### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE CRESTIN BURKE, ET AL 

### . v. JAMES MONTY BURKE, ET AL 

### . Direct Appeal from the Chancery Court for Scott County

No. 8026, Billy Joe White, Chancellor

No. E1999-02481-COA-R3-CV - Decided May 10, 2000

This is a suit wherein th

e Plaintif fs soug ht an easement by reason of real property being landlocked. The defendants contended that the property was not landlocked. The Chancellor found that the property was landlocked and granted an easement to the property. The plaintiffs appealed. We find that the Trial Court's action was appropriate and affirm the judgment entered. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed G ODDARD , P.J., delivered the opinion of the court, in which S USANO and S WINEY , JJ., joined. Michael Hatmake

r of Jacksboro fo

r the Appellants Johnny V. Dunaway of LaFollette for Appellees

OPINION This is a property dispute between some of the bene ficiaries under the Last Will and Testament

of Rilda Burke. Mrs. Burke owned two tracts of property - an upper tract and a lower tract. Shortly before her death, she g ave port ions of the lower tr act she owned to th

e defendants, reserving only a life estate in the property. After her death, the upper tract of property was ordered to be sold by the Probate Court because her estate was insolvent. The upper tract, however, in the opinion of the plaintiffs was landlocked. The plaintiffs filed suit seeking an easement giving access from a public road to the upper tra ct over portions of the property owne

d by defendants. I

n this appeal, the defendants,

James Monty Burke and Carissa Joy Burke, are challenging the decision of the Scott County Chancery Court ordering an easement across their property. I. FACTS RildaBurke was the second wife of Will Hade Burke

, who died in April

1970. Rilda Burke died in September 1995 at the age of eighty-eight. She and Mr. Burke had ten children. Two of her t en chil dren, James Lesto r Burke and Minda A

nn Williams, qualif

ied to administer he

r estate in Probate Court and filed an action against all other family members, includingseveral children that1 Mr. Burke was previo usly married to

Winnie West. They had the following children: Ova, Mitchell, Ester, Alice Burke Walker, and Dorothy Burke Marcum. The children of Mr. Burke and Rilda Burke children are: Connie Burke Terry, Lewis B urke, T. L. Burke, Howard Burke, J. D. Burke, Elizabeth

Burke Boyatt, Minda Ann Williams, Jessie Burke, Creston Burke, and Lester Burke.

2 This tract was called by various names: Tract 19, the Silas West tract, and t he upper tract.

5 C onnie Burke Terry, Le wis Burke, T. L. Bur

ke, Howard Burke

, J. D. Burke, Eliza

beth Burke Boyatt, Minda Ann Williams, Jessie Burke, Crestin Burke, and Lester Burke. 

### -2- Mr. Burke had by a prior

marriage. 1 Subsequently, Mrs. Burke’s Last Will and Testament, naming her daughter, Connie Terry, as Executrix, was discovered under a floor board in her house and filed withthe Scott County Proba te Court. As a resu

lt, Connie Terry, Executrix, was substituted as a party for James Lestor Burk

e and Minda Ann Wil

liams, co-administ

rators of Mrs. Burke’s estate. The Probate Court declared M

rs. Burke’s estate insolvent and ordered a sale of her assets to satisfy the debt. The estate’s only a sset wa s a 71.56 acre tract of land. 2 The plaintiffs insist the upper tract was landlocked. None of the parties wanted their land to be burdened with an easement to the upper tract. The parties were unable to reach agreement on a right-of-way t o the property an d this suit resulted. A. BACKGROUND Mr. and Mrs . Burke owned two tracts of realty in Scott County, Tennessee. Mr. Burke purc hasedthe lower tract in November 1922 from William Phillips. He purchased the upper t rac t in October 1954 from E. C. Terry. After Mr. Burke’s death in 1970, the heirs of Will Hade Burke 5 executed a Warranty

Deed to four tracts of land to Rilda Burke, the widow of Will Hale Burke. It appea rs that the P robate Court dete rmined that Mr. Bur

ke only leased por

tions of the proper

ty referenced in the Warranty Deed and did not actually own all the land.

B. HISTORY OF THE UPPER AND LOWER TRACTS Untilshortly before he

r death, Mrs. Burke owned these two tracts of land - the upper tract andthe lower tract. The upper tract is directly to the north of the lower tract. The year bef or e her death, Mrs. Burke executed three deeds affecting the ownership of land in the lower trac t. The first was to her da

ughter, Minda Ann W

illiams. This deed c

onveyed a six acr

e tr a ct, tract 19.03, and a one acre

tract, tract 19.05. Mrs. Williams then conveyed the six acre tract to Garry andLisa Williams, her son and daughter-in-law. She conveyed the one acre tract to her son-in-law anddaughter, Larr

y Pendegrass and B everly Pendegra ss. These tracts l

ie to the south of the

county maintained road. The second deed

for nine acres, tract 19.02, was conveyed to James Monty Burke and Carissa6 David Laxton is unrelated to the parties to this suit and is not himself a party.

7 This property is alre

ady subject to an e

asement [the cou

nty maintained public

road] on the southern portion of the property. 

### -3- Joy Burke, who are chil dren of James Le

ster Burke. This wa

s the tract of land

on which Mrs. Burke’s home was located and where the county maintained road ended. The third deed was also to James Monty Burke and Car issa Joy Bur ke for the forty-four acres, tract 19.04, surrounding the homeplace tra ct. The county mainta ined road travel

ed across this tra

ct to the home plac

e. Mrs. Burke reserved

a life estate in bo

th of these tracts

. Directly to the west of the lower

tract is a road, which has been maintained by the county. This road comes off of S tation Camp Road and runs by a church, Tract 16; across a tract of land ownedby Crestin Burke, tract 12.02; across a tract of land owned by J. D. Burke, tract 19.01,along the side of the six acre tract, tract 19.03, owned by Mr. and Mrs. Williams; then along the side of the one acre tract, tract 19.05, owned by the Mr. and Mrs. Pendegrass, to the home place, or lower tract. There is no dispute by the parties that this is a county maintained public road. The defendants contend that there is an easement by prescription , Mitchell Road, lying directly to the west of the up

per tract of lan

d. Mit chell Road all

egedly goes from S

tation Camp Road at the southern edgeof property owned by David Laxton 6 on the north and the northern edge of property owned b

y Crestin Burke on th

e south, and then di

rectly through pr

operty owned by J. D. Burke. 7 The defendants aver that this easement has been in effect since 1919.

C. TESTIMONY AT TRIAL OF PRINCIPAL WITNESSES

TESTIMONY OF CRESTIN BURKE Crestin Burke, is one of the ten children of Will Hade Burke and Rilda Burke. He testified that his half-brothers, Herman Burke, Mitchell Burke and Ovie Burke lived in residences located on the upper tract and

used the Mitchell Road f or ingress and eg

ress. Mitchell Bur

ke lived there unt

il the late 1950's. Ovie Burke lived th ere until the ear

ly 1960's. Since the

n only hunters, logg

ers, and farmers have occasionally used the road.
He and David Laxton bought their property, which is immediate west of the upper and lower tracts of land, from Anderson Hoffstettler and Hillsboro Corpo

ration in 1995. The

ir deeds call

for their boundary line to be the center of Mitchell Road. He also testified that in 1978 through 1980, he used a roadwa

y located on the we

stern portion of th

e lower tract to l

og the upper trac

t.

### -4- TESTIMONY OF DOROTHY MARCUM Dorothy Marcum, 85, is Mr. Burke’s daughter by his first marriage. She testified about8 Dorothy Marcum testimony was unclear as to what road or path she is talking about. For

example: Q Do you know where that school was located? A Yes, ma’am. Q Where? A Well, now, I don’t know whether you know or not, but it was way over the back of Bill West’s. Now, a lot might know where it was. That’s where I went. You see, now I was seven year old and I’d walk up to the road -- Q Which road were you walking on? A Do what? Q Which road were you walking on? A Well, I got up to the road and I went on the main road, you know. Q The main road? A The main road, way downthere a piece, then I cut off and went through that road well that’s there now. Q Which road is that ? A Well, you turn off way down at that main road, you know, you turn off and that was the school where I w

ent.

. . . Q So, you crossed the ir property to get

to the school? A Yeah, I went that very road. Q You went from Station Camp to a road across their property? A Yeah, I went to – y eah, that’s the w

ay I went to school

. T. p. 107, lines 4-25; p. 108, lines 22-25; p. 109, lines 1-4. 

### -5- crossing the property of

Mitchell and Ovie Burke to get to her school around 1917. However, her testimony was not ve

ry enlightening to t

his court. 8
TESTIMONY OF ALICE WALKER Alice Walker, 77, is another of Mr. Burke’s daughters by his first marriage. She testified that she and her husband b

uilt a house near Mitc

hell Burke’s house. She lived there three different times beginning in 1940. Her husband drove a school bus

at times. When her

husband would

get laid off, they w ould move back to the home on the upper tract of land. When she was young Bethelona Church was located back where her brother Mitchell Burke lived. The church was torn down and rebuilt down the road. She does not know who owned the land, but she thought her father owned it. TESTIMONY OF WILDA BURKE COLLINS Wilda Burke Collins was married to Mitchell Burke. She and Mitchell were married in 1939. They lived on the upper trac t from 1939 until

1963. She lived close to the Burke’s property before she married Mitchell. In 1936, she first saw logging trucks use Mitchell road. The house was built on land owned by Mr. Burke. Mitchell kept cattle on the land in the 1960’s. She has not returned

### -6-

to the property sinc

e Mitchell

died in 1971. She doesn’t know who owned the property which they crossed going from Station Camp Road to their residence. TESTIMONY OF LISA W ILLIAMS Lisa Williams testified by deposition thatshe and her husband had been married for over ten years. Her mother-in-law made a gift to her of land

on which she and he

r husband built thei

r home. Rilda Burke haddeeded the property to her mother-in-law. During that period of time

Lisa Williams andher husband, Gary, had been on the upper tract property several times using the Mitchell Road. II. HOLDING OF THE TRIAL COURT A default judgment was ente

red against Larr

y and Beverly

Pendegrass on October 21, 1997. On March 13, 1998 a voluntary non-suit was taken as to James Lester Burke and Minda Ann Williams. On Marc

h 13, 1998, Connie Te

rry was substitute

d as a party as Exe

cutrix of the Esta

te of Rilda Burke. During the trial of the case the plaintiffs non-suited their case against Mr. and Mrs. Gary Williams and

Mr. and Mrs. Larr

y Pendegrass. By order entered on April 27, 1998, Chancellor Billy Joe White found that a roadway c

ould notbe located acro

ss the real property owned by J. D. Burke, Crestin Burke and David Laxton because the roadway commonly known as Mitchell Road was never held a dversely; an d David Laxton, who would be a necessary party, was not made a party to the litigation. [T]he 71.5 acre tract of land owned by the Estate of Rilda Burke a s descri bed in paragraph 4 of t he Complaint and be

ing a portion of the

property descri

bed in Warranty Deed Book 1 33, Pag e 336 in the Register’s office for Scott County, Tennessee, is the dominant estate and the 44 acre tract of land and a 9 acre tract of land owned by James Monty Burke and Carissa Joy Burkeas described in W arranty Deed Book 205, Page 248 and Warranty Deed Book 205, Page 473 in the Register’s Office f or Campbell County, tennessee, are the subservient estate. These tracts of land were previously owned by a common grantor, Rilda Burke. [T]he dominant estate is entitled to an easement across the subser vient estate as a way of necessity

f rom the 71.5 acre tract to the County road, since the dominant estate is landlocked. The Chancellor then held additional hearings to determine the location of the roadway along a route “that will be

the least expensi

ve, most convenie

nt and least intrusi

ve to the subservie

n t estate.” On September 9, 1998, he found two of the three alternative routes for the easement to be cost-prohibitive andthat the roadway should beconstructed along the route as proposed by surveyor,9 Counsel for the defenda nts in oral argument conceded that if the plaintiffs were entitled to an easement, the one chosen by the court was an appropriate one. 

### -7- Jerry Crutchfield, as alternative C or 3 9 at th e he aring held on August 11, 1998. He ordered as follows: [T]he do minant estate, consisting of approximately

71.5 acres, as de

scribed in paragraph 4 of the co mplaint, is hereby granted a permanent roadway easement which shallrun with the land, a cross the subserv

ient estate owned by James Mon

ty Burke and Carissa Joy Burke (as described in Warranty Deed Book 205, page 248 andWarranty Deed Book 205, page 473) as a way of necessity from the 71.5 acres to the country road.
To aid plaintiff with constru ction of the roadway, plaintiffs are granted a 50' wide temporary easement to give t he road builder a

dequate space for moving equipment which constructing the roadway. The 50' temporary easement shall be marked by temporary flags placed by plaintiffs’ surveyor. Plaintiffs shall secure the placement of an a

ppropria t e culvert where the roadway crosses the creek. On December 1, 1998, the Chancellor entered an additional order setting forth the permanent right-of-way in metes and bounds , acrossthe real proper ty owned by James Mon

ty Burke and his sister, Carissa Joy Burke. Defendants

James Monty Burke and Carissa Joy Burk e filed a motion seeking a new trial which was denied by the C hancellor. Subse

quently, James Mont

y Burke andCarissa Joy Burke filed a timely appeal. III. ISSUES The single issue pr

esented for our r

eview is: Did the Chancellor err in holding a 71.5 acre t ract of realty “landlocked,” and therefore a dominantestate entitled to a permanent easement as a way of necessity over the subservient estate? IV. LAW, DISCUSSION and HOLDING Our standard of revi

ew is a s follow s: "Unless otherwise required by statute, review of findings of fact by the trial court in civil actions sha

ll be de novo upon the

record of the tr

ial court, a ccompanied

by a presumption of the correctness of the finding, unless the preponderance of th e evidence is otherwise." Rule 13(d), Tennessee Rules of Appellate Procedure.

### -8-

In a de novo review, the parties are entitled to a reexamination of the whole matter of law and fa ct and this court should render the judgment warranted by the law and evidence. Thornburg v. Chase , 606 S.W.2d 672 (Ten n. Ct. App. 1980); AmericanBuildings Co. v. White , 640 S.W.2d 569 (Tenn. Ct. A pp. 1982); R ule 36 of the Tennessee Rules of Appellate Procedure. No such presumption, ho wever, attaches to conclusions of law. Adams v. Dean Roofing Co. , 715 S.W.2d 341, 343 (Tenn. Ct. App. 1986). Ad ditionally, it is a well-establ ished principle th

at the trial court

is in the best position

to assess the credibility of the witnesses; accordingly, such determinations are entitled to great weight on appeal. Massengale v. Ma ssengale , 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995 ); Bowman v. Bowman , 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). An easement is An interest in

land owned by another person, consisting in the right to use or control the land, or an area above or below it,

for a specific

limited purpose (such as to cross it for access to a public road). Black’s Law Dictionary 527 (7th ed. 1999).

An easement which by grant, reservation or pres cription is appurte nant to land is nota mere privilege to be enjoyed by the person to whom it is granted or by whomit is reserved. It passes by a deed of such person to his grantee and follows the land without any mention whatever. 10 Tenn. Juris., Easements , § 2. The doctrine of implied easements, however, are not favored in the law. The burden of proof rests with the person asserting it to show the existe nce of all facts

necessary to cr

eate by implication an easement appurtenant to his estate. Such easements basically are founded on conveyances and are premised upon the presumption that they were within the contemplation of the parties andmust be supported by a unity of title. Line v. Miller , 43 Tenn. App. 349, 309 S.W.2d 376 (1957). “If the land granted is partly surrounded bythat of the grantor and partly by that o

f strangers, a right of way over

the remaining lan

d of the grantor e

xists by necessi

ty. If the land retained is surroundedby the land conveyed and the land of strangers , the gra ntor is entitled to a way of necessity over the land conveyed.” See generally , Morris v. Simmons , 909 S.W.2d 441 (Te nn. Ct. App. 1993) andcases cited therein at 444. As in the present c ase, the only issue

on appeal in Morri

s was w hether the trial court erred in finding that the complainant was entitled to the right-of-way upon the theory of implied reservation based upon necessity. In Morris the plaintiff’s predecessor in title owned the tract of land that included both the complainant’s and the defe ndant’s property. The plaintiff’s property was retained and the property owned by defendant was conveyed. In Morris the plaintiff’s land was surround by the land of the defen dant and by a c urve of the river . In this case, the Plaintiffs’ land is surrounded by land of the Defendants and strangers. The Court in Morris quoted with approval fro

m Harris v. Gray , 28 Tenn. App. 231, 188 S.W.2d 933 (1945), as fol lows:

### -9- The most recent case

of ourcourts on the prec ise question here

involved is the case of La Rue v. Greene County Bank , supra . After reviewi ng decisions of this state and of other jurisdictions our Supreme Court stated the rul e to be, La Rue v. Greene County Bank , 179 Tenn. 394, 409, 410, 166 S.W.2d 1044, 1050: "We think it is not in conf

lict with our own ca

ses, or the gener

al rule of law app

licable to impli edeasements, to hold that such easeme

nt will not arise upo

n the sale of th e servient tenement in favor of

the owner o f the dominant estate, unless it is of such reasonable

necessity to the full enj oymen t of the dominant tenement as to create a clear presumption in

favor of the gra

ntor. And this may be

found in the use

made of the premises prior to an d at the tim e of the severance of the estates, whether one parcel or lot was usedfor the benefit o f another, and, i

f so, to what extent, as well as the benefits enjoyed

by reason of such

use. It follows tha

t the necessity must

appear at the time of the sale or disposition of the servient estate, and not at some future and indefinite time when the owner

of the dominant estate, or those claiming unde

r him, may consider the n

eed or desirabil

ity of an easemen

t in the property." Morris v. Simmons , 909 S.W.2d at 445. The appellant cites only two cases in suppor t of it s position that the Cha ncellor erred i

n holding that

the upper tract of land

was landlocked and in granting a permanent easement as a way of necessity over

the subservient e

state or lower tr

act. The first is Cole v. Dych , 535 S.W.2d (Tenn. 1976). Thi s case dealt with an easement of i ngress and egress to an old cemetery. Our Supreme Court held that where property owners ’ predecessor

in title fixed and establi

shed a road to the

cemetery in

its present route and considered the road was for the use of the people that were interested in using the cemetery for any purpose, his action was a dedication of the road and, upon acceptan ce and use by those going to and from the cemetery, dedication became unqualified and complete and could not be withdrawn. We imagine that this case was cited because at one time Bethelona Church was located near where the Mitchell Burke residence in the upper tract. The church was torn down and rebuilt elsewhere. The church was used during the time that Mr. Burk e had the adj oining property under lease over which the church goers could use the property with his permission. The secondcase is the City of Whitwell v. W hite , 529 S.W.2d 228 (Tenn. Ct. App. 1974), cert. denied

June 2, 1975 . This Court held that where W hite sold a land-lo

cked section of h

is property to complainant’s predecessor, there was implied and created, a way of necessity. The Court also held that the right attached to the land and inuredto the grantee’s successors and the fact that the complainant’s neighbor allowed a way across his p

roperty to the public road did not defeat the way of necessity. We find neither of these cases to be supportive of the Defendants’ position, but rather of the Plaintiffs’ position. While Rilda Burke and/or Mr. Burke may have owned more property during their lifetimes than the upper and lower tracts of land, on the facts in contained in the record before us, t he only thing that is clear as to the unity of title, one of the requirements of finding as easement

as a way of necessity, is that Rilda Burke owned the two tracts of land that are at issue here.

### -10-

In this matter, moreover, the trial court was in a far superior position to assess, not only the credibility

of the witnesses, but

also the evidence because of the inability of this court to determine exactly what the witnesses were referencing as they would refer to documents that the trial court was privy to view, but inadeq uately marked so t

hat t his court could not determine exactly what the witnesses were testifying. Examples are the testimony of Dorothy March contained in footnote 8 and the following testimony of Crestin Burke. Q Would

you come

down to this easel please, and I want you to point out to the Court where the f

ields were that yo

ur father mainta

ined for hay of c

rops? A Well, up till1970 he used all this in here, and about 1961 – after ‘61 he used all this, too. Q Your dad did? A Yeah. Q Now, you indicated at so metime you went in

here and timbered this seventyone acre tract

? A Well, I cut all this. I started right here on this lower side, I cut all this down in here -- Q Yes, sir. A

–andcome through here on this back side in 1979, ‘80, and ‘81. I come up through here with it and the house sits right here. Com

e right up by the house with it and the country road about there. T. p 46, lines 8-23. And again, Crestin Burke testified: Q Show me where we are on this plat with 6M. W here is this l

ocated on this Plat No. 5? A This photograph here is appro x imately right in her e because this is t

he old house place. Q Right. A And this is it right beside it right there. T. p. 63, lines 10-16. The Chancellor, who w

as in the best position to do so, found the facts fully and completely. The evidence sup

ports his decision that the tract in question was not served by public road nor by any prescriptive easement, and we concur in his determination. V. CONCLUSION
We affirm the decision of theCh ancellor in all respects. The costs of this appeal are adjudgedagainst the Appel lants, James Monty

Burke and Carissa Joy Burke and their surety. The cause is remanded

for enforcement of the decree and for such other proceedings as may be necessary.

### -11-