Lynn Rogers v. Jon Roach

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 12, 2011 Session

LYNN ROGERS v. JON ROACH, ET AL.

Appeal from the Chancery Court for Fentress County

No. 0968 Billy Joe White, Chancellor

No. M2011-00794-COA-R3-CV - Filed June 19, 2012

Landowner owns property that was once part of a single parcel of land. The only way she

can access her property is over a gravel roadway approximately nine feet wide that crosses

through her neighbors’ property. One of Landowner’s neighbors erected fence posts near the

roadway that Landowner alleges interfere with her ability to pull her horse trailers back and

forth to her property. Landowner filed a complaint alleging she has the right to a forty foot

easement across her neighbors’ property. After Landowner presented her proof at trial,

Defendant neighbors moved for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02.

The trial court dismissed Landowner’s complaint. We reverse the dismissal as to the

Landowner’s claim for interference with her use and enjoyment of the easement because she

presented evidence to establish the elements of that claim. We also reverse the dismissal of

the claim for damages resulting from the interference. Dismissal of the other claims by

Landowner is affirmed. We remand this case for further proceedings.

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

Chancery Court Affirmed in Part and Reversed in Part

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.

C LEMENT, J R. and R ICHARD H. D INKINS, JJ., joined.

Matthew Allen Jared, Cookeville, Tennessee, for the appellant, Lynn Rogers.

James Frank Wilson, Wartburg, Tennessee, for the appellees, Jon Roach and wife, Brenda

Roach, Roger Hill, Larry B. Daniels, Lowell D. Daniels, Wanda Brown, and Beulah Hill.

OPINION

The parties in this case are all neighbors who live on land that was once a single

parcel of property. Over time the single parcel was divided up, and a one-lane gravel

roadway crossing over some of the private property has come to provide the only ground

access to the properties that do not abut a public road. None of the landowners challenges

any other landowner’s right to use the roadway to access his or her property. A dispute has

arisen, however, regarding the width of the roadway right-of-way and whether one landowner

can restrict another’s use of it by placing posts next to the roadway that effectively prevent

the other from pulling large horse trailers along the roadway to and from her property.

I. B ACKGROUND

In February 2005 Lynn Rogers purchased 37.4 acres of real property in Fentress

County from Gerald and Patricia Reagan (collectively, “the Reagans”). Ms. Rogers’ General

Warranty Deed contained the following language:

There is also conveyed a non-exclusive right-of-way over a roadway which has

been used by the Grantors and their predecessors in title to access this property

described as follows:

Beginning at the junction of the Lowe Point Road and running eastwardly with

the center line of said roadway which runs through the Larry Daniels property

along the south line of the Jimmy Hill tract and through the Jon and Brenda

Roach tract into the above-described tract . . . .

The roadway is a gravel roadway that provides access to Ms. Rogers’ property and is

used by herself and others for access to their properties. The roadway varies in width but is

no less than nine feet wide at any point along its length. It curves significantly shortly before

it enters Ms. Rogers’ property. Ms. Rogers installed large gates across the roadway where

it enters her property.

The portion of the roadway about which Ms. Rogers complains most is bounded on

both sides by land belonging to Jon and Brenda Roach (collectively, “the Roaches”).1 Ms.

Rogers contends “[t]here has been continuous use of this easement for the last forty-eight

(48) years, which is described as a right of way forty feet in width, being twenty feet on each

side of the center line of the roadway.” No one disputes that the gravel roadway has been

used for ingress and egress for almost fifty years.

1

Ms. Rogers also named Larry Daniels, Lloyd Daniels, Roger Hill, and Wanda Brown as defendants

because they owned property along the gravel roadway and she thought she was required to name them as

indispensable parties. Ms. Rogers has no dispute with the Daniels or Mr. Hill with respect to her use of the

easement.

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However, the only evidence Ms. Rogers offered to support her claim that the roadway

was forty feet wide was a handmade drawing of the gravel roadway prepared at the behest

of the Reagans, her predecessors in title, in which only the center line was surveyed.

At trial, Ms. Rogers asked the Fentress County Property Assessor to interpret the

handmade drawing rather than the individual who prepared it. The property assessor did not

have personal knowledge of the information contained in the drawing.2 When asked to

measure the width of the roadway using the scale shown on the drawing, the property

assessor responded:

Each inch means a hundred foot. Okay. Foy done this. Okay. You put this

on this on ten, which you put it like that and it’s got four marks, which means

forty foot. But that’s just . . . . You know, I don’t know nothing about it.

That’s just what was give to me.

When Ms. Rogers purchased her property, the Roaches had an electric fence in their

yard that was about 20 feet or so from the gravel roadway. Ms. Rogers stated the electric

fence was 27 feet from the center line of the roadway. Both her real estate agent and her

predecessor-in-interest testified that the fence at issue in this case did not exist before or at

the time of Ms. Rogers’ purchase of her land and the appurtenant easement. Ms. Rogers

testified about legal proceedings she had brought which resulted in the Roaches being

required to fence in their dogs and livestock. After that lawsuit, the Roaches erected the

fence in question at the edge of the roadway. It does not enclose anything, according to Ms.

Rogers and other witnesses.

The Roaches put wooden and metal posts in the ground along the edge of the roadway

on either side and ran a wire fence or a rope along each side to connect the posts. This is the

fence in question in this lawsuit. Ms. Rogers testified that there are only four to five feet

between the middle of the roadway and the new fence.

Ms. Rogers is in the horse business Ms. Rogers also has friends who visit her with

their horses to ride on her property. She has two horse trailers that she uses to transport

horses onto and away from her property. The larger trailer is ten feet wide and thirty-four

feet long.

2

The defendants’ attorney objected to the admissibility of this document, and the court ultimately

allowed it to be marked as an exhibit without explicitly ruling on whether it was admitted into evidence. We

decline to rule on whether the document was properly admitted since neither party has raised that question

on appeal.

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Ms. Rogers testified she has been unable to use her larger trailer ever since the

Roaches installed the wooden and metal posts so close to the roadway. She testified that,

even with the smaller trailer, it is very difficult to negotiate the turns in the roadway due to

the Roaches’ fence along the roadway.

The Reagans, her predecessors-in-interest, had transported a mobile home to their

property using the gravel roadway and that the home is approximately forty-five feet wide.

She testified she would like to place additional mobile homes on her property for her children

to use at some point in the future but that moving additional mobile homes along the road

now is impossible due to all the posts the Roaches have installed along the gravel road.

One witness with experience with moving mobile homes testified that Ms. Rogers

would need at least a forty foot right of way to effectively and safely move a trailer the size

of her horse trailer. He clarified that she would need between thirty and forty feet of room

for clearance for tail swing.

Another witness with experience in maneuvering long trailers for farm purposes had

visited Ms. Rogers’ property to pick up a trailer. He testified that it was difficult to maneuver

his trailer on the gravel roadway because of the steel posts and fence placed by the roadway

by the Roaches. He also stated that the curve of the roadway close to Ms. Rogers’ gate and

the steel posts caused his vehicle to leave the gravel roadway and travel on the grass. Since

his trailer was smaller than that of Ms. Rogers, he testified that she would not be able to

safely move her horse trailer on the curve in the gravel roadway.

Another witness testified that he observed the Roaches moving the fence closer to the

gravel roadway and that the fence caused problems for him traveling in his pickup truck,

especially where the roadway entered Ms. Rogers’ property.

A part-time employee of Ms. Rogers testified that the Roaches’ new fence bordering

the gravel roadway does not does not actually enclose anything. He also stated that the new

fence causes a lot of discomfort for people driving on the roadway compared to where the

electric fence had been located when Ms. Rogers bought her property.

Ms. Rogers testified that she can no longer bring any big equipment onto her property

because of the posts and fence erected by the Roaches at the edge of the gravel roadway. Her

larger horse trailer has been parked since 2005. The centerline of the roadway was 27 feet

from the Roaches’ electric fence when she purchased the property, and she had plenty of

room to maneuver the easement with her trailers. Because of the posts erected by the

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Roaches, she has difficulty traveling the roadway because of the swing necessary to navigate

the curves. She also said she cannot even use the full original graveled width of the roadway

due to the fence and posts.

II. T RIAL C OURT R ULINGS

Following the close of Ms. Rogers’ presentation of evidence, the Roaches asked the

court to dismiss Ms. Rogers’ cause of action seeking to widen the gravel roadway to forty

feet.3 The trial judge granted the Roaches this relief, stating the following from the bench:

The Court finds that there is no forty foot easement over the tracts or

the property involved. The easement is the land or property that has been in

common use throughout the years. This road has been established by

agreement . . . and it’s what it is, where it is. It does not extend forty foot.

Nothing in the record indicates the road is any wider than the use. So I’m

going to sustain that motion.

The Roaches then asked the court to dismiss Ms. Rogers’ claim for interference with

her easement. In response to this motion, the court stated:

The Court is going to find in this case that . . . and I’ve looked very

closely at these pictures. And I want the parties to know that I live on a farm.

I live on a four hundred acre farm. I’ve got a lot of neighbors. I’ve got a lot

of roads. And I’ve pulled cattle trailers and horse trailers all over the country.

...

But I know what roads are. I know what farm problems are and I know

what country roads are. This is no more than a country lane. A private road.

It’s not a public road. It’s a private road. It’s what it is on the ground.

And I’ve looked very carefully at these fences. None of them encroach

upon the roadway itself. It’s a little close in a place or two, but it’s three foot

off the gravel, three foot off the road.

One or two places the fence might be a little close. The fence ought to

be at least three foot off of the gravel. And this road basically is. There might

3

The trial court also dismissed the defendants Ms. Rogers named as indispensable parties but with

whom she had no actual complaint, i.e., Larry Daniels, Lloyd Daniels, and Roger Hill.

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be one or two places where it’s a little closer than that.

But unfortunately, this road has been made and used for some fifty

years. And the use of it now, the plaintiff is attempting to increase the burden

on the defendants’ property by making a wide, a much wider road.

They own that property. And it’s not used for the road. It’s never been

used as a road. And they only have to be reasonable in setting their fences.

The picture that’s very telling in this case, I think, that shows the

temporary electric fence, that has absolutely nothing to do with where the road

is. It is probably twenty-seven foot from the center line. But it might as well

be a hundred foot. That’s their temporary fence to hold horses and that’s not

the boundary line.

These people own up to the used portion of that road. And they’re not

obligated to allow any additional use. They’re not obligated to allow people

a place to turn around or back up. Only to come in on that property and allow

the reasonable use of that easement. And a normal cattle trailer or a horse

trailer can come in there with no problem.

So I find the complainant has no case. Dismiss it. . . .

In response to a question by Ms. Rogers about a particular post pictured in a

photograph marked 5B that may have been less than three feet from the gravel, the court

directed the Roaches to move that post.

The trial court then made the following written findings of fact:

2. That the road in question is a private road, utilized by all the

parties, but is entirely on land owned by Defendants;

3. That said road begins at the Lowe Point Road, a county maintained

public road, and runs through Defendants’ lands to Plaintiff’s lands;

4. That Plaintiff has a right to use said road for ingress and egress to

Plaintiff’s lands and Plaintiff’s right of use is not contested by Defendants;

5. That Plaintiff’s right to use said road is limited to the actual course

and width of the existing road;

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6. That Plaintiff has no right to use any other part of Defendant’s

lands;

7. That Defendants’ metal fence post closest to the road as shown

in Exhibit “5b” should be moved further away from the existing roadway as

soon as practicable;

9. That Plaintiff’s COMPLAINT should otherwise be dismissed

with prejudice . . . .

Ms. Rogers appeals the trial court’s judgment, contending the court erred by (1)

dismissing her complaint for interference with her easement and denying her damages for

such interference; (2) denying her request for a declaration that she has the right to a forty-

foot wide easement across the defendants’ properties; and (3) dismissing her claim for a

partition fence.

III. S TANDARD OF R EVIEW

By asking the court to dismiss Ms. Rogers’ claims following the presentation of her

proof, the Roaches were challenging the sufficiency of Ms. Rogers’ proof and were

essentially asking the court for an involuntary dismissal of Ms. Rogers’ complaint pursuant

to Tennessee Rule of Civil Procedure 41.02. This rule provides, in pertinent part:

(2) After the plaintiff in an action tried by the court without a jury has

completed the presentation of plaintiff’s evidence, the defendant, without

waiving the right to offer evidence in the event the motion is not granted, may

move for dismissal on the ground that upon the facts and the law the plaintiff

has shown no right to relief. The court shall reserve ruling until all parties

alleging fault against any other party have presented their respective

proof-in-chief. The court as trier of the facts may then determine them and

render judgment against the plaintiff or may decline to render any judgment

until the close of all the evidence. If the court grants the motion for involuntary

dismissal, the court shall find the facts specially and shall state separately its

conclusions of law and direct the entry of the appropriate judgment.

The Tennessee Court of Appeals has addressed this rule in Pamperin v. Streamline

Mfg., in which it explained:

When a motion to dismiss is made at the close of a plaintiff’s proof in a

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non-jury case, the trial court must impartially weigh the evidence as though it

were making findings of fact and conclusions of law after all the evidence has

been presented. If the plaintiff’s case has not been established by a

preponderance of the evidence, then the case should be dismissed if the

plaintiff has shown no right to relief on the facts found and the applicable law.

276 S.W.3d 428, 436 (Tenn. Ct. Ap. 2008) (quoting Building Materials Corp. v. Britt, 211

S.W.3d 706, 711 (Tenn.2007)).

On appeal, we review the trial court’s decision to grant the Roaches’ motion for

involuntary dismissal pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure.

Pamperin, 276 S.W.3d at 436 (citing Building Materials Corp., 211 S.W.3d at 711). In

accordance with Rule 13(d), we review the trial court’s findings of fact de novo, applying a

presumption of correctness. We will not overturn the trial court’s findings of fact unless the

evidence preponderates against them. Pamperin, 276 S.W.3d at 436 (citing Bogan v. Bogan,

60 S.W.3d 721, 727 (Tenn. 2001)). We review the trial court’s conclusions of law using a

de novo standard with no presumption of correctness. Pamperin, 276 S.W.3d at 436 (citing

Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (further citations

omitted)).

IV. E ASEMENT FOR U SE OF THE G RAVEL R OADWAY

The parties do not dispute that Ms. Rogers has the right to use the gravel road that

passes over the individual defendants’ properties for purposes of ingress to and egress from

her property. Thus, they do not dispute that she has an access easement over the defendants’

properties. “An easement is a right an owner has to some lawful use of the real property of

another.” Cellco P’ship d/b/a Verizon Wireless v. Shelby County, 172 S.W.3d 574, 588

(Tenn. Ct. App. 2005) (quoting Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996)

(further citations omitted)). One who possesses an easement has an enforceable right to use

real property that belongs to another for a specific use. Bradley v. McLeod, 984 S.W.2d 929,

934 (Tenn. Ct. App.1998) (citing Brew v. Van Deman, 53 Tenn. (6 Heisk.) 433, 436 (1871)).

An easement does not confer an interest in the ownership of the underlying real property.

Star Enter. v. Warner, 1995 WL 381652, at *4 (Tenn. Ct. App. June 28, 1995).

Easements can be created in several different ways, including by express grant,

implication, prescription, estoppel, reservation, and eminent domain. Cellco P’ship, 172

S.W.3d at 588 (citing Pevear, 924 S.W.2d at 115-16) (further citations omitted). Ms.

Rogers’ General Warranty Deed expressly describes the right-of-way over the defendants’

properties, but that deed did not create the easement.

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The type of easement Ms. Rogers owns meets the definition of an easement by

implication.4 Such an easement often occurs “upon severance of a single piece of land into

separately owned parts as an inference of the intention of the parties to the conveyance.”

Cellco P’ship, 172 S.W.3d at 588 (quoting Barrett, 1999 WL 802642, at *2); Barrett v. Hill,

1999 WL 802642, at *2 (Tenn. Ct. App. Oct. 7, 1999) (citing Restatement of Property § 474

(1944); LaRue v. Greene County Bank, 166 S.W.2d 1044, 1049 (1942)). “Implied easements

are grounded in the policy ‘that a grantor intends to include in a conveyance whatever is

necessary for the beneficial use and enjoyment of the property conveyed.’” Cellco P’ship,

172 S.W.3d at 589 (quoting Adcock v. Adcock, 1995 WL 675852, at *4 (Tenn. Ct. App. Nov.

15, 1995)).

As stated earlier, there is no dispute that Ms. Rogers has an easement for ingress and

egress over the gravel road across the property of the Roaches. The real question is the

extent of that easement.

V. D ISMISSAL OF D ECLARATORY J UDGMENT C LAIM

The trial court found “nothing in this record indicates that the road is any wider than

the use” and dismissed Ms. Rogers’ claim for a declaratory judgment that she have use and

enjoyment of an easement that was forty feet wide. In this appeal, Ms. Rogers argues that

the trial court erred in this dismissal. As set out in her brief, the issue specifically references

“the forty (40) foot wide driveway shown on Exhibit 2.” However, the argument does not

address that diagram or the testimony about it.

It is axiomatic that the extent of an easement can be established by a written

description in the grant of the easement. But, the evidence Ms. Rogers submitted to establish

a forty foot wide easement was testimony about a handmade drawing by a person who did

4

The elements necessary to create an easement by implication include:

(1) a separation of the title; (2) a necessity that, before the separation takes place, the use

which gives rise to the easement shall have been so long continued and obvious or manifest

as to show that it was meant to be permanent; and (3) a necessity that the easement be

essential to the beneficial enjoyment of the land granted or retained; and (4) continuous, as

distinguished from temporary or occasional servitude.

Barrett, 1999 WL 802642, at *3 (Tenn. Ct. App. Oct. 7, 1999) (citing Johnson v. Headrick, 237 S.W.2d 567,

570 (Tenn. App.1948); 28A C.J.S. Easements § 63 (1996)). Herein, there was evidence that when the single

tract was initially divided into several tracts the prior owners/residents of the property Ms. Rogers now owns

used the gravel road to access the property and that this road has been used continuously for over eighty years

for this purpose.

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not make the drawing and did not have any personal knowledge about the drawing or the

issues in this case. Accordingly, we agree with the trial court that Ms. Rogers did not show

that she was entitled to the relief she requested, i.e., a declaration that she had use and

enjoyment of a 40 foot easement centered on the center line of the roadway as described in

a specific exhibit.

VI. I NTERFERENCE WITH E ASEMENT

Ms. Rogers also asserts that the trial court erred in dismissing her claim that the

Roaches had interfered with her use of the easement and her claim for damages based upon

that alleged interference.5

In order to determine whether the Roaches have interfered with Ms. Rogers’ use of

the easement, we must identify the extent of that easement. The road in question varies in

width, and evidence introduced at trial showed that it is nine feet wide at its narrowest point.

The exact measurement of the gravel road, however, does not necessarily define the contours

or extent of Ms. Rogers’ easement.

A. The Extent of the Easement

Where an easement is not specifically defined, it is limited to what is “reasonably

necessary and convenient” to suit the purpose for which it was created. Adams v. Winnett,

156 S.W.2d 353, 358 (Tenn. Ct. App. 1941). The extent of an implied easement is

determined in part by a predecessor’s use of the easement:

Unlike express easements, [easements by implication] take into account the

prior use made of conveyed land. They ordain the perpetuation of that use on

the general principle that property is usually passed along with its burdens and

that the parties, as evidenced by their actions, understood that their property

was thus conveyed. See Roger A. Cunningham, et al., The Law of Property §§

8.4-8.5 (1984); 2A James Casner, American Law of Property §§ 8.31-8.38

(1952).

Bradley v. McLeod, 984 S.W.2d at 934; Barnett, 1999 WL 802642, at *2.

An easement by implication is also known as an easement implied from prior use.

5

Although the trial court did dismiss Ms. Rogers’ complaint, it actually granted her limited relief by

ordering the Roaches to move a fence post.

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R ESTATEMENT (T HIRD) OF P ROP: S ERVITUDES § 2.12 (2000). Implication of an easement

from a prior use is based on the protection of a purchaser’s reasonable expectations that his

or her use of an easement will be a continuation of her predecessor’s use. Id.; see Ingram

v. Wasson, 2011 WL 5921694, at *10 (Tenn. Ct. App. Nov. 21, 2011) (“the rule regarding

easements implied from prior use is based on the assumption that people intend to buy and

sell land with the existing access arrangements, and it furthers the policy of protecting the

reasonable expectations and the intent of parties to such transactions”).

Courts consider the reasonable expectations of purchasers of the divided parcels based

on both the immediate and prior sellers’ uses of the easement at issue. See, e.g., Ingram v.

Wasson, 2011 WL 5921694, at *1-5, 10 (large parcel of land was subdivided in 1971 and

court considered prior uses of right-of-way passing through subdivided lots by successive

owners, following initial severance, to reach landlocked parcel); Rhoades v. Taylor, 2003

WL 724672, *1, 3 (Tenn. Ct. App. March 4, 2003) (court considered prior uses of successive

owners of parcel at issue to determine whether easement by implication existed). Thus, prior

use of an easement is important in determining the expectations of the parties and the extent

of an easement.

In Shew v. Bawgus, 227 S.W.3d 569 (Tenn. Ct. App. 2007) this court again recited the

well-accepted doctrine regarding easements:

The range of permissible uses of any particular easement is in the first instance

defined by the circumstances surrounding the creation of that easement; its use

is limited to the purposes for which it was created. 28A C.J.S. Easements §

159 (1996).

Shew, 227 S.W.3d at 576 (quoting Cellco P’ship, 172 S.W.3d at 595).

The Shew court explained that “[w]here an easement is not specifically defined, it

need be only such as is reasonably necessary and convenient for which it was created.” 227

S.W.3d at 577 (quoting Burchfiel v. Gatlinburg Airport Auth., 2006 WL 3421282, at *3

(Tenn. Ct. App. Nov. 28, 2006) (further citation omitted)). “If the location of an easement

cannot be ascertained by the language of the instrument or the surrounding circumstances,

the use of the way fixes the location.” Shew, 227 S.W.3d at 577 (quoting Fanning v. Wallen,

2001 WL 950001, at *6 (Tenn. Ct. App. Aug. 21, 2001)).

In other words, “[t]he extent of an easement is also determinable by its nature and use.

Carroll v. Belcher, 1999 WL 58597, at *5 (Tenn. Ct. App. Feb. 9, 1999).

The evidence in the case at bar suggests that the gravel roadway has been used for

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ingress to and egress from the land currently owned by Ms. Rogers for nearly fifty years and

that its location has not changed in that time. Testimony showed that the Reagans, the

predecessors-in-interest to Ms. Rogers, had transported a mobile home about forty-five feet

wide along the gravel road easement. It also established that the easement and the land

around it are rural and that agricultural activities are common in the area.

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B. Burdens and Limitations on Both Owner of Easement and Owner of

Underlying Property

It is well settled that an easement carries rights and restrictions applicable to the owner

of the easement (the dominant estate) and the owner of the property underlying and adjoining

the easement (the servient estate).

Although the rights of the easement owner are paramount, to the extent of the

easement, to those of the landowner, the rights of the easement owner and of

the landowner are not absolute, irrelative, and uncontrolled, but are so limited,

each by the other, that there may be a due and reasonable enjoyment of both

the easement and the servient estate.

Carroll v. Belcher, 1999 WL 58597, at *1 (Tenn. Ct. App. Feb. 9, 1999) (quoting 10

T ENNESSEE J URISPRUDENCE, Easements § 6 (1994)).

Because an easement is limited to the purposes for which it was created, an owner of

an easement “cannot materially increase the burden of it upon the servient estate or impose

thereon a new and additional burden.” Adams v. Winnett, 156 S.W.2d at 357 (quoting 17 A M.

J UR. 996, sec.98).

In other words, an easement appurtenant to a dominant tenement can be used

only for the purposes of that tenement; it is not a personal right, and cannot be

used, even by the dominant owner, for any purpose unconnected with the

enjoyment of his estate. The purpose of this rule is to prevent an increase of

the burden upon the servient estate, and it applies whether the easement is

created by grant, reservation, prescription, or implication. 9 R.C.L., 786, sec.

43; Jones on Easements, secs. 99 and 100.

A principle which underlies the use of all easements is that the owner thereof

cannot materially increase the burden of it upon the servient estate, nor impose

a new and additional burden thereon . . .

Shew v. Baugus, 227 S.W.3d at 576-77 (quoting Cellco P’ship, 172 S.W.3d at 596 (quoting

Adams v. Winnett, 156 S.W.2d at 357)).

On the other hand, the owners of the land under and surrounding an easement also

have restrictions on the use of their land:

The owner of the servient estate, while he may use his property in any manner

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consistent with the existence of the easement, . . . cannot make any alterations

in his property by which the enjoyment of the easement will be materially

interfered with.

28A C.J.S. Easements § 175 (1996).

The owner of the servient estate has no legal right to interfere with an easement

holder’s enjoyment and use of the easement. Charles v. Latham, 2004 WL 1898261 (Tenn.

Ct. App. Aug. 25, 2004) (citing Cooper v. Polos, 898 S.W.2d 237, 242 (Tenn. Ct. App.

1995)).

Although the respective rights of the owners of the dominant and servient

estates must be construed so as not to unreasonably interfere with each other,

Miller v. State, 124 Tenn. 293, 137 S.W. 760, 35 L.R.A.N.S., 407 (1910), the

owner of the dominant easement has all the rights incident or necessary to

proper enjoyment of the easement. 25 Am.Jur.2d Easements & Licenses §§

72-75. The use of the servient estate must be consistent with that of the

dominant estate. Brown v. Alabama Power Co., 275 Ala. 467, 156 So.2d 157

(1963).

U.S. ex rel. and for Use of Tennessee Val. Authority v. Hughes, 408 F.2d 619, 621(6 th Cir.

1969) (emphasis added).

In Tennessee, the rights of the owner of the easement are paramount to those of the

landowner, at least to the extent of the easement. Cox v. East Tennessee Natural Gas Co.,

136 S.W.3d 626, 627-28 (Tenn. Ct. App. 2003); Carroll v. Belcher, 1999 WL 58597, at *3.

The owner of the servient estate cannot take actions that unreasonably interfere with

easement holder’s rights under the easement, including any alterations in the landowner’s

property. Cox, 136 S.W.3d at 628 (citing Carroll v. Belcher, 1999 WL 58597, at *3).

Thus, the Roaches could not take actions on their own land that interfered with the

reasonable use of Ms. Rogers’ access easement across their property.

C. Interference with Reasonable Use of Easement

Claims of interference with the use of an access easement have often involved the

erection of gates or fences, sometimes on the easement itself and sometimes adjoining it.

Generally, the question in such situations is whether, under the specific facts presented, the

fence or gate is necessary to the use and enjoyment of the landowner’s land and whether it

does not unreasonably interfere with the easement holder’s use of the right of way. Reynaud

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v. Koehler, 2005 WL 1868816, *2 (Tenn. Ct. App. Aug. 8, 2005). For example, “an owner

of land subject to a right-of-way easement may maintain gates, if necessary to his use and

enjoyment and where such obstructions do not unreasonably interfere with the use of the

way.” Cole v. Dych, 535 S.W.2d 315, 320 (Tenn. 1976).

The rule is the same for fences abutting the easement. Such a fence may be erected

if it is necessary for the use and enjoyment of the servient estate and if it does not

unreasonably interfere with the dominant estate owner’s rights to use of the easement. Ogle

v. Trotter, 495 S.W.2d 558, 564 (Tenn. Ct. App. 1973); Gammo v. Rolen, 2010 WL 2812631

(Tenn. Ct. App. July 19, 2010) (perm. app. denied Dec. 7, 2010); Albright v. Tallent, 2010

WL 1905028, at *2 (Tenn. Ct. App. May 12, 2010); Hughes v. Poulton, 2005 WL 2777346,

at *3, 5 (Tenn. Ct. App. Oct. 25, 2005). Stated another way,

[T]he right of an owner of the fee to fence an easement . . . is, to a large

extent, dictated by practical need to erect such a fence . . . and the

reasonableness of such action in light of the use which is made of the property

traversed by the easement.

Ogle v. Trotter, 495 S.W.2d at 564.

As this court has explained, courts in this state have ordered removal of a fence

abutting or on a right-of-way easement when “there has been a showing that the fence

interfered with the use of the easement in some way.” Gammo v. Rolen, 2010 WL 2812631,

at * 2.

In Carroll v. Belcher, supra, the owners of an easement providing access to their

landlocked property took it upon themselves to widen the easement without obtaining the

permission of the owner of the land across which the easement lay. The landowner erected

fence posts along the easement’s historical boundaries. 1999 WL 58597, at *1. The owners

of the easement filed a petition for a temporary and permanent restraining order preventing

the owner of the servient estate from interfering with their use of the easement, complaining

that the fence posts restricted their entry and exit to and from their property and was causing

damage to the vehicles using the easement. Id. Quoting 28(A) CJS Easements, § 175

(1996), the court stated:

The owner of the servient . . . estate cannot make any alterations in his

property by which the enjoyment of the easement will be materially interfered

with.

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Carroll v. Belcher, 1999 WL 58597, at *5. This court found that placing fence posts on the

border of the easement

. . . materially interfere[d] with the use of the easement by the owners of the

dominant estate. The terrain over which the easement runs is wooded, and the

easement is not straight. This makes it somewhat difficult in close quarters to

drive a vehicle without striking the fence.

Id. We modified the trial court’s judgment permitting the owners of the easement to widen

the easement itself, and instead directed the court to order the owner of the underlying

property to move his fence posts far enough away from the easement to allow the owners of

the dominant estate to travel along the easement without hitting the fence posts.6 Id.

In Gammo v. Rolen, 2010 WL 2812631, this court found, as had the trial court, that

the fence at issue was not necessary to the landowners’ use and enjoyment of their land and

“served no real purpose other than to mark the property line.” Id. at *2. The trial court had

found that the fence was not erected for the purpose of containing dogs, as the landowner

claimed, but rather was actually more of a “spite fence.” Id. The fence interfered with the

easement holder’s use of the easement, completely blocking access to it. This court affirmed

the trial court’s order that the fence be removed, but modified the trial court’s injunction,

holding that “as long as plaintiff has reasonable access the defendants should not be enjoined

from constructing a fence in the future on their property line, so long as the fence does not

impair an easement.” Id.

Determining the reasonableness of the interference requires consideration of all the

circumstances, including the purpose and reasonable use of the easement and the landowners’

reasons for installing the fence. Hughes, 2005 WL 2777346, at *4.

Additionally, as we said in Regen v. East Fork Farms, LP, 2009 WL 3672788 (Tenn.

Ct. App. Nov. 4, 2009):

Except as limited by the terms of the servitude ..., 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

6

The court in Carroll determined that the fence posts should be at least two feet away from the ten-

foot easement to accommodate the dominant estate owners’ needs. Unlike this case, however, there was no

evidence presented in Carroll that the owners of the landlocked property had large trailers that required more

than two feet of air space outside of the easement to negotiate the turns in the easement or evidence regarding

curves in the access road requiring greater clearance.

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servitude. The manner, frequency, and intensity of the use may

change over time to take advantage of developments in

technology and to accommodate normal development of the

dominant estate or enterprise benefitted by the servitude. Unless

authorized by the terms of the servitude, the holder is not

entitled to cause unreasonable damage to the servient estate or

interfere unreasonably with its enjoyment.

Id. at *3 (quoting Restatement (Third) of Prop.: Servitudes § 4.10 (2000)). The Regen court

continued:

Generally, “an increase in traffic over an easement in the process of normal

development of the dominant estate, in and of itself, does not overburden a

servient estate.” Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 272 (Ala.

2006) (emphasis in original); see also Stew-Mc Development, Inc. v. Fischer,

770 N.W.2d 839, 847 (Iowa 2009); Gutcheon v. Becton, 585 A.2d 818, 822

(Me. 1991); Downing House Realty v. Hampe, 127 N.H. 92, 497 A.2d 862,

865 (N.H. 1985); Shooting Point, L.L.C. v. Wescoat, 265 Va. 256, 576 S.E.2d

497, 503 (Va. 2003); Restatement (Third) of Prop., § 4. 10, cmt f. The

increase in traffic is merely an increase in the degree of the burden, not an

additional burden. Shooting Point, L.L.C., 576 S.E.2d at 503.

Id.

D. Dismissal of the Interference Claim

We conclude that Ms. Rogers presented evidence establishing the necessary elements

of a claim for interference with her use and enjoyment of her easement, thus making

dismissal of that claim inappropriate under Rule 41.02.

When she purchased the property, the fence at the edge of the roadway did not exist.

She had no problem maneuvering the roadway with her trailers, nor did others using the

roadway to access her property, until the Roaches erected the posts and fence. Operating a

horse business, having friends visit with horse trailers, receiving deliveries, and having other

farm work done by large equipment are all reasonable uses of her property. So is placing

other mobile homes on her property. Ms. Rogers purchased her particular property in order

to ride her horses and invite friends to ride their horses on her property. Transporting horses

to and from Ms. Rogers’ property in trailers properly designed to carry horses is a necessary

incident to her enjoyment of her property. Additionally, the prior owner of her property had

moved a mobile home onto the property using the gravel roadway.

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Ms. Rogers presented evidence that the posts of the fence erected by the Roaches are

too close to the easement or roadway to allow her to make reasonable use of her property.

There was evidence that the posts prevent her from using her large horse trailer or from

hauling a mobile home across the access easement. Additionally, the evidence established

that the posts made maneuvering other vehicles or trailers across the roadway difficult.

The Roaches did not present evidence. However, Ms. Rogers presented evidence that

the fence does not actually enclose anything and was a response to prior legal action.

We, therefore, reverse the trial court’s dismissal of the claim for interference with

easement and remand this case to the trial court for further proceedings.7 After those

proceedings, including the presentation of defendants’ proof, the trial court shall determine,

consistent with this opinion, the appropriate distance the fence posts should be moved away

from the easement so as to allow Ms. Rogers the space necessary for her to negotiate the

turns in the gravel roadway with her horse trailers, friends’ trailers, delivery trucks, and,

potentially, mobile homes.

Because the trial court dismissed the interference claim, it did not reach the issue of

whether Ms. Rogers is entitled to recover damages for the Roaches’ interference.

The type of injury that may be sustained from a wrongful interference with the

easement, includes injury to the land itself and diminution of the easement holder’s use and

enjoyment of his own property, or the use of the easement. Rector v. Halliburton, 2003 WL

535924, *10 (Tenn. Ct. App. 2003), (citing Expressway Assoc. II v. Friendly Ice Cream

Corp., 590 A.2d 431, 433 (Conn. 1991)).

VI. C LAIMS A GAINST M S. B ROWN

In addition to contending the Roaches have interfered with her use of the easement,

Ms. Rogers contends Wanda Brown has interfered with her use of the roadway by erecting

a chain link fence at the junction of Lowe Point Road and the gravel roadway that is at the

center of this dispute. Lowe Point Road is a public county road leading to the gravel

roadway. Ms. Brown owns property at the corner of Lowe Point Road along one side of the

gravel roadway. The gravel roadway passes next to rather than across her property.

7

In its Final Decree the trial court ordered the Roaches to move the metal fence post photographed

in Exhibit 5B “further away from the existing roadway as soon as practicable.” By ordering the Roaches to

move this metal fence post, the court implicitly found that at least this post was interfering with Ms. Rogers’

use of her easement.

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Photographs in the record that were marked as exhibits during the trial show Ms.

Brown’s fence running along Lowe Point Road and then turning to follow the curve of the

easement where the gravel roadway meets Lowe Point Road. The fence passes just outside

two large trees on Ms. Brown’s property and continues along the gravel roadway before

veering away from the easement once it is beyond the second large tree.

Ms. Rogers apparently objects to the fence where it turns from Lowe Point Road and

runs alongside the easement. She argues in her brief that she does not have sufficient swing

room for her horse trailers. However, she testified at trial that while she has to get close to

the chain link fence when she turns in, she is able to maneuver a sixteen foot flatbed trailer

back and forth to her property. One of Ms. Rogers’ witnesses who is in the mobile home

moving business testified on cross-examination that if he were pulling a large trailer the

chain link fence would not make it difficult for him to turn onto the gravel roadway from the

county road. Another of Ms. Rogers’ witnesses testified that the gravel roadway is about

twenty feet wide where it joins Lowe Point Road and is probably the widest part of the

roadway.

The trial court did not make an express finding of fact with regard to Ms. Rogers’

complaint with regard to Ms. Brown’s chain link fence. “[I]f the trial judge has not made a

specific finding of fact on a particular matter, we will review the record to determine where

the preponderance of the evidence lies without employing a presumption of correctness.”

Nashville Ford Tractor v. Great American Ins. Co., 194 S.W.3d 415, 424 (Tenn. Ct. App.

2005) (citing Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997)). Our review of the

record shows that Ms. Rogers has failed to prove her claim against Ms. Brown because she

has not shown how Ms. Brown’s fence encroaches on her use of the roadway. We therefore

affirm the trial court’s judgment dismissing Ms. Rogers’ complaint against Ms. Brown.

VII. P ARTITION F ENCE

In addition to her claims about the easement, Ms. Rogers asserts there is a partition

fence in need of repair located on the boundary line separating her property from the

Roaches’ property. In her complaint, Ms. Rogers asks that the Roaches share in the expense

of replacing and/or repairing this fence pursuant to Tenn. Code Ann. §§ 44-8-202 and 44-8-

206. At trial she testified that the fence was erected with the Roaches’ permission by her

predecessor, Ms. Reagan, to serve as a boundary/partition fence. Ms. Rogers contends that

the fence has fallen into disrepair and needs to be fixed or replaced to prevent the Roaches’

animals from trespassing onto her property. Neither Mr. Roach nor Mrs. Roach testified at

the trial, and Ms. Reagan did not testify with respect to the partition fence.

Following Ms. Rogers’ presentation of evidence, the Roaches moved the court to

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dismiss Ms. Rogers’ cause of action regarding the partition fence. They argued Ms. Rogers

failed to prove there was ever an agreement between Ms. Reagan and the Roaches regarding

the erection, repair, or replacement of the partition fence, and Ms. Rogers therefore had no

basis on which to pursue her claim. The court granted the Roaches’ motion with regard to

the partition fence.

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Ms. Rogers relies on Tenn. Code Ann. §§ 44-8-202 and 44-8-206 in support of her

argument that the Roaches are responsible for a portion of the cost to repair and/or replace

the partition fence between the two properties. Tenn. Code Ann. § 44-8-202 provides:

Partition fences may be erected and repaired at the expense, jointly, of the

occupants or owners; or if a person makes a fence a partition fence, by joining

to it or using it as such, that person shall pay to the person erecting it that

person’s proportion of the expense.

Ms. Rogers failed to introduce into evidence any support for her claim regarding what

she refers to as a partition fence. She testified that there is a fence on the boundary line

between her property and the Roaches’ property that is in need of repair and/or replacement,

but she did not establish how the fence came to be where it is, much less that the Roaches are

liable for its repair or replacement. The other statute Ms. Rogers relies on, section 44-8-206,

addresses the need to rebuild or repair a partition fence. In light of the fact that Ms. Rogers

failed to establish the Roaches’ liability for repairing or replacing the fence, this statute does

not come into play.

The trial court did not make a specific finding of fact with regard to Ms. Roger’s

claim regarding a partition fence, but our review of the record shows the evidence

preponderates in favor of the trial court’s dismissal of this claim because Ms. Rogers failed

to prove the Roaches have any liability with respect to the fence. See Nashville Ford

Tractor, 194 S.W.3d at 424 (appellate court reviews evidence to determine preponderance

of the evidence where trial court does not make a specific finding of fact).

VIII. C ONCLUSION

For the reasons stated above, we affirm the trial court’s judgment dismissing Ms.

Rogers’ complaint against all of the defendants other than the Roaches, and we affirm the

dismissal of the declaratory judgment action. We reverse the dismissal of the interference

with easement claim and its attendant claim for damages resulting from interference. We

remand the case to the trial court for further proceedings consistent with this opinion. We

affirm the trial court’s dismissal of Ms. Rogers’ claim with respect to what she terms a

partition fence.

Costs of this appeal shall be divided equally between the appellant, Lynn Rogers, and

the appellees, Jon Roach and his wife, Brenda Roach, for which execution shall issue if

necessary.

_________________________________

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PATRICIA J. COTTRELL, JUDGE

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