### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 6, 2002

Session F.T. GREER , ET AL 

### . v. JOSEPH C. MACRI, ET AL 

### . Appeal from the Chancery Court for Sumner County

No. 2000C-89 Tom E. Gray, Chancellor

No. M2001-02536-COA-R3-CV - Filed December 11, 2002

This appeal arises from the denial of th e Chance ry Court of Su

mner Coun

ty o f Plaintif

fs’ request for an injunction. The di spute involves the construction of a brick entranceway which connec ts a county

road to D efenda

nts’ drive way easeme nt over th

e Plainti ffs’ prope rty. The entranceway

lies within the “metes andbounds” of a county road. The Chancellor refused to gr ant an injunction ordering removal of the entranc eway holding that the count y w as the onl

y pa rty with standing to seek removal of obstructions within the right-of-way of a county r

oad. We disag

ree with the Chancellor and

find that the Plaintiffs own fee simple title to the pertinent portion of the right-ofway and therefore have standing to a sser t thei r own ersh

ip rig hts in depe

nden t of th e cou nty . We therefore reverse the finding of the Chancellor and remand the case f or further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded

T HOMAS W. G RAHAM , SP. J., delivered the opinion of the court, in which B EN H. C ANT RELL and P ATRIC IA J. C OTT RELL , joined.
Hom erR. A yers, Goodlettsville, Tenne ssee, for the appellants, F. T. Greer and wife, Sally Robb Greer, and Sue R. Hancock.
Curtis M. Lincoln, Hendersonville, Tennessee , for the appellees, Joseph C. Macri and wife, La ura L. Ma cri.-2- OPINION Background
This case began when F. T. Gree

r and wife, Sally Rob Greer, and Sue R. Hancock brought suit in the Chancery

Cou rt of Sumn er County seeking injunctive

relief a gainst t he Defe ndants, Joseph C. Marci and wife, Laur a L. Ma rci. Plain tiffs soug ht injuncti ons requi

ring the Defend ants to remove

from Plain

tiffs’ pr opertie s certa

in obstructions and material s related to the Defe

ndants’ driv eway to and from the county r oad known as Watt Nolan Road. The genesis of the disput e centers around a May

29, 1998, agreement sty

led Ingre ss, Egress Driveway and Utility Easement and Agreement

between Plaintiffs, F. T. Greer and wife , and the Defendants which provi ded f or an easement of ingr ess and e gress p

rimarily for the b enefit

of the De fendant s but also with certa in right s being g ranted t o the Plain

tiffs. As a conseq

uence o f this agree

ment, the Defend ants constructed a driveway from Watt Nolan Road along the boundary line betweenPlaintiffs, F. T. Greer and wife, and Plaintiff, Sue R. Hancock, which extended to the southerly line of the De

fendant s. In

gener al, the lawsuit claimed numerous trans gressions across the twelve (12) foo t easeme

nt onto the

Plaintiff s’ respective properties including an objection to a substantial brick entrance g ateway whic h is the subject of this appeal. After a ful l evidentiary he aring, the Chancellor ruled on all those issues of the complaint exce pt m atters de aling w ith that por tion of the Defend ants’ dr

iveway and entr ance g ate which lay within the metes and bounds of the f ifty (50) foot rig

ht-of-way of the Watt Nolan Road. The Chancellor, noting Sumne r County was no t a party to this act

ion, ref used to g rant relief as to obstructions lying within t he county road rig ht-of-w ay . From thi s ruling and the Trial Court’s subsequent

October 12, 2001, o

rder de nying Plaint

iffs’ mot ion to modif

y a s to this issu e, the Plaintiff s have fi led this ap

peal ask ing the C ourt to rule on the f ollowing issues: 1) Whether

or not the limitations set forth in the Ingress, Eg ress Driveway

and Utility Easemen t and Ag reemen t filed asExhibit

No. 1, apply to that

portion of the driveway

constructed

by the appellees which is within the metes and bounds of the road ri gh t-of-way granted to Sumner County , Tennessee, for Watt Nolan Road. 2) Whether

or not a property

owner ha s cont rol of tha t portion o f his prop erty dedicated as a road right-of-way

to a county g overnment

to the exclusion of a holder of an easement which was g ranted to the beginning of a county road ri gh t- of -w ay. Effect of Ing

ress, Egress Driveway

and Utility Easement Ag reement The first issue, the effect of the May 29, 1998, I ngress , Egre ss Drivew ay and Utility Easement Agreement within the metes and bounds of the rig ht-of-way of Watt Nolan Road, may be addressed withdispatch. A review of both the easement description containe d in the Agreement and the March 21, 1999, survey of Geor ge C. Gregory

which was introduced at trial make it clear the1 Since i t was s tipul ated th at t he rig ht- of-way for Watt Nolan Ro ad is fif ty ( 50) feet , th e margins of th e road wou ld be defin ed and locat ed as paral lel lin es ly ing t wenty -fi ve (25) f eet on each side of

and parall el t o the center li ne. 2 To the extent there may be a portion of t he right- of-way which m ust be tr aversed in order to connect the described dri veway t o the paved s urface of Watt Nolan Road, Plai nti ffs would be est opped to deny acces s si nce t o do so would violate the clear intent of the parties to grant ingress and egress rights to the Defen dants. -3- Agreement

encompa sse s only property which lies outside the marg ins of the Watt Nolan Road. 1 When an easeme

nt is crea ted by a gran t, it must be strictly construed and whe n its terms are specific, they are decisiveof the limits of the easement. Foshee v. Brigman , 129 S.W.2d 207 at 208 (Tenn. 1939) See also Henry v. Tenn. Elect ric Po wer Com

pany , 5 Tenn. App. 205 ( 1927). A p rinciple which underlies the use of all easements is that the owner of an ea sement c annot mat erially increa se the burden of it upon the serviant estate or impose thereon a new and additional burden, absent a new or amended agreement. Little v. Paduch , 912 S.W.2 d 170 (Te nn. Ct . App. 1995) We find the description of the sub

ject ea sement begi ns at the margin and does not extend into the metes and bounds of the Watt

Nolan Roa

d and ther

efore, the termsof th e Easement Agreement may

not be directly applied to any

portion of the public road right-of-way known as the Watt Nolan Road. 2 Rights of Landowners Af ter Dedication
We now turn to the remaining issue which we believe mig htbetter be phrased, “What rights, if any, do the Plaintiffs reta in withi n the right-o f-way of the Watt Nolan Road independent of Sumne r County?” Because the record is silent on the exact method by which Sum ner Count y acquired its right -of-wa y f or Watt Nol an Road, w e assume samewas acquired by

implied dedication as is the case for a substantialportion of the count y r oads in this State. Since it has been stipulated by the parties that the Plaintiffs “own abutting properties and each of sa id properties extend to the center line of Watt Nolan Road, Sumner County, Tennessee” , it becomes our task to determine the e xtent of any

retaine d rightsthe Plainti ffs have in that por

tion of the

ir prope rties ly in g within t

h e previously dedica

ted public road right-of-way

. Our Supreme C ourt has a

ddresse d this issue most recently in the case of State, ex rel, Kessel v. Ash , 888 S.W.2d 430 (Tenn. 1994) wherein it held: ... longstanding law provides that when property is dedicated to a governing body for public use, the governing body acquires only a

n easement in the pr op er ty, and the fee remains in the dedicator, or in the abutting landowners where p roperty convey ed is for a stree t or high way . ... the c ounty

does not own the fee title to the roadways, but has at most only an ease

ment of right-of-way

. State, ex rel, Kessel , supra, at 431
This principle

was announced even as ea rly as 185 4 by our Supreme Court whe n it opined the following , to-wit:
... I f a man la y ou t a stree t or public

way over his land, for the gener

al public , and it be accepted and

used by the public in the manner intended, that is a valid dedication-4-

of the easement. It consists in the rig ht-of-way over the land of another and not of an interest

in the land itself, t

hat rema ins in the o wner of

the fee unaffe cte d b y the dedication ... Montilian Scott v. The State , 33 Tenn. 629 at 632 (Tenn. 1854) Finally, Tennessee Jurisprudence summarize s the law a s follows:
Under a common l a w dedication, the public does not acquire a fee in the land, but simply the right to use it for the purposes for which it was dedicated. T he fee re mains in t he owner, and he holds it subject to the easement vested in the public. The public acquires only

an easement in the property dedicated. ... 9 Tenn. Juris., Dedication, Section 8
Since easements, as previously stated herein, are to be strictly construedand may not be materia lly increased to the de triment of

the serviant estate, we find the Plaintiffs retain within the dedicated right-of-way

all those r

ights at tendant t o fee simp le ownership which are not inconsistent with the public road easement. See East Tennessee, V. & G. Ry. Co. V. Telford Executors , 14 S.W. 776 at 777 (Tenn. 1890). In the ca se at hand, the Plaintiffs are the fee simple owners of the land on which the Defendants have constructed a bric k entranceway . Under the law of this State, fee simpl e owners have abs olute poss essory right to use the pr

operty describ ed in thei

r deeds a s they

see fit subject only to such co ntracts, convey ances, s tatutes, o

r common la

w that may

otherwis e ap pl y. In this case the

only releva nt limitatio n on the Pla

intiffs’ right to

possess isthe public

road ea sement. No right of possession e xists in th e Defendants which would authorize the construction and maintenance on the Plaintiffs’ land of the subject brick structure. This being the state of the law, the only remaining

question is whether or not the Plaintiffs have standing to bring this suit. Standing
After granting reli ef rela

tive to tha t portion o f Plaintif

fs’ prop erty

not ly ing within the coun

ty roadright-of-way , the Trial Court below determined that it should tak e no action r elative t o construction within the

county road rig ht-of-w ay holding t hat only the count y ha d standing

to object : ... I am of the opinion the county is the one that can object to what’s on the right-ofway ... So they

don’t have to remove it if it’s on the right-of-way

... Minute Book 211, page 425, Chancer y Court of Sumner County
Plaintiffs in their brief cite t he case of Knierim v. Leatherwood , 542 S.W.2d 806 (Tenn. 1976) which sta tes as fo llows:
We think it both reasonable and cl ear that a private citizen may sue to enjoin the maintenance of an obstruction on a pub lic highway where he has sustained special injury or damag e. Knierim , supra at 8103 We note tha t our d ecision here is in a cco rd with th e case of M axwell v. Lax , 292 S.W.2d 223 (Ct . App.

1954) where in the W estern S ection of this Co urt affir med the act ion of t he Chancery Court of Henry County whi ch grante d an abutting lando wner’s request for an inj unctio n ord ering re mov al of a sign loc ated o n a de dicate d right-o f-way. -5- The Defend ants in

their bri ef resp ond that th e Plaintif fs have f ailed to “ ... alleg e in their

complaint anydamage caused by

the erection of any

portion of the driveway

or concrete there of located o n county property nor is the

re any pr oof in the re cord to th at effect ...” We do not ag

ree with Defend ants’ position as stated. We note that the Complaint atprayer 3 asks the Court to require the Defend ants “to remove all concrete at the entrance to their easement adjace ntto Watt Nolan Road

... in excess of a strip of concrete ten (10) fee t in width ...” and at

prayer 11 “That the Defendants be permane ntly restrained and enjoined from trespassing upon the la nds of the Plaintiffs, or either or them, for any r

eason.” We further

note that the first stipulation of the parties was that the Plaintiffs owned“to the center line of Watt Nolan Road, Sumner County , Tennessee.” Finally , we note that several pictures filedas exhibits clearly show the brick entrance being connected to the pavement of Watt Nolan Road on one end and to the gravel drive on the other end. Under the allegations and the proof in this record, i t is abundantly clea r that the Defendants’ entrancewa y is located on Plaintiff s’ property. We hold that the Plaintiff has stated a case of trespass and special injury and therefore, has standing as a private citizen under Knierim to seek the relief requested rega

rdless of wh et he r S um ne r C ou nt y is a p ar ty. 3 For the reasons stated herein, the Order of the Chancery

Court of Sumner County is reversed, and this matter is remanded to said Court for entry of such further injunctive relief as the Plaintiffs may be entitled to receivenot incons istent with the deci sion rend

ered he rein. The costs of th

is cause are ass essed to t

he Defe ndants.

____________________________________ THOMAS W. GRAHAM, SPECIAL JUDGE