# FILED April 3, 1998 Cecil W. Crowson Appellate Cou rt Clerk JOSEPH ANTHONY GA NNON and ) GLORIA C. GANNON, ) ) Montgomery Chancery Plaintiffs/Appellee

s, ) No. 92-70-428

) VS. ) ) ROBERT KOCH and DEBORAH ) Appeal No. KOCH, ) 01A01-9708-CH-00404 ) Defendants/Appellant

s. ) IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF MONTGOMERY COUN TY AT CLARKSVILLE, TENN ESSEE HONORABLE ALEX W. DAR NELL, CHANCELLOR
Brad W. Hornsby BULLOCK, FLY &

MCFARLAND 301 N. Spring Street P.O. Box 398 Murfreesboro, TN 37133-0398 ATTORNEY FOR PLAINTIF FS/APPELLEES Robert A. Maness MARKS, SHELL, MANESS & MARKS 114 S. 2nd Street P.O. Box 1149 Clarksville, TN 37041-1149 ATTORNEYS FOR DEFENDANTS/APPELLANTS VACATED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

JOSEPH ANTHONY GA NNON and ) GLORIA C. GANNON, ) ) Montgomery Chancery Plaintiffs/Appellee

s, ) No. 92-70-428

) VS. ) ) ROBERT KOCH and DEBORAH ) Appeal No. KOCH, ) 01A01-9708-CH-00404 ) Defendants/Appellant

s. ) 

## O P I N I O N
The defendants, Robert and Deborah Koch, have appealed from a non jury judgment that plaintiffs,Joseph and Gloria Gannon, have a private easement from their land across the land of defe nda nts for acce ss t o th e pu bli c way.
The background of

the controversy

and its disposition by the Trial Judge are not simple.

On March 8, 1985, C. E. and Lucille Hassell conveyed to Frede rick L. and Debra Glazier, four tracts. The first

tract was described by metes and bounds which do not include a road of a ny sort and which state that the tract contains 51-1/2 acres and that it is part of an original tract of 1 50 acres. The second tract is described as fronting on “a private road lea ding from the Clarksville

andPalmyra Road to T. J. Charmell’s residence,” and containing 1⁄2 acre. The third tract is described as fronting on “the Clarksville Road” and containing 4 acres. The fourth tract is described by

names of adjoining

owners and conta

ining 41 acres.

The Glaziers employed Joseph Gannon to survey the

ir property and design a subdivision of it; and he did so, plotting a street called Debra Drive. A

plot of said propose

d subdivision is exhibited to th is rec ord. It consists of 26 lots of less than 2 acres each. Lots 1-9, inclusive, front
on the south side of De

bra Drive, and lo

ts 10-26, inclu sive, front on the north side of Debra Drive which extends from Tennessee Highway 149 westward to its

termination betwe

en lots 9 and10 which are the westernmost lots in the subdivision. Beside the words, Debra Drive,-3-

appears the notation, (50 ROW). However, the width of Debra Dr

ive between lots 9

and 10 is designated

as 25 f eet. Also, lot 26 on t

he north side of De

bra Drive extends

all the way t

o Highway 149, but lot 1 on the south side of Debra Drive does not. The intersection of a future roadand Jackson property (width 499.20 feet) intervene betweenlot 1 and the highw ay. Thus, the subdivision adjoins the highway on the north side of Debra Drive, but not on the south

side. On the Jackson property is a notation, “This

portion of land ded

icated to ROW” with p

ointer to the south edge of Debra Drive.

The subdivision was never approved by planning authorities or recorded in the of fice of the county register. The Glaziers agreed to convey lot 9 of this subdivision to

John and Gloria Gannon in payment of his surveyor’s fe e.

Lot 9 was described a

s beginning at a

n iron pin “in

the south right of way of Debra Drive, this pin being 2,627.90 feet west of the west ri ght of way of Tennessee Highway 149 --- and being Tract 9 of an unrecorded plot of Hassell Heights Estates according to a survey of Joseph A. Gannon dated July 8, 1985, Tennessee license number 616.”

On May 28, 1987,

C. E. and Lucille Hassell executed a foreclosure deed to themselves pursuant to default in

payment of pu

rchase money by the Glaziers. Excepted f rom said deed
were pro pert ies prev iou sly conv eyed by the Glaziers to I vie Parchman, et. ex., State of Tennesse e, R. W. Suit

er, et. ux. , the Gann

ons and Cha

rles Warr en, Jr., et . ux.
On January 11, 1989, the Hassells conve yed to Rober

t and Debra Koch the same four tracts that they sold to the Glaziers in 1985, and recovered by foreclosure in 1987. Excluded from this d eed were the f ollowing:

1. A tract of approximately two acres reserved by Ivie Parchman in her deed to C.E. Hassell.-4- 2. A tract convey

ed to th e State of Tennessee described by mates and bounds containing dimensions of 1,715 feet, 603.62 fee

t, 1,058 feet and 4

2 feet and conta

in ing 4.3 79
acres.
3. A tract excluded in the deed from the Hassells to theGlaziers, described as a 3-
acre tract adjoining old Tennessee Highway 149 on which the home, ba rn and garage of th e Hassells is located.

4. A tract convey

ed by the Ha

ssells to R onald and Harold S uiter, adjoining

old Tennessee Highway

149, having dimensions of 565.82 feet, 466.23 feet, 257.15 feet and 16.99 feet.

5. A tract con veyed by the G lazi ers to Joseph Gannon et. ux., being lot 9 on the unrecorded plot

of Hassell Heig

hts.

6. A tract sold by Frederick Glazier to Charles M. Warren, Jr., et. al., cont a ining 50.88 acres.
On July 23, 19 92, the Gann ons’ filed the present suit allegi ng:
1. Their ownership of “Tract 9" (lot 9, described above).

2. The defendants-Koc hs’ ownership

of the entire tract

conveyed to the Glaziers on March 8, 1985.

3. That Debra Driv

e had been gra

ded and grave

led for use of lot o

wners.-5- 4. That

the defendants had erected a fence and gate obstructing Debra Dri ve and plaintiffs’ access to Highway 149.

The complaint prayed for

a permanent injunction against obstruction of Debra Drive and for damages.

The defendants a

nswered deny

ing material all

egations.
The judgment of t

he Trial Court rea

ds as follows: This cause came on to be heard on the 19th day of April, 1994, on the Petition of Plaint iffs for a permanent injunction enjoini ng the Defendants from obstructing Plaintiffs’ access to a trac

t of land owned by

the Plaintiffs,

for an injunction re st raining the Def endants from turn

ing loose vicious dogs, which int erfere d with the Plaintiffs ’ rights in ac cess to their property; for damages for lost sales, pu nitiv e damages,andforgeneral relie f; testimony o

f witnesses, statements

of counsel and al

l the record in

this cause, from all of whic h is ap pearing to the Court that the Plaintiffs have a right to maintain access to their prop erty alo ng the roadway now kno wn a s De bra D riv e, b ut t hat acce ss m ay in no w ays li mitthe u se of the real property of the Defendants; that Defendants

may not unre

asonably lim

it the Plaintiffs’ a

ccess to the ir lot; that the Defendants’ unlocked gates do n o t unreasonably

limit the Plaintiffs’ access to their lo t so long as no approved roadway exists; and it further appearing that the Plaintiff may bring

the easement

to the quality of a roadway that might be dedicated and accepted as a road by the cou nty, andonce the easement is improved to the extent that it might be dedicated and accepted as a road by the c ounty; the Defendant

would not t hen be allowed to l imit access; and it further appearing that upon bringing the easem ent t o the quality of a roadway, that it might

be dedicated and accepted as a road by

the county

the Plaintiffs shall have an easement for the roadway now known as Debra Drive and should be allowed, as part of the improvement, to run utility lines along said easement to their property and that the costs of this cause should be borne by

the Defendants. IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that: 1. That

until Plaintiffs impr

ove their easement to the extent that it might be dedicated and accepted as a road by the cou nty, the Plaintiffs may have an easement and access to their lot along the road known as Debra Drive;-6- 2. T hat

Defendants may place a gate ac ross the easement as long as it is unlocked and Plaintiffs have access to t heir easement and lot limited only by the necessity of opening and clos

ing Defendants ’ gate or gat es; 3. Once the easement is improved t o the extent that it mi ght be d edicated and accepted as a road by the county, the

Defendants will n

ot be allowed to limit

access; 4. The Plaintiffs may improve the ro ad, including extending utilities along said easement to bring the easement to the quality of a roadway that mig ht be dedicated an d accepted as a road by the county ; and 5. The Defend a

nts are permanently enjoined fro m inte r fering with Plaintiffs’ re asonable acce

ss to their lot, except by unlocked

gates that must be opened and closed by the Plaintiffs and s ai d easement being more specifica

lly described below: Beginningat an iron pin in the south right of way of Debra

Drive, this iron pin being 2627.90 feet west of the west right of way of TennesseeH ighway 149 as measured along the south right

of way of Debra Drive, thence South 12 degree

s 43 minutes 52 secon

ds east 215.36 feet to

an iron pin in a fence line; thence south 80 degrees 03 minutes 31 seconds west 231.98 fee t wi th a fence line to an iron pin; thence no

rth3 degrees 04 minutes 56 seconds west 263.07 feet to an iron pin in the south right

of way of Debra Drive; thence withthe south right of way of Debra Drive south 86 degrees 33 mi

n ute s 20 seconds east 146.18 feet to

an iron pin; thence

witha curve for 48.26 feet, this curve having a rad ius o f 1665.62 feet, a

tangent of

49.26 feet, a degree of curve of 3 degrees 26 min

utes 24 seconds, a total curve leng

th of 98.49 feet

and a central angl e of 3 degrees 23 min utes 17 seconds, to the iron pin at the point

of beginning, t

his tract of land containing 1.16 acres more or less and being Tract 9 of an unrecorded plat of Hassell HeightsEstates accordi

ng to a su rvey of Joseph A. Gannon dated July 8, 1985, Tennessee license number 616. The above propert

y bei ng a portion of the samepropertyconveyed to the Grantors by deedfrom C.E. Hassell, et ux, of record in Official Record Book Volume 355, Pag e 2239, Register’s Office for Mo ntgo mer y Cou nty, Tennessee. Ref

erence is here

by ma d e to a Power of Attorney of re cord in Official RecordBook Volume 359, Page 1074, of said Register’s Office.-7- The costs of this cause shall be taxed to the Defendants The quoted order

undertakes to describe by metes and bounds the easement but instead describes Tract 9 of Hassell Heights consisting of 1.16 acres, which is the land of the Gannons in whose favor the easement is granted.

This inadvertence must be corrected on remand. The order should describe the easement by metes and bounds, beginningat highway 149 and ending at Tract 9, and describing the exact width of the ease

ment. The relief granted in the order requires attention.

1. The plaintiffs are g ranted an ease

ment for access

to their lot. This

appears to be
an appurtenant ea

sement for acce

ss to a particular tra

ct of land. As such

, it would belong to the successive owners of the land so benefitted. Jones v. Ross , 54 Tenn. App. 136, 388 S.W.2d 640 (1963). Since the use of the easement is

limited to the needs of the owner of the land benefitted, the easement is a private, not a public easement. See Black’s Law Dictionary, Fourth Edition, p. 600.

An easement may be created by the provision for streets in a subdivision, but subdivisions must be recorded in the County Register’s Office, and approva l of the loc al planning authority is g

enerally required for such

registration. TCA § 13-3-411. This record does notshow that the plot of

Hassell Heights Subdivision has beenapproved or registered or that any public authority has accepted any dedication of Debra Drive.

A private easement may be created

by express deed of the owner of the subservient estate,
or by necessary infer

ence from the sale of a portion of a tract without expressly

providing acce

ss-8-

to the conveyed portion across the land of the conveyor. City of Whitwell v . White , Tenn. App. 1974, 529 S.W.2d 228. This re cord does not demo

nstrate such a cr

eation of a priva

te easement.

A private or public easement may be created by prescri

ption, but there is n

o evidence in this record that any such right has been so created.

A private easement for access to landlocked land may be obta ined by petition to the “county court,” whichmust appoint a jury of view to lay off and mark a road not exceeding 25 feet in width and to

assess damages to be paid to the owners of the properties crossed by the right of way. TCA §§ 54-14-101-117, inclusive. Land owners subject to an easement may erect gates. See Luster v. Garner , 128 Tenn. 160, 159 S.W. 604 (1913); Long v. Garrison , 1 Tenn. App. 211 (1925).
It does not appear that this has occurred in the present case.

TCA § 54-10-103 provides for the e stablishment of cou

nty roads by

action of the “co

unty court,” but such action must be taken in accordance with statutes governing the exercise of the power of eminent domain, with just compensation. TCA §§ 29-17-801-814, inclusive.
It does not appear that such action has been taken in the present case.

2. TCA § 54-1 0-108, 10 9 provides for gates across county roads of the third and fou rth cla ss b y act ion of t he co unt y legi sla tiv e bo dy.

It doe s no t ap pear fro m th e rec ord tha t a p riv ate ease men t ha s be en cr eat ed i n th is w ay.-9- 3. The cited statutes d o not provide for “unlimited access” simply because the holders of a private easement had been “dedicated” or “improved.”

4. The same is true of the installation of

utilities.

5. The authority to permit gates, locked or unlocked across

a private easement is not providedby statute. It has, however, been rec ognized by

our case law. See Luster v. Gardner , 128 Tenn. 160, 159 S.W. 60 4 (1913). And, as a

bove stated, a co

unty court m

ay a llow gates across certain

county roa

ds.

The defendants-appellants prese nt a single issue a

s follows: Whether the trial court er

red in holding th

a t the dominant tenants (appellees-GANNONS) of an easement of ingres s and egress by

necessity h

ave the future r

ight to improve that easement up to county roa d standards and dedicate that ease

men t to the county

for acceptanc

e as a county roadthereby increasing the burden of the easement on the servient estate. The plaintiffs-a

ppellees state the

issue as follows: Was the Trial Court correct in granting to

the Gannons an easement across the pro perty of the Kochs when

said easement of Debra Drive was referred to in the deed of the Kochs and existe d at the time of his purchase and further pe rmitti ng the Gannons the opportunity to maintain and improve said drive up to the stand ard thatwas initially intended by

the original par

ties?
It is apparent

from the result reached in the Trial Court that the

parties did not suf

ficiently supply the details necessary for the Tria l Court to render definitive and correct findings and conclusions such a

s:
Whatright have the plaintiffs because of an unapproved, un regis tered subdivision, or arising out of any re

corded instrumen

ts. If any suc

h rights exist, what is the width of the easement and its location?-10- Whether such easement extends all the way to t he public way,

and across whose pro pert y?

Whether the plaintiffs’ land is “landlocked,” and, if so, whether proper steps have been tak en t o acq uir e acc ess to t he p ubl ic w ay.
The judgment of the Trial Cour t is vacated and the cause is remanded for further proceedings to enable the parties to present a more definitive pictur

e of the situation,

especially
a correct map of the properties adjoining Hassell Heights Subdivision with particular reference to t he p rop er ro ute of a r oad to p rov ide to p lai nti ffs acce ss t o th e pu bli c way.
After hearing the matter further, the Trial Court is directed t

o enter its judgment defining withspecificity the rights of the parties in conformity with this opinion. The costs of this appeal are assessed ag

ainst the appelle

es.
VACATED AND REMA NDED

_________________________________ HENRY F. TODD PRES IDING JUDGE, MIDDLE SECT IO N

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WILLIA M C. KOCH, JR., JUDGE