# FILED February

5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JAMES FLETCHE R and ) RONALD LANIER FLETCHER, ) ) Plaintiffs/App ellees, ) ) Appeal No. ) 01-A-01-9606- CH-00252 VS. ) ) Coffee Chance ry ) No. 95-17 KENNETH STERLIN VASSER, ) ) Defendant/Appellant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE APPEALE D FRO M THE C HANC ERY C OURT O F COF FEE CO UNTY AT MANCHESTER, TENNESSEE THE HONORABLE GERALD L. EWELL, SR., JUD GE

JOHN B. IN GLESON 3017 Poston Aven ue Nashvil le, Tennessee 37203 Attorney for Plaintiffs/Appelle es J. STANLEY ROGERS ROGERS, RIC HARDSON & DUNCAN 100 North Spri ng Street Manchester, Tennes see 37355 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. LEW IS, J.- 2 - 

## O P I N I O N
The holder of an easement a cros s his neighbo r’s proper ty sought

to replace two gat es with cattle guar ds. The Chancery

Court of Coffee County denied the re quest . We affirm.
I.

The contending parties arefirst cousin s. Mr. Vasser owns a 112 acre tract of land lying east of the farms of James Fletcher and Ronald Lan ier Fletcher in the Beech Grove area of Coffee County. Mr. Vasser gains access to his pr

operty by way of a twelve foot easement across the two tr

acts owned by the plai ntiffs. T h e easement was established in a 1959 deed.
There are two ga tes across t he easement. One is located at a poi nt near the public road at theboundary between the lands of James and Ronald Lanier Fletcher, and the other is located at the approx imate mid point of the easement where James Fletcher has a cross fence on his property. Apparently the gates have been in existence for as long as the easemen t has.

Mr. Vasser boug ht his proper ty from the other

member s of his family approximatelytwo years before the tr ial below . He raise s cattle and hay on the property and is resto ring his

parents’ old home. Althou gh he works in Murfreesbor

o, he us es th e eas eme nt f reque ntly, from one t ime t o seve ral ti mes a day.

The Fletchers sued Mr. Vass er to require him to close the gateswhen he uses the easement. He coun ter-claimed for the right t o replace the g ates with cattle guards so that he would not h ave to open and s hut the gates ea ch time he goes- 3 -

in or out over

the easement. The Chancery Court of Coffee County denied the rel ief sought by Mr. Vasser.
II.

We start with thegeneral pr oposition that g ates may be installed across an easement in theabsence of a provisi on to the contrar y. Luster v. Gar

ner , 128 Tenn. 1 6 0 , 1 5 9 S . W. 604 (1913); Long v. Garri son, 1 Tenn. App. 211 (1925) . In Mi ze v. Ownby

, 189 Tenn. 207, 225 S.W.2d 33 (1949) our Supreme Court affirmed a lower court’s decision al lowingthe owner of an easement to replace the gates with cattle guards. The question, then, i s under what circumstances may the ow ner of the easement insist on installing cattle guards inste ad of gates.

In Mi ze the Supreme Court r

ecognize d the right

where the owner of

the easementagreed to i nstall the g uards at his ow n expense and to pay for any inj uries to the cattle held behind the fence. He also agreed that if the guards did not work he would take them up and restore the gates.

W hile Mr. Vasser

did agree to insta ll t he ca ttle guard s at h is own expense, we fail to find in the record any agreement on his part to pay for any cattle thatmay be injur

ed tryingto cross the guards or to restore the gates if the guards did not work.
There is also an el em en t of uncertainty about whether

cattle guar

ds would work under the circumstances present in this case. The field that wo uld be enclosed by thecattle guar ds is used by

James Fletcher

to hold youngcalves t hat he is weaning from their mothers . In his opin ion at l e ast, the cattl e guards would not deter the calves

or other cat

tle from tryingto cross. He testified that he knew of instanceswhere cattle had broken their legs try ing to cross cattle guards. The only- 4 -

contraryevid ence ca me from M r. Vasser w ho said wi thout objection that the manufacturer

of the guards tol d him that they h a d n o t h a d a n yt r o u b l e w i t h t h e m . We think it woul d be impossibleto conclude from th is record tha t the us e of the cattle guards would be appropri ate.

Therefore, the decision of the court be low is affirmed and the cause is remanded to the Chancery Court of Coff ee County for a ny furth er proceeding s that may become necess ary. Tax the costs on appe al to the appell ant.

________________________________ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SECTION

_______________________________ SAMUEL L. LEWIS, JUDGEIN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SECTION AT NASHVILLE
JAMES FLETCHE R and ) RONALD LANIER FLETCHER, ) ) Appeal No. Plaintiffs/App ellees, ) 01-A-01-9606- CH-00252 ) ) Coffee Chance ry VS. ) No. 95-17 ) ) Affirmed KENNETH STERLIN VASSER, ) and ) Remanded Defendant/Appellant. )



### J U D G M E N T This c a use came on to be hear d upon the recor

d on appeal from the ChanceryCourt of Coffe e County, brie fs and argument of counsel ; upon consideration whereof , this Co urt is of the opi nion that in the decree of the Chancel lor there i s no reversible error.

In accordance w ith the opinion of the Court filed her ein, it is, ther

efore, ordered and decreed by this Court

that the decree be affirmed. The cau s e is remanded to the Chancery Court of Coffee County for the enforcement of the decr ee and for t he co llect ion o f th e cos ts ac crue d bel ow.

Costs of this appeal are taxed against Kenneth Sterlin Vasser, Principal, and Rogers , Richardson, and Duncan, Suret y, for which execution may issue if nece ssary. ENTER _______________________.

_________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SECTION

_________________________________ SAMUEL L. LEWIS, JUDGE

_________________________________ BEN H. CAN TRELL, JUDGE