# FILED
July 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

BOB PARKS, JOHN E. HARN EY, III, ) and GARY BOWMAN, ) ) Plaintiffs/Appellees, ) ) Appeal No. ) 01-A-01-9708-CH-00412 VS. ) ) Rutherford Chancery ) No. 97CV-180 WILLIAM J. REINHART and wife, ) JUDITH F. R EINHART, ) ) Defendants/Appellants. )
APPEALED FROM THE CHAN CERY COUR T OF RUTHERF

ORD COUNTY AT MURFREESBORO THE HONORABLE JAMES L. WEATHERFORD, JU DGE

JOHN G. MITCHELL, JR. 120 E. Main Street P. O. Box 1336 Murfreesboro, Tennessee 37133-1336 Attorney for Plaintiffs/Appellees LAURA TEK 1994 N. Gallatin Road Madison, Tennessee 37115 Attorney for Defendants/Appellants

AFFIRMED AS MODIFIED AND REMANDED

BEN H. CANTRELL, JUDGE
CONCUR: KOCH, J. CAIN, J.- 2 - 

## O P I N I O N

This is a dispute over a dr aina ge easemen t. The Chancery Court of Rutherford County reformed the deed from the defendants to theplaintiffs to include
a description of the

easement. We affirm the lower court’s judg ment, but we modify the judgment to reflect the purchas ers’ obligation to keep the easement cleaned out.

I.

M r. and Mrs. William J. Reinhart owned a larg e tract of land on the Manchester

Highway just outside of Murfreesboro. They divided it into nine s

eparate tracts and held an auction. At the auction the auctioneer announced that the owners (Mr. and Mrs. Reinhart) or the purchaser of Lot 9 would grant an easement across the l ot to accommodate the natural drainage of surf ace water from the other l ots. Th e plaintiffs, Bob Parks, J ohn E. Harney, III and Gar y Bowma n, bough t Lots 1-8 at the sale. Th e owners and sellers s igned a contract reflectin g the transaction an d including the following provis ion: “Easement will (be) gr

anted to purchaser across ( #) 9 tract for development of Tracts 1 -8.” Mr. and Mrs. R einhart retained Lot 9.

The deed to the purchasers, how ever, did not mention the eas ement, and the Reinharts refusedto sign a letter con senting to the pu rchasers’ draina ge plan forthe property. The pur chasers t hen filed this action for a mandatory injunction requiringthe Reinharts to sign the letter or something similar. The chancellor treated the complaint as one to reform the deed to the purchas ers and entered a decree reforming the deed

to incl ude the d escrip

tion of a drainage easement across the front of Lot 9.

II.- 3 - The record shows that the front part of the property

drains naturally to the south through a h ighway drainage ditch running alongsi de Highway 41 and across the front of Lot 9. The state does not always keep

the ditch clear, and the brush growing in it i mpedes the flow of water from the nor th.

Mr. and Mrs. Reinhart wer e fearful that ahigh density devel opment on the propert

y they sold w ould sub stantia lly in crease the runo ff across the property they retained. They testified that the purchasers assured them that they would not further subdividethe eight lots, but then they found out that the purchase rs intended to build sixteen houses on the eight lots. Therefore, t hey refused to s ign the drainage letter.

The engineering proof in the r ecord shows that the dev elopment proposed by the plaintiffs would increase the runo ff from the property by fifteen percent, but

the additional water w

ould raise the level i n the drainage ditch only one inch. The one inch increase in the water level would increase the w

idth of the water stream across Lot 9 by appr oximately three feet.
After hearing the proof, the chancellor made the following findings: THE COURT: Well, cons idering everythi ng that has been presented in this case, I a m confident that Mr. and Mrs. Reinhart understood that this water was going to be coming down on thei r property, and they needed to giv e some sort of easement for that . . . So, I am convinc ed that there needs to be something concerning the drainage from this other property across Mr. Reinhart ’s proper ty.

* * * I certainly don’t think

it was intended by any

body to let these folks just run wat er wherever they w

ant to on Mr. Reinhart’s property. I assume it w as to ta ke the natural flow. Evidently that’s the natural drainage there right now and has been. And that that’s what he int ended that they could keep on using that. Rat h er than issuing a mandatory injunction, I would be more inclined to say th at this warranty d eed needs to be reformed so as to contain an eas ement about this. I do think tha t an engineer or somebody that knows how- 4 - needs to kind of show where this drainage, if it is a natural drainage, and I ta ke it from the testimony that i t is, that that could have some descri ption to it.

* * * I r ea lly wouldn’t feel co mfortable in granting a mandatory injunction for Mr. and Mrs. Reinhart to sign this consent letter. I would be inclined, and I take it this is all of the proof that either of you could submit on this issue; I feel lik e it would be proper for me to treat this as a complaintto reform the de ed. Put in the deed a description of the natural d rain age of this water. And when that is don e , then I th ink that e verybody will h ave done exactly what they meant to starting out with. That’s the way I am going to treatthis. Rather than a petition for mandatory injun ction, I am going to treat it as a complaint to reform the deed. I am going to require an order that the deed b e r eformed so as to contain this easement. I think

that’s the easement that Mr. and Mrs. Reinhart had in mind whe n they signed this contract consenting to an easement.

The final judgment contained an order reforming the plai ntiffs’ deed to include a drainage easement across Lot 9. The descripti on roughly follows the ditch along Highway 41.

III.

Mr. and Mrs. Reinhart insi st thatthe chancellor erred in finding that they agreed to grant the p laintiffs a drainage easement acr oss Lot 9. The finding is, of course, presumed to be correct, unless the prep onderance of the evidence is otherwise. Rule 13(d), Tenn. R. App. Proc. We think the evidence full y supports

the chancellor’ s fin dings -- even without the presumption. The evi dence from the auctioneer, the provision in the contract (even th ough it does not mention a drainage easement), and the testimony from the parti es, make it clear that Mr. an d Mrs. Reinhart agreedthat the property they were selling had to drain to the south across the property they inte nded to keep.- 5 - The puzzling thi ng about t his whole c ontrovers y i s th e fact that the development of the property sold will not change the natural drainage. The surf ace water now flows in a souther ly direction, basic

ally down the

highway side ditch. It is true that the development planned by the plaintiffs will increase the surface wat er runoff by fifteen percent, but the expe rt testimony in the rec ord indicates that the impact on Lot 9 will be minimal.

The Reinharts also complain that th e contract did not contain a description of the easement. We find, however, that the chancel lor’s location of the
easemen t will hav

e the least i mpact on the Reinharts’ p roperty. It seems to b e obviousthat locating the easement along the existing drainage ditch is preferable to locating it at any ot her place on the pro perty.

IV.

The Reinharts also insist that the chancellor err ed i n treating the complaintfor a mandatory injunction as a complain t to reform the deed. We note, however, that the complaint contained a prayer for “such other further and gener al rel ief to which they may be entitled in equity and good conscience . . . .” G ibson’ s Suits in Chancery

(VI Ed. § 220) states that “[i]f the plaintiff is not entitled to the specific relief he prays, he may under the general prayer have such other relief as the pleadings and proof will justify, provided it is not of a character to take the defendant bysurprise.” The Reinharts could hardly claim surprise wher e the original complaint prayed for a mandatory injunction r equiring them to e

xecute a gra nt of a general easement and t he chancellor reformed their de ed to include a grant of a parti cular easement. The relief

was for all practical

purposes the same as the relief asked for in the complaint. We think the chancellor’s action falls well withi n his power to grant “such relief as is consistent w ith the scope and object of the bil l.” Hayes v. Pamplin , 2 Tenn. Cas. 630, 2 Shannon 630 (Tenn . 1878).V.

We have alrea dy dealt wi th the Reinharts’ final contention that the fifteen percentincrease in the runoff from the plaintiffs’ property i s an unreasonable burden
on their property, a taki ng of their property, and a nuisance. In fact, the record seems to indicate that the Reinhart p roperty will not be affected very much. Raisi ng the water level in the existing dit

ch one inch, and causing the water to spread out three feet from its current width c

an hardly be considered a major impact on the land.

VI.

The plaintiffs have a cknowledge d that they have a duty to keep the easement cleaned out so that the water will flow

freely across Lot 9. The lower court’s judgmentwill be modified to impose that duty on theplaintiffs and their successors in title whose property

is benefitted by the easement.

The judgmentof the court below is affirmed as modified and the cause is remanded to the ChanceryCourt of Ruthe rford County fo r any further proc eedings necessary. Tax the costs on appeal to the appellants.

____________________________ BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________ WILLIAM C. KOCH, JR., JUDGE

_______________________________ WILLIAM B. CAIN, JUDGE