# FILED February 23, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) CLYDE BING

HAM, JR. a

nd wife , ) Henderson County Chancery Court BETTY BINGHAM, ) No. 11281 ) Plaintiffs/Appelle

es. )

) VS. ) C.A. No. 02A01-9803-CH-00083 ) JAMES D. K

NIPP and

wife , ) LYNNE A. KNI PP , ) ) Defendants/App

ellants. ) )

______________________________________________________________________________ From the Chancery Court of Henderson County at Lexington. Honorable Joe C. Morris, Chancellor

W. Collins Bonds , KIZER, BONDS & HUGHES, Milan, Tennessee Attorney fo

r Defendants/Ap

pellants. Carthel L. Smith, Jr. , Lexington, Tennessee Attorney fo

r Plaintiffs/Appe

llees.

OPINION FIL

ED: REVERSED AND REMAN DED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)Defendants James D. Knipp and Lynne A. Knipp a ppea l the trial court’s judgment finding that Plaintiffs/Appellees Clyde Bingham, Jr., and

Betty Bingham had acquired a presc riptive easement to afield road on the Knipps’ property. We reverse the trial court’s judgment based on our conclusion that the record contains insufficient evidence to s upport the court’s finding that the Binghams

or their predecessors-in-title had acquired a p rescriptive ea sement across the

Knipps’ pro pert y.

The parties own adjoining tracts of real property

in Henderson County. The Knipps have owned their property since March 197 8. In Decemb er 1993, the Bing

hams acquired the

ir property from t he Birdwell fam

ily, various

members of whom ap

parently ha

d owned the prope

rty since the 1940's. In the warranty de ed executed by Eura Gay Bird we ll’s legal heirs, the grantors purportedto convey to

the Binghams

an easement across the Knipps’ property. The deed desc ribed the easement as one “for

reasonable ing

ress and egre

ss to this property

which exists across

the land of Knipp to reach the nearest public road known as Bucksnort Trail.”

After acquiring his property, Clyde Bingham proceeded to access the property by using a field road which

ran across theKnipps’ property . The field road b

egan at Bucks

nort Trail andended at

the Knipps’ corn field, which abutted the Binghams’ own corn field. During much of the year, Clyde Bingham accessed his property by driving to the end of the field road and the n proceeding thr

ough the Knipps’ corn field to his own property. During crop season, however, the Knipps’ corn crop co vered the field r oad. When the crop

was in, Clyde

Bingham acce

ssed his property by another route r ather than driving through the Knipps’ corn field.

Several yearsafter the Binghams’ purchase of the adjoining property , James Knipp discovered

that Clyde Bin gham was usi ng the field road across his propert y. Through his att orn ey, Knipp asked Bingham

to cease using the field road. This request prompted the Binghams to file the prese nt lawsuit i n which they sought to establish their right to a prescriptive easement ac ross the Knipps’ property along the field road.

At trial, the evidence showed that various tenants had farmed the Bing

hams’ property
over the years . At one time, the Binghams’ property was part of a larg er tract that included afarmhouse. In 1963 or 1964, however, th

e construction of

Interstate 4

0 effectively

split the property into two sections, a northernsection which contained the farmhouse and a southern section which includedwhat is now Binghams’ corn field. Prior to the construction, the Binghams’ p roperty co uld be accessed by

the use of a public road to

the north. The con

struction cut off a

ccess to this public roadand apparently left the property landlocked. Accordingly, beginning in the e arly 1960's, the Birdwell family membe

rs and their tena

nts began to use t

he field road ac

ross the Knipps’ property to access their property.

At various times over the subseq uent years , the same person farmed both the Binghams’ prop

erty and the

Knipps’ property

. In the earl

y 1970's, f

or example, James B.

Woods, who then owned the Knipps’ property, farmed both his own property andthe Bin gham s’ p rop ert y. In 1973 or 1974, Woods sol d h is property to one of the Knipps’ predecessors-in-title, but he continuedto farm both prope rties until his deat

h. Beginning i

n the late 1980's or early 1990's, and continuing until the time of tria l, Donald Rush lease

d both tracts

of land, and, prio

r to that, Anthony Williams farmed both properties. The tenant farmers used the field road to a

ccess both prope

rties.

At the t rial’s conclusion

, the trial court in

structed counsel

for each party

to su bmi t
a short memorandum addressing the Binghams’ right to ei ther an eas ement of necessity or a prescriptive easement. The trial court subsequently fo und that the Binghams had “acquired an easement by prescription to the fiel d roa d in question in this litigation,” and the court entered a judgment accord ingly. The Knipps have appealed, contending that the evide nce preponderates against the trial court’s finding that the Binghams had acquired an easeme nt by prescription.

We begi n our analy

sis with the well-e

stablished premise

that the burden is o

n th e party claiming a prescriptive easement to prove, by clear and conv incing evidenc e, the facts
necessa ry to establish such an easement. McCammon v. Meredith , 830 S.W.2d 577, 580 (Tenn
. App. 1991); Fite v. Gassaway , 184 S.W.2d 564, 567 (Tenn. App. 1944). Specifically, the claimant must prove that

his use and enjoyment of the alleged ea

sement was “adve

rse, under claim

of right, continuous, unint errupte d, open, visible, exclusive, and with knowledge and acquiescence of the
owner of the servient tenement.” House v. Close , 346 S.W.2d 445, 447 (Tenn. App. 1961). Moreover , the clai mant must prove that his use and enjoyment of the alleged easement continuedfor

the full prescriptive period of twenty ye ars. Blakemore v. Matthews , 285 S. W. 567, 567-68 (Tenn. 1926); McCammon v. Meredith , 830 S.W.2d at 580; House v. Close , 346 S.W.2d at 447-49;
see also Rogers v. City of Knox ville , 289 S. W.2d 868, 871 (Tenn. App. 1955) (noting that illegal possession cannot ripen into v ested legal rig

ht to easement shor

t of twenty y

ears adverse

possession).

The proof in this case

focused on the use

of the alleged easement by the Binghams andtheir predeces sors-in-title beg inning in 1973 or 19

74. The Bingha

ms conceded that,

at the time James B. Woods sold the Kni pps’ property

in 1973 or 1974, the us

e of the alleged easement was not adverse. Immediately prior to the sale, Woods owned t he Knipps ’ property, and he leased the Binghams’ property as the tenant farmer of the Birdwells. I nasmuch as a party c

annot use property adversely to his own interests, we agree that Woods’ simultaneous ownership of the servient estate, the Knip ps’ property

, and tenancy

of the dominant est

ate, the Bingha

ms’ property

, prevente d th e prescriptive period from running during Woods’ use of the alleged easement. See J.F. Gioia, Inc. v. CardinalAm. Corp. , 491 N.E.2d 325, 330 (Ohio Ct. App. 1985); Sassman v. Collins , 115 S.W. 337, 339 (Tex. Civ. App. 1908) ; see also Bertolina v. Frates , 57 P.2d 346, 349 (Utah 1936) (“As th e books say: A man cannot prescribe against himself.”).

Having conceded that the prescriptive period did not begin to run until 1973 or 1974, the Binghams focused on the use of the alleged easement from 1973 or 1974 forwa rd, and they contended

that such use

had established an easement by prescription by the time they purchased

their property in December 1993. We disagree.

As heret o fore indicated, the party claiming a prescriptive ea sement has the burden of proving by clear and convincing evidence the facts necessary

to establish such a

n easement. Fite v. Gassaway , 184 S.W.2d at 567; McCammon v. Meredith , 830 S.W.2d at 580. This burden requires the cla

imant toprove that the adverse use of the alleged easement by the claimant and

his predecessors-

in-title has continued uninterrupted for the full prescriptive period. Blakemore v. Matthews , 285 S.W. at 568; McCammon v. Meredith , 830 S.W.2d at 580; House v. Close , 346 S.W.2d at 447. In the prese nt case, theref

ore, the Bingh

ams were requir

ed to demonstrate

that such
use had continued unin

terrupted for mo

re than twenty

years. Blakemore v. Matthews , 285 S.W. at 567; House v. Close , 346 S.W.2d at 449.1 Contrary to the Knipps’ argument on appeal, we are not convinc ed that the prescriptive period was interrupted when, at various times throughout the years, the same tenant farmer happened to lease both the Binghams’ property and the K nipps’ property. See Franz v. Mendonca , 63 P. 361, 362 (Cal. 1900) (indicating that claimant’s adverse use of alleged easement was not interrupted during two-year per iod in which tenant of dominant estate also was lessee of servient estate). For purposes of this appeal, however, we need not decide this issue. Contrary to the Binghams’ argument, a prescriptive easement could not have arisen prior to their purchase

of the property

in December 1993

because, even i

f the use of the Kn

ipps’ property by the Birdwell s and their various te nants othe rwise met t he requirem ents for obt aining a prescriptive easement, 1 the proof showed that theadverse use of the alleged easement had not continueduninterrupted for a full twe nty-year per iod. As conceded by the Binghams, the prescriptive pe

riod could not have

begun to run until

after Woods’ sale of the Knipps ’ property in 1973 or 1974. The proof failed to establish, however, in which of these two

years the s

ale actually took place. This distinc

tion is imp ortant because, if the Knipps’ property was sold in 1973, the prescriptive period well might have run by

the time the Bing

hams acquired the

ir property

i n December 1993. On the other hand, if the Knipps’ property was not sold until sometime in 1974, the prescriptive period would not have run by December 1993. The only evidence on this issue was introducedthrough Jerry

Lynn Woods, the son of James B. Woods, who testified that “[w]e used to own [the Knipps’ pro

perty] back

in seventy - - I guess we

sold it in ‘74. In ‘73 or ‘74, we sold it.”

We conclude that

this testimony fails to constitute clear and convincing evidence that the twenty-year presc

riptive period had run by the time the Binghams acquired their pro pert y in December

1993. Although it does not require as much certainty as the “beyond a

reasonable doub

t” standard, the “clear and convincing evidence” standard is more exacting than the “preponde rance of the evidence” standard. O’Daniel v. Messier , 905 S.W.2d 1 82, 188 (Tenn. App. 1995); Brandon v. Wright , 838 S.W.2d 532, 536 (Tenn. App. 1992). In order to be clear and convin cing, evidence must eliminate any serious or substantial doubt about the correctness of the conclusions to be drawn from the evidence. Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992); O’Daniel v. Messier , 905 S.W.2d at 188. Such evidence should produce in the fact-finder’s mind
a firm belief or conviction as to the truth of the alleg ations sought to be established. O’Daniel v. Messier , 905 S.W.2d at 188; Wiltcher v. Br adley , 70 8 S.W .2d 40 7, 411 (Tenn . App. 1985) . In contrast to the pr eponder ance of the evid ence standard,

clear and convi

ncing evidence

should demonstrate

that the truth of the fact s asserted is “highly probable” as opposed to merely “more2 Inasmuch as this testimony fails to make one conclusion more probable than the othe r, we also are not convinced that this testimony even meets the preponderance of the evidence standard. Lettner v. Plummer , 559 S.W.2d at 787; Goldsmith v. Roberts , 622 S.W.2d at 441. probable” than not. Lettner v. Plummer , 559 S.W.2d 785, 787 (T enn. 1977); Goldsmith v. Roberts , 622 S.W.2d 438, 441 (T

enn. App. 1981); Brandon v. Wright, 838 S.W.2d at 536.

In the present case, Jerry Ly nn Woods initially testified that he guessed the Woods sold th e Kn ipps’ property in 1974. He then testified that the property was sold in 1973 or 1974. Even if this testimony is accepted as true, the evidence demonstrates that both of the two possible conclusions t o be draw n from the testimony -- (1) that the prescriptive period had not run by December 1993 and (2) that the prescriptive peri od h ad ru n -- are e qua lly p rob abl e. A ccor din gly, such testimony cannot constitute clear and convincing evidence that the prescriptive period had run by December 1993. 2

Because the ful l tw ent y-year pres cri pti ve p eri od h ad n ot r un b y t he time the Bi nghams acqui redtheir property, their claim for a prescriptive easement nec essarily depended upon the i r continuedadverse use of

the property from the time they ac quiredit in December 1993 until the time of trial in September 1997. See Derryber ry v. Ledford, 506 S.W.2d 152, 156 (Tenn. App. 1973) (holding that, in establishing prescriptiveperiod, party may “tack”

his or her adverse

possession onto that of predecessor

-in-title); accord Eckhardt v. Eckhardt , 305 S.W.2d 346, 348 (Tenn. App. 1957); Star Enter. v. Warner , No. 01A01-9502-CH-00036, 1995 WL 381652, at *5 (Tenn. App. June 28, 1995). Here a gain, however, we conclude that the Binghams’ proof must fail, albeit for differ ent
reasons.

Where a landowner intervenes to occupy the land over which a

claimed right-of-way is asserted, such as to result in an actual and

substantial suspension of the claimant’s adverse use of the right-of-way, such

intervention by

the landowner breaks the continuity of the claimant’s use and prevents the prescripti

ve period from running. Ferrell v. Ferrell , 60 Tenn. (1 Baxt.) 329, 336 (1872); see also 28A C.J.S. Easements § 24 (1996) (indicating that act by owne

r of servient esta

te which results in substantial interruption during period of adver se use is fatal to claim for prescriptive easement). The continuity of the claimant’s adverse use of the al leged e asement also is brokenwhere the claimant’s actions or statements demonstrate a recognition of the superior rights and

ownership

of the landowner. See Garvin v. State , 190 N.Y.S. 143, 149 (N.Y. Ct. Cl. 1921); see also 28A C.J.S. Easements § 29 (1996) (indicating that, where per son using easeme

nt has, within prescriptive period, acknowledged superior right in other party , such admission is fatal to claim).

For e xample, where a landowner interrupts a claimant’s adverse use of an a llege d easement by plowing up the right-of-way and cultivating a crop over it, and where the claimant accedes to the landowner’ s right to do so, the claimant’s use of the right-of-way cease s to be adverse, thus destroying

the continuity

of such use and pr

ecluding the ac

quisition of a pres

criptive easeme

nt. See Garvin v. State , 190 N.Y.S. at 148- 49; Bales v. Rafferty , 170 S.W. 1184 , 1184 (Ky. 1914); Graham v. Thompson , 129 S.E. 272, 273 (Va. 1925); see also Martin v. Martin , 1 S.E.2d 46, 46-47 (Ga. Ct. App. 1939); Waterman v. Moody , 103 A. 325, 330 (Vt . 1918); 28A C.J.S. Easements § 42 (1996) (indicating that interruption of c ont inu ity o ccurs where la nd over which rig

ht-of-way is claimedis plowed up and cultivated by owner or his tena

nt); cf
. Tucker v. Hall

, 1986 WL 7853, at *3 (Tenn. App. July 15, 1986) (wherein prescript ive easemen t already had been acquired when landowner

plowed up and row-cropped field road). The claimant’s recognition of the landowner’s superior rights may be manifested by suc h actions as asking the landowner’s permission to cut the crop so that the claimant might continue using the right-of-way through the field, changin

g the path of the right- of-way so a

s t o circumvent the field, or ceasing use of the right-of-way altogether. Garvin v. State , 190 N.Y.S. at 148-4 9; Graham v. Thompson , 129 S.E.2d at 273; Bales v. Rafferty , 170 S.W. at 1184.

In the present c ase, Clyde Bingham’s own testimony r evealed his tacit recognition of the Knipps’ superior

rights and ownership to the field road. The undisputed evidence showed that the field was planted

with corn virtually every y ear since the Knipps’ acquisition of their property in 1978. Although Clyde Bingham routinely used the field road

to access his property, he testified that he did not use th

e road during c

rop season when it

was planted with c

orn:
Q. This access road, does it come into t he are a where your corn field is and stop or does it extend out p ast the fie ld i n an y way? A. Well, the field -- The fields have always been tendedand, you know, take up the road during the summertime when the crops are in.

. . . . Q.
. . . You would agree that right now there is no road on this field

road that goes to your

land right now. It’s all covered by corn crop; isn’t it

? A. He [James Knipp] puts it in crop.

. . . . Q. So during crop season, you really don’ t have access to your property through the field road? A. I don’t go through it during the crop season. Q. You don’t go out there? A. I go out there, but I don’t drive down through the corn field.

In accordance with the foregoing authorities , we conclude that the Binghams’ a

dverse
use of the field road was interrupted when the Knipps planted the road with a corn crop each year andthe Binghams ac

knowledged the

ir right to do so by

refrain ing from dr iving through th e field until after the crop was harvested. See also Frank C. S chilling Co . v. Detry , 233 N.W. 635, 638 (Wis. 1930) (hol ding that cl aimants’ ad verse use of allege d easement was substantially and materially

interrupted when landowner constructed restau rant acr oss easement and, during restaurant’s two-year

existence, claima

nts, without protest

, diverted their r

outearound west

end of restaurant and over railway right-of-way

in order to access public s

treet); cf
. Deregibus v. Silberman Furniture Co. , 186 A. 553, 554 (Con n. 1936) (h olding that claimant’s adverse use of alleged easement was not interrupted by tenant’s tet hering o f horses to east wall of passageway or by landowne r’s deposit of building materials along

wall). Under the

se circumstance

s, the continuity of the Binghams’ use of the fiel d r oad was destroyed and they did not ac quire a prescriptive easement over the road.

Having held that the Bing

hams did not establis

h their right to a prescriptive easement
over the field road on t

he Knipps’ proper

ty, we also h

ave considered

whether the Bing

hams’ proof establishedtheir right to an easement of n eces sit y acro ss t he p rop ert y. The parties’ pleadings and proof raised this issue, b

ut the trial court d

id not reach the me

rits of this issue because it concludedthat the Binghams had acquired a prescriptive easement.

At trial, the Binghams presented evidence that the field road on the Knipps’ property
was their only means of ac ce ssing their prope rty. In the early 1 960's, the newly -constructed int

erstate cut off the property’s

access to a public road to the north of the property. The Knipps sought to show that the Binghams co

uld access their

property f

rom an alternate

roadto the east, Oak Trail, but the evidence showedthat the Bingha ms’ property

did not actually

abut Oak Trail an

d that, in order to
accesstheir property

from this road, the Binghams would have to drive through a portion of Natchez Trace State Park.

Despite this evidence, we conclude that the Binghams’ proof fails to esta blish their entitlem ent

to an easement of

necessity a

cross the Knipps’ property. I n order to establi

s h th e existence of an easement of necessity,

th e claimant must demon strate, among ot

her requiremen

ts, that the dominant estate and the servi ent estate wer e at one time owned by a common grantor. Bowles v . Chapman , 175 S.W.2d 313, 314 (Tenn. 1943); accord City of Whitwell v. White , 529 S.W.2d 228, 231 (Tenn. App. 1974). The law requires a unity of title because easements of necessity “are founded on conveyances and are premised upon the pre sumption tha t th ey were within the contemplation of the parties.” Cole v. Dych , 535 S.W.2d 315, 318 (Tenn. 1976). An easement of necessity does not arise unless “it is of such necessity that it must be presumed to have been within t he [parties’] contemplation.” LaRue v. Greene Cou nty Bank , 166 S.W.2d 1044, 1049 (Tenn
. 1942); accord Lively v. Noe , 460 S.W.2d 852, 854 (Tenn. App. 1970). Absent a unity of title, no conveyance

exists from which the grant or reservation of an easement

of necessity can be inferred. Bowles v. Chapman , 175 S.W.2d at 314.

The recor d in this case contains no evidence that the Binghams’ property a nd t h e Knipps’ property were once owned by the same grantor. Inasmuch as the evidence fails t

o demonstrate

that the requirement

of unity of

title has been met, the Binghams’ claim for an easement of necessity

also must fail.
Although our holding appears to leave the Binghams without acce ss t o th eir pro pert y,
we note that a property owner wh ose land is cutoff from a public road by the intervening land ofanother

has a statutory

right to condemn an easement across his neighbor’s land. See Huddleston v. Hoy , No. 01A01-9006-CH-00201, 1990 WL 186347 (Tenn. App. Nov. 30, 1990); T.C.A. § 54-14-102 (1998). This statutory right exists even if the parties cannot trace their respective titles to a common granto

r because the sta

tute relaxes t

he common-law requirement of unity of title. Boone v. Frazor , 1988 WL 77542, at *5 (Tenn. App. July 27, 1988). The property owner seeking such relief, howeve

r, must file a petiti

on meeting cert

ain requirement

s, such as setting

forth a full description of the property sought for the ri

ght-of-way

, as well as giv ing a bond for costs. Id .; T .C.A. § 54-14-103 (1998 ). The property

owner also must pa

y damage

s to his neighbor t o compensate

him for the value of the pro perty taken and any incidenta l damages. See T.C.A. §§ 54-14-104, -108, -109 (1998).

In sum, we hold that the Binghams’ p roof f ails to support the conclusion that they have acquired

an easement across the

Knipps’ property, whether by r ight of prescription or way of
nece ssi ty. Accordingly

, the trial court’ s judgment is reve rsed, and this cau

se is remanded

for further proceedings consistent with this o pinion. Costs

of this appeal are taxed to the Binghams, for which
exe cut ion may i ssu e if nece ssa ry.

____________________________________ FARMER

, J.

______________________________ HIGHERS, J. (Conc

urs)

______________________________ LILL ARD, J. (Concurs)