### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 25, 2000 On-Briefs MAELENE FOWLER, ET UX 

### . v. JERRY WILBANKS A Direct Appeal from the Chancery Court for McNairy County No. 7269 The Honorable Dewey C. Whitenton, Chancellor

No. W2000-00452-COA-R3-CV - Filed December 28, 2000

Plaintiffs sued to enjoin Defendant from denying their right to use a private dirt and gra vel road on Defendant’s property in

order to access

their property. The trial court held that Plaintiffs established an easement by implication and/or prescription in the private ro ad, and en joined Defendant from preventing Plain

tiffs’ future ac

cess to the road. D

efendant appea

ls. Tenn.R.App.P. 3; A

ppeal as of Right; Judgm ent of the Chancery

Court Affirmed and Remanded
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in whichA LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. Ken Seaton, Selmer, For Appellant, Jerry Wilbanks Terry Abernathy, Selmer

, For Appellees, Maelene Fowler and W. F. Fowler

OPINION Plaintiffs, Maelene Fowler and husband, W. F. F

owler, sued Def

endant, Jerry Wilbanks , to enjoin Defendant’s interference with their use of a private gravel and dir t road along the ea stern boundary line of defendant’s property

. Plaint iffs claim a right to use this road by way of an implied or prescriptive e asement

. Plaintiffs own a 2.687 acre parcel of land located in McNairy County, Tenn essee. The land Plaintiffs’ purchased in 1996 is undeveloped, and the record indicates the Plaintiffs have harvested a soyb ean c rop on t hei r pr ope rty a t least on ce since they acquired the land. I n 1996, Defendant purchased

a 125' by 125' parcel which adjoins Plaintiffs’ land to the north. Both parcels were once part of a larger piece of property owned by Grady I

ngle, Plaintiff Maelene Fowler’s father.1 There is no indication in the r ecord that any of the other property owners along the drive object to Plaintiffs’ use of the dri

ve. -2- The gravel and dirt road at issue in this case (the “drive”) r u ns north-south from Allen McCoy Road, past

sev eral lot s, a nd e ndi ng at the Pla int iff s’ p rop ert y. 1 Testimony at trial indicated that the drive has been in existence for at least thirty-five (35) ye ars, and is at a slightly higher elevation than Defendant’ s property, with a ditch on the e

ast s ide to carry wat er of f th e roa dwa y. The parties dispute the use of that portion of the drive which is located on Defendant’s property, and runs along his east boundary, between Defend ant’s lot and a lot his wife owns. There was no evidence presented at trial that, prior to this lawsuit, there was ever any dispute over the use of the drive. On June 30, 1998, the chancellor granted a temporary injunction limiting Plaintiffs’ use of the drive to passenger vehicles and farm implements and specifically prohibiting the use of heavy equipment. On O ctobe r 18, 1999, following a bench trial, the chancellor entered a permanent injunction in favor of Plaintiffs, specifically finding that Plaintiffs have a right to the use of the dr ive as an implied or prescriptive easement. Defendant has appealed and pr esents one issue on

appeal: whether the trial court

erred in finding that Plaintiffs are entitled to an easement on the disputed drive located on Defendant’s property by implication and/or prescription. Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of co rrectness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App. P. 13(d). Although the evidence to establish a prescriptive easement is somewhat

sketchy, we agree with the chancellor that Plaintiffs have established an implied easement

over the road in question.
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). Various forms of e asements exi st under Tennessee law,

including: expres s easements; ease ments by res

ervation; implied e

asements; prescriptive easements; and easements by estoppel. See id. Tennessee courts recognize two general categories of easements: easements in gross and easements appurt enant. See i d. In Pevear , this Court explained the d

ifference bet

ween these two fo

rms of easements:
In an easeme nt appurtenant, there are 2 tracts of land, the dominant tenement, and the servient tenement. The do minant tenement benefits in some way fr

om the use of the se

rvie nt tenemen t. Easements in gross are s imp ly a personal interest or right to use the land of another which does not benefit a nother property

, or dominant est

ate, thus easement s in g ross usually involve only one parcel. An ea sement appurtenant

to land is favored

over an easeme

nt in gross in Tennessee. Goetz v. Knoxville Power & Light Co. , 154 Tenn. 545, 290 S.W. 409 (1926).-3-

Id. at 116.
In a recent

opinion, we addre

ssed the issue of imp

lied easements:
An implied easement a

ppurtenant should only arise where it is of such necessity that we may presume it wa s within the contemplation of the parties to a conveyance. See La Rue , 166 S.W.2d at 1049. The party asser

ting a n implied easement has the burden of showing “the existence of all facts necessary

to create by implication an easement appurtenant

to his estate.” Line v. Miller , 309 S.W.2d 376, 377 (Tenn. Ct. App. 1957). The Pointe, LLC v. Lake Management Assoc., Inc. , No. W2000-00211, slip op. at 7-8 (Tenn. Ct. App. November 6, 2000). The party asserting the existence of a n easement by

implication must prove three ele

ments: “. . . (1) A separation of the title; (2) Necessity that, before the separation takes place, the use which gives r ise to the easement sha

ll have been so long continued and obvious or manifest as to show that it was meant to

be permanent; and (3) Necessity that the easement be essential to the benef icial enjo yment of the lan d gr a nted or retained....”

Johnson v. Headrick , 237 S.W.2d 567, 570 (Tenn. Ct. App. 1948) (quoting 17 Am. Jur. Easements , pp. 945, 946). Courts in Tennessee have interpreted the term “neces sity” as mea ning “reasona

bly nece ssa ry” for the enjoyment of the dominant tenement. See, e.g., Line v. Miller , 309 S.W.2d 376, 377 (Tenn. Ct. App.

1957); Johnson v. Headrick , 237 S.W.2d at 570.
In this case, the record indicates that Grady I ngle, Plaintiff Maelene Fowler’s father, owned the entire tract of land at one time. Ms. Fowler testified that the disputed road has been in existence for 35 years, and that she knew of no other access to her parcel but by way

of the drive. Defendant testified that

the road was plainly visible when he purchased his property , and he conceded that the roadhas been in existence a long time. Finally, the trial court, i n its opin ion, noted that the Plaintiffs’ parcel is “la

nd-locked”, rendering use of the road “reasonably necessary” to the enjoyme nt of Plaintiffs’ land. Defendant

suggests that Plaintiffs could bypass the disputed road and access their property by way of a narrow str

ip of land that Plaintiffs own behind Defendant’s home. We note that the record includes testimony that the D efen dant in this case is t he owner of an ou

t-building which

is located, at least in part, on this strip of Plaintif

fs’ land. Even if D

efendant were

to remo ve any buildings which obstruct this strip of Plaintiffs’ property, P laintiffs would

still be required t

o cross-4-

property which does not belong to them in order to access the nearest public road. Additionally, a s the trial court noted in i ts opinion, “i t would be expensive to construct and improve a road to the quality of the one which has been used for more than twenty y ears.” The evidence does not preponderate

against the chancellor’s finding that the proof established the three elements of implied easement. Acco rdi ngly, the final decree of the trial court is affirmed. This case is remanded to the trial court for any fur

ther proceeding

s as are necessa

ry. Costs of th

is appeal are assessed to the Defe nda nt/ App ell ant , Je rry W ilb ank s, a nd h is s uret y.

__________________________________________ W. FRANK CR

AWFORD, PRESIDING JUDGE, W.S

.