1

There is some discrepancy in the record regarding whether the correct spelling is “Shell” or “Schell” Road.

For consistency, we will use the same spelling as that used by the trial court, which is Schell Road.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 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 March 4, 2003

This appeal involves a conflict between neighbors over whether the Taylors have a right to use a

gravel driveway located on property owned by the Rhoades to access their property. The trial court

found that an implied easement was proved. The Rhoades appeal that judgment to this court arguing

that the Taylors failed to prove two elements necessary for a finding of an implied easement. We

affirm the trial court’s judgment. 

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

Affirmed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN, J., and

ELLEN HOBBS LYLE, SP. J., joined.

Wayne Detring, Hendersonville, Tennessee, for the appellants, John David Rhoades, II, et al.

Joe M. Haynes, Goodlettsville, Tennessee, for the appellees, Michael L. Taylor, et al.

OPINION

I. Facts

This case arises from a dispute between two neighbors concerning the use of a gravel drive

known as Rhoades Lane. John David Rhoades, II, Tempie Rhoades Jones, Anna Grace Rhoades,

and Rhoades National Corporation (the “Rhoades”) presently own or reside on approximately 168.7

acres located behind the property of Michael and Diana Taylor off of Schell1

 Road, a public road in

Hendersonville, Tennessee. Rhoades Lane is a twelve to sixteen foot wide gravel drive which

borders the back of the Taylors’ property and extends over one mile to the houses and property of

the Rhoades.
2

The Taylors’ counter-complaint states the Taylors have since moved their mailbox and changed their address

to 100 Rhoades Lane at the request of the Sumner County 911 Director, Mr. Buddy Shaffer. The counter-complaint goes

on to state that the Taylors received a letter from Mr. Shaffer stating that their correct 911 address was 100 Rhoades Lane

and requesting that the Taylors file a change of address form with the post office and mark their mailbox accordingly.

3

This is the acreage after a deed reformation was granted by the trial court.

4

According to Mr. Bruce Rainey, a surveyor who did work for the senior Mr. Rhoades on several occasions,

the property has 295.84 feet of frontage on Schell Road. However, the trial court stated that there was 260 feet of

frontage on Schell Road.

5We note that the original sales contract for the property between the Taylors and the Brimms had contained

a provision granting the Taylors permanent ingress and egress to their property from Rhoades Lane. This provision,

however, was struck from the contract when the Brimms, on advice from their realtor, informed the Taylors that they had

(continued...)

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In August of 1982, the late John D. Rhoades purchased a tract of land that contained

approximately three and one half acres from Anthony J. and Georgia K. Billis. Mr. Rhoades built

a house on the property sometime in 1986. During the construction of the residence, Rhoades Lane

was used for ingress and egress to the lot.

On November 6, 1986, Mr. Rhoades and his wife, Anna G. Rhoades, conveyed the house and

lot, officially known as 1851 Schell Road2

 to James M. and Beverly Brimm by warranty deed. The

conveyance was of a triangular tract of land consisting of approximately .861 acres

3

 that had been

part of the larger lot purchased by Mr. Rhoades in 1982. According to the testimony of Mr. Brimm,

at the time of the conveyance, there was no driveway from Schell Road to the house. The only

access to the house was via Rhoades Lane. The Brimms used Rhoades Lane to access their home

during the time that they lived there. 

On July 6, 1993, the Taylors purchased the property owned by the Brimms. The Taylors have

resided in the home and have used Rhoades Lane for ingress and egress to their home continuously

since purchasing the property. The Rhoades obtained title to the John D. Rhoades property upon his

death in August of 1999.

There is between 260 and 295.84 feet of frontage4

 on Schell Road along the Taylor property.

The Taylors have an attached, one car garage at the rear of their home accessed by their driveway

from Rhoades Lane and would have to drive around their house in order to pull into the garage if

they had to access their property by Schell Road. There is also a detached, three car garage that was

built by the Taylors.

According to the testimony of the Brimms and the Taylors, Rhoades Lane has been used as

the only means of access to what is now the Taylor property since John D. Rhoades purchased the

property. The Brimms used Rhoades Lane to access the house during the seven years they resided

on the property. At the time they purchased the property, the Taylors were not informed that they

needed permission to use Rhoades Lane.

5
5

(...continued)

no authority to grant the easement, since the Rhoades, and not the Brimms, owned Rhoades Lane. 

-3-

The Rhoades filed a complaint against the Taylors seeking injunctive relief to prohibit the

Taylors from using Rhoades Lane to access their property and a declaratory judgment that the

Taylors had no property interest in Rhoades Lane. The Taylors filed an answer and countercomplaint seeking an easement by implication for ingress and egress to their property via Rhoades

Lane. The Taylors also filed a third-party complaint against James M. and Beverly Brimm seeking

reformation of their deed. The trial court granted the deed reformation, and the reformation of the

deed was not appealed.

The Rhoades and the Taylors entered an agreed judgment with regard to a mutual restraining

order which prohibited any party from interfering with the survey of their property, building a fence,

and coming onto or placing property onto the other party’s property. In addition, the parties agreed

that neither would change or remove survey markings and decided that in the event that the Taylors

failed to prevail, they would move their mailbox and change their address.

After the trial of the matter, the trial court granted the Taylors an easement by implication

allowing them the use of Rhoades Lane from Schell Road to the driveway in the rear of their house.

The Rhoades appealed. The sole issue on appeal is whether the trial court erred in granting the

Taylors an easement by implication for ingress and egress to their property over Rhoades Lane.

II. Implied Easement

An easement is an interest in another’s real property that confers on the easement’s holder

an enforceable right to use that real property for a specific purpose. Bradley v. McLeod, 984 S.W.2d

929, 934 (Tenn. Ct. App. 1998). Under Tennessee law, several forms of easements are recognized,

including: expresseasements; easements by reservation; implied easements; prescriptive easements;

and easements by estoppel. Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). There are

two general categories of easements: easements in gross and easements appurtenant. Id. In Pevear,

this Court explained the difference between these two forms of easements, stating:

In an easement appurtenant, there are 2 tracts of land, the dominant tenement, 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 right to use

the land of another which does not benefit another property, or dominant estate, thus

easements in gross usually 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 Taylors claim an easement appurtenant to their property. An implied easement

appurtenant should only arise where it is of such necessity that we may presume it was within the

contemplation of the parties to a conveyance. The Point, LLC. v. Lake Mgmt. Assoc., 50 S.W.3d

471, 478 (Tenn. Ct. App. 2000); Fowler v. Wilbanks, 48 S.W.3d 738, 740 (Tenn. Ct. App. 2000)

(both citing LaRue v. Greene County Bank, 166 S.W.2d 1044, 1049 (Tenn. 1942)). With regard to

easements by implication, this Court has explained:

Unlike express easements, [implied easements] take into account the prior use made

of conveyed land. They ordain the perpetuation of that use on the general principle

that property is usually passed along with its burdens and that the parties, as

evidenced by their actions, understood that their property was thus conveyed. See

Roger A. Cunningham, et al., The Law of Property § § 8.4-8.5 (1984); 2A James

Casner, American Law of Property, § § 8.31-8.38 (1952).

Barrett v. Hill, No. 01A01-9806-CV-00295, 1999 Tenn. App. LEXIS 879, at *6-*7 (Tenn. Ct. App.

Oct. 7, 1999) (no Tenn. R. App. P. 11 application filed).

The party asserting an implied easement has the burden of showing “the existence of all facts

necessary to create by implication an easement appurtenant to his estate.” The Point, LLC., 50

S.W.3d at 478; Fowler, 48 S.W.3d at 741 (both citing Line v. Miller, 309 S.W.2d 376, 377 (Tenn.

Ct. App. 1957)). Under Tennessee law the party asserting an implied easement bears the burden of

proving three elements:

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.

The Point, LLC., 50 S.W.3d at 478; Fowler, 48 S.W.3d at 741(citing 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. Rhoades and his wife owned the claimed dominant tenement (now the Taylors’

property) as part of the three acres they purchased from Mr. and Mrs. Billis. John D. Rhoades and

his wife sold off the portion now belonging to the Taylors, thereby separating ownership of title to

the two parcels. The Rhoades argue that the Taylors failed to prove the other two necessary

elements, namely, the continuous use before separation and the reasonable necessity elements.

First, the Rhoades argue that the Taylors failed to prove that before the separation of title

took place, the use that gave rise to the easement continued so long and obviously that it manifested

the intent that it was meant to be permanent. The trial court disagreed, finding 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. The court also noted that there was no driveway from

Schell Road at the time of the conveyance to the Brimms and that the only driveway that entered the

property was the one from Rhoades Lane, which the Brimms used during the seven years they owned

the property. The court also emphasized the senior Mr. Rhoades’s placement of the attached garage

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 permanent access to the Brimms’ [now the Taylors’]

driveway from Rhoades Lane. Thus, the trial court concluded that there was sufficient use of

Rhoades Lane prior to the separation of title for ingress and egress to the property and that the parties

intended that the Brimms continue to have such use on a permanent basis. We agree.

This court has adopted the prevailing rule with respect to implied easements which provides

that:

Where, during the unity of title, an apparently permanent and obvious servitude is

imposed on one part of an estate in favor of another part, which servitude is in use

at the time of severance and is necessary for the reasonable enjoyment of the other

part, on a severance of the ownership the grant 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 ordain the perpetuation

of the prior use “on the general principle that property is usually passed along with its burdens.”

Bradley, 984 S.W.2d at 934. Where a single owner sells portions of his or her property to two

different purchasers, “the respective portions granted are subject to or benefitted by, as the case may

be, an easement corresponding to such use.” Lively, 460 S.W.2d at 855.

Keeping these principles in mind, we now consider the Rhoades’ argument that the access

to the house from Rhoades Lane was “only for a short time in 1986 during construction.” To support

this argument, they claim that there was another driveway entering what is now the Taylors’ property

that ran directly from Schell Road. They testified that this driveway was in existence prior to the

construction of the Taylors’ residence and that Mr. John Rhoades and his wife occasionally used this

driveway in addition to the driveway off Rhoades Lane. The trial court apparently concluded that

the evidence did not support the Rhoades’ claim that this driveway remained in existence at the time

the property was conveyed to the Brimms. Upon reviewing the record, we find that the evidence

does not preponderate against this implicit finding by the trial court.

The testimony presented at trial by the Brimms was that the driveway off Rhoades Lane was

the only means of ingress or egress to their property at all times, including when they purchased it,

and during the seven years they owned the property. Further, as to the existence of a second

driveway running from Schell Road, Mr. Brimm testified as follows:
-6-

Q. As a matter of fact, there has been some testimony that you’ve heard about another

driveway existing off of Shell Road to get to the house that was there before this

house and maybe even the use of that driveway during the construction period. Was

that driveway there when you saw the house?

A. No, it wasn’t.

Q. Was there any gravel there or anything to indicate that it had been used this way?

A. There was just grass out in front of the house.

Q. So the only driveway that you ever observed was this driveway that we are looking at

right here that goes from Rhodes Lane into the garage?

A. That’s correct. 

Further, we find that the evidence does not preponderate against the trial court’s finding that

there was sufficient use of Rhoades Lane to access what is now the Taylor property prior to the

separation of title to indicate that the parties intended that use to be permanent. Mr. Rhoades, the

owner of both parcels, built the driveway and garage to what is now the Taylors’ house in a way that

clearly demonstrated his intent that the property be accessed by Rhoades Lane. Therefore, we find

that when Mr. Rhoades conveyed what is now the Taylor property to the Brimms, that property was

benefitted by an implied easement across Rhoades Lane, while the property retained by Mr. Rhoades,

and now owned by the appellants, was correspondingly burdened by the easement. 

Next, the Rhoades argue that the Taylors did not prove that an implied easement across

Rhoades Lane is necessary to the beneficial enjoyment of the Taylors’ property. Tennessee has

adopted a rule of “reasonable” necessity for the enjoyment of the dominant tenement, as opposed to

the rule of “strict” necessity. 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 377; Johnson, 237 S.W.2d at 570). 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. LaRue, 166 S.W.2d at 1049; Line, 43 Tenn. App. at 351,

309 S.W.2d at 378; Johnson, 237 S.W.2d at 570. The trial court in the present case found that this

element was met, stating:

It [the use of Rhoades Lane to access the property] was in the contemplation of Mr.

Rhoades, who severed the property, who subdivided the property, who sold and

conveyed the property to the Brimms, and it was in the contemplation of the Brimms

when they bought it, because there was no other egress and ingress into that property,

other than Rhoades Lane.

On review, we find that the evidence also does not preponderate against 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 Tenn. R. App. P. 11 application filed), this

court rejected a similar argument. In that case, the appellants argued that the appellee had failed to

prove that an easement was reasonably necessary to the beneficial enjoyment of her property because

“she could gain access to her lot from the main road on the front by putting in a culvert 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 served Ms. Howard’s home from the time it was built, the necessity of

keeping that access seems perfectly reasonable.

Id.

We believe that this reasoning is applicable to the present case. For example, the Taylors

could access their property directly from Schell Road, but to do so would require them to cut down

several trees and to construct a new driveway. The parties do not dispute that this new driveway

would be less convenient for the Taylors when they need to pull in and out of the attached, one car

garage. In addition, we note the testimony by Mr. Rex Shoulders of the Tennessee Department of

Environment Conservation and Water Protection, that building a new driveway on such a small lot

could cause problems with regard to the septic tank system on the property. Therefore, we agree

with the trial court that in this case, the implied easement across Rhoades Lane in favor of the

Taylors is a reasonable necessity.

III. Conclusion

For the reasons stated herein, we affirm the decision of the trial court finding that the Taylors

have an easement by implication to use Rhoades Lane to access their property. We remand the case

for further proceedings consistent with this opinion, as may be necessary. The costs of appeal are

taxed against the appellants, the Rhoades, for which execution may issue if necessary.

___________________________________ 

PATRICIA J. COTTRELL, JUDGE