IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 21, 2020 Session

DOWNEY OIL COMPANY, INC., ET AL. v. SLYREAL PROPERTIES, INC.,

ET AL.

Appeal from the Chancery Court for Knox County

No. 192167-1 John F. Weaver, Chancellor

No. E2019-01169-COA-R3-CV

This appeal concerns a dispute over an easement agreement (“the Agreement”). In 1995, 

Samir F. Mishu and Faud E. Mishu, d/b/a M&M Investments (“M&M”), conveyed the 

eastern parcel of certain land it owned to Excellent Properties, L.P. (“Excellent”). The 

parties also entered into the Agreement, which provided for a future easement that would 

connect their properties. The easement’s precise location and dimensions were 

undefined. Years passed, both properties put in curbing without cuts on their boundaries, 

and the easement went unutilized. In 2015, Downey Oil Company, Inc. (“Downey”), 

then lessee of the western parcel, sought for the first time to construct and use the 

easement. Slyreal Properties, Inc. (“Slyreal”), then owner of the eastern parcel, refused. 

Downey and M&M (“Plaintiffs,” collectively) brought suit against Slyreal, Pinnacle 

Bank and Hugh Queener, trustee (“Defendants,” collectively) in the Chancery Court for 

Knox County (“the Trial Court”). Defendants asserted adverse possession and 

abandonment. After a trial, the Trial Court ruled for Defendants. Plaintiffs appeal. We 

find and hold, inter alia, that Defendants failed to prove by clear and convincing 

evidence that the easement was extinguished by adverse possession or that it was 

abandoned by Plaintiffs. We reverse the judgment of the Trial Court, and remand for a 

determination of the easement’s location and dimensions.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Cathy H. Morton and Ryan W. Goddard, Maryville, Tennessee, for the appellants, 

Downey Oil Company, Inc., Faud E. Mishu, and Samir F. Mishu.

05/07/2020
- 2 -

Arnold A. Stulce, Chattanooga, Tennessee, for the appellees, Slyreal Properties, Inc., 

Pinnacle Bank, and Hugh Queener.

OPINION

Background

The two subject properties are located on the north side of Kingston Pike in West 

Knoxville. Cogdill Road runs south along the western boundary to Kingston Pike. 

Center Park Drive runs south along the eastern boundary to Kingston Pike at a traffic

light. As shown in Exhibit 37 of the record, the scene looks1as follows: 

 

1

Image cropped slightly for formatting purposes.
- 3 -

In 1990, M&M, a general partnership then owning both subject properties, leased 

the western parcel to BP Oil Company (“BP”). In January 1995, M&M conveyed the 

eastern parcel to Excellent, a limited partnership owned by Pamela and Jeff Wilson. 

M&M and Excellent also entered into the Agreement, which provided for a future crosseasement. The Agreement stated, in part:

1. M&M, for itself, its successors and assigns, does hereby grant and 

convey unto Excellent for the benefit of Excellent, its contractors, 

subcontractors, tenants, invitees, heirs, successors and assigns, the 

permanent and perpetual non-exclusive right and easement to use 

approximately five parking spaces located on the M&M Site substantially 

as shown as a clouded area on the site plan attached hereto as Exhibit A for 

the parking of personal vehicles having not more than four wheels, to have 

access to such parking spaces in a manner substantially shown on Exhibit 

A, and to use such parking spaces in common with the owner of the M&M 

Site, its tenants, successors and assigns, and all persons claiming by or 

through it.

2. Excellent, for itself, its successors and assigns, does hereby grant 

and convey unto M&M, for the benefit of M&M, its contractors, 

subcontractors, tenants, invitees, successors and assigns, the permanent and 

perpetual non-exclusive right and easement to use the paved driveways 

which may be constructed by Excellent, its successors and assigns on the 

portion of the Corner Site shown and marked on Exhibit A as “Future 

Easement” for the purpose of pedestrian and vehicular access, ingress and 

egress between the M&M Site and Center Park Drive. M&M, its 

successors and assigns shall be responsible for repairing any damage to the 

paved portions of the Corner Site resulting from its use of this easement, 

including, but not limited to, cracking and other damage which may be 

caused by trucks or heavy equipment.

3. M&M, for itself, its successors and assigns, does hereby grant and

convey unto Excellent, for the benefit of Excellent, its contractors, 

subcontractors, tenants, invitees, successors and assigns, the permanent and 

perpetual non-exclusive right and easement to use the paved driveways 

which may be constructed by M&M, its successors and assigns on the 

southerly portion of M&M Site from the area shown and marked on Exhibit 

A as “Future Easement” to the driveway exits at substantially the locations 

shown and marked on Exhibit A as “Approx. Curb Cut Locations” for the 

purpose of pedestrian and vehicular access, ingress and egress between the 

Corner Site and Kingston Pike and Cogdill Road. Excellent, its successors 
- 4 -

and assigns shall be responsible for repairing any damage to the paved 

portions of the M&M Site resulting from its use of this easement, including 

but not limited to, cracking and other damage which may be caused by 

trucks or heavy equipment.

4. All covenants, easements, agreements, conditions and restrictions 

set forth in this Easement are intended to be and shall be construed as 

appurtenances and covenants running with the land, binding upon, inuring 

to the benefit of, and enforceable by, the owners of the Corner Site and the 

M&M Site, their respective tenants, successors, and assigns, upon the 

terms, provisions and conditions hereinabove set forth. This Easement 

shall have priority over any and all mortgages, deeds of trust, declarations,

easements, liens or encumbrances whatsoever covering any part of the 

Corner Site or the M&M Site.

5. The owner of the M&M Site shall have the right to terminate this 

Easement upon ninety (90) days prior written notice to the owner of the 

Corner Site. In the event of such termination, the owner of the M&M Site 

shall, at its sole expense, install curbing or a similar barrier on the boundary 

between the Corner Site and the M&M Site so as to block the driveway 

between the parcels. Otherwise, this Easement and the rights, interests and 

obligations created hereunder, shall be perpetual and may be terminated or 

modified only by written agreement of the owner of the Corner Site and the 

owner of the M&M Site.

6. Excellent warrants and represents that it has (i) fee simple title to 

the Corner Site and, (ii) the full right and authority to execute and perform 

this Easement.

7. M&M represents and warrants that it has (i) fee simple title to the

M&M Site and (ii) full right and authority to perform this Easement.

The Agreement was executed along with a deed to Excellent, and these were 

recorded together on January 25, 1995. While the Agreement referenced an Exhibit A 

containing more details, the precise location and dimensions of the future easement were 

never spelled out. At this stage, the property was “rough graded” but undeveloped. Later 

in 1995, Excellent installed a concrete curb without cuts along its boundary with the 

western parcel. In 1997, BP began developing the western parcel in order to build a gas 

station and a convenience store. That year, BP placed curbing without cuts on its 

boundary with Excellent. Neither BP nor M&M insisted on use of the easement at this 

time. In 2002, M&M leased the western parcel to BP’s successor in interest, Downey. In 

February 2005, Excellent deeded the eastern parcel to Venture Enterprises, Inc. (an entity 
- 5 -

that later became Slyreal). An office building is located on the eastern parcel. In 2010, 

Slyreal installed a wrought iron fence on its boundary with the western parcel. In Fall of 

2015, Downey approached Slyreal about finally using the easement. After some initial 

discussion, Slyreal vetoed the project. 

In August 2016, Downey filed suit against Slyreal in the Trial Court seeking

declaratory judgment and injunctive relief. Slyreal filed an answer and counterclaim, 

asserting adverse possession and abandonment of the easement, among other things. 

After some more procedural history unfolded, including the substitution and addition of 

parties, Plaintiffs consisted of Downey and M&M, while Defendants consisted of Slyreal, 

as successor in interest to Venture Enterprises, Inc.; Pinnacle Bank, successor in interest 

to CapitalMark Bank & Trust, a lender holding a deed of trust; and Hugh Queener, 

substitute trustee. Trial was held on October 1, 2018, October 2, 2018, and January 9, 

2019. We proceed to summarize the pertinent testimony from trial. 

James Slyman, former President of Slyreal, and Laura Slyman, President of 

Slyreal, testified that the easement would be unsafe and disruptive for their businesses, 

particularly if it were placed in the prominent central position Plaintiffs wanted. Laura 

Slyman stated: “If an easement was positioned as proposed in the middle of my parking 

lot, it renders the right side of my parking lot basically unusable. It’s a complete 

devastation to our parking, to our businesses, the safety.” Laura Slyman stated further 

that “[w]e would not have purchased this building had we known that there was an 

easement agreement.” We note that the easement had been recorded on January 25, 

1995. For his part, Sam Mishu of M&M testified to his enthusiasm for the easement:

“It’s not easy to leave the gas station or any other business and make a left turn or go east 

on Kingston Pike . . . [c]onnecting property next to each other, it’s a plus for everybody, 

for the town, for the highway, to reduce accidents, everything.” 

Pamela Wilson, a predecessor in interest to Slyreal and an original signatory to the 

Agreement, testified in part as follows regarding what she perceived to be the benefits of 

the easement and why curbing had been installed on the eastern property:

Q. There’s something I wanted to ask you about. Who built the curbs that 

we see in the pictures that we have looked at, who built those curbs?

A. Are you talking on the corner site property?

Q. On the corner site property.

A. On the parking lots?

Q. On the parking lots.

A. They were a part of the original construction.

Q. And would that have been Excellent Properties that constructed that?

A. Correct.

Q. And why were those curbs built?
- 6 -

A. Code.

Q. Did you intend in any way to obstruct the easement or to interfere with 

easement access when you built those?

A. Absolutely not.

***

Q. You have testified that the easement agreement we are looking at, 

Exhibit 1, that you were given five parking spaces, correct?

A. Correct.

Q. Why were you given five parking spaces? Is there any reason behind 

that?

A. Yes, sir. The other variance we were given was because we could not 

cram 40 parking places on that property, and they let us get by with 39. So,

you know, whenever this cross easement was built, it was going take out 

four parking places. So Mr. Mishu agreed to give us five parking spaces on 

his side of the property line to make us up to 40. Because any time you 

mess with anything that the city has already agreed to, they have got to reagree. So when they look at it again, it’s better for us to have the 40

parking places.

Q. I understand. You say this was going to remove some of your parking 

spaces when the easement crossed you, and that was the connection 

between the two parking lots?

A. Right.

Q. Would this have in your opinion destroyed your parking spots?

A. No.

Q. Why is that?

A. Well, we were going to get the other parking -- we were giving up four 

to get five.

Q. So you would gain an additional spot?

A. We would gain an additional parking spot.

Q. Were you concerned about any sort of danger or condition about having 

a connection where these hash marks are, these dotted lines, between what 

was labeled as a future BP station, and subsequently became a BP station, 

having access to Center Park Drive, were you concerned about danger to 

you or your tenants?

A. No.

Dennis Ragsdale, an attorney who had performed work for Sam Mishu over the 

years and who had drafted the Agreement, testified to why the easement was left 

undefined:
- 7 -

THE COURT: Is there anything I can look to on Exhibit A to determine the 

width of the easement?

THE WITNESS: No, sir. A basic driveway, they have a right to use those 

driveways as they are constructed. And the reason for that, Your Honor, is 

so as not to limit or hamstring the parties developing this property so that a 

building can’t be placed in a certain area. So it allows flexibility to develop 

the property as along as [sic] the there’s a provision for the ability for the 

other property to connect and use the driveways.

THE COURT: Do I understand at the time of the easement agreement that 

there was no specificity of where the easements would be on the BP

property?

THE WITNESS: Yes, sir. We didn’t know where the buildings were going 

to be. Unfortunately, that’s the way it’s done with a lot of shopping

centers, for this reason.

In June 2019, the Trial Court entered its detailed memorandum opinion and order 

of dismissal. Ruling in favor of Defendants, the Trial Court found: (1) M&M lacked 

authority to enter into the Agreement with Excellent because M&M was then leasing the 

western parcel to BP and could not burden its lessee in that manner;2(2) that the 

easement was extinguished by adverse possession; (3) that Plaintiffs’ action to enforce 

the easement was barred by adverse possession; and, (4) alternatively, that Plaintiffs 

abandoned the easement, all by clear and convincing evidence. In its memorandum 

opinion, the Trial Court stated, in part:

[on M&M’s authority to enter into the easement agreement]

After M&M leased the property to BP in 1990, M&M had no right to enter 

upon the property or otherwise interfere with BP’s quiet enjoyment of the 

property. See Southern Bell Tel. & Tel Co. v. Yates, 232 S.W.2d 796, 798-

99 (Tenn. Ct. App. 1950). In other words, M&M could not burden the 

leased property with the easement in favor of Excellent Properties for five 

parking spaces and for traveling over the leased property. The copy of the 

lease attached to the original and amended complaint shows that a 

memorandum of the lease was recorded in Book 2505, Page 0882, pursuant 

to paragraph five of the lease, but does not show the date of the recording. 

However, the lease document, on its face, shows that M&M failed to 

reserve any right in its favor to burden the leased property with the cross-

 

2

The Trial Court noted the parties did not raise this issue, stating: “The parties have not raised any issue 

in this case as to how M&M, after having leased the western parcel to BP Oil Company, was able to enter 

into an easement agreement burdening that same property. However, this Court includes discussion of 

that scenario below.”
- 8 -

easement agreement that it executed with Excellent Properties five years

later. See Bradley v. McLeod, 984 S.W.2d 929, 935 (Tenn. Ct. App. 1998) 

(deed showed on its face that it failed to reserve the right to an easement 

across the property conveyed). For the term of the lease, and at the time of 

the lease agreement, as between M&M and BP, M&M could not grant to 

anyone parking spaces upon the leased property or grant to anyone the right 

to pass over the leased property. However, the record lacks evidence as to 

when the memorandum of lease was recorded. If it was recorded prior to 

M&M’s deed to Excellent, the easement agreement would not be 

enforceable by anyone against BP or its successors in interest. See Tenn. 

Code Ann. § 66-24-101(15). Likewise, if Excellent had actual or inquiry 

notice of the lease, the easement agreement would not have been

enforceable against BP irrespective of whether it had been recorded. 

However, the record is deficient in this regard.

Putting aside whether M&M lacked the right and authority to 

execute the crosseasement agreement in violation of its lease to BP, the 

Court’s first inquiry is whether the lease agreement’s omission of the 

location and dimensions of the right-of-way easement over Excellent’s 

property is fatal to the creation of the easement. The easement agreement 

calls for the easement to be “as shown and marked on Exhibit A as ‘Future 

Easement.’” However, the words “future easement” were never written 

upon Exhibit A and there is no delineation of location or dimensions 

whatsoever other than the plaintiffs’

argument that two faint lines or hash marks shown on Exhibit A constitute 

the beginning points of the easement at the common boundary between the 

two properties. The plaintiffs further argue that the easement is to go 

straight across the Excellent property to the curb cut to Center Park Drive. 

Regardless, the failure of an instrument to set out the location and 

dimensions of an easement may nonetheless result in an enforceable 

easement, known as a general easement. See Mitchell v. Chance, 149 

S.W.3d 40, 45-46 (Tenn. Ct. App. 2004).

***

[on adverse possession]

The difference in elevation and curbing are directly hostile to both property 

holders’ rights under the easement agreement — the rights of vehicular and 

pedestrian access, ingress and egress. If the circumstances of this case were 

such that the driveway had been constructed between the properties, then 

the occasion of its use would be relevant in determining whether the 

holding was adverse — i.e., whether the plaintiffs were refused. Because 
- 9 -

the difference in elevation was never addressed and the curbs were installed 

after the easement agreement, it is plain to see that both property holders, as 

the servient estate holders, were acting hostile to the other’s rights.

“The idea underlining the whole doctrine of adverse possession is 

that the possession should be maintained in an open and notorious manner, 

so as to warn the true owner tha[t] a hostile claim is being asserted to the 

owner’s land.” Bensdorff v. Uihlein, 177 S.W. 481, 483 (Tenn. 1915). The 

possession in this case was plain, open, notorious, and amply sufficient to 

put Downey, M&M, Excellent and Slyreal on notice. The property holders’

installing of curbs, without cuts, along the common boundary, in the face of 

the difference in elevation, unmistakably indicated that the servient 

property holder was asserting dominion over the easement, contrary to the 

rights of the dominant property holder. The plaintiffs argue that local laws 

required the installing of curbs. However, no argument was made that local 

laws prevented curb cuts or prohibited reducing the slope and elevation 

difference to make the properties accessible to each other.

There is no question in this case but that Excellent constructed the 

concrete curb separating its property in 1995 and that BP constructed the 

concrete curb separating his property in 1997. Excellent knew about the 

easement agreement, while there is no proof that BP had knowledge of the 

easement agreement other than the oral notice from Mr. Mishu to the 

construction superintendent in 1997. Mr. Mishu, however, did not know

anything about the capacity of the unidentified superintendent to BP. There 

is no issue that each property owner intended to construct a concrete curb, 

which is referred to in the easement agreement as a barrier. M&M 

permitted its lessee, BP, to construct the curb. Downey continued to 

maintain the curb in its uncut form. BP and Downey kept the leased 

premises at a higher elevation without objection from M&M. No issue has 

been raised in the case concerning “tacking” to establish the requisite 

number of years for adverse possession in this case, there being no hiatus

periods. See Cumulus Broadcasting, Inc. v. Shim, 226 S.W.3d 366, 377 

(Tenn. 2007).

“[F]encing or enclosing property is an act that is most effective in 

demonstrating adverse possession.” Michael v. Jakes, 2002 WL 1484448 

at *10 (Tenn. Ct. App. July 12, 2002). In this case, the property holders 

marked or separated their properties with concrete curbs without cuts. The 

possession of each property holder is adverse to the other irrespective of 

notice of the easement agreement or intent. See Cumulus Broadcasting, 

Inc. v. Shim, 226 S.W.3d at 378 (discussing Gibson v, Shuler, 194 S.W.2d

865, 866-67 (Tenn. Ct. App. 1946)). Contrary to the petitioners’ argument, 
- 10 -

there is no reason for the above principle to be limited to boundary line 

cases and not applied to the context of adverse possession as a whole.

***

[on abandonment]

Here, Mr. Mishu told BP’s apparent construction superintendent about the 

easement during the development of the BP project, but BP proceeded with 

the development as if the easement did not exist. Likewise, Mr. Mishu nor 

anyone else did anything on behalf of M&M to facilitate use of the 

easement on the property leased to BP or across the property conveyed to 

Excellent, now owned by Slyreal. For over 20 years, no one sought to 

develop or maintain the easement on either property. BP, as well as M&M 

and Excellent, left the properties with a 5 1/2 foot grade difference rendering 

the two properties impassable by vehicle from one property to the other. 

Each property holder constructed a concrete curb across the other’s 

easement further rendering the easement impossible for passage by vehicles 

from the other property holder’s parcel. Moreover, for about 6 1/2 years, 

Downey and M&M made no objection to Slyreal’s construction and 

maintenance of a fence along the western boundary of Slyreal’s property. 

The purpose of the fence was to stop customers of Downey from parking 

their cars on Slyreal’s property and walking across Slyreal’s property to 

Downey’s store. Finally, BP developed and continued to utilize ingress and 

egress at Cogdill Road and at Kingston Pike without indicating any intent, 

for more than 19 years, to use ingress and egress from Center Park Drive. 

The evidence in this case is clear and convincing that the holders of the 

BP/Downey property evidenced an intent to abandon and not use any 

easement to Center Park Drive and, during the same period of time, to not 

recognize any easement in favor of Slyreal or Excellent for parking spaces 

or passage to Cogdill Road.

Plaintiffs timely appealed to this Court.

Discussion

Plaintiffs raise four issues on appeal, but we consider two of these issues 

duplicative. We therefore restate and consolidate Plaintiffs’ issues into the following 

three dispositive issues: 1) whether the Trial Court erred in finding that M&M had no 

authority to enter into the Agreement; 2) whether the Trial Court erred in finding that the 

easement was extinguished by adverse possession; and, 3) whether the Trial Court erred 

in finding that Plaintiffs abandoned the easement. 
- 11 -

Our review is de novo upon the record, accompanied by a presumption of 

correctness of the findings of fact of the trial court, unless the preponderance of the 

evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 

(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no 

presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 

S.W.3d 706, 710 (Tenn. 2001). Certain of the issues on appeal implicate the clear and 

convincing burden of proof. “Clear and convincing evidence means evidence in which 

there is no serious or substantial doubt about the correctness of the conclusions drawn 

from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992).

“An easement is a right an owner has to some lawful use of the real property of 

another.” Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996) (citing Brew v. 

Van Deman, 53 Tenn. (6 Heisk) 433 (1871)). There are a number of ways an easement 

can be created in Tennessee, including by these methods: (1) express grant, (2) 

reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain. Id. at 

115-16. There appears to be no dispute that the purported easement in this case, should 

an enforceable one exist, is an express easement. 

The purported easement lacks specific dimensions or a precise location. As noted 

by the Trial Court, such an easement still may be enforced, however. Regarding general 

easements, this Court has stated:

If the description of the easement in the deed or other instrument is 

inadequate or nonexistent, the courts may consider extrinsic evidence to 

ascertain the parties’ intent regarding the location and dimensions of the 

easement. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1237-

38 (Colo. 1998); Anchors v. Manter, 714 A.2d 134, 140 (Me. 1998); 

Highway 7 Embers, Inc. v. Northwestern Nat’l Bank, 256 N.W.2d 271, 277 

(Minn. 1977); Sacco v. Narragansett Elec. Co., 505 A.2d 1153, 1155-56 

(R.I.1986); R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.

1999). The courts should take into consideration (1) the purpose of the 

easement, (2) the geographic relationship between the dominant and the 

servient tenements, (3) the use of each of the tenements, (4) the benefit to 

the easement holder compared to the burden on the servient tenement 

owner, (5) the admissions of the parties, and (6) the use existing at the time 

of the easement’s creation. THE LAW OF EASEMENTS § 7:6.

Mitchell v. Chance, 149 S.W.3d 40, 46 (Tenn. Ct. App. 2004). 
- 12 -

Having reviewed the relevant law on easements, we now address Plaintiffs’ issues, 

the first being whether the Trial Court erred in finding that M&M had no authority to 

enter into the Agreement. Plaintiffs correctly observe that neither party raised this issue 

below. Rather, the Trial Court brought it up on its own. Plaintiffs argue that any 

potential issue with M&M’s authority to enter the Agreement when it was leasing the 

property to BP is moot because the current lessee, Downey, approves of the Agreement. 

Further complicating matters, Defendants did not address in their brief this issue on 

appeal. The Trial Court itself noted that the record lacks evidence with regard to when 

the memorandum of lease was recorded, or whether Excellent had notice of BP’s lease.

The Trial Court has raised an interesting and thoughtful question. If M&M 

attempted to burden its lessee with a cross-easement agreement without that lessee’s 

consent during the term of its lease and that lessee opposed the burden, this case might 

well have a different outcome. That is not the scenario before us. BP was lessee of the 

western parcel at the time the Agreement was executed, but BP is not a party to this 

appeal. We may not assume to know what BP’s stance is or was. We do know that BP’s 

successor, Downey, has no issue with the Agreement, and, in fact, is suing along with 

M&M to enforce the Agreement. Barring some other evidence to the contrary, M&M 

could bargain for an agreement burdening its own property. No such evidence to the 

contrary is forthcoming. The question is, therefore, moot. We reverse the Trial Court in 

its finding that M&M lacked authority to enter into the Agreement.

We next address whether the Trial Court erred in finding that the easement was 

extinguished by adverse possession. Our Supreme Court has discussed adverse 

possession as follows:

In order to establish adverse possession under this [common law] theory, or 

in any statutorily based claim, the possession must have been exclusive, 

actual, adverse, continuous, open, and notorious for the requisite period of 

time. Hightower v. Pendergrass, 662 S.W.2d 932, 935 n. 2 (Tenn. 1983); 

cf. Menefee v. Davidson County, 195 Tenn. 547, 260 S.W.2d 283, 285 

(Tenn. 1953). Adverse possession is, of course, a question of fact. Wilson 

v. Price, 195 S.W.3d 661, 666 (Tenn. Ct. App. 2005). The burden of proof 

is on the individual claiming ownership by adverse possession and the 

quality of the evidence must be clear and convincing. O’Brien v. 

Waggoner, 20 Tenn.App. 145, 96 S.W.2d 170, 176 (Tenn. Ct. App. 1936). 

The actual owner must either have knowledge of the adverse possession, or 

the possession must be so open and notorious to imply a presumption of 

that fact. Kirkman v. Brown, 93 Tenn. 476, 27 S.W. 709, 710 (Tenn. 1894). 

When an adverse possessor holds the land for a period of twenty years, 
- 13 -

even absent any assurance or color of title, the title vests in that possessor. 

Cooke v. Smith, 721 S.W.2d 251, 255-56 (Tenn.Ct.App.1986).

Successive possessions, or tacking, may be utilized to establish the 

requisite period of years if there is no hiatus. Ferguson, 190 S.W. at 552; 

Catlett v. Whaley, 731 S.W.2d 544, 545-46 (Tenn. Ct. App. 1987). . . .

Cumulus Broadcasting, Inc. v. Shim, 226 S.W.3d 366, 377 (Tenn. 2007) (footnote 

omitted). 

This case, however, does not feature a boundary dispute. Rather, it concerns the 

enforceability of an easement. Both sides grapple with Boyd v. Hunt, 52 S.W. 131 (Tenn. 

1899), an older Tennessee case analyzing adverse possession in the context of an 

easement. Boyd featured a written grant of easement through an alleyway onto a street. 

Id. The defendants had erected gates and doors blocking the easement. Id. at 132. The 

plaintiffs’ efforts to enforce the easement were opposed by the defendants who asserted, 

in part, that the “defendants, and those from whom they claim, have been in open, 

exclusive, and adverse possession of that part of the alley in the rear of their lot since 

1859, so that the easement now claimed by complainants has been long since 

extinguished.” Id. at 131. Our Supreme Court rejected this argument, stating:

These gates and doors might have stood for an indefinite time, and the 

defendants might have asserted to others their exclusive claim; yet, if they 

did not make it known to those entitled to the easement as an appurtenant to

their estate by debaring them from its enjoyment, or otherwise asserting 

such adverse right, they would not be affected by it. Their mere 

maintenance of these gates and doors was not inconsistent with the rights of 

these parties. They might well assume that they were erected to prevent 

intrusion into the alley, and in the interest of all to secure it from the 

commission of nuisances by outsiders.

Id. at 133-34. 

Plaintiffs also cite a more recent case as additional support for their argument, 

albeit one from another jurisdiction. The Supreme Court of Colorado, relying in large 

measure on a rule articulated in the New York case of Castle Associates v. Schwartz, 63 

A.D.2d 481, 407 N.Y.S.2d 717 (1978), held as follows regarding when an express

easement is terminated by adverse possession:

When an easement is expressly created but never used, we hold that use of 

the easement area is not adverse and will not trigger the statutorily-
- 14 -

mandated period of time for adverse possession until the easement holder 

needs to use the easement, demands to use it, and is denied the right to use 

it.

Matoush v. Lovingood, 177 P.3d 1262, 1265 (Colo. 2008).

We agree with Plaintiffs that the proper analysis for adverse possession in a 

boundary dispute differs somewhat from the analysis employed in a dispute over an

express easement. Plaintiffs make no claims to any of Defendants’ land, as such. The 

issue herein is not that of a boundary. Rather, it is about use of land. That which may 

reflect adverseness in the boundary context may not reflect adverseness in the case of an

express easement. The record reflects that Downey only approached Slyreal about using 

the easement in 2015. There is no evidence that Downey, BP, or M&M ever had 

attempted to use the easement before then only to be rejected. The Agreement was duly 

recorded. It remains on the books; it did not simply go away. That the easement has yet 

to be constructed is not necessarily dispositive. 

The Trial Court relied heavily on the installation of curbs without cuts as evidence 

of adverseness. However, Pamela Wilson testified that Excellent installed the curbs to be 

consistent with code, not to bar M&M. Intentions aside, there was no easement to block. 

The easement existed on paper, to be constructed at a later date. In the meantime, the 

parties could develop their respective properties. When Downey attempted to move

forward with the easement in 2015, it was rebuffed. Before then, Excellent’s and later 

Slyreal’s actions were simply those of property owners doing with their property as they 

saw fit. In short, a curb did not signal adverseness; Slyreal’s refusal to let Downey begin 

work on the easement did.

The Trial Court relied also upon the elevation difference between the properties. 

The western parcel is about five and a half feet higher than the eastern parcel. This 

difference is of no account because the evidence reflects that the properties have been on 

different elevations since the Agreement was signed. No adverseness can be shown from

a feature that existed when the Agreement was signed. A pre-existing condition such as 

this elevation difference is not a manifestation of adverseness; it is simply part of the land 

at issue.

Defendants had to clear the hurdle of clear and convincing evidence to prove 

adverse possession. In our judgment, they did not succeed. The adverse period began to 

run only in 2015 when Downey’s attempt to finally utilize the express easement was 

rebuffed. Suit was filed in August 2016. Therefore, Defendants cannot establish the 

requisite 20 year period for adverse possession. Likewise, Defendants cannot rely upon 

the seven year period found at Tenn. Code Ann. § 28-2-103 protecting adverse holders 
- 15 -

from suits to oust them. See Shearer v. Vandergriff, 661 S.W.2d 680, 682 (Tenn. 1983). 

Insufficient time has passed as to both. We reverse the Trial Court’s finding that the 

easement was extinguished by adverse possession.

The final issue we address is whether the Trial Court erred in finding that 

Plaintiffs abandoned the easement. Tennessee law provides that “[t]he party asserting 

abandonment of an easement must prove it by clear, unequivocal evidence.” Hall v. 

Pippin, 984 S.W.2d 617, 620 (Tenn. Ct. App. 1998). Thus, the proper standard in an 

abandonment of an easement case is clear and unequivocal. Clear and convincing 

evidence and clear and unequivocal evidence are one and the same. See Gambill v. 

Hogan, 207 S.W.2d 356, 360-61 (Tenn. Ct. App. 1947) (equating “clear and convincing 

evidence” to “clear and unequivocal evidence” and “clear, cogent and convincing 

evidence”). 

Tennessee law is well-settled regarding abandonment of an easement. An 

easement may be abandoned, but the party attempting to prove abandonment must show 

both “an intention to abandon the easement [and] also external acts carrying that intention 

into effect.” Hall, 984 S.W.2d at 620. Mere nonuse of the easement “is not sufficient, by 

itself, to prove abandonment. Nonuse must be coupled with proof that the easement 

holder or holders intended to abandon the easement.” Hall, 984 S.W.2d at 620-21. The 

required external acts necessary to prove abandonment may be “either a single act or a 

series of acts.” Hall, 984 S.W.2d at 621. Courts may consider several factors in making

a determination of whether an easement has been abandoned, including:

(1) statements by the easement holder acknowledging the easement’s 

existence and disavowing its use, (2) the easement holder’s failure to 

maintain the easement in a condition permitting it to be used for access, (3) 

the easement holder’s acquiescence in the acts of others that reduce the 

utility of the easement, (4) the easement holder’s placement of a permanent 

obstruction across the easement, or (5) the easement holder’s development 

of alternative access in lieu of the easement.

Id.

3

 

Applying factor (1) from Hall, the evidence shows no statements of disavowal 

from M&M. Indeed, the Agreement contained a specific termination clause that M&M 

could exercise if it wished. The provision required M&M to provide 90 days prior 

 

3While these factors were applied to an unrecorded easement in Hall, we regard them as relevant for 

consideration of a recorded easement, also. See Porter v. Freedle, No. M2001-01892-COA-R3-CV, 2002 

WL 1315555, at *3 n. 2 (Tenn. Ct. App. June 18, 2002), Rule 11 appl. perm. appeal denied Dec. 2, 2002. 

The parties and the Trial Court refer to these factors, as well.
- 16 -

written notice to the owner of the eastern property and place curbing or a similar barrier 

along its boundary. Curbing was installed, but there is no evidence that M&M ever 

disavowed the easement in writing. Factors (2) through (4) we regard as inapplicable

because the easement has not yet been constructed or utilized. The opportunity for its 

maintenance has not arisen. It has thus far merely gone unused, and Tennessee law is 

clear that non-use alone does not constitute abandonment. The final Hall factor, (5), 

concerns the easement holder’s development of alternative access in lieu of the easement. 

It is strictly true that Plaintiffs have alternative means of means of accessing the western 

parcel, both on Kingston Pike and Cogdill Road. However, the Agreement gives

Plaintiffs access to Center Park Drive and thus a traffic light onto Kingston Pike. 

Plaintiffs have no alternative access to this traffic light—the centerpiece of their interest 

in the easement—in lieu of the easement.

The Hall factors weigh against Defendants’ position. Plaintiffs’ conduct over the 

years is akin to mere non-use, which is insufficient to show abandonment of the 

easement. We reverse the judgment of the Trial Court, and remand for a determination 

of the easement’s location and dimensions.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the 

Trial Court for collection of the costs below and further proceedings consistent with this 

Opinion. The costs on appeal are assessed against the Appellees, Slyreal Properties, Inc. 

and Pinnacle Bank.

_____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE