FILED

February 25, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

LLOYD D. SCARLETT and ) CUMBERLAND COUNTY

LLOYD L. SCARLETT ) 03A01-9806-CH-00201

)

Plaintiffs-Appellants )

)

) HON. VERNON NEAL,

v . ) CHANCELLOR

)

)

FRANKLIN HENRY and JIM OAKES )

and wife DOROTHY OAKES )

)

Defendants-Appellees ) AFFIRMED AND REMANDED

JOHN D. AGEE OF KINGSTON FOR APPELLANTS

STEVEN C. DOUGLAS OF CROSSVILLE FOR APPELLEE FRANKLIN HENRY

LARRY M. WARNER OF CROSSVILLE FOR APPELLEES JIM OAKES and DOROTHY

OAKES

 O P I N I O N

 Goddard, P.J. 

This is a suit by Lloyd D. Scarlett and his father

Lloyd L. Scarlett, whose wife Shirley Scarlett was made a party

plaintiff at the beginning of the trial, against Franklin Henry

and Jim Oakes and his wife Dorothy Oakes. The Plaintiffs seek a
1

Mr. Henry and Mr. Oakes purported to divide the 50-foot right-ofway down the middle by executing quit claim deeds whereby they acquired 25

feet of the right-of-way that adjoined their property. 

2

Our use of the first names of the parties should not be construed

as any disrespect, but rather is for ease of reference.

2

declaration that they are entitled to use a 50-foot right-of-way 1

adjoining Lloyd D.’s 2

 property and ending at the property line of

Lloyd L. (See appendix A.) 

The Plaintiffs also seek a determination as to the true

boundary lines between their properties and those of the

Defendants.

The boundary line questions have been resolved, either

by stipulation or by the Chancellor’s determination below, and

are not the subject of this appeal.

The Chancellor found the following provision contained

in a deed conveying property from the Oakeses to Lloyd L. and his

wife was intended to apply to the 50-foot right-of-way in

dispute, rather than another right-of-way to the northwest

thereof, as insisted by Lloyd L.:

The grantees herein join in the execution of this

instrument to waive, quit-claim and relinquish any

right, title, claim or interest which they may have to

a road right-of-way which was formerly created along

the Southern boundary of the property herein described.

Our review of the record persuades us that the evidence

does not preponderate against the findings of the Chancellor as
3

to Lloyd L.’s relinquishment of his interest in the right-of-way. 

Indeed, the proof is overwhelming that there was only one rightof-way.

The Chancellor further found that Lloyd D. was not

entitled to the use of the right-of-way adjacent to his 

property--a portion of lot two and lot three of a subdivision,

plat for which was never recorded in the Register of Deeds office

nor made a part of the record in this appeal. Although, as

already noted, Lloyd D.’s property adjoins the right-of-way, the

deed conveying the property to him does not grant him a right-ofway, nor does the description as to his property mention the

right-of-way from which a right of use might under some

circumstances be inferred.

The Chancellor recognized that his finding that Lloyd

D. was not entitled to use of the right-of-way resulted in Lloyd

D.’s property being landlocked, except for the fact that he

received the property from his father, Lloyd L., who had an

option to purchase it from Mr. Henry. The deed from Mr. Henry

was made, although inadvertently according to Mr. Henry, directly

to Lloyd D. The Chancellor reasoned that in effect, although no

such instruments were prepared nor signed, the option was

assigned from Lloyd L. to Lloyd D., and that by virtue of this,

Lloyd D. would have an easement by necessity across his father’s

adjoining property which does have access to a public road.
3

This deed of correction was properly found to be a nullity by the

Chancellor.

4

While we agree with the Chancellor that Lloyd D. has no

interest in the right-of-way, it is arguable that an easement of

necessity did not arise because the property was never vested in

Lloyd L. If it is indeed true that the property must have vested

in Lloyd L. and he must have conveyed the property to Lloyd D.

before such an easement arises, Lloyd D. is not without recourse

because it is also arguable that he would have an easement by

necessity over the 25-foot strip which Mr. Henry acquired. 

Militating against a finding of an easement by

necessity arising by virtue of the deed from Mr. Henry, we note

that Mr. Henry was convinced the property he was conveying was to

Lloyd L. rather than to Lloyd D. Perhaps the reason for Mr.

Henry’s insistence that the property was to be conveyed to Lloyd

L. was because he recognized an easement of necessity might arise

should he convey the property to Lloyd D. In any event, he felt

so strongly regarding the matter that he had prepared and

recorded a deed of correction to show that Lloyd L. rather than

Lloyd D. was the grantee. 3

However the resolution of an easement by necessity may

be, this point was never raised nor briefed in this Court, and we

decline on the record before us to make a judgment regarding

which, if either, easement by necessity arose.
5

Before concluding, we note that Section 2 of the

Chancellor’s final order provided the following:

2 . That in accordance with Exhibit 19 (Stump

Survey), the Southwestern line of the Scarlett/Oakes

property is south 40 degrees, 04 minutes, 23 seconds

East a distance of 160 feet to a nail.

Our review of Exhibit 19 (Appendix B) discloses the

distance of this line to be 165 feet, rather than 160 feet as

stated in the final order.

For the foregoing reasons the judgment of the

Chancellor is affirmed and the cause remanded for collection of

costs below. Cost of appeal are adjudged against the Plaintiffs

and their surety.

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

Charles D. Susano, Jr., J.