1 There is some discrepancy in the record regarding whether the corre ct s pell ing is “Shel l” or “Sche ll ” Road. For cons ist

ency , we wil l us e th e same spel li ng as tha t us ed by t he t ria l cou rt, whi ch i s Sche ll Road. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Septem ber 5, 2002

Session JOHN DAVID RHOADES, II, ET AL 

### . V 

### . MICHAEL L. TAYLOR, ET AL 

### .

Appeal from the Chancery Court for Sumner County No. 2000 C 23 Tom E. Gray, Chancellor

No. M2001-00643-COA-R3-CV - Filed Mar ch 4, 2003

This appeal involves a conflict between neig hbors over whether the Tay lors have a righ t to use a graveldriveway loc ated on property owned by the Rhoade s to access their property . The trial court found that an implied easement was proved. The Rhoades appea l that judgment to this court arguing that the Taylors fa

iled to prove two elements necessary for a finding of

an imp lied e asem

ent. We affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which W IL LI AM B. C AIN , J., and E LLE N H OBBS L YLE , S P
. J., joined. Wayne Detring, Hendersonville, Tennessee, f or the ap pellants, John David Rhoades, I I, e t al. Joe M. Hay

nes, Good

lettsville , Tennes see, for

the appe llees, Mic hael L . Tay

lor, et a l. OPINION
I. F acts This case arises from a dispute between two neig hbors concerning the use of a g ravel drive known as Rhoade s L ane. John David Rhoades, I I, Te mpie Rhoad

es Jones, A

nna Gra ce Rhoad es, andRhoades National Corporation (the “Rhoades”) presently own or reside on approximately 168.7 acres located behind the property of Michael and Diana Tay lor off of Schell 1 Road, a pu

blic roa d in He nde rsonville, Tennessee. Rhoades La ne is a twelve to sixteen foot wide gravel drive which borders the back of the Tay lors’ property a

nd extends over one mile to the houses and property of the Rhoad

es.2 The Taylors’ counter-complaint states the Taylors hav e since mo ved their mailbo x and cha nged their ad dress to 100 Rho ades Lane at the request of t he Sumner County 911 Direct or, Mr. Buddy Shaff er. The count er-complai nt goes on to st ate that t

he Taylors receiv ed a letter f rom Mr. Shaff

er stating that the ir correct 911 address was 100 Rhoades Lane and requesting that t

he Taylors file a change of address form with the post office and mark their ma ilbox acco rding ly. 3 Th is is the acre age a fter a de ed re form ation w as gran ted b y the trial co urt. 4 According to M r. Bruce Rainey, a surveyor who did work for the s enior Mr. Rhoades on several occa sions, the pro perty ha s 295 .84 fe et of fron tage o n Sch ell Ro ad. H owe ver, the tria l court sta te d that there w as 260 f eet of fron tage on Sche ll Road.

5 We note that

the ori ginal sales contract for t he property between t

he Taylors and the Bri mms had contai ned a provision granti ng the Taylors permanent ingress and egress to their prop erty f rom Rhoad es Lane. This provision, however, was struck f

rom the contract when the Brimms, on advice from their realtor, inf

ormed the Tayl ors th at they had

(con tinued ...) -2- In August of 1982, the late John D . Rhoade s purchased a tract of land that contained approxima

tely three a nd one ha lf acres from Anthony

J. and Georg ia K. Billis. Mr. Rho ades buil t a house on the property sometime in 1986. Dur ing the construction of the residence, Rhoades L ane was used for ing ress and egres s to the lot. On November 6, 1986, Mr. Rhoades and his wife, Anna

G. Rhoades, convey ed the house and lot, officially known

as 1851 Schell Road 2 to James M. and Beverly B rimm by warranty deed. The conveya nce was of a triangular tra ct of land consisting of approximately .861 acre s 3 that had been part of the larger lot purchased by Mr. Rhoades in 1982. Ac cording to the test

imony of Mr. B rimm, at the time of the convey ance, there wa s no driveway from Sche

ll Road to the house. The only access to the house was via Rhoades Lane. The Brimms us ed Rhoade s Lane to acc ess their home during the time that they

lived there. On July 6, 1993, th

e Tay lors purc hased the propert y owned by

the Brim ms. The Taylors ha

ve residedin the home and have used Rhoades Lane for ing ress and egres s to their home continuously since purchasing thepropert y. T he Rhoade s obtaine d title

to the John D. Rhoades p

roperty upon his death in August of 1999. There is between 260 and 29 5.84 f eet of f ronta ge 4 on Schell Road along theTa ylo r p ro pe rt y. The Taylors h ave an a ttach ed, on e car gara ge a t the rear of their home accessed by their driveway from R hoades Lane and

would hav e to drive

around th

eir house in order to pull into t

he gar age if they had to ac cess the

ir prope rty by Sc hell Road. There is also a detached, three car g arage that was built by the Tay lors. According to the testim

ony of the B rimms and the Taylor s, Rhoades Lane has bee n used as the only means of accessto what is now the Ta ylo r proper ty since John D. Rhoades purchased the pr op er ty. The Brimms used Rho ades Lane to ac cess the house during the seven y

ears they resided on the property. A

t the time they purchased the property, the Ta ylors were

not informed that they needed permission to use Rhoades Lane

. 55 (.. .cont inu ed) no au thority to g rant the e asem ent, since the Rh oad es, and not the B rimm s, own ed R hoa des L ane. -3- The Rhoades filed a complaint against the Taylors seeking injunctive relief to prohibit the Taylors from using Rhoades Lane to acce ss t heir property and a declaratory

judgment that the Taylors had no property

interest in Rhoades Lane. The Ta ylors filed an an swerand countercomplaint seeking an easement by

implication for

ingres s and eg

ress totheir property via

Rhoades Lane. The Tay

lors also f iled a thir d-party complain t again st James M. and Beverly Brimm seeking reformationof their deed. The trial court gra nted the deed reformation, and the reformation of the deed was not appealed. The Rhoades andthe Taylors ente red an agreed judgment with regard to a mutual restraining order which prohi bited any party from inter ferin g with the su rvey of th eir pr opert y, build ing a fence, andcoming onto or

pl ac in g p ro pe rt y on to th e o th er pa rt y’s pr op er ty. In addition, the parties ag reed that neither would change or

remove survey

markings and decided that in the event that the Tay lors failed to prevail , they

would move

their mai lbox and cha

nge the ir addre ss. After th e t ri al of

th e m at te r, th e t ri al co ur t g ra nt ed th e T ayl ors an easement by implication allowing them the use of

Rhoades Lane from Schell Road to the driveway in the r

ear of their house. The Rhoades ap pealed. The sole issue on appeal is whether the trial court err ed in granting the Taylors an e asement by implication for ing ress and egress to their property over Rhoades Lane.
II . Implied Easement An easement is an interest in another’s real property that confers on theeasement’s holder an enforc eable r

ight to us e that re al prope

rty for a specificpurpose. Bradley v. McLeod , 984 S.W.2d 929, 934 (Ten

n. Ct. App. 1998). Under Tennessee law, severa l forms of easements are recog nized, inclu ding: express ea sements; e asement s by reserv ation; impl

ied ease ments; pre scriptive

easeme nts; andeasements by e stoppel. Pevear v. Hunt , 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). There are two gener al cate gories

of ease ments: ea sements in

gross and easements appurtenant. Id

. In Pevear , this Court expl ained the di fferen ce betw een th ese tw o form s of eas ement s, st ating:
In an easeme

nt appurt enant, th ere ar e 2 trac ts of land , the domin ant tene ment, and the servient tenement. The dominant tenement benefits in some way from the use of the servient tenement. Easements in gross are simply a personal interest

or righ t to use the land of another which does not benefit another property, or dominant e state, thus easeme nts in grossusually involve only one parcel. An easement appurtenant to land is favored over

an easement in gross in Tennessee. Goetz v. Knoxville Power & Light Co. , 154 Tenn. 545, 290 S.W. 409 (Tenn. 1926). 924 S.W.2d at 116.-4-

The Tay lors claim an ease

ment appu

rtenant to their pr

operty . An implie d easeme n t appurtenant

should only arise wher

e it is of such necessity that we may presume it wa s within the contemplation of the pa

rti es to a co nveyanc e. The Point, LLC. v. Lake Mgmt. Assoc ., 50 S.W.3d 471 , 478 (Ten

n. Ct. App. 2000); Fowler v. Wilbanks , 48 S.W.3d 738, 740 (Tenn. Ct. Ap p. 2000 ) (both citi ng LaRue v. Greene County Bank , 166 S.W.2d 10 44, 1049 (Tenn. 194 2)). With r egard to easements by implication, this Court has explained: Unlike express easements, [implied easements] take into account the prior use made of conveye d land. They

ordain the perpetuation of that use on the gener al princ iple that property is usually

passed along with its bu rdens and t hat the parties, as evidenced

by t heir ac tions, unde

rstood tha t their pr operty was thus co nveyed. See Roger A. Cunningham, et al., The Law of Pro perty§ § 8.4-8.5 (1984); 2A James Casner, American Law of Prope rty , § § 8.31-8.38 (1952).
Barrett v. Hill , No. 01A01-9806-CV-00295, 1999 Tenn. App. LEXI S 879, at *6-*7 (Tenn. Ct. App. Oct. 7, 1999) (no Tenn. R. App. P. 11 application filed). The party asserting an impl

ied ease ment has th

e burden of showin g “the e

xistence o f allfacts nece ssary to create by

implication an easement appurtenant to his estate.” The Point, LLC. , 5 0 S.W.3d at 478; Fowler , 48 S .W.3 d at 74 1 (bot h citi ng Line v. Miller , 309 S.W.2d 376, 377 (Tenn. Ct. App. 1957)). Under Tennessee law the party asse

rting an implied easement bears the burden of proving three elements: 1) A separation of title; 2) Necessity tha t, before the separation

takes pla ce, the u se which g ives 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) Ne ce ss it y t hat the easement be essential to the beneficial enjoy ment of the land granted or retained. The Point, LLC. , 50 S.W.3d at 478; Fowler , 48 S. W.3d at 741 (citi ng Johnson v. Headrick , 34 Tenn. App. 294, 299, 237 S.W.2d 567, 570 (Tenn. Ct. App. 1948)). In the present case , there is no dispute that the necessary

element of separation of title was shown. John D. Rhoa

des and h is wife owned the c laimed do minant tenement (n ow the Ta ylo rs’ pr op er ty) as part of the three acres they purchased from Mr. and

Mrs. Billis. John D. Rhoades and his wife sold off th

e portion now belonging to

the Tay lors, thereby

separa ting ownership of

title to the two parcels. The Rhoades argue that the Taylors fa

iled to prove the other two neces sar y elements , namely , the cont inuous use

before separa tion and th

e reaso nable necessity

elements

. First, the R hoade s argue

that the T aylors fail ed to prov e that before the separa tion of title took place, the use that gave rise to the ea sement continued so long and obviously that it manifested the intent that it was meant to be permanent. The trial court disagreed, fi nding that during construction and prior

to the sale of the residence to the Brimms, which constituted the separation of title, Mr. Rhoades accessed the property by means of

Rhoades Lane. The court further found that-5-

Mr. Rhoades and

his son-in-law “put in a culvert or a drain pipe so that they

could travel over and easier into the driveway ” from Rhoades Lane. T he court also noted that there was nodriveway f rom Schell Road at the time of the convey ance to the Brimms and that the only driveway

that entered the propert y was the one from Rhoades La ne, which the Brimms used during the seven years they owned the property. The

court also emphasized the senior Mr. Rhoades’s placement of the attac hed gara ge at the rear of

the house facing Rhoades Lane. The trial court found that all of these factors evidenced that the intent of the parties was that there be permane nt access to the Brimms’ [now the Taylors’] driveway from Rhoades Lane. Thus, the tria l court concluded that there wa s sufficientuse of Rhoades Lane

prior to the separation of

title for ingress and egress to the prope rty and that the par

ties intended that the Brimms continue to have such use on a permane nt basis. We agree. This court has adopted the prevailing rule with respect to implied easements which provides that: Wher e, during t

he unity of title, a n appare ntly permane nt and obvious servit ude i s impo sed on one pa

rt of an e state in f

avor of a nother pa rt, which servitud e is in use at the time of severance and is necessar y for the re asonable enjoyme nt of the o t her part, on a severance of the ownership the g rant of the right to continue such use arises by implication of law. Lively v. Noe , 460 S.W.2d 852, 854-55 (Tenn. Ct. App. 1970).
In addition, as stated in Bradley v. McLeod , easements by implication orda in the perpetuation of the prior use “on th

e gene ral principle that propert

yis usually passed along with its burdens.” Bradley , 984 S.W.2d at 934. Where a single owner sells portions of his or her prope rty to tw o different purchasers, “the respective portions g rantedare subj ect to or

benefit ted by , as the c asemay be, an easement corresponding to such use .” Lively , 460 S.W.2d at 855. Keeping these pr inciples in mind, we

now consi der the Rhoades’ argument that theaccess to the house from Rhoades Lane was “only for

a short time in 1986 during construction.” To support this argume

nt, they claim that there wa s another

drivewa y e ntering what is now

the Tay lors’ pro perty that ran directly

from Schell Road. They te stified that this dri veway w as in existence prior to the construction of the Tay

lors’ re sidence

and that M

r. John Rhoa

des and h is wife oc casiona

lly u sed this drivewa y in addition to

the drive way off Rhoa des L ane. The

trial cou rt appar ently concluded that the evidenc e did not su

pport the Rhoades’ claim

that this driveway

remaine d in existenc e at the time the property wa s conveyed to the B rimms. Upon reviewing the recor d, we find that the evidence does not pr

eponder ate ag ainst this implicit finding by the trial court. The testimony presented at trial by the Br

imms was that the driveway of f Rhoades Lane was the only means of ing

ress or egress to their property at all times, including whenthey purchas ed it, andduring the seven y

ears they owned the property . Further, as to the existence of a second drivewa y r unning f rom Schell Road, Mr. Brimm tes tified asfollows:-6-

Q. As a matter of

fact, there has been some testimony that you’ve

heard about another drive way existing off of Shell Road to get to the house that was there b efore thi s house and maybe e

ven the use of that driveway during the construction period. Was that driveway the

re when y ou saw the house? A. No, it w asn’t. Q. Wa s t he re an y gr av el th er e o r a nyt hi ng to in di ca te th at it ha d b ee n u se d t hi s w ay? A. There was just grass out in front of the house. Q. So the only driveway

that you ever o

bserved was this driveway that we are looking at right here that goes from Rhodes L ane into the garage? A. That’s correct. Further, we findthat the evidence does not preponderate ag ainst the trial court’s finding that there was sufficient use of Rhoades L ane to access what is now the Tay lor pr operty prior to the separation of

title to indicate that the parties intended that use to bepermanent. Mr. Rhoades, the owner of both parcel s, built the

drivewa y a nd gar age to w hat is now t

he Tay lors’ hou se in

a way tha t clearly demonstrated his intent that the property be accessed by

Rhoades Lane. Therefore, we find that when Mr. Rhoades convey ed what is now the Taylor prope rty to the Brimms, that property w as benefittedby an implied easeme nt across Rhoades Lane, w hile the pro perty

retaine d by

Mr. Rhoad

es, and now owned by

the appellants, was correspondingly burdened by the

easement. Next, the Rhoad

es arg ue that t he Ta ylo rs did not p

rove tha t an implie d easeme

nt acros s Rhoades Lane is necessar y to the beneficial enjoyment of the Ta ylors’ proper

ty. Tennessee

has adopteda rule of

“reaso nable” necessity

for the e njoy ment of the

dominant te

nement, a s opposed

to the ru le of

“s tr ic t” ne ce ss it y. The Point, LLC. , 50 S.W.3d at 478; Fowler , 48 S.W.3d at 741(citing Line , 43 Tenn. App. at 351-52, 309 S.W.2d at 37 7; Johnson , 237 S.W.2d at 570). Under this rule, the easement must be of such neces sity tha t it is presumed to have been within the contemplation of the parties at the time of the severance. LaRue , 166 S.W.2d at 1049; Line , 43 Tenn. App. at 351, 309 S.W.2d at 37 8; Johnson , 237 S.W.2d a t 570. The

trial cou rt in the pr

esent ca se found that

this eleme nt was met, s tati ng: It [the use of

Rhoades L

ane toac ce ss th e p ro pe rt y] was in the contemplation of Mr. Rhoades, who severed the property , who subdivided the property, w h o sold and conveye d the property to the B rimms, and it was in the contemplation of the Brimms when they boug

htit, beca use ther e was no other eg

ress and ingres s in to th at pr op er ty, other than Rhoades Lane. On review, we find that

the evide nce also does not pr

eponder ate ag ainst this finding by the trial court. We

note that in Howard v. Thurman , No. M1998-00147-COA-R3-CV, 2000 Tenn. App.-7-

LEXIS 258, at *5 (Tenn. Ct. App. Apr. 26, 2000 ) (no T enn. R. Ap p. P. 11 app lication f

iled), thi s court rejected a similar argument. I

n that case, the appellants argued that the appe llee had failed to prove that an easement was reasonably necessary to the beneficial enjoy

ment of her pr operty because “she could gain access to her lot from the main road on the front by putting in a c ulvert and cutting a driveway into her

front yard.” We held that an implied easement was reasonably necessary

where: The only alternatives involve building another driveway

. . . or obtaining another easement from another landowner. When we consider that the driveway

and parking area have ser ved Ms. Howard’s home from the time it was built, the necessity of keeping that access seems perf ectly rea sonable. Id

. We beli eve that

this reasoning is applicable to the present case . For example, the Taylors could accesstheir pro

perty directly from Schell Road, but to do so would require them to cut down several trees a

nd to const

ruct a ne w drivew ay . The par

ti es do not di s pute that this new driveway would be less convenient for the Tay lors when they needto pull in and out of the attached, one car garage. I n addition, we note the testimony by Mr. Rex Shoulders of the Tennessee Department of Environment

Conservation andWater Protection, that building a new driveway on such a small lot could cause problems with regard to the septic tank sy stem on the property. The refore, we ag ree witht he trial court that in this case, the implied easement across Rhoades L ane in favor of the Ta ylo rs is a r ea so na bl e n ec es si ty. II I. Conclusion
For the reasons stated herein, we affirm the decision of the trial court finding that the Tay lors have an ease

ment by implication to use Rho ades Lane to ac cess their prop erty . Weremand t

he case for further procee dings consistent w ith this opinion, as may be nece ssary. The c osts of appeal are ta xe d a ga in st th e a pp el la nt s, th e R ho ad es , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ PATRICIA J. COTTREL L, JUDGE