Corporacion Euanitos, S.A. v. Montlake Properties, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 7, 2009 Session

CORPORACION EUANITOS, S.A., ET AL. v. MONTLAKE PROPERTIES,

INC. ET AL.

Appeal from the Chancery Court for Hamilton County

No. 08-0129 W. Frank Brown, III, Chancellor

No. E2008-01548-COA-R3-CV - FILED JANUARY 28, 2010

Corporacion Euanitos, S.A. (“Plaintiff”)1 sued Montlake Properties, Inc.; Montlake Property

Owners Association, Inc.; and Luken Properties, LLC seeking, in part, a restraining order and

a permanent injunction prohibiting the defendants from pumping water from a lake,

Montlake, located in Hamilton County. After a trial, the Trial Court entered its order finding

and holding, inter alia, “[t]hat Luken Properties, LLC, has an easement right to withdraw

water from Montlake.” Plaintiff appeals to this Court. We affirm.

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

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,

P.J., and C HARLES D. S USANO, J R., J. joined.

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Corporacion Euanitos, S.A.

Carol M. Ballard and William H. Horton, Chattanooga, Tennessee, for the appellees,

Montlake Properties, Inc.; Montlake Property Owners Association, Inc.; and Luken

Properties, LLC.

1

While Betty Henn and Jo-Net Corporation were named plaintiffs in this suit, neither Betty Henn nor

Jo-Net Corporation are involved in the appeal now before us. For ease of reading only, we refer in this

Opinion to Corporacion Euanitos as the plaintiff in the singular.

OPINION

Background

In July of 1970, Montlake, Inc. conveyed to Mowbray Mountain Utility District

(“Utility District”) a parcel of real property and:

a permanent easement and right of way for water line fifteen (15) feet wide

including sufficient working room to install, repair and maintain the same,

including the perpetual right to enter upon the real estate hereinafter described

at anytime that it may seem fit and construct, maintain and repair underground

water lines or mains for the purpose of conveying water over, across, through

and under the lands hereinafter described together with the right to excavate

and refill ditches and/or trenches for the location of said water lines and/or

mains and the further right to remove trees, bushes, underground and other

obstructions interferring [sic] with the location of said water lines and/or

mains.

Further Montlake, Inc. hereby grants, bargains, sells and conveys unto

Mowbray Mountain Utility District of Hamilton County, Tennessee, a

permanent easement or right to draw water from “MONTLAKE” owned by the

grantor for so long as water shall be present in said lake.

The easement conveyed to the Utility District by Montlake, Inc. (“the Easement”) is shown

on a plat recorded in February of 1985 in Plat Book 40, page 7. The Utility District conveyed

the Easement to Luken Properties, LLC (“Luken Properties”) in February of 2007.

Plaintiff acquired several parcels of land at Montlake during the 1990s and

thereafter. Of those parcels, two are relevant to the issues involved in this case, Lots 61 and

65. The deeds to Plaintiff for Lots 61 and 65 show that the parcels were acquired subject to

the Easement as noted on the plat recorded in Plat Book 40, page 7.

In February of 2008, Plaintiff sued Montlake Properties, Inc.; Montlake

Property Owners Association, Inc. (“Property Owners Association”); and Luken Properties

seeking, in part, a restraining order and a permanent injunction prohibiting the defendants

from exercising the Easement to extract water from Montlake. Plaintiff raised, among other

things, claims that the Easement had been abandoned, that equipment abandoned by the

Utility District created an attractive nuisance, and that extracting water from Montlake was

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causing erosion and pollution. The case was tried in May of 2008.

Herschel Pollard testified that he is the founder, president, and sole owner of

Plaintiff. Mr. Pollard resides primarily in Florida. Mr. Pollard testified that his lots “go out

to a point in the lake, to the, you might say, the southeast of the lake.” Mr. Pollard testified

that there are six lots that encompass the property around Montlake and that those six lots are

owned by him, Jo-Net, and Betty Henn. He stated that there are no other owners of any lots

that abut Montlake. Mr. Pollard personally purchased the first of his lots in approximately

1988. Mr. Pollard testified that he rents one of his houses at Montlake on an annual basis and

leases the other periodically.

Plaintiff, the corporation, did not purchase land at Montlake until 1998.

Plaintiff owns Lot 65 and at the time it purchased this lot, the golf course had been built, the

pumping station existed, the platform existed, the dams were being built, and the stream ran

through the golf course. Lot 65 has no house on it, and Mr. Pollard testified that he intended

to preserve lot 65 and never build a house on it.

Lot 65 is adjacent to a lot containing what Mr. Pollard characterized as “[a]n

abandoned pumping shed” owned by the Utility District. Mr. Pollard was shown the

pumping shed on one occasion by Utility District employees, and he described it as a tin

building that contained concrete tanks. Mr. Pollard further testified that there also is a steel

platform that hangs out over the lake with pipes running down from the platform into the lake

where the pipes connect to large suction pumps. Mr. Pollard testified that the pumping

station has not been used since Plaintiff purchased its first lot. He further stated that the old

suction pumps have since been removed and new pipes were installed in the lake. Mr.

Pollard first noticed the new pipes around Christmas of 2007.

Mr. Pollard estimated that the platform that hangs out over the lake is

approximately 65 feet above the surface of the lake. When asked about his concerns with

regard to the platform, Mr. Pollard testified:

Well, prior to this addition of the new equipment, I was concerned about it as

an attractive nuisance. In my opinion, it was an attractive nuisance. There

were trespassers going on it on a constant basis, daily basis, who came on the

property and came down the steps to the platform. Some of them merely came

to view the lake; some came to fish; some came to do some target practice with

their high-powered rifles. Some people - - some of the younger men came to

prove their manhood and leap from the platform into the water, and this

happened on quite a constant basis. And there were other problems as well.

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Mr. Pollard posted no trespassing signs, but the signs were torn down.

Mr. Pollard testified that people swim and fish in Montlake and stated: “Of

course, I’ve prohibited [my children from swimming] strictly because of the extreme hazard

that Montlake Golf Course created there with their electrical installation.” Mr. Pollard was

told that two 210-volt pumps were installed about 25 feet in the lake and that these pumps

are intended to pump 100 gallons per minute each out of the lake and transport it to the

pumping station. A document titled “Owners Guide To Installation And Operation Of …

Submersible Pumps” was introduced at trial. This owner’s guide contains the following

language: “WARNING: The pump is intended for use in a well. Motor frame must be

connected to power supply ground or fatal electrical shock may result. Do not use this pump

in swimming pools.” Mr. Pollard stated: “they are numerous, and I do mean numerous

incidents of electrical shock, drowning in that area.” Mr. Pollard further stated:

I’ve been aware of the danger of submerged electrical pumps for many years.

And anybody who reads the newspapers is aware of that. I’m a boater, and I

know the very grave danger of electrical shock, grounding, with regard to

underground electrical appliance connections with boats. And I know the

same danger exists in open ponds when you drop submerged pumps into

ponds. It only takes about eight millivolts to stop the heart. And there are

many, many instances of electrical-shock drowning in this area from that very

cause.

However, Mr. Pollard admitted when questioned further that he stopped swimming in the

lake and stopped allowing his children to do so before finding out about the pumps. He

admitted that he stopped his and his children’s swimming in the lake due to chemical

pollution.

When asked about his concerns regarding pumping water from Montlake, Mr.

Pollard stated:

Well, I had multiple concerns. During the twenty-odd years that I had owned

property up there, I had seen a progressive decline of the quality of the lake in

terms of its flora and fauna, and also, in my opinion, of its geological stability.

But it seemed to me that, obviously - - here again, this is my opinion - - that

the lake was becoming progressively polluted, and I was afraid that if water

were taken out of the lake and taken back up to the golf course and if it came

back down the same path, down the creek and back to the lake, over and over

in the cycle, that the lake would eventually become a chemical soup.

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A photograph was introduced at trial that Mr. Pollard:

took from my terrace in the summer of 2004 when there was a rain, and we got

a pretty good downpour there for a few minutes, and it shows that the waterfall

is flowing freely and it’s carrying a large amount of silt into the lake from the

golf course and it’s turning the lake brown.

When asked what he had observed with regard to the natural rise and fall of

Montlake, Mr. Pollard stated:

During the dry season, the water level drops dramatically. This was even

before the entire flow of water was stopped, coming down. It’s a natural rise

and fall of the lake level. It’s been going on for many years I’m sure. When

it’s down like that, the water is chirted. There’s a lot of algae in the water.

Then later when we get some rain fall, it rises somewhat.

The fish population seems to get a bit lazy during the dry season. You

don’t see them a lot; they go down to the bottom of the lake, I suspect. Then

later, when there’s more water, they tend to be more up on the surface. That

was back when we had fish; we don’t have fish anymore.… Interestingly, if

you look back in the old photographs, you’ll see that down in the lake, it was

a Garden of Eden down there, with all sorts of trees. And when I purchased

the property, there was a lot of wildlife. We had deer and raccoons and foxes

that would come down to the water and drink. There was no difficulty going

down there and catch fish. I would catch at least several bass every evening.

And in the recent years, I would say over the last decade, every single

one of the trees down there, even the one[s] that were, oh, 50 years old or

more, have died and have rotted away. There are no more wild azaleas down

there. There is no more laurel down there. I haven’t seen a wild animal down

there in years. And, as I said, we don’t even have fish for a fry or crawfish

anymore, at least not that I’ve been able to.

Mr. Pollard, through his attorney, wrote a letter to the Utility District in 2004

asking it to abandon the pumping station. The Utility District did not respond to this request.

Henry G. Spratt, a professor of microbiology at the University of Tennessee,

Chattanooga testified as an expert witness for Plaintiff. Dr. Spratt described what he did in

connection with his analysis for this case as:

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a study that follows along with a series of other studies I’ve done in some local

ponds and local waterways, streams and wetlands. We’re looking at the

presence or absence or [sic] a group of bacteria that are capable of breaking

down aromatic chemical structures that are common to herbicides and other

types of pesticides.

Dr. Spratt described Montlake stating:

Montlake is an interesting structure, in that it’s one of the few, if not the only,

natural lakes in this area of Tennessee. It’s located up on the Cumberland

Plateau. It represents an area where the sandstone cap has collapsed down into

lower levels of mountain structure, and it makes virtually an almost perfect

circle structure of about two acres in size. And then it’s relatively deep. From

what I hear, hundreds of feet deep. And it’s been there for a number of years.

That’s what my geology forensic told me.

Dr. Spratt looked at contour maps of the area and determined that “there’s a main drainage

channel that runs from up higher on the plateau and drains directly into Montlake. And there

are no streams that lead out of Montlake.” The drainage channel that drains into Montlake

comes from the area of the golf course. Dr. Spratt was not aware of any other streams

leading into Montlake. In addition to looking at the contour maps, Dr. Spratt also walked

around Montlake “one full time and other bits and pieces, various areas.”

Dr. Spratt testified:

The studies that I have done in other wetlands and ponds included the use of

a radioactive label herbicide, to look at the presence of microorganisms that

are capable of totally breaking the herbicides down, like carbon dioxide in the

water, sulphur, salt water, whatever compounds are present, and removing that

chemical from the system.

And so this is - - in the area of our litigation, that is an ideal situation,

and so I’m interested in that, so I would like to try and clean up the problems.

And so I have this system in the lab set up where we collect samples, bring

them into the lab and we completely, within our licensure, using radioactive

compounds, using chambers.

I have a picture of a chamber, and it’s in those (indicating). We transfer

the soil, a small portion of soil and make a soil/saltwater mixture and that goes

into the chamber which then is trapped for carbon dioxide, and we add

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radioactive compound.

We can trap the carbon dioxide in a syringe, remove the solution and

periodically make up a time source. We see the increase in the radioactive

control coming off. And so I set up one of these experiments starting on May

16th, approximately May 16th. Collected samples from two of the ponds on

the golf course, one on the 18th fairway and one on the 3rd fairway.

I got three samples from the east pond at various places. Run a uniform

sample, collected water samples from the bluff and then also collected samples

from the edge of Montlake. Montlake is a little more difficult to sample

because there’s not much - - you can’t get to it very easily. I did not have a

boat. However, I did find three uniform samples, one in the lake.

When asked about his findings, Dr. Spratt testified:

The date [sic] that we count from the little device I showed you, the chambers,

we calculate the rate, the accumulation of carbon, 14CO2 [sic], over time. It

shows the end rate for the three - - the two ponds on the golf course. They’re

very similar to the rate for Montlake. And then there’s a killer control here,

too, but there has to be live bacteria. The killer control doesn’t do anything.

To summarize this data and calculate maximum rate, this graph shows

the maximum mineralization rate of my target herbicide. And the point here

to note is that these three bars - - the one on this side, the right side, is the 18th

fairway pond, the middle is the 3rd fairway pond, and Montlake is on the far

left - - these three rates are not significantly different, so they essentially are

the same. And the killer control is down here.

The only thing that was different on this graph is the killer control; it

was the only thing different from any of those two ponds. So this suggests that

those three ponds have the same record of prior exposure to the chemical range

structure similar to the target herbicide that I used.

Dr. Spratt also was provided with records of the chemicals that the golf course

has used for approximately two and a half years. He testified:

Of the chemicals that were added - - or reported in those records, I saw a

variety of fertilizers, at least one herbicide, at least two insecticides or

compound that had insecticide in it, and then one specific fungicide. I went

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through all of those two and a half years and made an accounting of the date

they were applied and approximately doses that were used.… Well, the

herbicide referred to on the - - and I believe this particular herbicide is noted

as pre[-]emergent, so they were used, for the most part, either in the early

spring or the - - there was one case of late - - two cases of late-fall

application.… The insecticides were added basically when insects might be

active, starting in April and running up right through the summer. June, July,

August, and September are the last application of all of these. There was one,

a different insecticide that was added in October on one occasion.… The

fungicide also ran basically that same time line, starting in late April and

through - - there was an application in December of last year, so that’s

varying.… [T]he insecticides appear to be [applied to the golf course] once a

month, maybe once every three weeks. The fungicide was, on occasion, once

every week; usually once every two weeks.

***

Now the chemicals that I presented earlier that lists the summary of the

chemicals that were added, the insecticide and the fungicide, I found data on

those two chemicals. And, particularly, since they’re being applied during the

warmer months of the year, they can interfere with the mating of fish, mating

of insects, and other aquatic organisms.

And I looked up those and, indeed, they are organic synesthetic

compound. This is a - - Talstar is the trade name. It’s bifenthrin, an

insecticide. Now, this compound, if you will look at the material safety data

sheet, it is hazardous to fish and aquatic organisms. And, basically, the rules

of use say it should not - - organic give [sic] any water course in any way. So

again, there are range structures here that have to be followed in order for this

compound to be harmless.… The other one is the fungicide Daconil,

chlosothalomil; it’s a fungicide. Again, it has a range structure here. In this

case, it’s generally very harsh in that regard because the cholerine is added to

the range. But that is another compound that was used during the active

growing season. And it also has material safety issues, hazardous to fish and

aquatic organisms.

Dr. Spratt testified that:

eventually some of that herbicide would make its way down into the Montlake,

the lowest point of the drainage. There are a variety of factors that have to

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occur. The time between the application and the rainfall, sometimes that can

affect transfer. It could be accelerated if it were applied and a heavy rain came

more or less immediately.

Also some of those, I believe on the 3rd hole, was actually closer to

Montlake, and so what’s applied there at the shorter resonance time on the golf

course, you have the conditions to wash it off in the stream.

When questioned, Dr. Spratt admitted that he had seen ducks and a turtle at the

golf course ponds. Dr. Spratt also agreed that fungicide is used on golf courses to control

fungus on the greens and that the greens encompass probably less than one percent of the

total square footage of the entire golf course. Dr. Spratt was unsure of the distance between

the closest green and Montlake but estimated that it might be 200 meters.

When asked, Dr. Spratt admitted that he was aware that the golf course would

use water from Montlake during the dry season and further agreed that the dry ground “will

absorb a good bit of [the water], and a lot of it will evaporate away.” Dr. Spratt further

admitted that a heavy rain also would drain residue from the herbicides into Montlake. He

testified that there appear to be several residential properties that also drain into Montlake,

and that any household fertilizers, herbicides, and insecticides used there also could drain

into Montlake. Dr. Spratt testified that there is a drainage ditch that runs from the top of the

plateau across the golf course and down into Montlake and that this drainage is, at maximum,

50 meters from the golf greens. When asked if there was the potential for residue running

off of the golf course and into the lake from rainwater whether the lake was being pumped

or not, Dr. Spratt stated “[t]hat’s the chance. It’s a possibility.”

Rick Gehrke also testified as an exert for Plaintiff. Mr. Gehrke has a Master’s

Degree in environmental science with concentrations in management and law. When asked

what type of investigation and analysis he did on the property at Montlake, Mr. Gehrke

stated: “The first thing I did was do some research on the property, looking at area maps,

looking at the rudders that’s left by the lake. I did some research into golf course operations

and chemical use, and spoke also with the state regulatory agencies about permitting

requirements.” Mr. Gehrke also went to Montlake and spent time:

looking for the layout of the land, looking for creek conveyance, which when

water leaves, it’s just an acidic source that you can see where there are

channels that water runs in. I’m looking at the arrangement of the pumping

station. Looking at the vegetation, slopes, stability of the rocks around Mr.

Pollard’s lake.

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When asked for his analysis regarding pumping water from Montlake into the

ponds on the golf course which then would drain back into Montlake, Mr. Gehrke testified:

I see two main issues there. One of them has to do with the pumping of the

water itself, because a natural lake is structured, obviously, to rising and falling

water levels. But when you take more water out of it than is naturally draining

or evaporating, especially even times when the water is low, it’s going to

impact the water quality by concentrating on the bottom, impacting stream

banks, because if you drop the water level faster than the plants can respond,

they’re going to die. If you stabilize [sic] the banks you’re introducing

erosion, which is going to further exacerbate clarity problems with the water,

things like that. Also, from my research into golf course operations, there are

a lot of chemicals that are typically used on a golf course, and any flood

coming off of a golf course is going to be carrying some of those with them.

Mr. Gehrke testified that water gets into Montlake “[t]hrough rainfall and through the

conveyance that we were talking about. There is a little stream that runs out at the golf

course and goes over a cliff on one side of the lake.”

When asked about how chemicals would affect plant and animal life in the

lake, Mr. Gehrke stated:

There is a group of chemicals that get used when you’re trying to maintain

basically a system that wouldn’t naturally occur, had to be sustained, and those

are fertilizers and generally nitrogen, phosphorus, potassium are the main ones.

You’ve also got fungicides and insecticides, and herbicides to control the

plants, only the plants that you want on there. These are things that you don’t

want on the golf course but you do want them in the lake if you want to have

a natural lake, so they’re designed to kill something in one place, and then goes

to where it’s not, then they’re going to have an impact that you don’t want in

a natural system.… Well, if you have an herbicide that’s meant to get rid of

what we call a weed on a golf course, that might be a plant that is wanted on

the banks of the lake. So you’ve got a double whammy on this life-form,

where they might be getting exposed to a chemical that they can’t handle or

that they can’t adapt having their root system stressed by the drop in water

level.

Mr. Gehrke admitted that he did not do any water testing at Montlake. He further admitted

that rain runoff from the golf course would add chemicals to the lake.

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Bill McGriff, the utility commissioner for the Utility District, testified at trial.

Mr. McGriff has been the utility commissioner since 1999. Montlake was the sole source of

water for the Utility District through the early 1980s. In the early 1980s, the Utility District

made arrangements to get water from the Soddy-Daisy Falling Water Utility District due to

concerns about the amount of water available in Montlake. The Utility District has not

pumped water from Montlake in years, but maintained the Easement to be used in case it was

needed. The Utility District did not dismantle any of its equipment at Montlake, but did

recently sell a tank. The Utility District has never taken any action while Mr. McGriff has

been on the commission to abandon the Easement.

Mr. McGriff testified that the Utility District was contacted by the golf course

owner, Mr. Luken, and that it commenced negotiations with Mr. Luken for transfer of the

easement in 2003 or 2004. The Utility District traded Mr. Luken the lot with the metal

building and the easements and water rights to Montlake in exchange for a parcel of property

adjacent to an existing stand-pipe tank and $50,000.

Carlin Carpenter, one of the original commissioners for the Utility District,

testified that he held this position when the Easement was recorded in 1970. When asked,

Mr. Carpenter testified that the Utility District never considered abandoning the Easement.

When asked how many gallons of water were pumped from Montlake on a daily basis during

the peak usage when Montlake was used by the Utility District, Mr. Carpenter stated: “The

maximum population was probably 400 to 450 customers, and the average usage was 2,000

to 2,500 gallons a minute. I don’t know the exact figures.” Mr. Carpenter agreed that it

probably was over a hundred thousand gallons a day pumped from Montlake. Mr. Carpenter

testified that the Utility District pumped the lake in the early 1980s, and the water level fell

below the intakes, which required the Utility District to have water hauled in by tanker. This

led to the Utility District making arrangements to get water from the Soddy-Daisy Falling

Water Utility District.

David Campbell, Jr., the superintendent of Montlake Golf Course, testified that

the pumps were put into Montlake six months to a year before trial. The pumps were

encased, and were installed by a contractor and put in with new electrical work done by an

electrician. Mr. Campbell testified that the pumps were designed for underwater pumping.

Mr. Campbell tested the pumps one time for 14 hours continually. He estimated that the

pumps combined can pump 100 gallons a minute.

When asked, Mr. Campbell testified that the golf course consists of 150 acres

that are cleared, and that the greens comprise only about two of those acres. Mr. Campbell

stated: “The pond, the animal life is great. We have fish and everything you can think of in

there. The plant[-]life is fine. Never had any problem with it. Just keep it mowed.” He

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testified that the golf course ponds have turtles and fish.

Mr. Campbell testified that the golf course uses its sprinkler system

approximately three times a week at certain times of the year. Based upon his experience

operating the golf course for the past two years, Mr. Campbell estimated that they would be

most likely to need to pump from Montlake in July and August for “15 to 20 days out of

those two months.”

Kim White, the president of Stone Fort, Inc., testified. Stone Fort, Inc. owns

Montlake Golf Course. Stone Fort, Inc. was known formerly as Montlake, Inc. Ms. White

testified that Mr. Luken purchased the golf course in the late 1990s. Ms. White was shown

a photograph of Montlake that showed some brown area around the lake. When asked if that

was from back water, she stated: “I don’t know, but I do know residents that have lived there

a long time that told me the reason that some of [the] vegetation was dead was that the water

level got so high the past couple of years, that it rotted the trees that were in the lake.”

Billy Joe Russell has owned property in the Montlake Properties Subdivision

since approximately 1981. He testified that he is a member of the Property Owners

Association. Mr. Russell agreed that the Property Owners Association supports the golf

course’s plan to pump water from Montlake because the golf course is an important part of

the community. Mr. Russell testified that he has not seen any problems with plant-life,

wildlife, or fish around the golf course ponds. When asked if he had seen any dramatic

change in the appearance of Montlake, Mr. Russell testified:

Well, the only thing I can tell you is when [Mr. Pollard] rents those houses and

there’s quite a few people up there, I’ve been up there before and there would

[be] 20 or 30 people down there around, swimming and doing whatever, you

know, and leaving garbage laying around, it’s develops from that. And some

of the nastiness, you might say, just comes off of that, you know. That’s all I

can say about that part of it.

You know, I haven’t seen the lake deteriorate none besides when the

water got high in the wintertime; we had a lot of damage to it and some of the

trees did get killed from the water getting so high. And then it went back

down and your vegetation starts to grow again.

Mr. Russell testified that he observed Montlake in the early 1980s when the

Utility District was pumping and the water level fell below the pumps. He testified:

Well, what it did was it got down below the pumps, about like where it was

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starting to suck air is what happened to it. They brought line in there, and they

still had 40 or 60 foot of water, but the pumps wouldn’t reach any further. So

that’s when they begin [sic] to haul it in to get the water over the pumps.

Charles Hunt, testified that he was the president of the Property Owners

Association for three years. Mr. Hunt testified that when the issue of water rights arose:

We were for it unanimously. We were for it because of the position of the golf

course in reference to the property of the people who owned houses on the golf

course. And it was imperative that the golf course do good for the property

owner, you know, that the property would still remain at a high value.

Mr. Hunt has not observed any change in the quality of the water in the golf course ponds,

nor has he seen any change in the plant or animal life around those ponds. Mr. Hunt testified

that he has observed the condition of the houses that Mr. Pollard rents after tenants leave and

stated that he had observed “[b]eer cans and beer bottles in the lake.”

After trial, the Trial Court entered its order on July 8, 2008 finding and holding,

inter alia, “[t]hat Luken Properties, LLC, has an easement right to withdraw water from

Montlake,” that the Easement had not been abandoned, that the Easement had not terminated,

and that Plaintiff had not proven nuisance. The Trial Court entered an order on November

12, 2008 amending its July 8, 2008 order to state that defendant’s counterclaim was

dismissed for lack of proof and that the July 8, 2008 order as amended constituted a final

order as to all issues. Plaintiff appeals to this Court.

Discussion

Although not stated exactly as such, Plaintiff raises four issues on appeal: 1)

whether the Trial Court erred in finding that the Easement had not been abandoned; 2)

whether the Trial Court erred in finding that the Easement had not terminated; 3) whether the

Trial Court erred in not finding that trespassers entering Plaintiff’s property over the

Easement constituted a nuisance; and, 4) whether recycling of water from the lake to the golf

course and then back to the lake constitutes nuisance.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the trial court, unless the preponderance of the evidence

is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

A trial court's conclusions of law are subject to a de novo review with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.

2001).

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We first note what Plaintiff’s lawsuit is not about. Plaintiff’s lawsuit was not

about the continuing operation of the golf course. As stated in Plaintiff’s brief, Plaintiff

“sought a declaration that an easement claimed by the [defendants] was null and of no effect

or in the alternative an Order preventing [defendants] from using it.” Our resolution of the

issues raised by Plaintiff in this appeal is predicated upon the relief Plaintiff sought in the

complaint.

We first consider whether the Trial Court erred in finding that the Easement

had not been abandoned. Tennessee law provides “[t]he party asserting abandonment of an

easement must prove it by clear, unequivocal evidence.” Hall v. Pippin, 984 S.W.2d 617,

620 (Tenn. Ct. App. 1998)2 . Accord, e.g., Miller v. Street, 663 S.W.2d 797, 798 (Tenn. Ct.

App. 1983); Cottrell v. Daniel, 205 S.W.2d 973, 976 (Tenn. Ct. App. 1947). Thus, the

proper standard in an abandonment of an easement case is clear and unequivocal. Clear and

convincing evidence and clear and unequivocal evidence are one and the same. See Gambill

v. Hogan, 207 S.W.2d 356, 360-61 (Tenn. Ct. App. 1947) (equating “clear and convincing

evidence” to “clear and unequivocal evidence” and “clear, cogent and convincing evidence”).

Tennessee law is well settled regarding abandonment of an easement. An

easement may be abandoned, but the party attempting to prove abandonment must show both

“an intention to abandon the easement [and] also external acts carrying that intention into

effect.” Hall, 984 S.W.2d at 620. Accord, e.g., Phy v. Hatfield, 126 S.W. 105, 105 (Tenn.

1909); Boyd v. Hunt, 52 S.W. 131, 131 (Tenn. 1899); Cottrell, 205 S.W.2d at 975; Smelcer

v. Rippetoe, 147 S.W.2d 109, 113-14 (Tenn. Ct. App. 1940). Mere nonuse of the easement

“is not sufficient, by itself, to prove abandonment. Nonuse must be coupled with proof that

the easement holder or holders intended to abandon the easement.” Hall, 984 S.W.2d at 620-

21. Accord, e.g., Boyd, 52 S.W. at 131; Edminston Corp. v. Carpenter, 540 S.W.2d 260, 262

(Tenn. Ct. App. 1976); Cottrell, 205 S.W.2d at 975; Smelcer, 147 S.W.2d at 113-14.

The required external acts necessary to prove abandonment may be “either a

single act or a series of acts.” Hall, 984 S.W.2d at 621. Courts may consider several factors

in making a determination of whether an easement has been abandoned including:

(1) statements by the easement holder acknowledging the easement’s existence

and disavowing its use, (2) the easement holder’s failure to maintain the

2

On remand, new issues arose and were subsequently appealed. See Hall v. Pippin, No. M2001-

00387-COA-OT-CV, 2001 Tenn. App. LEXIS 124 (Tenn. Ct. App. Feb. 28, 2001); Hall v. Pippin, No.

M2000-001151-COA-R3-CV, 2002 Tenn. App. LEXIS 824 (Tenn. Ct. App. Nov. 26, 2002), modified by,

No. M2000-01151-COA-R3-CV, 2003 Tenn. App. LEXIS 113 (Tenn. Ct. App. Feb. 11, 2003). The issues

involved in the subsequent appellate history have no bearing on the holding we rely upon in this Opinion.

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easement in a condition permitting it to be used for access, (3) the easement

holder’s acquiescence in the acts of others that reduce the utility of the

easement, (4) the easement holder’s placement of a permanent obstruction

across the easement, or (5) the easement holder’s development of alternative

access in lieu of the easement.

Id.

The Trial Court found and held that the Easement had not been abandoned.

The evidence in the record on appeal shows that the Utility District never did anything to

disavow the Easement. Rather, the testimony shows that even after it began to obtain water

from another source, the Utility District continued to view the Easement as a viable option

and a back-up plan. Both Mr. McGriff and Mr. Carpenter testified that the Utility District

never considered abandoning the Easement. In fact, the Utility District clearly evidenced the

continued existence of the Easement as a valid easement when it sold the easement rights to

Luken Properties. Furthermore, although Plaintiff argues that the Utility District did not

maintain the Easement in a condition to allow for access, the evidence in the record on

appeal shows that the Utility District never dismantled or removed its equipment, never took

steps or allowed anyone else to take steps to block access to the Easement, and did not place

or allow placement of a permanent obstruction in the Easement. The fact that the Utility

District had not used the Easement for some years was insufficient, by itself, to prove that

the Utility District had abandoned the Easement.

The Trial Court found that Plaintiff had failed to prove by clear and

unequivocal evidence that the Easement had been abandoned. The evidence does not

preponderate against the Trial Court’s findings with regard to this issue.

We next consider whether the Trial Court erred in finding that the Easement

had not terminated. Plaintiff argues that the Easement was granted only “for so long as water

shall be present in said lake,” and because the water in Montlake fell below the intake pumps

in the 1980s, the Easement terminated at that time. (emphasis deleted). Plaintiff is mistaken.

The language granting the Easement is not ambiguous on this issue. Under the

clear language of the Easement, the relevant factual question on this issue is whether water

was present in the lake. The evidence in the record on appeal shows that although the water

level fell below the intake valves, water still was present in Montlake at that time. Mr.

Russell, who has lived in the area since the early 1980s, testified that at that time Montlake

“still had 40 or 60 foot of water….” Thus, water was present in the lake and the Easement

did not terminate. The evidence does not preponderate against the Trial Court’s findings and

conclusion that the Easement had not terminated.

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Next we consider whether the Trial Court erred in not finding a nuisance. With

regard to this issue, the Trial Court specifically found:

Mr. Pollard says he is afraid of people using the platform to access the

lake. If they are electrocuted or become ill due to harm from the chemicals,

Mr. Pollard fears a lawsuit. The photos show that efforts have been taken to

secure the platform, Trial Exhibits 54 and 56, and to warn trespassers. Trial

Exhibits 44, 44A and 15. As we unfortunately learned recently from Six Flags,

not even fences and warning signs keep all persons from danger. In the

Verified Complaint, Plaintiffs alleged that trespassers would jump into the lake

from the cliffs about the lake. Luken does not control the cliffs.

Mr. Pollard’s testimony about the lake and environs was contradicted

by neighbors who live there all the time. Mr. Pollard primarily resides in

Florida. Mr. Pollard’s credibility was adversely affected by the ads for his

“vacation home.” Trial Exhibit 46, dated July 25, 2007, was the advertisement

used before Mr. Pollard learned of Luken’s proposed use of water from the

lake. Trial Exhibit 59, Mr. Pollard’s internet ad of May 27, 2008, is the same

advertisement. These advertisements carry a different message than Mr.

Pollard’s testimony[] at trial.

In Wells v. Tennessee Bd. of Regents, our Supreme Court observed:

Unlike appellate courts, trial courts are able to observe

witnesses as they testify and to assess their demeanor, which

best situates trial judges to evaluate witness credibility. See

State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v.

Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus,

trial courts are in the most favorable position to resolve factual

disputes hinging on credibility determinations. See Tenn-Tex

Properties v. Brownell- Electro, Inc., 778 S.W.2d 423, 425-26

(Tenn. 1989); Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn.

Ct. App. 1998). Accordingly, appellate courts will not

re-evaluate a trial judge’s assessment of witness credibility

absent clear and convincing evidence to the contrary. See

Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16

(Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc., 567

S.W.2d 169, 170 (Tenn. 1978).

Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

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We give great deference to the Trial Court’s credibility determinations. The

evidence does not preponderate against the Trial Court’s findings with regard to the issue of

nuisance, and we affirm the Trial Court on that issue.

Finally, we consider whether recycling of water from the lake to the golf course

and then back to the lake constitutes nuisance. With regard to this issue, the Trial Court

specifically found:

Plaintiffs employed Henry G. Spratt, Jr., Ph.D., to do some testing and

to testify about possible adverse effects of chemicals being absorbed in the

water. Dr. Spratt is a professor of biological and environmental sciences at

UTC. His CV was introduced as Trial Exhibit 1. Copies of the chemicals

used, and their times of usage, at the golf course were introduced as Trial

Exhibit 4.

Dr. [Spratt] introduced three graphs, Trial Exhibits 7, 8 and 9. On two

of the graphs, 7 and 9, the third fairway of Montlake Golf Course has higher

rates of simazine mineralization than the lake. The third fairway is closest to

adjoining owners and the creek that flows into the lake.

Dr. [Spratt] testified that rain could also be a source of water that flows

into the lake. There are adjoining neighbors who may also use fertilizers and

herbicides on their land. Those persons, through watering their yards and/or

rain, could also add to the chemical input into the lake.

The court did not credit Dr. [Spratt] with noting anything close to a

clear and present danger. There was nothing definite that the court could use

to conclude that the pumping of water from the lake to the retention pond near

the third fairway and its return to the lake would be, as opposed to theoretically

could be, so dangerous so as to prohibit Luken’s proposed removal of water

from the lake.

Richard Gehrke, who has a M.A. in Environmental Science, also

testified about the adverse effect of chemicals. He had not conducted any

water tests. He could not quantify how much worse the lake would be as a

result of the chemicals used on the golf course. He spoke on a theoretical

basis.

Mr. Campbell, an employee at the Montlake Golf Course, said he had

seen very little runoff from the course’s ponds to the creek. The use of

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chemicals at the course did not affect the fish in the pond or other wildlife at

the golf course. He talked about the new pumps having been installed by

contractors. A new electrical panel with appropriate grounding was installed.

The new pumps worked well during the testing period.

Again, we defer to the Trial Court’s credibility determinations. The evidence

does not preponderate against the Trial Court’s findings relative to this issue, and we find no

reversible error by the Trial Court as to this issue.

As the evidence does not preponderate against the Trial Court’s findings and

we find no error of law, we affirm the Trial Court’s November 12, 2008 order.

Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

Appellant, Corporacion Euanitos, S.A., and its surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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