### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE August 10 , 201 6 Session

DWIGHT DOUGLAS ET AL

. V

. CHARLOTTE CORNWELL

Appeal from the Circuit Court for Washington County

No. 28386 Jean A. Stanley

, Judge

No. E 20 16

- 00124

- COA

- R3

- CV

- FILED

- SEPTEMBER 28, 2016

At issue is whether an easement for ingress and egress exists. Plaintiffs commenced this action to enjoin the adjacent property owner from using Plaintiffs’ driveway for ingress and egress

. Defendant filed a counterclaim asserting that she had an easement by implicati on ; alternatively, she claimed P laintiffs purchased the property subject to an

easement because the easement was apparent upon inspection. Th e dispositive issue concerning the alleged easement by implication is whether t he easement is essential to

D efendan t’s beneficial enjoyment of her property . The trial court found that D efendant

failed to establish that she would incur an unreasonable expenditure to create another

means of ingress and egress to her property ; therefore, the easement was not a necessity

. The court also found that the claimed easement was not apparent upon inspection.

A ccordingly , the court enjoined D efendant from using the driveway for ingress and

egress

. W e affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT

, J R

. , P.J., M.S., delivered the opinion of the Court, in which

C HARLES D. S USANO

, J R

., and J OHN W. M C C LAR T Y

, JJ., joined.

Mark S. Dugger

, Elizabethton

, Tennessee, for the appellant, Charlotte Cornwell.

Rick J. Bearfield

, Johnso n City

, Tennessee, for the appellee s
, Dwight Douglas and Keela Douglas.

OPINION

The two parcels at issue were initially under the common ownership of Andrew
Barnes, who acquired the property i n 1958. In 1969, Mr. Barnes conveyed by quitclaim

deed a portion of his property to his daughter, Charlotte Cornwell (“Defendant”)

. Defendant built a house on her property in 1972 . Although her property joined a public- 2

-

road, Defendant did n ot construct a driveway to access the property from this road

. Instead, a lthough she never received an express easement for such purpose, Defendant

us ed a driveway on her father’s property for ingress and egress. Defendant has continuously used th is driveway since 1972.

M r. Barnes died intestate in 2003. He was survived by si x heirs at law : Defendant;

her sister

, Evelyn Norwood; and their four nieces and nephews

, Keela Douglas, Christopher Hodges, Kathy Barnes, and Kent Barnes. 1 Unfortunately the sisters and their nieces and nephews could not agree upon the disposition of the property they inherited.

I n 2006, Defendant initiated a n action to partition the property the six heirs

inherited. The heirs su bmitted the matter to mediation and

, during the cours e of the mediation, discussed

, inter alia

, granting Defendant an easement concerning the driveway Defendant used for ingress and egress and dividing the property among the

heirs with certain cash considerations . The med iat or draft ed a tentative agreement which included this right of way . The porti on of the mediation agreement discussing Defendant’s purported easement states:

All interested parties will execute a formal writing to be prepared giving

Charlotte Cornwell a non

- exclusive right of way for ingress and egress to and from her own property. That right of way will traverse along the driveway described as “her father’s drive

- way” as well as her own driveway and will run with the land.

T he mediation agreement also required the parties to subsequently agree upon certain

economic issues , which t hey failed to do. As a consequence, t he mediation agreement was never acted upon . After the mediation failed, the chancery court ordered the property

be sold

.

The clerk and master conduct ed the partition sale, and the property was sold to a third party, Gary Sanders. The deed conveying the property to Mr. Sanders did not include or make any reference to an easement for Defendant’s use of the driveway

.

In 2009, Mr. Sanders sold the property to Dwight Douglas . Mr. Douglas is married

to one of Mr. Barnes ’ grandchildren , Keela Douglas; however, Keela Douglas’ name does not appear on the deed

. Th e warranty deed to Mr. Douglas states that the conveyance “is expressly made subject to any and all restrictions, reservations, covenants

and conditions contained in former deeds and other instruments of record as may now be

1 Andrew Barnes had four children: Marvene Hodges, Evelyn Norwood, Allen Barnes, and

Defendant. Ma rvene and Allen predeceased Mr. Barnes; however, both were survived by children of their own. Marvene was survived by two children: Keela Douglas and Christopher Hodges. Allen was survived by two children: Kathy Barnes and Kent Barnes.- 3

-

binding on said property, and to any easements apparent from an inspection of said property.”

On May 6, 2010, Mr. Douglas and his wife

, Keela Douglas (collectively “Plaintiffs”)

, commenced this action in the Washington County Circuit Court to enjoin Defendant from using the ir driveway for ingress and egress. 2 Defend ant filed an answer

and counter claim to establish that she had an easement upon the disputed property

. Specifically, Defendant averre d that she has continuously, openly, and notoriously used the driveway for ingress and egress for over 40 years and, thus, obtained a prescriptive easement over the disputed area. In May 2014 , Defendant amended her counter claim to assert an easement by imp lication over the disputed driveway. Defendant claimed that an easement by implication should be recognized because both properties were part of a common tract once owned by Defendant’ s father , the driveway was in existence prior to the separation of the p roperty, and the driveway is necessary to the beneficial use and enjoyment of Defendant’s property. Plaintiffs replied to the amended counter claim, denying that Defendant is entitled to an easement by implication and asserted the

affirmative defenses of es toppel, unclean hands, abandonment of the easement, waiver, and extinction by merger.

The case was tried without a jury on May 1, 2015. At the beginning of trial, the parties stipulated that there is no prescriptive easement . As for Defendant’s claim of an easement by implication, the parties stipulated that two of the three essential elements are present and that the only element at issue was whether the continued use of the driveway

was necessary for the beneficial use and enjoyment of Defendant’s prop erty. 3 The other

claim to be tried was Defendant ’s assertion that Plaintiffs acquired the property subject to
her easement because the driveway wa s visible upon inspection when P laintiffs acquired the property and Plaintiffs’ deed contained a limitation ma king it subject to any

“ ea sements apparent upon inspection.”

At trial, Plaintiff submitted evidence to rebut Defendant’ s claim of easement by implication by showing that Defendant could construct an alternate means of ingress and egress to her property because she has 200 feet affronting a county road. Accordingly,

2 The warranty deed from Mr. Sanders conveyed the property to Dwight Douglas; Keela Douglas’ name does not appear on the deed. Nevertheless, Keela Douglas has standing to bring this action along with her husband based on her marital rights to the property

, and Defendant does not challenge her standing.

3 As described below, to establish an implied easement a party must show that there is: “ (1) [ a ] separation of title; (2) [ n ] ecessity that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; and (3) [n] ecessity that the easement be essential to the beneficial e njoyment of the land granted or retained. ” Newman v. Woodard , 288 S.W.3d 862, 866 (Tenn. Ct. App. 2008) (quoting Fowler

v. Wilbanks , 48 S.W.3d 738, 741 (Tenn. Ct

. App. 2000) )

.- 4

-

Plaintiffs argued that the driveway crossing their property was not reasonably necessary to Defendant’s enjoyment of her land.

Defendant testified that it would be impossible to build a sepa rate driveway due to her limited income of $1,400 a month. In support of this assertion, she submitted the deposition testimony of a land surveyor, Stephen Pierce. Mr. Pierce stated that constructing an alternate access would be “fairly difficult because o f the change of elevation and the steepness and the angle that it would have to be constructed off of [the
county road], ” and that such an undertak ing would cost around $20,000 . However, on

cross examination

, Mr. Pierce stated that this figure was a “ballp ark” estimate and acknowledged that he is not a contractor or “ a construction estimator. ” Mr. Pierce also

admitted that he did not calculate the amount of fill that would be required to construct a driveway, the number of hours or people it would take to c omplete such a task, how many feet of ground would have to be disturbed to build the driveway, or what size retaining wall that would be required.

As for her claim that Plaintiffs purchased the property subject to her open and obvious easement, Defendant testified that her use of the driveway was open and obvious from an inspection of Plaintiffs’ land and Plaintiffs’ deed states that title is subject to “any easements apparent from inspection.”

After closing arguments, the trial court found that there was no implied easement and the driveway did not constitute an open and obvious easement

. The court explained its reasoning from the bench as follows:

First of all, it’s uncontroverted there is no easement of record. Ther efore, at first glance, [Plaintiffs] would simply have carried their burden of proof and . . . we would be done. However, [Defendant] has a counterclaim and says that she has an easement on the property basically with two arguments[.] [First,] that there’s an open and obvious use of the driveway which gives [Defendant] the right to that easement by virtue of

. . . [P] laintiffs’ deed saying they take subject to [easements apparent on inspection]. [Second,] is that [Defendant] has an easement by implication.

Number one,

. . . [a ] driveway . . . is not the same as an open and obvious easement, so the Court does find that [Defendant] fails on that point.

The second question is whether or not [Defendant] has an easement by implication and the Court has to look at whether or not there is a . . . necessity. There . . . should be a necessity that the easement be essential to the beneficial enjoyment of the land. One thing the Court would consider in that regard is the cost associated with a new driveway. . . . [T]h ere in comes into play the expert witness, the surveyor. . . . [T]he Court does find him to- 5

-

be qualified and to be credible to tell the Court that there is some topographical issues, that this could in fact be a difficult driveway to install on this proper ty; however, the surveyor testified that the $20,000 [necessary to construct a new driveway] was a ballpark, it was a guess. He later came back and said . . . he could say that [figure] within a reasonable degree of engineering certainty. I don’t know what engineering certainty has to do with his testimony as a surveyor so it was a guess. It was a ballpark. . . . So the Court doesn’t know what that new driveway will cost.

Nobody said it was impossible to put a second driveway in except for [Defendant] . . . . I don’t think she’s lying to me, I think she thinks it’s not possible to put one in. But the fact is I think it is possible to have an alternative driveway. Is it going to be expensive? Probably. Is it going to take some time and some fill? Probably. B ut can I say that she has carried the burden of proof that this would require an un reasonable expenditure to create this new driveway[?] [T]he Court cannot say that. Therefore, [Defendant] fails on that action. The Court does not find an easement by implic ation

.

Accordingly, the court granted Plaintiffs’ request for an injunction to prevent Defendant from using the driveway. Defendant filed a motion to alter or amend the judgment and to amend the pleadings to allege easement by estoppel, which motion was denied by the trial court.

Thereafter, Defendant initiated this appeal and r aises the following issues: (1 ) whether the mediation agreement which provided that Plaintiff would convey a right of way over the disputed driveway to Defendant created an expre ss eas ement to Defendant; (2 ) whether the trial court erred by failing to find that Defendant is entitled to an easement by esto ppel over the disputed driveway ; (3) whether the trial court applied the incorrect standard and erred by failing to find the exi stence of an implied easement over the disputed driveway; and (4) whether the trial court erred in ruling that the limitation in Plaintiffs’ deed, “easements apparent upon inspection,” did not refer to the disputed driveway.

S TANDARD OF R EVIEW

The factu al findings of a trial court are accorded a presumption of correctness, and this court will not overturn those findings unless the evidence preponderates against

them. Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001); Tenn. R. App. P. 13(d). We

review the t rial court’s legal conclusions under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.

S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).- 6

- A NALYSIS

An easement is an interest in property that confers on its holder a legally enforceable right to use another’s realty for a specific purpose. Smith v. Evans

, No.

M2007

- 02855

- COA

- R3

- CV, 2008 WL 3983117, at *2 (Tenn. Ct. App. Aug. 27, 2008) (citing Hall v. Pippin , 984 S.W.2d 617, 620 (Tenn. Ct. App. 1998)). This interest can be

created in several different ways. Id. (citing Pevear v. Hunt , 924 S.W.2d 114, 115

- 16 (Tenn. Ct. App. 1996) )

. The methods applicable to the present case are: (1 ) express grant; (2 ) estoppel ; and (3) implication

. 4

I

. E ASEMENT BY E XPRESS G RANT

Defendant contends the mediation agreement entered into between the parties created an express easement in her favor and that the trial court erred by failing to

consider this evidence. However, we have determined that Defendant did not assert this claim in the trial court. As a consequence Defendant has waived this claim

.

Rule 8.01 of the Tennessee Rules of Civil Procedure require s d efendant s who wish

to assert an affirmative claim to file a co unterclaim that provides “a short and plain statement of the claim showing that the pleader is entitled to relief.” Further, parties are required to “set forth affirmatively facts in short and plain terms relied upon to constitute

. . . an affirm ative defense.” Tenn. R. Civ. P. 8.03. As a general rule, a claim or defense not raised in a party’s pleadings or at trial is deemed waived. See Tenn. R. Civ. P. 12.08 (“A party waives all defenses and objections which the party does not present either by motion . . . or . . . in the party’s answer or reply, or any amendments thereto”); Moses v. Dirghangi , 430 S.W.3d 371, 376 (Tenn. Ct. App. 2013) (“There is no duty on the part of the court to create a claim that the pleader does not spell out in his compla int.”).

Here, Defendant never asserted a claim of an express easement in her pleadings

. Moreover, she did not a ssert this claim at trial ; to the contrary, she objected to evidence presented by Plaintiffs regarding the mediation agreement , which would ha ve been the only basis for an express easement . Accordingly, Defendant waived any claim of an
express easement

.

4 Easements may also be created by prescription, necessity, reservation, or emin ent domain.

Pevear , 924 S.W.2d at 115

- 16. Additionally, easements can be divided into two broad classes: easements appurtenant and easements in gross. Id. An easement appurtenant involves two tracts of land

— the

dominant tenement and the servient tenement

— w hereby the dominant tenement benefits in some way from the use of the servient tenement. Easements in gross are simply a personal interest or right to use the land of another which does not benefit another property, or dominant estate; thus, easements in g ross usually involve only one parcel. Id. This case involves a dispute between the owners of two neighboring parcels over a purported easement appurtenant.- 7

-

For the forgoing reasons, the mediation agreement entered into between the parties cannot be relied upon to establish an express easement.

I I

. E ASEMENT BY E STOPPEL

Defendant con tends she is entitled to an easement by estoppel because Plaintiffs were aware of the driveway accessing Defendant’s property prior to their purchase of

their land and because Plaintiffs’ deed contained a limitation m aking it subject to any

“ easements visible upon inspection. ” H owever, as w as the case w ith the claim of an express easement, Defendant did not ple a d such a claim and she did not present proof of nor argued the issue of easement by est oppel at trial. Defendant filed a post

- trial Rule

15.02 motion to amend th e pleadings to include estoppel; however, the trial court denied

this motion

, and we find no abuse of discretion with this decision. See In re Estate of

Haskins , 224 S.W.3d 675, 685 (Tenn. Ct. App. 2006) (“The granting or denying of a motion to amend is within the sound discretion of the trial court and will be reversed only for an abuse of discretion.”).

As stated above, a claim or defense not raised in a pa rty’s pleadings or argued at

trial is dee med waived. See Taylor v. Beard

, 104 S.W.3d 507, 511 (Tenn. 20 03). Accordingly, Defendant is precluded from asserting this issue on appeal.

II I. E ASEMENT BY I MPLICATION

Defendant properly asserted her claim of an implied easement and contends in this

a ppeal that the trial court erred by applying a standard of “strict necessity” to her claim.

To establish an easement by implication , the party asserting the easement has the burden of proving the following three elements by a preponderance of the evidenc e:

(1) A separation of title; (2) necessity that before the separation takes place, the use which gives rise to the easement shall 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 beneficial enjoyment of the land granted or retained.[ 5 ]

Newman v. Woodard , 288 S.W.3d 862, 866 (Tenn. Ct. App. 2008) (citing Fowler v.

Wilbanks , 48 S.W.3d 738, 741 (Tenn. Ct. App. 2000)). “The reasoning behind implied

5 A fourth element of “continuous servitude” has been added on occasion; however, we have previousl y noted that this element is “subsumed within the other three long

- established elements.” Eberle

v. Elliot , No. E2012

- 00298

- COA

- R3

- CV, 2013 WL 3357129, at *5 (Tenn. Ct. App. June 28, 2013) (citing Ingram v. Wasson , 379 S.W.3d 22 7, 242 n. 17 (Tenn. Ct. App. 2011); Cellco P’Ship v. Shelby Cnty. , 172 S.W.3d 574, 589 (Tenn. Ct. App. 2005)).- 8

-

easements is that a grantor intends to include in a conveyance whatever is necessary for the beneficial use and enjoyment of the property conveyed.” Adcock v. Witcher

, No. 01

- A

- 01

- 9505

- CH00220, 1995 WL 675852, at *4 (Tenn. Ct. App. Nov. 15, 1995)

. However,

t he law does not favor implied easements , and “the courts of this state have expressed a policy in favor of restricting the use of the doctrine.” Cellco P’Ship v. Shelby Cnty. , 172

S.W.3d 574, 589 (Tenn. Ct. App. 2005) (citing Cole v. Dych , 535 S.W.2d 315 , 318 (Tenn. 1976) ).

In this case, the parties stipulated that the first two elements require d for an implied easement exist

. T he third element

, whether the purported easement is necessary and essential to the beneficial enjoyment of Defendant’s land , is in dispute.

In determining whether an easement is necessary to the beneficial enjoyment of an individual’s lands, “Tennessee does not . . . require strict or absolute necessity[.]”

Newman , 288 S.W. 3d at 866 (citing Fowler , 48 S.W.3d at 740). Instead, we have interpreted the term “necessity” as meaning “reasonably necessary” for the enjoyment of

the dominant tenement. Fowler , 48 S.W.3d at 741 (citing Line v. Miller , 309 S.W.2d 376, 377 ( Tenn. Ct. App. 1957); Johnson v. Headrick , 237 S.W.2d 567, 570 (Tenn. Ct. App

. 1948))

. “Under this rule, the easement must be of such necessity that it is presumed to have been within the contemplation of the parties at the time of the severance.” Rhoades v. Taylor

, No. M2001

- 00643

- COA

- R3

- CV, 2003 WL 724672, at *5 (Tenn. Ct. App. March 4, 2003) (citing LaRue v. Greene Cnty. Bank , 166 S.W.2d 1044, 1049 (Tenn. 1942) ; Line , 309 S.W.2d at 377 ; Johnson , 237 S.W.2d at 570).

The cost of constructing a n alternate means of ingress and egress is a fact or that

may be considered when assessing the necessity of a n implied easement

. See Haun v.

Haun

, N o. E2004

- 01895

- COA

- R3

- CV

, 2005 WL 990566, at *6 (Tenn. Ct. App. April 28, 2005). For example, in Rightsell v. Hale , our Supreme Court upheld an easement by

im plication in order to access a public road because of the unreasonable expenditure required to create another means of accessing the property. Rightsell v. Hale , 18 S.W. 245, 246 (Tenn. 1891) (“While it was possible to make another way out . . . to make su ch other way at all convenient would involve an expenditure altogether disproportionate to the value of the estate to be benefited.”). Conversely, where a replacement “would not involve an unreasonable or disproportionate expenditure

, ” we have held that a n implied easement is not reasonably necessary. See Allison v. Allison , 193 S.W.2d 476, 477

- 78 (Tenn. Ct. App. 1945) ; Bradley v. McLeod , 984 S.W.2d 929, 935 (Tenn. Ct. App. 1998), overruled on other grounds by Harris v. Chern , 33 S.W.3d 741, 742 (Tenn. 2000 ).

In this case, it is undisputed that Defenda nt’s property has nearly 200 feet affronting a county road to which Defendant could conceivably construct an alternate driveway. However, Defendant argues that the cost of constructing an alternate driveway to this road would be excessive and, therefore, the current driveway accessing her land is reasonably necessary.- 9

-

As indicated above, the party asserting the presence of an easement bears the burden of proving the required elements by a preponderance of the evidence. Newman

, 288 S.W.3d at 866. Here, the proof presented by Defendant at trial consisted of Defendant’s own testimony and the depositio n testimony of Mr. Pierce, a professional land surveyor. Although Defendant originally testified that it w ou ld be “impossible” to construct an alternate driveway on her property due to her limited income, she later conceded that neither Mr. Pierce nor anyo ne else told her that a driveway could not be constructed on her property. Additionally, although Defendant presented the deposition testimony of Mr. Pierce

— who estimated a cost of $20,000 for a replacement driveway

—

on cross

- examination

, Mr. Pierce stated that he is not “ a construction estimator ” and that his figure was merely a “ballpark” estimate. Further, Mr. Pierce admitted that he failed to

calcula te the amount of fill that would be required to construct a driveway, the number of

hours or people it wou ld take to complete such a task, how many feet of ground would have to be disturbed to build the driveway, or what size retaining wall that would be required.

Based on this evidence, the trial court concluded that, although Mr. Pierce was qualified as a licensed surveyor to testify regarding the topographical issues involved in constructing a new driveway, Mr. Pierce’s testimony was not sufficient to establish a cost of constructing this driveway. Because no other evidence was presented regarding the

cos t of the driveway, the trial court held that Defendant failed to establish that construction of a new driveway would be unreasonably expensive.

After reviewing the record, we conclude that the evidence does not preponderate against this finding. Addition ally, contrary to Defendant’s assertion, the record indicates

that the trial court applied the correct principle in reaching its conclusion. This standard required Defendant to put on competent proof that the driveway was reasonably necessary to the use an d enjoyment of her property. In this case, Defendant’s evidence

failed to meet this requirement . Accordingly, we affirm the trial court’s conclusion that Defendant is not entitled to an easement by implication.

IV. T HE L IMITATION IN P LAINTIFF ’ S D EED

Fin ally, Defendant contends Plaintiffs acquired the property subject to her interest in the driveway. This contention is based on the fact the driveway is visible upon inspection , it was in existence when P laintiffs acquired the property , and Plaintiffs’ deed contained a limitation making it subject to any “ ea sements apparent upon inspection

. ” 6

6 Specifically, Plaintiffs’ deed states that it “is expressly made subject to any and all restrictions, reservations, covenants and conditions contained in former deeds and o ther instruments of record as may now be binding on said property, and to any easements apparent from an inspection of said property.”- 10

-

The provision making Plaintiffs’ ownership subject to “easements apparent upon inspection” does not , in and of itself, create a new property interes t in Defendant; instead, its purpose was to protect any previously existing legal interests. In this case, it is undisputed that there is no former deed or instrument of record containing a restriction, reservation, or covenant permitting Defendant to acce ss the driveway. Further, as discussed above, we have determined that Defendant has not met her burden of proving

that an easement exists in this case. Accordingly, we conclude that the language of
Plaintiffs’ deed does not entitle Defendant to access the disputed driveway.

I N C ONCLUSION

The j udgment of the trial court is affirmed , and this matter is remanded with cos ts of appeal assessed against Charlotte Cornwell

.

__________________ ______________ FRANK G. CLEMENT, JR., P.J., M.S.