FILED

Nov. 15, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

JERRY D. ADCOCK and wife, )

NANCY M. ADCOCK, )

) Appeal No. 

Plaintiffs/Appellants, ) 01-A-01-9505-CH-00220

)

v. ) Davidson Chancery Court No.

) 91-3888-III

JAMES F. WITCHER, JR., )

)

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT, PART THREE

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

JIMMY P. LOCKER

105 Sycamore Street

Ashland City, TN 37015

ATTORNEY FOR PLAINTIFFS/APPELLANTS

DARREL L. WEST

144 Second Ave., North

The Pilcher Building , Suite 300

Nashville, Tennessee 37201

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
2

OPINION

This is an appeal by plaintiffs/appellants, Jerry and Nancy

Adcock, from the judgment of the trial court in favor of

defendant/appellee, James F. Witcher. 

The diagram below, while not drawn to scale, depicts the

shapes and the layout of the relevant tracts of land. Reference

to this diagram will be helpful in understanding the following

facts.

Prior to 1974, the Allens owned Tracts One, Two, and Three,

the Witcher Tract, the Emmons Tract, and the Driveway Tract. In

1978, appellants purchased the 30 acre tract referred to as the

Adcock Tract. In two separate sales, the Allens sold all of

their land to the Emmons. While living on the Emmons Tract, Mr.

Emmons built a log home on the Witcher Tract. Mr. Emmons also

built a driveway up to the house. The driveway stretched the

length of the Driveway Tract. In 1982, the Emmons conveyed the

Witcher Tract and the house to the Richards. The Emmons

expressly granted the Richards an ingress/egress easement over

the Driveway Tract. The Emmons' real estate agent hired Rocky L.

Montoya to survey the property and to carve out the five acre

Witcher Tract and the Driveway Tract. After selling the property
3

to the Richards, the Emmons only used the driveway to the east of

the creek once or twice and only to go to the house on the

Witcher Tract. 

In order to purchase the property, the Richards executed a

deed of trust in favor of Collateral Investment Company

("Collateral"). The Richards later defaulted on their loan. 

Collateral initiated foreclosure proceedings and purchased the

Witcher Tract at the foreclosure sale. The deed evidencing the

sale described both the Witcher Tract and the easement over the

Driveway Tract. Later, in 1985, Collateral sold the Witcher

Tract with its easement to appellee. The deed evidencing the

sale expressly granted appellee an easement over the Driveway

Tract. At the time appellee purchased the property, the house

had been vacant for approximately two years. Appellee worked

extensively on improving the home, the yard, and the Driveway

Tract.

In 1983, the Emmons executed a deed of trust in favor of

Commerce Union Bank ("the Bank"). The deed of trust covered all

of the Emmons property except the Emmons Tract and that portion

of the Driveway Tract lying to the west of the Little Marrowbone

Creek. Like the Richards, the Emmons defaulted on their loan. 

The Bank purchased the property at a foreclosure sale. The Bank

divided the property into Tracts One, Two, and Three. At an

auction in 1984, the Bank sold Tracts One and Two to appellants

and Track Three to Curtis Flansburg. The contracts for sale each

contained the following language: "Subject to easement for

ingress and egress of record . . . ." The contracts did not

include an agreement to grant the purchaser an easement or a

statement that the property included an easement. In addition,

appellants' deeds stated that the land was "subject to the rights

of others to ingress and egress easement from Little Marrowbone
4

Road of record . . . ." Appellants, however, claimed that the

Bank assured them that they had the right to use the driveway to

access Tracts One and Two. Later, in 1987, the Bank sold its

interest in the Driveway Tract to Flansburg. Finally, in 1991,

appellee purchased Tract Three and Flansburg's portion of the

Driveway Tract.

In December 1990, Timothy and Sherry Adcock, appellant's

son and daughter-in-law, moved a mobile home onto the

southwestern corner of Tract Two. At trial, Jerry Adcock

testified that he only used the Driveway Tract once or twice a

year prior to December 1990. In addition, he stated that,

although he did not use Tract Two that often, when he did go onto

the land he accessed it through the Adcock Tract.

In order to get to his home, Timothy Adcock filled in a

portion of a drainage ditch dug by Appellee. As a result, a

portion of appellee's driveway washed away. Appellee also

claimed that Timothy and Sherry Adcock's presence caused other

damage. Appellee verbally barred the Adcocks from using the

driveway. Despite appellee's notice, the Adcocks continued to

use the driveway claiming that Commerce Union Bank had granted

them an easement.

On 2 December 1991, appellants filed a complaint against

appellee and his wife. Appellants asked the court to enter a

decree stating that they had an easement over the Driveway Tract

and to award them damages. Appellee filed a complaint against

appellants and Timothy and Sherry Adcock on 23 December 1991. 

The complaint asked the court to issue an injunction against

appellants and to award appellee damages. On 9 March 1992,

appellants and Timothy and Sherry Adcock filed their answer, and

Timothy and Sherry Adcock filed a cross-complaint seeking
5

damages. The chancery court issued an order on 19 April 1993

transferring the cases for consolidation. The chancellor

dismissed Mrs. Witcher from the case because another court had

granted the couple a divorce. The chancery court heard the case

without the intervention of a jury and issued a memorandum

opinion on 2 February 1995. The chancellor held that appellants

failed to establish that they had a right to use the driveway. 

In support of this conclusion, the court found that the deed to

Tract Two did not expressly grant appellants an easement. Also,

the chancellor held that there was no use of the driveway to

access Tract Two at the time of the conveyance and that the

easement was not necessary to the beneficial enjoyment of Tract

Two. Because both of these factors are essential to the creation

of an easement by implication, the chancellor held that there was

no easement. Finally, the court denied both parties request for

damages. On 16 February 1995, the chancellor entered a final

judgment permanently enjoining appellants from using the

driveway. From this judgment, appellants filed their notice of

appeal on 7 March 1995.

Appellants present one issue, whether the trial court erred

in finding that they do not have an easement over the Driveway

Tract. Appellants base their argument on three theories: 1)

express grant of easement; 2) easement by implication; and 3)

easement by estoppel. We will address each theory in the order

listed. 

Express Grant of an Easement

A party may create an easement by express grant. In order

to do so, however, the grant "must contain all the formal

requisites of a grant of land. . . ." 10 Tenn. Jur. Easements
6

§3 (1994); see also 25 Am. Jur. 2d Easements and Licenses §20

(1966). Words of grant are necessary to create an express

easement, and the instrument conveying the interest must contain

a description of the servient estate. Nunnelly v. Southern Iron

Co., 94 Tenn. 397, 410-14, 29 S.W. 361, 365-66 (1895); Miller v.

Street, 663 S.W.2d 797, 798 (Tenn. App. 1983). Further, an

"enforceable permanent easement may not be conferred orally. . .

." City of Whitwell v. White, 529 S.W.2d 228, 230 (Tenn. App.

1974).

The facts of this case include a long list of conveyances,

but only four of them convey an interest in an easement. The

first conveyance was between the Allens and the Emmons in 1974. 

As evidenced by the installment deed, the Allens conveyed Tracts

One, Two, and Three, the Witcher Tract, and that portion of the

Driveway Tract lying east of the creek to the Emmons. The Allens

retained the Emmons Tract. At this point in time, there was a

driveway located on the Emmons Tract. This driveway extended

from the road approximately three-fourths of the way back to the

creek. The Allens granted the Emmons an easement interest in

this driveway.

In 1975, the Allens transferred the Emmons Tract with the

driveway to the Emmons. As a result, the rule of merger by unity

of title came into play. The rule is stated as follows: "'When

the owner of an estate enjoys an easement over another estate and

acquires title to the latter, the easement is thereby

extinguished.'" Vanderbilt University v. Williams, 152 Tenn.

664, 673, 180 S.W. 689, 691 (1925) (citing 19 C.J. Merger by

Unity of Title p. 945). In this case, the Allens granted the

Emmons an easement over the driveway portion of the Emmons Tract

in 1974. The Emmons then acquired title to the Emmons Tract. 
7

Thus, the rule of merger extinguished their easement interest.

Given the above, as of 1975, no one had an easement interest

in the Driveway Tract. This state of the land lasted for 7

years. In 1982, the Emmons conveyed the Witcher Tract to the

Richards. Under the terms of the deed, the Emmons expressly

granted the Richards an easement over the Driveway Tract. The

deed contained words of grant and described the land including

the easement by metes and bounds. The third conveyance occurred

in 1984. In that year, Collateral purchased the Witcher Tract at

a foreclosure sale. The trustee's deed properly granted

Collateral an easement. Then, in 1985, appellee purchased the

Witcher Tract. The deed granted appellee an easement and

described it appropriately. 

It is apparent that no one ever granted appellants an

express easement over the Driveway Tract. Further, after the

Emmons' easement was extinguished, no party ever granted

appellants' predecessors in title an easement over the Driveway

Tract. Also, the deed to Tract Two, evidencing the conveyance to

appellants, specifically stated that the land was "subject to

rights of others to ingress and egress easement from Little

Marrowbone Road. . . . " Finally, in order to grant a party an

easement, the grantor must have some interest in the servient

estate. In this case the Bank, Adcock's purported grantor, only

had an interest in that portion of the Driveway Tract lying to

the east of the creek. Therefore, the Bank could not have

granted appellants an easement stretching the entire length of

the Driveway Tract. Clearly, appellants have no right to an

easement based upon the theory of express grant.

Easement by Implication
8

 The reasoning behind implied easements is that a

grantor intends to include in a conveyance whatever is necessary

for the beneficial use and enjoyment of the property conveyed. 

25 Am. Jur. 2d §24 Easements and Licenses (1966); see La Rue v.

Greene County Bank, 179 Tenn. 394, 407, 166 S.W.2d 1044, 1049

(1942). Implied easements, however, are not favored in the law,

and it is the policy of the courts to restrict the doctrine. In

order to establish an easement by implication, the party

asserting the right has the burden of proving all of the

necessary elements.

The first element is unity of title to both the dominant and

servient estates. Such unity must exist when the grantor conveys

the dominant estate to the party claiming an easement. Cole v.

Dych, 535 S.W.2d 315, 318 (Tenn. 1976); Line v. Miller, 43 Tenn.

App. 349, 352, 309 S.W.2d 376, 377 (1957). Also, there must be

use of the purported easement prior to the separation which is

continuous and obvious. Allison v. Allison, 29 Tenn. App. 99,

104-05, 193 S.W.2d 476, 478 (1945). In Jones v. Whitaker, 112

Tenn. App. 551 (1930), the court explained this requirement as

follows:

"The authorities are agreed and such is the rule

in [Tennessee] that when the owner of an entire tract

of land of two or more adjoining parcels, employs a

part thereof so that one derives from the other a

benefit or advantage of a continuous and apparent

nature, and sells the one in favor of which such

continues and apparent quasi easement exists, such

easement being necessary to the reasonable enjoyment of

the property granted will pass to the grantee by

implication. . . ."

Jones, 12 Tenn. App. at 554 (citing Powers v. Ward, 200 Ky., 478,

34 A.L.R., 230). As is apparent from the above quote, the third

element is that the easement be reasonably necessary to the

dominant estate at the time of the conveyance. See La Rue, 166

S.W.2d at 1050. The Tennessee Supreme Court held that it does

not have to be a strict or absolute necessity. Instead, the
9

court stated that the an implied easement "should not arise

except where it is of such a necessity that it must be presumed

to have been within the contemplation of the parties." Id. 

 

The facts of this case fail to satisfy the requirements of

all three elements. First, when the Bank conveyed Tract Two, the

purported dominant estate, to appellants, the Bank did not have

title to the entire servient estate, the Driveway Tract. 

Instead, the Bank only had title to Tract Two and that portion of

the Driveway Tract lying to the east of the creek. Because the

Bank did not have title to the dominant estate and the entire

servient estate at the time it conveyed the dominant estate to

appellants, unity of title, element one, did not exist.

Next, there was never a continuous and obvious use of the

driveway to access Tract Two. Neither the bank nor any of the

other landowners ever used the driveway to access Tract Two. The

evidence in the record shows that previous owners only used the

driveway to access the Witcher Tract and the Emmons Tract. 

Further, as the trial court found, prior to appellants ownership

of Tract Two, there was never a mobile home located on the

property. Therefore, no one could have used the driveway to

access the home.

 

 Finally, the trial court held that appellants failed to

prove that the driveway was reasonably necessary to the enjoyment

of Tract Two. We agree with the holding of the trial court. 

Appellants have access to Tract Two through the Adcock Tract and

Tract One. There is no necessity present. In fact, the only

factor present is mere inconvenience which does not rise to the

level of reasonable necessity. 

Easement by Estoppel
10

In order to prevail on an estoppel theory, the party

asserting a right to an easement must establish the following: 

1) the owner of the servient estate made some misrepresentation

or failed to speak to the party; 2) the party must have believed

the communication; and 3) the party must have relied on the

communication. Charton v. Burgess, 1989 WL 105655, at *3 (Tenn.

App. 13 September 1989); Donegan v. Bryson, 1987 WL 18464 at, *2-

*3 (Tenn. App. 16 October 1987); see Moses v. Sanford, 70 Tenn.

655, 659 (1879); Moore v. Queener, 464 S.W.2d 296, 302 (Tenn.

App. 1970). "The principle of an estoppel of this character is

that the party who is to be effected by it has, by his own word

or conduct, misled another into a course of action that, if the

estoppel is not enforced, will work an injury to him who is thus

misled." Moses, 70 Tenn. at 659.

In this case, there were misrepresentations, but they were

not made by appellee. Instead, it was the Bank, a non-party, who

represented to appellants that they would be able to use the

driveway to get to Tracts One and Two. There is no evidence in

the record that appellee made any misrepresentations to

appellants. Further, there is no evidence that appellee knew of

the misrepresentations made by the Bank. Because appellee failed

to make any misrepresentations on which appellants detrimentally

relied, this court may not estop appellee from denying the

existence of an easement. 

For the foregoing reasons, we find that there are no legal

or equitable arguments sufficient to merit a finding that

appellants have an easement over the Driveway Tract. Therefore,

the judgment of the trial court is affirmed, and the cause is

remanded to the trial court for any further necessary

proceedings. Costs on appeal are taxed to appellants.
11

______________________________

Samuel L. Lewis, Judge

Concur:

______________________________

Henry F. Todd, P.J., M.S.

______________________________

William C. Koch, Jr., J.