IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 4, 2020 Session

STEVEN J. STANGE ET AL. V. HANK E. ROBERTS ET AL.

Appeal from the Chancery Court for Maury County

No. 12-283 Christopher V. Sockwell, Judge

No. M2019-01060-COA-R3-CV

The owners of the dominant estate sued the owners of the servient estate of an easement 

to Tanner’s Bar, a piece of land near a river. The trial court ruled that the easement was 

an easement appurtenant for ingress and egress only and did not entitle the dominant 

estate owners to engage in recreational activities at Tanner’s Bar. The trial court further 

ruled that a member of the dominant estate family had to accompany all invitees to the 

easement. Having concluded that the intent of the easement was for the dominant estate 

owners to have the right to enjoy the river at Tanner’s Bar, we reverse the decision of the 

trial court prohibiting recreational use. We have further determined that the trial court 

erred in requiring that a dominant estate family member be present with invitees. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed 

in Part, Reversed in Part, and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS 

and THOMAS R. FRIERSON, II, JJ., joined.

Jacob Andrew Vanzin and David Hall King, Franklin, Tennessee, for the appellants,

Steven J. Stange and Mary L. Stange.

Leland Bruce Peden, Columbia, Tennessee, for the appellees, Hank E. Roberts and Edna 

E. Roberts.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

This case concerns real property located near the Duck River in Maury County, 

Tennessee and a dispute between adjoining land owners, the Stanges and the Robertses. 

At issue is access to property known as “Tanner’s Bar,” a piece of land on the river that is 

04/09/2020
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a peninsula during part of the year and an island during other parts of the year, depending 

upon the water level.

Mary Gail Moser and her first husband, Jim Moser, originally owned all of the 

land at issue, which is now subdivided as Tracts 1, 2, and 3. In August 1997, after Mr. 

Moser’s death, Ms. Moser1and her second husband, James Parr, conveyed Tract 1 to her 

son, Jimmy Moser. The general warranty deed (“1997 deed”) included the following 

language:

Grantee shall have the right of ingress and egress to Tanner’s Bar, along the 

presently existing road traveling behind the mobile home now on this tract 

across the 5.98 acre tract to the North and East [Tract 3].

On April 14, 1999, Jimmy Moser executed a deed conveying Tract 1 to himself and his 

wife as tenants by the entirety. That deed included language identical to that quoted 

above from the 1997 deed. The same day, April 14, 1999, Ms. Moser and her husband 

conveyed Tract 2 to Jimmy Moser and his wife as tenants by the entirety.

In October 1999, Ms. Moser and her husband conveyed Tract 3 to the Robertses. 

The Roberts deed provides that the property is unencumbered except for the “restrictions 

and easements of record in Plat Book 11, page 305 of the Maury County, Tennessee 

Register of Deeds Office, easements granted in book R1399, page 159 [of] the Maury 

County, Tennessee Register of Deeds Office.” The latter is a reference to the 1997 deed. 

The Kuykendalls, neighboring landowners, filed a lawsuit against the Robertses

and the Mosers concerning, in part, the ownership of Tanner’s Bar. The parties 

eventually settled their lawsuit. In an order entered by the court in March 2006, the 

parties established a common boundary line that bisected Tanner’s Bar so that the 

Robertses owned the eastern half and the Kuykendalls owned the western half.

In July 2010, Jimmy Moser and his wife sold Tracts 1 and 2 to the Stanges. The 

deed incorporates the “right of ingress and egress to Tanner’s Bar” language quoted 

above from the 1997 deed.

The relationship between the Stange and Roberts families deteriorated. The 

Stanges filed suit against the Robertses in May 2012 for denying them access to their 

easement. According to the complaint, the Robertses “erected a fence across the said 

easement cutting off access to the Plaintiffs[’] ingress/egress easement and placed eight 

“NO TRESPASSING” SIGNS . . . to deny Plaintiffs access to the Duck River along the 

ingress/egress easement.” In November 2016, the Robertses answered and asserted 

 

1 After the death of her second husband, James Parr, Mary Moser Parr resumed use of the surname Moser. 

We will refer to her as Mary Moser or Ms. Moser throughout this opinion.
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counterclaims for a declaratory judgment, to quiet title, and quia timet; and for damages 

due to trespass, slander, and libel of title. The Robertses disputed whether the Stanges 

had an easement appurtenant or, if they did, whether that easement entitled them to use 

the Robertses’ property recreationally. 

In August 2017, the Stanges sought permission to amend their complaint to add 

new causes of action as well as new parties, asserting that “the investigation of this case 

has revealed facts and law that were unknown to Plaintiffs at the time of the filing of the 

original Complaint.” The trial court denied the Stanges’ request to add new parties but 

allowed them to add causes of action. In their amended complaint, the Stanges added 

causes of action for impairment or obstruction of the river, a declaratory judgment 

regarding ownership of Tanner’s Bar, a declaration of rights pursuant to the Tennessee 

Scenic Rivers Act of 1968, public ownership of the streambed, and denial of use of the 

river.

After a two-day bench trial, the court issued a memorandum opinion on March 12, 

2019, finding that the Robertses are the owners of the upstream portion of Tanner’s Bar 

(as stated in the March 2006 order); that there is an easement appurtenant that runs with 

Tract 1 only and gives the owner of Tract 1 an easement through Tract 3 to Tanner’s Bar; 

and that the easement is for ingress and egress only and not for recreational purposes. 

The court further found that “guests must have the Stanges with them and/or the 

resident(s) of Tract 1” when using the easement. The court found that the Robertses had 

not proven their claims for trespass or slander of title. The trial court entered judgment 

on April 13, 2019, in accordance with the findings in its memorandum opinion. The 

court stated that all other claims for relief by the plaintiffs or the defendants were denied 

and dismissed.

The Stanges then filed a motion to amend or make additional findings of fact. On 

May 22, 2019, the trial court entered an order amending the judgment to add language 

including a legal description of the easement appurtenant. The Stanges have appealed.

In this appeal, we must determine (1) what kind of easement the Stanges have, (2) 

whether the easement entitles them to use Tanner’s Bar for recreational purposes,2and 

(3) whether the other conditions placed upon the Stanges’ use of the easement by the trial 

court are proper. 

STANDARD OF REVIEW

 

2 The Stanges draw a distinction between the right to be and remain on Tanner’s Bar and the right to use 

Tanner’s Bar for recreational purposes. For purposes of this opinion, we consider both categories of 

activity to fall within “recreational purposes.”
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In a civil case tried without a jury, we review the trial court’s findings of fact de 

novo without a presumption of correctness, unless the evidence preponderates to the 

contrary. TENN. R. APP. P. 13(d); Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 

414 (Tenn. 2013). The interpretation of a deed presents a question of law, which we 

review with no presumption of correctness. Mitchell v. Chance, 149 S.W.3d 40, 45

(Tenn. Ct. App. 2004); see also Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 

(Tenn. 1999).

 

ANALYSIS

I. Nature of the easement.

The central question at issue is the nature of the easement granted to the Stange 

family by their deed. The Stanges argue that it is an easement appurtenant, as the trial 

court found. The Robertses assert that the easement should be classified as an easement 

in gross.

The term “easement” has been defined as “‘a right an owner has to some lawful 

use of the real property of another.’” Cellco P’ship v. Shelby Cnty., 172 S.W.3d 574, 588 

(Tenn. Ct. App. 2005) (quoting Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 

1996)). Although there are a number ways in which easements can be created, easements 

are divided into two broad categories: easements appurtenant and easements in gross. 

Pevear, 924 S.W.2d at 115-16. These two categories can be distinguished as follows:

In an easement appurtenant, there are 2 tracts of land, the dominant 

tenement, and the servient tenement. The dominant tenement benefits in 

some way from the use of the servient tenement. Easements in gross are 

simply a personal interest or right to use the land of another which does not 

benefit another property, or dominant estate, thus easements in gross 

usually involve only one parcel. An easement appurtenant to land is favored 

over an easement in gross in Tennessee.

Id. at 116. An easement appurtenant runs with the land and “‘may be enforced by 

subsequent purchasers of the dominant tenement against owners of the servient 

tenement.’” Holder v. Serodino, No. M2014-00533-COA-R3-CV, 2015 WL 5458377, at 

*8 (Tenn. Ct. App. Sept. 16, 2015) (quoting Newman v. Woodard, 288 S.W.3d 862, 865 

(Tenn. Ct. App. 2008)). Because an easement in gross is considered a personal right, “the

[easement holder’s] rights are not attached to a dominant estate,” id. (citing Cellco 

P’ship, 172 S.W.3d at 588), and “‘[t]he beneficiary need not, and usu[ally] does not, own 

any land adjoining the servient estate,’” id. (quoting BLACK’S LAW DICTIONARY 586 (9th 

ed. 2009)).
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In the present case, the trial court found that the easement from Tract 1 through 

Tract 3 onto Tanner’s Bar is an easement appurtenant. As previously stated, Tennessee 

law favors easements appurtenant over easements in gross. Pevear, 924 S.W.2d at 116. 

As our Supreme Court has stated:

If there be a dominant tenement to which the easement may conveniently 

attach and if the easement will add to the proper use and enjoyment of such 

dominant tenement, then the questioned clause will be construed to create 

an easement appurtenant, rather than a personal license or easement in 

gross. 

Lynn v. Turpin, 215 S.W.2d 794, 796 (Tenn. 1948). Furthermore, “[s]ince the right is 

created by a clause in deeds, the paramount rule obtains that the intention of the parties is 

controlling as that intention is found to be evidenced by the language of the deed and the 

circumstances surrounding the conveyance.” Id. 

The Robertses assert that the language of the deed and the surrounding 

circumstances support the conclusion that this is an easement in gross. To support their 

argument, they point first to the contrasting language used with respect to ingress and 

egress to Tanner’s Bar, described as a “right,” and with respect to ingress and egress over 

a driveway, later in the deed, where the word “easement” appears. The Robertses argue 

that the drafters would have used the term “easement” in both instances if they had

intended to create an easement appurtenant and not a personal license (easement in gross) 

regarding Tanner’s Bar. Second, the Robertses aver that the circumstances surrounding 

the conveyance point to a personal license because Ms. Moser did not include the ingress 

and egress language when she deeded Tract 2 to her son and his wife in 1999. At trial, 

Ms. Moser gave the following testimony:

Q. So let me ask you this question: If you know, why would you-all 

include that in the first Deed to your son and not include it in the second 

Deed?

A. Because he already had it in the first one. He didn’t need it in the 

second one.

Q. In your mind, did you consider that to be something personal to your 

son?

A. Yes.

We find the Robertses’ arguments unavailing. The Court’s analysis in Lynn v. 

Turpin, 215 S.W.2d at 794, is instructive. The operative language from the deed in the 

Lynn case stated as follows:

The above property is a part of the Henry Cornett property that was 

conveyed to Evern Rogers, and wife on the 27th day of July, 1942, Evern 
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Rogers is to have the privilege to get water from the well on this property 

sold to Criss Moore, with the hereditaments and appurtenances thereto 

appertaining, hereby releasing all claims to Homestead and dower therein. 

To Have And To Hold the said premises to the said parties of the second 

part, their heirs and assigns forever.

Lynn, 215 S.W.2d at 795. The Court noted that there was “no language to indicate a 

separation of the reservation of the water rights from the absolute conveyance of the 

habendum.” Id. Furthermore, “[i]n determining the intention of the parties, subsequent 

deeds of the dominant and servient tenements are competent.” Id. at 796. The Court in 

Lynn remarked that the water rights provision was “incorporated actually or by reference, 

in all deeds through which Complainant traces her title back to Rogers” and was 

expressly incorporated in the warranty deed by which the complainant acquired title. Id.

at 795. Similarly, all deeds of conveyance to the defendant, owner of the dominant 

tenement, “contained the same provision for water rights as that . . . from the deed from 

Rogers to Tinnell [the original transferee of the dominant tenement].”3 Id. Another 

factor considered by the Court in Lynn was the fact that, according to the answer, “the 

water was necessary to the proper enjoyment of the dominant tenement” and was “the 

only available and convenient water supply.” Id. 

All of the factors considered by the Court in Lynn support the trial court’s 

conclusion that the easement in this case is an easement appurtenant. The 1997 deed by 

which Ms. Moser and her second husband transferred Tract 1 to Jimmy Moser provided,

in pertinent part, as follows:

For and consideration of love and affection, the property having 

previously belonged to the Grantee’s father, and other good and valuable 

considerations, the receipt and sufficiency of all of which are hereby 

acknowledged, we, JAMES McDONALD PARR and wife, MARY GAIL 

MOSER PARR, have this day bargained and sold, and do by these presents

sell, transfer and convey unto JAMES COLEMAN MOSER, his heirs and 

assigns, the following described tract or parcel of land lying and being in 

the Fourth (4th) Civil District of Maury County, Tennessee, and being more 

particularly described as follows:

[Property description]

Grantee shall have the right of ingress and egress to Tanner’s Bar, 

along the presently existing road traveling behind the mobile home 

now on this tract across the 5.98 acre tract to the North and East.

 

3 The provision stated: “This Deed also includes the water right to the well reserved in the Criss Moore 

deed.” Id. 
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According to survey of Rex Northcutt, Tennessee No. 77, dated 

August 1, 1997.

Being a portion of property conveyed to Grantors in Deed Book 

1133; Page 284 in the office of the Register of Deeds, Maury 

County, Tennessee.

TO HAVE AND TO HOLD the above-described tract or parcel of 

land, together with all rights, titles, interests, easements, appurtenances, 

and hereditaments thereto belonging and pertaining unto the said JAMES 

COLEMAN MOSER, his heirs and assigns, in fee simple forever.

(Emphasis added). As in Lynn, the language conveying the easement comes immediately 

after the property description. Also as in Lynn, there is no separation between “the right 

of ingress and egress to Tanner’s Bar” and the fee simple conveyance of the habendum 

clause.4 We emphasize that, in the present case, as in Lynn, the fact that the holders of 

the easement own land adjoining the servient estate provides strong support for the 

conclusion that the easement is an easement appurtenant rather than an easement in gross. 

See Holder, 2015 WL 5458377, at *8.

The Robertses assert that the use of the word “grantee” and the absence of the 

word “easement” demonstrate an intent to create an easement in gross. As the Stanges 

rightly point out, however, the deed in Lynn, like the deed at issue here, did not use the 

word “easement” or the word “appurtenant.” In Lynn, the deed actually named a specific 

person, Evern Rogers, who was to have the “privilege to get water from the well on this 

property sold to Criss Moore.” Lynn, 215 S.W.2d at 795. Nevertheless, the Court found 

the easement to be an easement appurtenant. Id. at 796. We conclude that use of certain 

words is not required to create an easement appurtenant. 

With respect to the circumstances surrounding the conveyance in the present case,

a look at the chain of title for both the dominant and servient estates reflects an intent by

the parties to the original deed to create an easement appurtenant. We begin with the 

subsequent chain of title for the dominant estate, Tract 1, which was transferred from 

Jimmy Moser to himself and his wife as tenants by the entirety in 1999. That deed 

included the easement at issue with the following language:

 

4 A habendum clause is “[t]he part of an instrument, such as a deed or will, that defines the extent of the 

interest being granted and any conditions affecting the grant. The introductory words to the clause are 

ordinarily to have and to hold.” BLACK’S LAW DICTIONARY (11th ed. 2019).

We consider the intent expressed by the “heirs and assigns” language of the habendum clause to 

override the ambiguous meaning of Ms. Moser’s affirmative response to the question whether she 

considered the ingress/egress provision to be something “personal” to her son. 
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Grantee shall have the right of ingress and egress to Tanner’s Bar, along the 

presently existing road traveling behind the mobile home now on this tract 

across the 5.98 acre tract to the North and East. 

This is the exact language included in the original 1997 deed. In 2010, Jimmy Moser and 

his wife conveyed Tract 1 to the Stanges with a deed including language identical to that

above with the exception of using the word “acres” instead of “acre.” The inclusion of 

essentially the same language in all of the deeds in the chain of title since the 1997 deed 

is a strong indication that the grantors’ intent was for the easement to run with the land, 

making it an easement appurtenant.

As to the Robertses’ argument emphasizing the absence of the ingress/egress 

language in the deed conveying Tract 2, the Stanges assert that including that language 

would have been redundant. Jimmy Moser already owned Tract 1 when Ms. Moser and 

her husband conveyed Tract 2 to him; therefore, he already had access to Tanner’s Bar by 

virtue of his ownership of Tract 1. There was no reason to include an additional 

easement in the conveyance of Tract 2. We believe the Stanges have the better argument 

here. 

The subsequent deeds in the chain of title for the servient estate, Tract 3, also 

indicate that the parties to the original deed intended to create an easement appurtenant. 

Ms. Moser and her second husband conveyed the servient estate to the Robertses in 1999. 

That deed includes the following provision:

James McDonald Parr and wife Mary Gail Moser Parr do hereby 

covenant with the said Hank E. Roberts, and wife, Edna E. Roberts, that 

they are lawfully seized and possessed of the above described tract or 

parcel of land, has a good and lawful right to sell and convey same, and that 

it is unencumbered except for setback lines, restrictions and . . . easements 

granted in book R1399, page 159 [of] the Maury County, Tennessee 

Register of Deeds Office. 

(Emphasis added). The referenced easement—at book R1399, page 159—is the 

easement to Tanner’s Bar granted to Jimmy Moser in the 1997 deed. 

The inclusion of the easement in all subsequent deeds of conveyance involving the 

dominant and servient estates supports the trial court’s designation of the easement as an 

easement appurtenant.

Finally, as the Court stated in Lynn, we must consider whether “the easement will 

add to the proper use and enjoyment of [the] dominant tenement.” Lynn, 215 S.W.2d at 

796. This Court has recognized that “riparian land derives part of its value from its 
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proximity to water.” The Pointe, LLC v. Lake Mgmt. Ass’n, Inc., 50 S.W.3d 471, 475 

(Tenn. Ct. App. 2000). Without the easement at issue, Tract 1 has no access to the Duck 

River. The right of ingress and egress to Tanner’s Bar “add[s] to the proper use and 

enjoyment” of the Stanges’ property. Lynn, 215 S.W.2d at 796.

In sum, we agree with the trial court’s conclusion that the right of ingress and 

egress included in the 1997 deed is an express easement appurtenant.

 

II. Recreational use.

The Stanges argue that the trial court erred in determining that the use of the 

express easement appurtenant “for recreational purposes is forbidden.” 

In construing an instrument creating an express easement, a court must attempt 

“‘to ascertain and give effect to the intention of the parties.’” Burchfiel v. Gatlinburg 

Airport Auth., No. E2005-02023-COA-R3-CV, 2006 WL 3421282, at *3 (Tenn. Ct. App. 

Nov. 28, 2006) (quoting 28A C.J.S. Easements § 57 (1996)). The parties’ intention 

regarding “the purpose and scope of an easement conveyed by express grant is 

determined by the language of the deed.” Shell v. Williams, No. M2013-00711-COA-R3-

CV, 2014 WL 118376, at *4 (Tenn. Ct. App. Jan. 14, 2014); see also Foshee v. Brigman, 

129 S.W.2d 207, 208 (Tenn. 1939). An “easement holder’s use of the easement must be 

confined to the purpose stated in the grant of the easement.” Columbia Gulf

Transmission Co. v. The Governors Club Prop. Owners Ass’n, No. M2005-01193-COAR3-CV, 2006 WL 2449909, at *3 (Tenn. Ct. App. Aug. 21, 2006). In this case, the deed 

states that the easement is for the purpose of “ingress and egress to Tanner’s Bar.” The 

Robertses assert that this phrase defines the limits of the uses to which the Stanges may 

properly put the easement—i.e., they may use the easement only to travel to Tanner’s Bar 

from their property and return from Tanner’s Bar to their property. The Stanges argue 

that the original parties intended for the easement holders to use the easement for 

recreational purposes and that such use is necessary to their enjoyment of the easement.

What is the purpose of an easement granting “ingress and egress to Tanner’s Bar”? 

The trial court made the following relevant findings:

As regards the extent of the easement as it pertains to Tanner’s Bar, the 

Court notes that the easement itself does not give a description of the land 

but simply refers to “Tanner’s Bar.” This Court is left with the task of 

determining what that means. Clearly, Tanner’s Bar is an end point, as any 

motorized or foot traffic must end at the waterline on Tanner’s Bar. Thus, 

the logical end point would be the Duck River. Access to water is a 

valuable right. In addition, access to water in order to use it for recreation 
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purposes is also a valuable right. Ms. Parr [Moser] testified that the 

purpose of the easement was to give her son, Jimmy Moser, the ability to 

go to and enjoy Tanner’s Bar. Ms. Parr also testified that she did not intend 

for strangers to go down to Tanner’s Bar. This Court so finds that the 

easement as reflected in the original deed gives the Stanges the right to 

access Tanner’s Bar and, eventually, the Duck River.

The trial court found ambiguity in the deed as to whether access to Tanner’s Bar includes 

use of the bar for recreational purposes (such as boating, fishing, and picnicking) or mere 

access to the bar and the river. When a deed’s meaning is in doubt, “‘the court may 

consider the surrounding circumstances at the time the instrument was executed, the 

situation of the parties, and any practical construction of the instrument given by the 

parties themselves in determining their intention.’” Cellco, 172 S.W.3d at 595 (quoting 

28A C.J.S. Easements § 146 (1996)). 

There is strong evidence that the intent of the original grantors was for the 

easement holders to have the right to be and remain on Tanner’s Bar. At trial, counsel for 

the Stanges asked Ms. Moser what use she and her first husband made of Tanner’s Bar. 

She testified as follows:

Q. . . . And you testified that you and Mr. Moser, the elder, would go down 

and you would hang out on the bar here and you would camp. Would you 

build campfires down there while you were down there?

A. Yes.

Q. And you would take a camper or a tent down there to camp?

A. Both.

Q. Did you guys fish while you were down there?

A. Yes.

Q. And swam, I assume, while you were down there?

A. Yes.

Q. What other kinds of things would you do when you were down there 

besides camping, fishing, swimming?

A. The women would lay out in the lawn chairs at the end of the bar and 

get suntans and visit, and the men would fish and go up and down the river.

Counsel for the Stanges then asked Ms. Moser what rights she intended to convey when 

she granted the easement:

Q. . . . So I guess my question would be, to get to a question, when you-all 

gave Mr. Moser, the younger, so let’s call him “Jimmy Moser,” when youall gave Jimmy Moser the ability to access Tanner’s Bar, when you wrote 

that into his Deed, did you mean for him to go down there and be able to 

camp and fish and swim and all that stuff?
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A. Yes.

Q. So you intended, when you all gave him that access in his Deed, he

could go down there, he could camp if he wanted to overnight, he could 

fish off the bar, is that correct?

A. Yes.

Q. He could swim, and his wife could sit in the lawn chair, as we’ve joked 

about, and sunbathe on the bar?

A. Yes.

Q. And so that was your intent when you gave him that right in his Deed?

A. Yes.

 The above testimony reflects an intention on the part of the original parties to 

allow the easement holders to remain on and use Tanner’s Bar once they arrived there. 

The Robertses emphasize Ms. Moser’s testimony that she did not intend for “strangers” 

to make use of Tanner’s Bar.5 Her testimony does not make clear the meaning of the 

word “strangers.” In any event, under the law, an easement appurtenant “run[s] with the 

land and may be enforced by subsequent purchasers of the dominant tenement against 

owners of the servient tenement.” Newman, 288 S.W.3d at 865. 

Even with an express easement, the intention of the parties may not be fully set out 

in the deed. For example, in Burchfiel v. Gatlinburg Airport Authority, 2006 WL 

3421282, at *1, the plaintiffs conveyed to the Gatlinburg Airport Authority (“the 

Authority”) an “access and utility easement for ingress and egress to and from property 

owned by the [Airport] Authority and Dolly Parton Parkway.” The Authority later 

allowed a museum to be built on its property. Burchfiel, 2006 WL 3421282, at *1. With 

the approval of the planning commission, the Authority began to construct a sign on the 

easement, and the plaintiffs filed suit to enjoin further construction. Id. at *1-2. The trial 

court granted summary judgment in favor of the plaintiffs. Id. at *2. After setting out the 

previously cited principles governing the interpretation of express easements, the court in 

Burchfiel quoted with approval the following additional rule regarding the use of an 

easement: “‘Where [an] easement is not specifically defined, it need be only such as is 

reasonably necessary and convenient for purpose for which it was created.’” Id. at *3 

(quoting Adams v. Winnett, 156 S.W.2d 353, 358 (Tenn. Ct. App. 1941)). The Burchfiel

court determined that construction of a sign was not “a logical extension or promotion” of 

the express purpose of the easement. Id. at *5.

In Rogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 WL 2337616, at *1

(Tenn. Ct. App. June 19, 2012), this court had to determine whether a landowner had a 

claim for interference with her ability to use an access easement because her neighbors 

had erected fence posts preventing her from pulling her horse trailer along the easement. 

 

5 On redirect examination, plaintiffs’ counsel asked Ms. Moser: “[D]id you intend for strangers to be able 

to go down and camp on Tanner’s Bar and fish and do whatever?” She responded, “No, never.”
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The court cited the principle quoted above regarding what is “reasonably necessary and 

convenient” for the purpose for which the easement was created and found that 

agricultural use was part of the historical purpose of the easement. Rogers, 2012 WL 

2337616, at *7-8. Because the landowner had presented sufficient evidence to establish 

the elements of interference with her use and enjoyment of the easement, the court 

reversed the trial court’s dismissal of the claim and remanded for further proceedings. Id. 

at *11. 

Although the precise issue before this court has not arisen previously in this state, 

two cases from Massachusetts address the extent of ingress/egress easements to a beach. 

In Anderson v. De Vries, 93 N.E.2d 251, 253 (Mass. 1950), abrogated on other grounds 

by M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004), the dominant estate 

landowners claimed “a right of way appurtenant to their lots over [the servient estate ] to 

the beach and the right to use the entire beach.” The grant upon which the dominant 

estate in Anderson relied stated:

There is appurtenant to [the] above described lot a right of way to the beach 

over the way shown on said plan as Beaton Road, and along the westerly 

side of lot B2 as shown on Plan No. 15396B, in common with others 

entitled thereto.

Anderson, 93 N.E. 2d at 254. For present purposes, the important part of the trial court’s 

ruling is its determination “that the words ‘to the beach’ carried with them the use of the 

beach.” Id. The Supreme Judicial Court of Massachusetts affirmed the lower court’s 

decision against the servient estate owners’ argument that the dominant estate owners 

“had no rights beyond the high water mark.” Id. at 255. In so holding, the Court stated, 

in pertinent part:

It would be inconsistent with the manifest intention of the parties if these 

deeds and instruments were so construed as to deprive these owners of land 

in lot A from reaching the water. They were given a way to the beach. 

There is no express mention of any right to use the beach. A beach as 

customarily understood by residents of seashore resorts comprises the land 

above the ordinary high water mark, “more or less well defined by natural 

boundary, or in the rear by a sea wall, providing a convenient and safe 

access to the water for bathing or for sun baths either before or after going 

into the water.” The way to the beach carried with it the right to use the 

beach for the purposes for which the way was obviously intended. We do

not agree with the respondents’ contention that the use of the beach should 

be confined to an area not greater than the width of the right of way. The 

owners of parcels in lot A had used the entire beach with the assent of the 

petitioners, who in some instances stated to intending purchasers that they 

would have such right in the beach, and the respondents were told before 
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they purchased “that parties had rights in the beach.” . . . The judge was not 

wrong in finding that these lot owners, that is, those claiming under deeds 

containing said uniform clauses had the right to use the entire beach on the 

sea side of lot B2 “for swimming, sunning, boating and other usual 

purposes in common,” and to this extent the lots of the respondents were 

servient estates to these prior vested rights. The use of the beach by these 

lot owners included whatever was reasonably necessary for the full 

enjoyment of the privilege granted. 

Id. at 255-56 (citations omitted) (emphasis added). 

In the present case, like in Anderson, the grantors’ deed does not mention any right 

to use the beach/bar. Ms. Moser testified that, when she and her husband gave Tract 1 to 

her son, they intended for him to be able to engage in activities such as camping, fishing, 

swimming, and sunbathing at the bar. The Court in Anderson applied the principle that 

“‘[w]hen an easement . . . is created, every right necessary for its enjoyment is included 

by implication.’” Id. at 256 (quoting Sullivan v. Donohoe, 191 N.E. 364, 365 (Mass. 

1934)). Under this analysis, the Stanges have the right to engage in recreational pursuits

at Tanner’s Bar.

Similarly, in Murphy v. Olsen, 826 N.E.2d 249, 250 (Mass. Ct. App. 2005), inland 

landowners sought beach rights “incident to an express reservation of a pedestrian 

easement ‘to the beach’ in deeds to two of the defendants.” The trial court denied relief 

to the plaintiffs. Murphy, 826 N.E.2d at 250. In reversing the trial court, the appellate 

court cited Anderson and the principle quoted above. Id. at 254. 

Some Tennessee decisions have relied upon the Restatement (Third) of Property

(Servitudes) in interpreting easements. See, e.g., BakerSouth, LLC v. Green Hills Mall 

TRG, LLC, No. M2018-02129-COA-R3-CV, 2020 WL 398597, at *5 (Tenn. Ct. App.

Jan. 23, 2020); Ingram v. Wasson, 379 S.W.3d 227, 238-240 (Tenn. Ct. App. 2011);

Rawdon v. Johnston, No. M2010-01097-COA-R3-CV, 2010 WL 4867451, at *3 (Tenn.

Ct. App. Nov. 23, 2010). Several provisions of the Restatement (Third) of Property 

(Servitudes) support the Stanges’ position in this case. Comment b to section 2.15 states 

that an easement includes “[r]ights necessary to [the] reasonable enjoyment of property.” 

Section 4.10 of the Restatement (Third) of Property (Servitudes) (2000) provides in 

pertinent part as follows:

Except as limited by the terms of the servitude determined under § 4.1, the 

holder of an easement . . . is entitled to use the servient estate in a manner 

that is reasonably necessary for the convenient enjoyment of the servitude.

 We further note that, in Goetz v. Knoxville Power & Light Co., 290 S.W. 409, 411, 

414 (Tenn. 1926), our Supreme Court held that an express easement for “right of access 
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to the adjoining park and use of the spring on same” included “by necessary implication, 

the right to the use and enjoyment of the park” and not simply “the right to pass through 

the park in order to reach the spring.” Thus, the concept that an express easement 

contains implied rights has been recognized by the courts of this state.

In its memorandum opinion, the trial court cited Foshee v. Brigman, 129 S.W.2d 

at 207, in support of its conclusion that, under the language of the deed, the easement was 

for ingress and egress only. We respectfully conclude that the trial court read the Foshee

case too restrictively. In Foshee, the Court considered the right of the servient estate 

owner to erect gates across a right of way held by the dominant estate owner. Foshee, 

129 S.W.2d at 207. The Court applied the general rule that “‘the grant of a way without 

reservation of the right to maintain gates does not necessarily preclude the owner of the 

land from doing so’” unless there is an express stipulation or clear expression of intention 

for the way to remain open, so long as the landowner constructs the gates “‘so as not 

unreasonably to interfere with the right of passage.’” Id. at 208 (quoting 17 AM. JUR. 

1011). The authorities supporting this rule, the Court explained, recognized a distinction 

between “the rights of the owner of the dominant estate where his easement arises by 

prescription and where it arises under a deed.” Id. It was in this context that the Court in 

Foshee made the statement relied upon by the trial court in the present case: “If the 

easement is claimed under a grant, the extent of the easement is determined by the 

language of the grant.” Id. The Court then stated that, “If the easement is claimed by 

adverse use, the extent of the easement is determined by the character of the use.” Id.

The question before the Court in Foshee was different than that before us and the 

Court’s analysis does not preclude a determination that, where there is an ingress/egress 

easement such as that in the deed in the present case, the owner of the dominant estate 

may have the right to the reasonable enjoyment of the property, which in this case is for 

recreational purposes. As we have already discussed, the intent of the original granting 

parties governs this determination. 

 

The Robertses have cited several opinions in support of their position, all of which 

we find distinguishable. The case of Shell v. Williams, 2014 WL 118376, at *1, involved 

the proper use of an express easement by the servient estate owner, who planted trees and 

placed boulders in the easement. The Shells “contended that the trees and boulders 

impeded their ability to use the easement for recreational purposes, including riding 

horses and driving all-terrain vehicles.” Shell, 2014 WL 118376, at *1. The trial court 

found that it was reasonable for the parties to use the easement for recreational purposes 

and that the servient estate owner had interfered with the Shells’ use and enjoyment of 

the property. Id. at *2. The court, therefore, ruled that the Shells had the right to remove

the obstructions from the easement. Id. 

On appeal, this court addressed the issue of whether the trial court erred in failing 

to limit the use of the easement to ingress and egress. Id. at *4. The trial court found that 
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“the parties agreed that the purpose of the easement was for ingress and egress,” and this

finding had not been appealed. Id. at *7. This court relied upon the principle that, 

“‘Where [an] easement is not specifically defined, it need be only such as is reasonably 

necessary and convenient for [the] purpose for which it was created.’” Id. (quoting 

Burchfiel, 2006 WL 3421282, at *3. The court also stated that “the purpose of an 

easement is determined at an easement’s creation.” Id. (citing Shew v. Bawgus, 227 

S.W.3d 569, 576 (Tenn. Ct. App. 2007)). The recreational purposes at issue included 

“riding horses and all-terrain vehicles along the easement outside the twenty-foot gravel 

driveway.” Id. at *8. The court concluded that, “because the purpose of [the] easement 

is for ingress and egress, recreational use of the easement that involves more than mere 

ingress and egress from the road to the other parcels of land is not authorized.” Id.

The circumstances at issue in Shell are materially distinct from the facts before us 

in this case. In Shell, the court found that the easement was created to provide back 

parcels access to Lamar Road. Id. at *7. As we have already discussed, the easement in 

this case was created to provide access to Tanner’s Bar, a place used for recreational 

purposes. 

The Robertses also rely on the case of Burchfiel v. Gatlinburg Airport Authority, 

2006 WL 3421282, the facts and holding of which we discussed above. In that case, this 

court determined that the construction of a sign within the easement by the owner of the

dominant estate was not related to the express purpose of the easement (which was to 

provide ingress and egress to and from the airport’s property). Burchfiel, 2006 WL 

3421282, at *1, *5. Putting a sign on the easement was not “‘reasonably necessary and 

convenient for [the] purpose for which [the easement] was created.’” Id. at *3 (quoting 

Adams, 156 S.W.2d at 358). By contrast, in the present case, the right of ingress and 

egress had no significant value without allowing recreational activities at Tanner’s Bar,

and the easement was originally created for that purpose.

Finally, the Robertses cite Columbia Gulf Transmission Co., 2006 WL 2449909. 

In that case, however, the language of the deed was “clear and unambiguous” as to the 

issue before the court. Columbia Gulf, 2006 WL 2449909, at *5. In the present case, by 

contrast, the trial court noted that the deed did not explain the nature of Tanner’s Bar and 

that the court was “left with the task of determining what this means.” As discussed 

above, the intention of the parties in the present case is apparent from the circumstances 

surrounding the creation of the easement. 

 

For all of the reasons discussed above, we conclude that trial court erred in 

denying the Stanges the right to the recreational use of Tanner’s Bar. The easement 

entitles the Stanges to engage in recreational activities at Tanner’s Bar, including 

canoeing, swimming, fossil hunting, fishing, picnicking, camping, and sunbathing. This 

opinion does not address the issue of four-wheeler use on the easement. 

III. Other conditions on use of the easement.
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The last issue before us is whether the trial court erred in ruling that use of the 

easement was “limited to the plaintiffs and the resident(s) of Tract 1” and that “guests 

must have the Stanges with them and/or the resident(s) of Tract 1 (currently Angela 

Stange)” in order to use the easement appurtenant. 

We find no support in the law for these conditions on the Stanges’ use of the 

easement appurtenant. This court has quoted with approval the following general rule 

regarding the permissible use of an easement:

“While a private way may not be used by the public generally or by any 

one having no better right than the general public, the owner of such a way 

is not limited to its use by himself, but it may be used by his family, by 

pets, by tenants occupying the land with his authority, by his servants, 

agents, or employees in conducting his business, by persons transacting 

business with him, or by guests for social purposes, except in cases where 

the right of way is created by express agreement and the user is restricted 

by the terms of the agreement.”

Cellco, 172 S.W.3d at 597 (quoting 28A C.J.S. Easements § 164 (1996)) (emphasis

added). There is nothing in the terms of the deed preventing the dominant tenement 

holder from inviting persons to use the easement. The requirement that the dominant 

tenement holder be present while invitees use the easement has no basis in Tennessee law 

or in the terms of the deed.

Moreover, these conditions impermissibly burden the Stanges’ use and enjoyment 

of the easement. For example, “[i]t is the generally accepted rule of law that the owner of 

an easement may make reasonable maintenance as necessary for its use.” Hager v. 

George, No. M2013-02049-COA-R3-CV, 2014 WL 3371680, at *4 (Tenn. Ct. App. July 

8, 2014). Requiring the Stanges to be physically present for invitees to have access to the 

road would limit the Stanges’ ability to contract with professionals to perform 

maintenance on the road.

Furthermore, such a condition interferes with the Stanges’ use and enjoyment of 

the dominant estate. Mr. Stange testified at trial that he was attracted to purchasing Tract 

1 largely because of its proximity and access to the river. He stated that, after buying the 

property, he and his family would go down to Tanner’s Bar or to the river and “go 

canoeing, swim, look for fossils, play with the kids . . . [and] picnic.” Angela Stange 

testified about several occasions when she had used the river access with her friends. 

Allowing their guests to use the easement to get to their property from the Duck River 

was part of what made the property attractive to the Stange family. 

We conclude that the trial court’s requirement that the Stanges or a resident of 

Tract 1 be present when their invitees use the easement unreasonably restricts the 
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Stanges’ use and enjoyment of their easement and of the dominant estate and is not 

authorized by the law or the facts of this case. 

CONCLUSION

The judgment of the trial court is affirmed in part and reversed in part, and this 

matter is remanded with costs of appeal assessed against the appellees, Hank E. Roberts 

and Edna E. Roberts, for which execution may issue if necessary.

________________________________

 ANDY D. BENNETT, JUDGE