### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE VIOLET HOWARD v. KRISTI THURMAN, ET AL 

### . Direct Appeal from the Chancery Court for Fentress County No. P-96-40 Billy Joe White, Chancellor

No. M1998-00147-COA-R3-CV - Decided April 26, 2000

The Chancery Court of Fentress County he l d that the appellee had an implied easement for a driveway and parking area adjacent to her home. The ap pellants assert that the evidence preponderates

against the cou

rt’s finding. We a

ffirm. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed and Remanded. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which, C AIN and C OTTRELL , joined. Phillips M. Smalling, Byrdstown, Tennessee, for the appellants, Kristi Thurman, Danny Howard, Robert Howard and Martha Howard S. N. Garrett, for the appellee, Violet Howard

OPINION I. Earl Lynn Howard and wife, Violet Howar d, owned a house and one

- acre lot on the sou th side of Banner Springs Road in Fentress County. The lot was bou nde d on the wes t si de b y a larger tract that Earl Lynn Howard owned as a tena nt in common with other members of his family. An oldroad ran south fr

om Banner Spring

s Road on the family

prop erty. Earl and Violet Howard frequently

used that road as a driveway to their home. They als o ha d a p arki ng ar ea on the joi ntl yowned property, with two walkways f rom the drive and parking area to their lot. In 1996 Earl Howard

acquired his fam

ily’s intere

st in the property containing the old road, the parking lot, and the walkways. As a result, he owned the larger tract in his sole name, and the house and lot as a tenant in common with Violet Howard.-2-

Earl Howard died in December of 1996, and Violet Howard qualified

as the administrat

rix of his estate. In

order to settle som

e claims against

the estate, the Cha

ncery Cour

t of Fentress Coun

ty ordered the larger tract owned by Earl Howar d sold at a public auction. At the sale, one of th e lawyersannounced that they were reserving the question about whether there was an easement for the driveway

, the parking lot,

and the walkway

s. The appellants,Robert Howard and wife, Martha Howard, purchased the property at the sale. The court subsequent

ly held a hea

ring and deter

min ed that Vio let Howard had an easement by imp lic ati on o ver t he o ld r oad , th e par kin g are a, an d th e wal kwa ys to her p rop ert y. II. This case is not about an easement by adverse use or prescr iption, nor an easement by necessity – alt h ough long use and necessity figure into the equa tion. An easement by implication arises where “during

the unity of t

i tle, an apparently permanent and obvious servitude is imposed on one part of an

estate in favor of another part, which servitude, at the

time of the severa

nce, is in useand is reasonably necessary for the fair enjoyment of the other part of the es tate.” John son v. Headrick , 237 S.W.2d 567 at 569 (Tenn. Ct. App. 1948). This principle has been distilled into four parts: (1) unity of title and then separation; (2) a showing that, before the separation takes place, the usegiving rise to the easement shall have c ontinued so long and is so obv ious and manifest a

s to show that it was meant to be permanent; (3) a showing that the easement is essential to the beneficial enjoyment

of the land granted or retained; and (4) the servitude must have been continuous, as opposedto temporary or occasional. See Barrett v. Hill , No. 01A01-9806-CV-00295 (filed at Nashville Oct. 7, 1999). At the time of the forced sale, Violet Howard owned the

house and lot as the surviving tenant byt he entireties; she also owned at least a part of the larger tract by the law of des cent an d distribution. Although that may not amount to a unity of title in the classic s ense, the appel lants concede that the

first element of th

e test has been me

t. The appellants argue that Ms. Howard failed to pr ove the second element, t he apparently permanent

and obvious s ervitu de. They base their argument on the relatively small amount the Howards spent toimprove the road, and some testimony in the record that Earl Howard sometimes usedhis mother’s lot on th e other side of his house as a place to park his car. The chancellor, however, took all that into account and fo und th at Mr. Howard intended to use the driveway and parking area as the prim ary means o

f ingress and e

gress to the hous

e. We concur wit

h the chancellor’s assessment of the proof, and we would add that the driveway, the parking area, and the wal kwa ys are all clearly laid out on the ground and are obvi o usly in use; in fact, there is no other driveway nor parking area serving the house. The appellants also a

rgue that Ms. How

ard failed to

prove that the easement

was reasonably necessary to the beneficial enjoyment of her property. They assert that she could gain acc

ess to her lotfrom the main road

on the front by

putting in

a culvert and

cutting a driveway into her front y ard.-3-

In this state we have adopted a rule of “reason

able” necessity

, opposed to the rul

e of “strict” necessity that some states require. Johnson v. Headrick , 237 S.W.2d 567 (Tenn. Ct

. App. 1948); LaRu e v. Greene County Bank , 166 S.W.2d 1044 (Ten n. 1942). This less b

urdensome rule a

lso applies to easements

by necessity where the pr incipal test is necessity. See Morris v. Simmons , 909 S.W.2d 441 (Tenn. Ct. A pp. 1993). We think th

e proof in this cas

e shows a reasonable

nece ssi ty. The only altern

atives in volve building another driveway and parking are a or obtaining another easeme ntfrom another land owner. When we consider that the driveway and pa rking area have served Ms. Howard’s home

from the time it

was built, the nec

essity of ke

eping that acc

ess seems perfectly reasonable. Even though we recognize that easements by implication are not favored in the law, Johnson v. Headrick , 237 S.W.2d 567 (Tenn. 1948), we think th is case presents a situation where the principle is justified. We affirm the judg

ment of the trial c

ourt and remand this cause to the Chancery Court of Fentress County for a

ny further proceedings ne

cessary. T

ax the costs on appe

al to the appellan

ts, Kristi Thurman, Danny Howard, Robert Howard and Martha Howa rd.