# FILED May 9, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ FLORA SCRUGGS, Plaintiff-Appellee, Rutherford Chancery No. 93CV-464 Vs. C.A. No. 01A01-9610-CH-00475 GORDON BELL, Defend ant-App ellant.

__________________________________________________ __________________________ FROM THE RU

THERFORD CO UNTY CHA NCERY COUR

T THE HONORABLE ROBERT E. CORLEW, III, CHANELLOR

Frank M. Fly of Murfreesboro For Appellant David W. Kious and Robert O. Bragdon of Murfreesboro

For Appellee

REVERSED AND REM ANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE HOLLY KIRBY L ILLARD, JU DGE This case inv olves a di spute con cerning an ease ment for ingress a

nd egres s. Responde nts-Appe llants, Gordon Bell and Sarah T. Bell, appeal from the order of the trial court1 On Octobe r 24, 1995 , Flora Scr

uggs tran sferre d the prop erty by qu itclaim deed to her husband, John T. Scruggs, Sr. On January 23, 1996, the trial court entered an order substituting John T. Scruggs, Sr. in place of Flora Scruggs as the proper party in interest. However, because the trial court a nd the parties have continued to refer to the petitioner a s Flora Scruggs, we will do likewise.

2 Scruggs actually purchased the land with John T. Scruggs, Sr. In 1982, John T. Scruggs, Sr. conveyed his interest in the land to Flora Scruggs making her the sole owner until she conveyed it back to him in 1995.

3 Old New Cut Road is referred to throughout the record a s Old New Cut Road, New Cut Road, Triune, and Salem Road, or old dirt road. In this opinion, we will call the road “Old New Cut Road.” 2 granting an easement by estoppel to Petitioner-Appellee, Flora Pope Scruggs 1 , without compensa tion to the B ells. In 1970, Scruggs purchased 35 acres of unimproved land in rur al Rutherf

ord Coun ty. 2 The land did not front a public road, but it had a connection to a public road b y Old New Cut Road 3 , an old dirt road that crossed theneighboring property. Scruggs’s deed did not provide for any type of easement over the other pr operty. In 1981, the Bells purchased 10 acres of land west of Scruggs’s property with the center line of Old New Cut Road as its southern boundary, an d in 1987, the Bells purchased an additional 23.2 acres on the other side of Old New Cut Road with the center line of the road as its northern boundary. Old New Cut Road bisects th

e Bells’ p ropertie s. Neithe

r of the Be

lls’ deeds is subject to an easement in favor of Scruggs. Old New Cut Roa

d is descr ibed as a 10-foot wide dirt road ful l of potholes with tree branches hanging into the road bed that would scratch vehicles and brea k their side mirrors. Scruggs used Old New Cut Roa d to haul f

irewood from her propert y even tho

ugh it would damage her truck. She and her sons cut the tree limbs back and laid flat rock in the road bed to try to prevent some of the damage. Other ne arby landownersalso used the road to acce ss their propert ies. One landowner testified that he thought it was an old county road and wasnot owned by anybody. In a 1975 survey, Old New Cut Road was described as “old dirt road (not used).” The road has been used since 1970, but was not maintained by the c ounty. Scruggs moved a ho

use onto he

r proper ty using Old New Cut Road. She had to cut down
a few trees to move the house. Scruggs wanted to complete fur ther improvements to he r property, including electricity, gas, water, and phone service. G ord on B ell never prevented Scruggs from using

the road nor did he ever restrict her use. However, in 1991, Scruggs cleared4 The road bed is about 12 feet wide, and the clea red swath next to the road is about 33 feet wide.

5 On September 16, 1994, Scruggs filed another petition that merely added Sarah T
. Bell, Gordon Bell’s wife, as a respondent. 3 an area along Old New Cut Road with a bulldozer without Bell’s permission. 4 On July 2, 1991, Gordon Bell sued Scrugg s for damage s resultin g from the bulldozin g and for

an order to permane ntly prohibit Scruggs from entering his land. The general sessions court en tere d a judgmentfor

Gordon Be

ll against Scruggs f or $6,925 .00. Scru ggs appe aled to the circu it court, but all issu es were

settled be

fore tri al. On May 17, 19 93, Scrug gs f iled a pe tition in chancery court seeking to establish an easement or, in the alternative, to establish her right to a statutory easement for ingre ss and egress pursuant to T.C.A. § 54-14-101 (1993)
. 5 In the petition, Scruggs avers that she has an existing e asement for ingress and egress over Old Ne w Cut Road and that she is being denied free access by the Bells. She avers that the Bells are denying her the right to have utility service to her property unless she pays them a substantial sum of money. She avers that she should not be restric ted in her

use of Old

New Cut Roa

d and that

the Bells s hould be e

njoin ed from interfering with her free acc ess. The petition prays that

the court find an existing right-of-way over Old New Cut Road that allows Scruggs free access to her land and an existing easement for ingress and egress ove r Old New Cut Road. Further, Scruggs prays for a finding of an existing easeme nt by implication for the extension of utility s ervices along Old New Cut Road. In the alternative, Scruggs request s an easement for ingress and egress pursua nt to T.C.A. § 54-1 4-101 and f or any additional land that would be necessary for extension of utility service. Fin ally, Scruggs demands an injunc tion agai nst the Bells preve nting them f

rom interfe ring with h

er use of Old New Cut Road. On June 20, 1 993, Gord

on Bell filed an an swer to the petition denying that he was preventing Scruggs from using Old New Cut Road. He also denied that an easement or right-ofway already existed. On October 13, 1994, Sarah T. Bell filed an a nswer to the petition denying the material allegations of the petition and asser ting an affirma

tive def ense of r es judica ta because of the Bells’ 1991 suit against Scruggs. Gordon Bell filed a motion to dismiss based on the doctrine of res judicata, but the trial court denied both the motion and hi s reques t for an4

interlocutory app eal. On June 13, 1995, the case was tried before the cha ncery court sitting without a jury. On August 24, 1995, the trial court entered an order gra nting Scruggs a 45-foot wide e asemen t
across the Bells’ property consisting of a 15-foot wide easement for ingress and egress and a 30- foot wide easement for utilities. The court took under advisement the issue of the e as em ent’s location and the issue of payment to the Bells. On September 15, 1995, the trial court filed an opinion outlining its decision, and on May 23, 1996, t he t rial court entered a final order that incorporated

the August 24 order

and the September 15 opinion. The trial court granted Scruggs
an easement by estoppel consisting of the 15-foot wide ingress and egress easement and the 30- foot wide utility easement. The ingress and egress easement was not compensa

ble to the Bells, butthe utility eas ement was co mpensable. The parties agreed to both the location of the
easeme nts and the

value of the utility

easeme nt. The Bells appeal the order of the trial court and present two issues for re view: 1) whether the present

suit is barre d by the do ctrines o f res jud icata a nd collat eral es toppel; and 2) whether Tennessee law allows the gratuitous conversion of a per missive us e into an easement by estoppel
. 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 correctness of the findings of fact by the trial court . Unless the evidence p reponderates against the findings, we must affirm, absent er ror of law. T.R.A.P. 13(d). In the fi rst issue, the Bells argue that the general sessions court in the Bells’ 1991 sui t against Scruggs im

pliedly fo und that Sc

ruggs did n ot have a

n easeme nt b ecause the court awarded damages to the Bells. They argue that if she had an ease ment, then she would have had
a rightto bulldoze the trees, and therefore, the cour t would not have entere d a judgme nt agains t her. The Bells claim that Scruggs should have presented the issue of an easeme nt i n a counter claim in the first su

it. Scruggs filed an affidav it of Royce Taylor, her attorney in the earlier suit, which wa s appare ntly consider

ed by the t

rial cou rt witho ut objection from the Bells. The affidavit states that the first suit dealt only with damages to the Bells’ land and that no ruling was made about
an easement because no ruling was requeste d by either party. According to Taylor, the trial court5

ruled that Scrugg s had damaged the Bells’ property beyond the road and e njoined her from coming back onto the Bells’ property. However, the ruling did not prevent her from using the road. A judgment on the merits exhausts the cause of action on which it was based and

is an absolute bar to a subseque nt suit betw een the s ame par ties and th

eir privi es upon the

same ca use of action. Madyun v. Ba llard , 783 S.W.2d 946, 948 (Tenn. App. 1989). Res judicata operates to bar a claim when a prior judgment in an action between the same parties o n the same

cause of action concludes not

only the facts actually litigated, but the facts pertaining to that issue that might ha ve been brought forth and litigated. Harrogate Corp. v. Systems Sales Corp. , 91 5 S.W.2d 812, 816 (Tenn. App. 1995). Res judicata bars a second suit between the same par ties and thei r privies o n the same
cause of actio n as to all i ssues tha t were or could hav e been litigated in the former suit. Collateral estoppel operates to b ar a s econd suit between the same parties and their privies on
a different cause of action o nly as to issues that were actually litigated and determined in the former suit. To sup

port a ple a of resjudicata , it must be s hown that the judgment in the prior
case was final and concluded the rights of the party against whom it is asserted. It is also necessary to show that both c ases invo lved the same cause of action. To sustain a plea of colla te ral estoppel it must be shown, inter alia , that the issue sought to be co ncluded not only
was litigated in the prior

suit but was necessary to the judgment in that suit. Massengill v . Scott , 738 S.W.2d 629, 631-32 (Tenn. 1987) (citing 22 Tenn. Jur. Res Judic ata § 4 (1985)). One defending on the basis of res judicata or collater al estoppel

must demon strate

that 1) the judgme

nt in the pr

ior case was fina l and conc luded the

rights of t

he party against whom the defense is asserted, and 2) both cases involve the same pa rties, the same cause of action, or identical issues. Richardson v. Tennessee Bd. of Den tistry , 913 S.W.2d 446, 459 (Tenn. 1995). In the case at bar, the Bells have simply failed to prove that this case and the earlier case involved t

he same c auses of

action or identica l issues. T

his issue iswithout me

rit. In the seco nd issue, t

he Bell s assert thatthe trial court misapplied the law and that the grant of an easement

by estoppe

l was not a

ppropria te under the fac ts of this c ase. The Bells complain only about the easement for ingress and egress, not the utility easement. Furthermore, the Bells do not

object to an ease ment for S cruggs. T

heir real objection is that Scruggs did not6

have to pay for

the ease ment for ingress a

nd egres s. To dete

rmine the validity of this objection,
we must deter

mine if Scr

uggs is ent

itled to an ease

ment for ingress a

nd egres s over the

Bells’ property. In its September

15, 1995 op inion, the

trial cou rt examin ed each type of e asement

in light of the facts of this case. The trial court initially found that neither an express easement nor an easement by dedication existed in this case. We agree. An express grant of an easement is an irrevoc able

license to enter upon land of another and must be in writing. Childers v. Wi lliam H. Coleman Co. , 122 Tenn . 109, 126 ( 1909). A d edicatio n is found where the owne r of land sets apart a portion of his lan d by agre ement, e ither for compensa

ti on or gratui tously. Smith v. Black , 547 S.W.2d 947, 950 (Tenn. App. 1976). It is clear fr om the record that none of the deeds involved contained an express grant of an easement in favor of Scruggs and that the parties
never ma de a sepa rate ag reemen t concer ning an ea sement. The trial co urt next concluded that an easement by prescription was not e stablished because Scruggs’s use of Old New Cut Road throu g h the Bells’ property was permissive. Twenty years of adverse use is re quired to

establish a presc riptive e asement . Keebler v. Street , 673 S.W.2d 154, 156 (Tenn. App. 1984). “The use and enjoym ent which will give title by prescription to an easement . . . must be a dverse, under cl aim of right, contin uous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescenc e of the owner of the servient tenemen t, and must

continue for the full prescriptive period . . . .” Id . (quoting House v. Close , 346 S.W.2d 445, 447 (Tenn. App. 1961)). An easement by p rescription may not be obtained where the use is permissive
. City of Whitwell v . White , 529 S.W.2d 228, 230 (Tenn. App. 1974). The owner of the servient estate may def eat the c laim ant’s right of prescription by testifying that he never objected to the claimant using the road rega rdless of for how long a period. German v. Graham , 497 S.W.2d 245, 248 (Tenn. App. 1972). In this case , there i s a dispute about per

mission. Scruggs cla

ims that s he as ked only permission to cut the trees along Old New Cut Road because she felt that she was entitled

to use the road itself. However, the Bells character ize the request for permission as a request to use and improve the road. Regardless, Gordon Bell testified that he had never preve nted nor objected to Scruggs using Old New Cut Road. From our review of the record, we c onclude that the evidence do es not prepo nderate against the trial court’s finding that there is no ease ment by7

prescr iption in fa

vor of Scr uggs. The trial court

also found that

an easement by prescription for a public way c ould not be established. The evidence shows that the public used Old New Cut Road for many yea rs, bu t there is no proof that

Old New Cu t Road was ever a county maintained road. The trial c ourt found that the use of the road was not continuous for a period of 20 years or more and that the use was permissive or with the permission of the landowners whose land abutted the r oad. It is long settled law that

a public way may be established by evidence of adver se use for
a long period of

time, witho

ut any exp

ress ded ication, if it is show n that the use is under a

claim of right, a nd not merely permissive. Mere permissive use is not sufficient to establish a dedication. Lewisburg, Tennessee v. Emerson , 5 Tenn. App. 127, 132 (1927). To establish a dedication by implica

tion, ther e must be p

roof of f acts fro m which it p osit ively and unequivo callyappear s that th e owner intended to part pe

rmanent ly with his p

roperty and vest it in the public, and there can be no other reasona ble explanation of his condu ct. Id . The evidence does not pr

eponder ate aga inst the tr ial cour t’s findin g that Old N

ew Cu t Ro ad is not a public way. The trial court next concluded that Scrugg s did n ot have an easement by implication because there was no evidence of unity of title. It is the policy of our law to restrict thedoctrine of implied easements because theyare not favored in the law. Cole v. Dych , 535 S.W.2d 315, 318 (Tenn. 1976). Implied easements are founded upon conveya nces and are

premised upon the presumption that they were within t he contem plation of the parties and must be supported by unity of title. Id. We find that the evidence does not prepondera te a gainst the findings of the trial court concerning a n implied e asement . We note that the tr

ial cour t did not specifically consider an easement by necessity because such a n easement

is a type of implied easement that requires unity of tit

le. A way

of nece ssity is dep endent up on an implied grant a nd canno t exist where there never was any unity of ownership of the a lleged dominant and servient estates, for
no one can have a way

of necessity over the land of a stranger. Emerson , 5 Tenn. App. at 134. Finally, the trial court turn ed to easements by estoppel. In its opinion, the trial court stated, The Court recognizes that easements by estoppel also are not favored under the l aw, and, where the Court is able to do so, cou rts ev en struggle, perhaps, to find an easement by prescr iption,8 rather than easements by estoppel. See, House v. Close, supra at 449; Jones v. Ross , 388 S.W.2d 640, 646 (Tenn. Ct. App. 1964) c ert. denied . Generally estoppel is available only to protec t a right that previous ly existed, but

not to create a new right. E.K. Hardison Seed Company v. Co ntinental Casua lty Company , 41 0 S.W.2d 729, 733 (Tenn. Ct. App. 1966) cert. denied 1967. It was on this basis, that at le ast one c ourt has h eld that a n estoppe l is insufficient

to establish the existence of an easement. Charles N. McDowell

v. Carol Ratcliff and Ellen Ratcliff , [unpublished] 1992 W.L. 328707, 92 Lexis 929 (Tenn. 1992)[sic], Appeal No. 03A01-9206CH00225 -- Eastern Section, November 12, 1992. The trial court then stated that this case was differen t fro m McDowell

and that easements by estoppel should be r

ecogniz ed in orde

r to prev ent grossinjustice from occurring. The trial court analyzed the facts of this case using the elements of equitable estoppel as stated in Callahan v. Town of Midd

leton , 292 S.W.2d 501 (Tenn. App. 1954), and concluded that this was “an appropr iatecase for the recognition of the existence of an easement.” The trial court stated, “The easement then being recognized

by the Court under the principle of estoppel, the Court finds the easement to have previously existed. The easement, then, being in existence prior to the
commenc ement of

the lawsu

it, the Cour

t, then, should not as sess damages or compensa

tion in favor of the Defendant for the taking of the land for the purpose of the easement.” We be lieve tha t an ease

ment by es toppel ca

nnot be fo

und in this c ase for

two reas ons. Fir st, in Cal lahan , this Court applied the elements of equitable estoppel to the issue of an easement by estoppel and stated:

The essentia

l element s of an equitable estoppel as related to the pa rty estopped

are sai d to be (1) Conduct wh ich amoun

ts t o a false representation or concealment of mater ial facts, or, at

least, which is calculat ed to c onvey the impression that the facts are otherwis e than, and inconsistent wi th, th ose whic h the par ty subseque ntly attempts t

o assert ; (2 ) Intenti on, or at l east expectation that such conduct shall be ac t ed upon by the other party; (3) Knowledge, actual or constructive of the rea l facts. As related to the party claiming the estoppel they are ( 1) Lack of knowledge and of the means of knowledge of the truth as to the facts in ques tion; (2 ) Relianc e upon the conduct o f the par

ty estopped; and (3) Action based the reon of s uch a ch aracte

r as to change his position prejudicially. Callahan , 292 S.W.2d

at 508 (qu oting 19 Am. Jur. Estoppel § 42 at 642-43). In the case before us, the trial

court sta ted, “[I ]t a

ppears to the Court that a false impression was provided to the Scruggs.” We belie

ve that the evidence prep onderat es again st this finding of the trial court. The record does not di sclose a

ny false misrepre senta

tions or conduct t

hat givesrise to a f

alse impression on the part of the Bells. We believe that the Bells are not estopped from denying the9

existence of an easement because Scruggs ca nnot show that the elementsof an equ itable estoppel have be en met. Second, the trial court stated that a number of cour ts have expressly recognized the existence of the finding of an easement by estoppel, citing Moore v. Queener , 464 S.W.2d 296 (Tenn. App. 1970). In Moore , the plai ntiffs sued the def endants t o keep a n easeme nt open ac ross the defendants’ land. The easement was re corded in a plat of

the subdivision, but the deeds were silen tas to the existence of the easement. Id . at 299. However, the deeds refer enced th e recorded plat. Id. In addition, the easement was an announced condition to the purchase of the land during the auction of the subdivision’s lots. The Court stated, “The fa ct that an easeme nt, of some sort, over the

lands of t he defe ndants fo r compla inants’ b enefit, actually existed at the time of the conveyances, cannot be and is not controverte d.” Id . at 300. The Court held that the plaintiffs were entitled to an ea sem ent by the ir deed a nd that the

defenda nts were estopped to deny the existence of the easement beca use they hadnotice of the easement from the recorded plat and the announced conditions. Id . at 302. Reliance on Moore is misplaced. In Moore , the Court did notcreate an easement using estoppel , it merely

estopped the defe ndants fr om denying

that one a

lready e xisted. Es toppel is availab le to protect a right, but never to create one. E.K. Hardison Seed Co. v. Continent al Cas. Co. , 410 S.W.2d 729, 7 33 (Tenn. App. 1966). In the pres ent case , the tria l court c arefully examinedeach way that an e asement could be created and concluded that Scruggs did not have
an easement. The trial court rejec ted an exp ress easement, a prescriptive ease ment, and an implied easement. However, the trial court granted Scruggs an easement by estoppel and sa id, “[T]he Court finds the easement to have previously existed.” We conclude that the evidence prepondera tes against the findings of the trial court that there is an easement by estoppel. Finally, Scruggs argues that abutting landowners have the right to use abandone d roads touching their property. See Current v. Stevenson , 1 16 S.W.2d 1 026 (Ten n. 1938). This argument must also fail because there is no proof that the road was a public wa y, and the trial court ex pressly s o found. T

hus, ther e could be

no abandonment. Scrugg s sought alt

ernativ ely for th

e Court to p

rovide in gress and egresspursuant t o T.C.A. § 54-14-101 and 10 2 (1993). The Bells conceded in the trial court that they did not10

object to such an easement if they were prope rly compensated as provided by the statute. Accordingly, the orde

r of the tr ial cour t granting Scruggs a

n easeme nt by estop

pel is reversed, and the case is remanded for further p roceedings to establish a way of ingress and egress pursuant

to T.C.A. § 54-14-102 (1993). Costs of appeal are assessed against the appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE