in the deed or other instrument is
inadequate or nonexistent, the courts may consider extrinsic evidence to
ascertain the parties’ intent regarding the location and dimensions of the
easement. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1237-
38 (Colo. 1998); Anchors v. Manter, 714 A.2d 134, 140 (Me. 1998);
Highway 7 Embers, Inc. v. Northwestern Nat’l Bank, 256 N.W.2d 271, 277
(Minn. 1977); Sacco v. Narragansett Elec. Co., 505 A.2d 1153, 1155-56
(R.I.1986); R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.
1999). The courts should take into consideration (1) the purpose of the
easement, (2) the geographic relationship between the dominant and the
servient tenements, (3) the use of each of the tenements, (4) the benefit to
the easement holder compared to the burden on the servient tenement
owner, (5) the admissions of the parties, and (6) the use existing at the time
of the easement’s creation. THE LAW OF EASEMENTS § 7:6.
Mitchell v. Chance, 149 S.W.3d 40, 46 (Tenn. Ct. App. 2004).
- 11 -
Having reviewed the relevant law on easements, we now address Plaintiffs’ issues,
the first being whether the Trial Court erred in finding that M&M had no authority to
enter into the Agreement. Plaintiffs correctly observe that neither party raised this issue
below. Rather, the Trial Court brought it up on its own. Plaintiffs argue that any
potential issue with M&M’s authority to enter the Agreement when it was leasing the
property to BP is moot because the current lessee, Downey, approves of the Agreement.
Further complicating matters, Defendants did not address in their brief this issue on
appeal. The Trial Court itself noted that the record lacks evidence with regard to when
the memorandum of lease was recorded, or whether Excellent had notice of BP’s lease.
The Trial Court has raised an interesting and thoughtful question. If M&M
attempted to burden its lessee with a cross-easement agreement without that lessee’s
consent during the term of its lease and that lessee opposed the burden, this case might
well have a different outcome. That is not the scenario before us. BP was lessee of the
western parcel at the time the Agreement was executed, but BP is not a party to this
appeal. We may not assume to know what BP’s stance is or was. We do know that BP’s
successor, Downey, has no issue with the Agreement, and, in fact, is suing along with
M&M to enforce the Agreement. Barring some other evidence to the contrary, M&M
could bargain for an agreement burdening its own property. No such evidence to the
contrary is forthcoming. The question is, therefore, moot. We reverse the Trial Court in
its finding that M&M lacked authority to enter into the Agreement.
We next address whether the Trial Court erred in finding that the easement was
extinguished by adverse possession. Our Supreme Court has discussed adverse
possession as follows:
In order to establish adverse possession under this [common law] theory, or
in any statutorily based claim, the possession must have been exclusive,
actual, adverse, continuous, open, and notorious for the requisite period of
time. Hightower v. Pendergrass, 662 S.W.2d 932, 935 n. 2 (Tenn. 1983);
cf. Menefee v. Davidson County, 195 Tenn. 547, 260 S.W.2d 283, 285
(Tenn. 1953). Adverse possession is, of course, a question of fact. Wilson
v. Price, 195 S.W.3d 661, 666 (Tenn. Ct. App. 2005). The burden of proof
is on the individual claiming ownership by adverse possession and the
quality of the evidence must be clear and convincing. O’Brien v.
Waggoner, 20 Tenn. App. 145, 96 S.W.2d 170, 176 (Tenn. Ct. App. 1936).
The actual owner must either have knowledge of the adverse possession, or
the possession must be so open and notorious to imply a presumption of
that fact. Kirkman v. Brown, 93 Tenn. 476, 27 S.W. 709, 710 (Tenn. 1894).
When an adverse possessor holds the land for a period of twenty years,
- 12 -
even absent any assurance or color of title, the title vests in that possessor.
Cooke v. Smith, 721 S.W.2d 251, 255-56 (Tenn.Ct.App.1986).
Successive possessions, or tacking, may be utilized to establish the
requisite period of years if there is no hiatus. Ferguson, 190 S.W. at 552;
Catlett v. Whaley, 731 S.W.2d 544, 545-46 (Tenn. Ct. App. 1987). . . .
Cumulus Broadcasting, Inc. v. Shim, 226 S.W.3d 366, 377 (Tenn. 2007) (footnote
omitted).
This case, however, does not feature a boundary dispute. Rather, it concerns the
enforceability of an easement. Both sides grapple with Boyd v. Hunt, 52 S.W. 131 (Tenn.
1899), an older Tennessee case analyzing adverse possession in the context of an
easement. Boyd featured a written grant of easement through an alleyway onto a street.
Id. The defendants had erected gates and doors blocking the easement. Id. at 132. The
plaintiffs’ efforts to enforce the easement were opposed by the defendants who asserted,
in part, that the “defendants, and those from whom they claim, have been in open,
exclusive, and adverse possession of that part of the alley in the rear of their lot since
1859, so that the easement now claimed by complainants has been long since
extinguished.” Id. at 131. Our Supreme Court rejected this argument, stating:
These gates and doors might have stood for an indefinite time, and the
defendants might have asserted to others their exclusive claim; yet, if they
did not make it known to those entitled to the easement as an appurtenant to
their estate by debaring them from its enjoyment, or otherwise asserting
such adverse right, they would not be affected by it. Their mere
maintenance of these gates and doors was not inconsistent with the rights of
these parties. They might well assume that they were erected to prevent
intrusion into the alley, and in the interest of all to secure it from the
commission of nuisances by outsiders.
Id. at 133-34.
Plaintiffs also cite a more recent case as additional support for their argument,
albeit one from another jurisdiction. The Supreme Court of Colorado, relying in large
measure on a rule articulated in the New York case of Castle Associates v. Schwartz, 63
A.D.2d 481, 407 N.Y.S.2d 717 (1978), held as follows regarding when an express
easement is terminated by adverse possession:
When an easement is expressly created but never used, we hold that use of
the easement area is not adverse and will not trigger the statutorily-
- 13 -
mandated period of time for adverse possession until the easement holder
needs to use the easement, demands to use it, and is denied the right to use
it.
Matoush v. Lovingood, 177 P.3d 1262, 1265 (Colo. 2008).
We agree with Plaintiffs that the proper analysis for adverse possession in a
boundary dispute differs somewhat from the analysis employed in a dispute over an
express easement. Plaintiffs make no claims to any of Defendants’ land, as such. The
issue herein is not that of a boundary. Rather, it is about use of land. That which may
reflect adverseness in the boundary context may not reflect adverseness in the case of an
express easement. The record reflects that Downey only approached Slyreal about using
the easement in 2015. There is no evidence that Downey, BP, or M&M ever had
attempted to use the easement before then only to be rejected. The Agreement was duly
recorded. It remains on the books; it did not simply go away. That the easement has yet
to be constructed is not necessarily dispositive.
The Trial Court relied heavily on the installation of curbs without cuts as evidence
of adverseness. However, Pamela Wilson testified that Excellent installed the curbs to be
consistent with code, not to bar M&M. Intentions aside, there was no easement to block.
The easement existed on paper, to be constructed at a later date. In the meantime, the
parties could develop their respective properties. When Downey attempted to move
forward with the easement in 2015, it was rebuffed. Before then, Excellent’s and later
Slyreal’s actions were simply those of property owners doing with their property as they
saw fit. In short, a curb did not signal adverseness; Slyreal’s refusal to let Downey begin
work on the easement did.
The Trial Court relied also upon the elevation difference between the properties.
The western parcel is about five and a half feet higher than the eastern parcel. This
difference is of no account because the evidence reflects that the properties have been on
different elevations since the Agreement was signed. No adverseness can be shown from
a feature that existed when the Agreement was signed. A pre-existing condition such as
this elevation difference is not a manifestation of adverseness; it is simply part of the land
at issue.
Defendants had to clear the hurdle of clear and convincing evidence to prove
adverse possession. In our judgment, they did not succeed. The adverse period began to
run only in 2015 when Downey’s attempt to finally utilize the express easement was
rebuffed. Suit was filed in August 2016. Therefore, Defendants cannot establish the
requisite 20 year period for adverse possession. Likewise, Defendants cannot rely upon
the seven year period found at Tenn. Code Ann. § 28-2-103 protecting adverse holders
- 14 -
from suits to oust them. See Shearer v. Vandergriff, 661 S.W.2d 680, 682 (Tenn. 1983).
Insufficient time has passed as to both. We reverse the Trial Court’s finding that the
easement was extinguished by adverse possession.
The final issue we address is whether the Trial Court erred in finding that
Plaintiffs abandoned the easement. Tennessee law provides that “[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). 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. 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. 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 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.3
Applying factor (1) from Hall, the evidence shows no statements of disavowal
from M&M. Indeed, the Agreement contained a specific termination clause that M&M
could exercise if it wished. The provision required M&M to provide 90 days prior
3
While these factors were applied to an unrecorded easement in Hall, we regard them as relevant for
consideration of a recorded easement, also. See Porter v. Freedle, No. M2001-01892-COA-R3-CV, 2002
WL 1315555, at *3 n. 2 (Tenn. Ct. App. June 18, 2002), Rule 11 appl. perm. appeal denied Dec. 2, 2002.
The parties and the Trial Court refer to these factors, as well.
- 15 -
written notice to the owner of the eastern property and place curbing or a similar barrier
along its boundary. Curbing was installed, but there is no evidence that M&M ever
disavowed the easement in writing. Factors (2) through (4) we regard as inapplicable
because the easement has not yet been constructed or utilized. The opportunity for its
maintenance has not arisen. It has thus far merely gone unused, and Tennessee law is
clear that non-use alone does not constitute abandonment. The final Hall factor, (5),
concerns the easement holder’s development of alternative access in lieu of the easement.
It is strictly true that Plaintiffs have alternative means of means of accessing the western
parcel, both on Kingston Pike and Cogdill Road. However, the Agreement gives
Plaintiffs access to Center Park Drive and thus a traffic light onto Kingston Pike.
Plaintiffs have no alternative access to this traffic light—the centerpiece of their interest
in the easement—in lieu of the easement.
The Hall factors weigh against Defendants’ position. Plaintiffs’ conduct over the
years is akin to mere non-use, which is insufficient to show abandonment of the
easement. We reverse the judgment of the Trial Court, and remand for a determination
of the easement’s location and dimensions.
Conclusion
The judgment of the Trial Court is reversed, and this cause is remanded to the
Trial Court for collection of the costs below and further proceedings consistent with this
Opinion. The costs on appeal are assessed against the Appellees, Slyreal Properties, Inc.
and Pinnacle Bank.
_____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
- 16 -