Mitchell v. Chance

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 7, 2003 Session

KENNETH W. MITCHELL, ET AL. v. HOMER E. CHANCE, ET AL.

Appeal from the Chancery Court for Humphreys County

No. 26-216 Robert E. Burch, Judge

No. M2002-01239-COA-R3-CV - Filed April 12, 2004

This appeal involves a dispute between neighbors regarding the use of a county road in rural

Humphreys County. After one of the landowners began to use the road to cross the neighboring

landowners’ property, the neighboring landowners erected barricades in the road and later filed a

trespass action in the Chancery Court for Humphreys County. The landowners who desired to use

the road counterclaimed to establish their right of way along the road. Following a bench trial, the

trial court sided with the landowners desiring to use the road. On this appeal, the landowners who

desire to prevent the use of the road take issue with the trial court’s refusal to consider parol evidence

regarding the meaning of the references to the road in the deeds. We affirm the trial court’s decision

that the references to the road in the deeds are not ambiguous, as well as its decision to admit

extrinsic evidence to determine the location of the road. We have also determined that the evidence

fully supports the trial court’s decision regarding the location and dimensions of the road.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,

and PATRICIA J. COTTRELL, J., joined.

George E. Copple, Jr., Nashville, Tennessee, for the appellants, Kenneth W. Mitchell and Michael

S. Clement.

John Lee Williams, Waverly, Tennessee, for the appellees, Homer E. Chance and Chance Limited

Partnership.

OPINION

I.

Dr. Kenneth Mitchell and Michael Clement hunted together frequently in Hickman County.

In 1994, Dr. Mitchell purchased 32 acres of wooded property in Hickman County to have a place to

hunt. One year later, when a 76-acre tract of property on Dr. Mitchell’s western boundary line

became available for sale, Dr. Mitchell invited Mr. Clement to join him in buying the property for

recreation and hunting. In October 1995, Dr. Mitchell and Mr. Clement purchased the 76-acre tract

and an adjoining one-half acre tract from Alfred and Brenda Peek.

The 76-acre tract lay between two other tracts owned by the Peeks. One tract to the

northwest contained 114 acres; the other tract to the south contained 31 acres. An established dirt

road called “Woods Road” ran along the boundary line of the 76-acre and the 114-acre tracts, and

then turned south and ran over a portion of the 76-acre tract. The Peeks’ deed conveying the 76-acre

tract to Dr. Mitchell and Mr. Clement stated that the conveyance was “subject to the right-of-way

of Woods Road” and also referred to “Woods Road” in the metes and bounds description of the 76-

acre tract.1 The Peeks also granted Dr. Mitchell and Mr. Clement a 50-foot road easement along the

western boundary of their 31-acre tract. Apparently, the southern terminus of Woods Road

connected with this road easement.2

In March 1996, the Peeks sold their 31-acre tract to Homer and Margaret Chance. The deed

stated that it was subject to the right of way of Little Hurricane Creek Road and to the 50-foot road

easement along the western boundary that had been granted to Dr. Mitchell and Mr. Clement six

months earlier. In June 1996, the Chances purchased the Peeks’ remaining 114-acre tract. This deed

also contained references to “Woods Road” in its metes and bounds description.3 Thus, from and

after March 1996, the 114-acre and the 31-acre tracts owned by the Chances were separated by the

76-acre tract owned by Dr. Mitchell and Mr. Clement.

In the summer of 1996, Dr. Mitchell and Mr. Clement hired a contractor to bulldoze a large

field along the boundary line between their 76-acre tract and the Chances’ 114-acre tract. They also

had Woods Road bulldozed from the 50-foot road easement at the southeast corner of their tract

towards the Chances’ property in order to widen it and clear out the overgrowth around the road.

Mr. Chance and other members of his family began to use the portion of Woods Road crossing the

76-acre tract to access their 31-acre tract in order to cut hay or tend to their soybean field. They used

Woods Road from June 1996 through the next year with no objection from either Dr. Mitchell or Mr.

Clement.

Sometime in 1997, Dr. Mitchell and Mr. Clement erected barriers over Woods Road to

prevent the Chances from using the road. The Chances continued to use Woods Road by simply

driving around the barriers. In July 1998, Dr. Mitchell and Mr. Chance discussed an alternate route

1

The deed stated in pertinent part:

thence North 65 degrees 25 minutes East 293.40 feet to a 6 inch maple tree beside the W oods Road;

thence with the center of the W oods Road, North 36 degrees East 473.60 feet; thence North 22 degrees

20 minutes East 233.13 feet to the center of the road; thence leaving the road with the new fence line

these bearings and distances. . . .

2

See Appendix 1.

3

The deed to the 114 acre tract stated in pertinent part:

thence North 65 degrees 25 minutes East 293.40 feet to a 6 inch M aple tree at the W oods Road; thence

with the W oods Road, North 36 degrees East 473.60 feet; thence North 22 degrees 20 minutes East

233.13 feet to a point in the W oods Road; thence leaving the road with the fence line these bearings

and distances. . . .

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for the Chances to access their 31-acre tract. Later, in July 1999, Mr. Chance hired a bulldozer

operator to clear a road between their 31-acre tract and their 114-acre tract.

On September 10, 1999, Dr. Mitchell and Mr. Clement filed a trespass action against Mr.

Chance in the Chancery Court for Humphreys County. Mr. Chance answered and counterclaimed

that he had permission from Dr. Mitchell to make the new road as an accommodation for

relinquishing his right to use Woods Road. Mr. Chance asserted that this right to use Woods Road

was reflected in the language of the Peeks’ deed of their 76-acres to Dr. Mitchell and Mr. Clement.

The trial court later permitted the Chance Limited Partnership to intervene because it had become

the successor in interest to both the 114-acre and the 31-acre tracts purchased by the Chances.

Mr. Chance objected to the original trespass claim being brought in chancery court because

it simply sought damages. After Dr. Mitchell and Mr. Clement voluntarily dismissed their complaint

without prejudice,4 the trial court conducted a bench trial on April 2, 2002 solely on Mr. Chance’s

counterclaim. On April 16, 2002, the trial court entered a final order concluding that the 76-acre

tract was subject to an easement or right of way denominated as “Woods Road” that had been

reserved by the Peeks for the purpose of ingress and egress between the 31-acre tract and the 114-

acre tract. The court also concluded that this right of way passed to the Chances when the Peeks sold

them the two tracts. Accordingly, the trial court concluded that the Chance Limited Partnership was

“entitled to free and uninterrupted use and passage for ingress, egress, and regress” over Woods

Road and that Dr. Mitchell and Mr. Clement should be enjoined from interfering with the Chances’

use of the right of way. Dr. Mitchell and Mr. Clement have appealed.

II.

THE AMBIGUITY OF THE REFERENCES TO “WOODS ROAD ” IN DR . MITCHELL’S AND

MR . CLEMENT’S DEED

The parties agree that the 1995 deed for the 76-acre tract created an easement appurtenant

with regard to Woods Road; however, they disagree regarding the extent of this easement. Dr.

Mitchell and Mr. Clement assert that the reference to Woods Road is a latent ambiguity requiring

the introduction of parol evidence to ascertain the parties’ intentions.5 Mr. Chance responds that the

consideration of parol evidence is inappropriate because the reservation of the Woods Road right of

way is not ambiguous and that it applies to the entire road as it existed when Dr. Mitchell and Mr.

Clement purchased the 76-acre tract from the Peeks. We have determined that Mr. Chance has the

better argument.

4

They then re-filed their trespass complaint in the Circuit Court for Humphreys County.

5

Dr. Mitchell and Mr. Clement believe that parol evidence demonstrates that they and the Peeks intended to

reserve W oods Road as a right of way only to the extent that it runs along the border between their two tracts and that

they did not intend for the right of way to run across the 76-acre tract.

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A.

The rules governing the interpretation of deeds are well-settled and are designed to enable

the courts to ascertain the intention of the parties to the deed. Collins v. Smithson, 585 S.W.2d 598,

603 (Tenn. 1979); Barber v. Westmoreland, 601 S.W.2d 712, 714 (Tenn. Ct. App. 1980). The courts

should first seek the parties’ intention by examining the words in the deed, Hutchison v. Board, 194

Tenn. 223, 227-28, 250 S.W.2d 82, 84 (1952), and by considering these words in the context of the

deed as a whole. Collins v. Smithson, 585 S.W.2d at 603; Barber v. Westmoreland, 601 S.W.2d at

714; Quarles v. Arthur, 33 Tenn. App. 291, 295, 231 S.W.2d 589, 590 (1950).

The courts customarily decline to consider parol evidence that adds to, varies, or otherwise

contradicts the language of the deed. Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn. 1992).

However, parol evidence may be admissible to remove a latent ambiguity in the deed. Stickley v.

Carmichael, 850 S.W.2d at 132; Estate of Burchfiel v. First United Methodist Church, 933 S.W.2d

481, 482 (Tenn. Ct. App. 1996). A latent ambiguity is found where

the equivocality of expression, or obscurity of intention, does not

arise from the words themselves, but from the ambiguous state of

extrinsic circumstances to which the words of the instrument refer,

and which is susceptible of explanation by the mere development of

extraneous facts, without altering or adding to the written language,

or requiring more to be understood thereby than will fairly comport

with the ordinary or legal sense of the words and phrases made use of.

Weatherhead v. Sewell, 28 Tenn. (9 Humph.) 272, 295 (1848); Estate of Burchfiel v. First United

Methodist Church, 933 S.W.2d at 482.

On the other hand, parol evidence is inadmissible to explain a patent ambiguity contained

within the deed. Estate of Burchfiel v. First United Methodist Church, 933 S.W.2d at 482. A patent

ambiguity is defined as

one produced by the uncertainty, contradictoriness, or deficiency of

the language of an instrument, so that no discovery of facts, or proof

of declarations, can restore the doubtful or smothered sense without

adding ideas which the actual words will not themselves sustain.

Weatherhead v. Sewell, 28 Tenn. (9 Humph.) at 295; Estate of Burchfiel v. First United Methodist

Church, 933 S.W.2d at 482. In other words, a patent ambiguity is one which appears on the face of

the deed; while a latent ambiguity is one which is not discoverable from a perusal of the deed but

which appears upon consideration of the extrinsic circumstances.

The interpretation of a deed is a matter of law. Rodgers v. Burnett, 108 Tenn. 173, 184, 65

S.W. 408, 411 (1901); City of Memphis v. Wait, 102 Tenn. 274, 277, 52 S.W. 161, 162 (Tenn. 1899);

Brown v. Brown, 45 Tenn. App. 78, 95-96, 320 S.W.2d 721, 728 (1958). Accordingly, we will

review the trial court’s conclusion that the deed to the 76-acre tract did not contain a latent ambiguity

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requiring the introduction of parol evidence without Tenn. R. App. P. 13(d)’s presumption of

correctness.

B.

The pivotal question here is whether the deed’s recital that “this property is subject to right-

of-way of Woods Road” creates a latent ambiguity. The words themselves are not ambiguous, and

we have determined that the evidence does not depict the existence of an ambiguous state of

extrinsic circumstances regarding the existence of Woods Road. When the Peeks conveyed the 76-

acre tract to Dr. Mitchell and Mr. Clement, Woods Road not only ran along the boundary line

between the 76-acre tract and the 114-acre tract, it also existed as a dirt road between the Peeks’ 114-

acre tract and their 31-acre tract. The road clearly ran across the southern portion of the 76-acre tract

and connected the Peeks’ two tracts.6

Prior to the conveyance, Mr. Peek used Woods Road to access the 31-acre tract from his 114-

acre farm. After the Peeks sold the 31-acre and the 114-acre tracts to the Chances, Mr. Chance and

his family continued to use Woods Road in a similar fashion. From the language of the deed and

the surrounding circumstances, the Peeks clearly intended to reserve a right-of-way over the entire

Woods Road. Otherwise, they would have included language to limit the easement to just the

property line portion of the road. Accordingly, because no latent ambiguity arose regarding the

meaning of “Woods Road,” the trial court properly declined to consider parol evidence regarding the

parties’ intent with regard to the Woods Road easement.

III.

THE EXTENT AND LOCATION OF THE WOODS ROAD RIGHT OF WAY

The absence of a legal description of the Woods Road right of way also required the trial

court to ascertain and establish the location of the road. The court considered parol evidence to

ascertain the location and dimensions of the right of way. We have determined that the trial court

properly considered the parol evidence and that the evidence supports the trial court’s determination

regarding the location and dimensions of the Woods Road right of way.

A.

The Woods Road right of way at issue in this case is simply an easement that entitles its

holder to pass through the property over which the easement runs.7 Even though drafters of express

easements should prepare a legal description of both the servient tenement and the precise portion

6

See Appendix 1. The surveyor used dash marks to indicate that W oods Road ran across Dr. Mitchell’s and Mr.

Clement’s property.

7

W hen parties use terms such as “right of way,” “road,” or “roadway” in a deed as a limitation on the use of

land, courts should construe such language as strong, almost conclusive, evidence that the interest conveyed is an

easement. J O N W . B RU CE & J AM ES W . E LY , J R ., T H E L AW O F E ASEM ENTS & L ICEN SES IN L AN D § 1:22 (2002) (“T H E L AW

O F E ASEM ENTS ”).

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of the servient tenement over which the easement runs, deeds or other instruments failing to indicate

an easement’s location or dimensions are commonplace. THE LAW OF EASEMENTS § 7:4. However,

these sorts of omissions and oversights are not necessarily fatal to the easement. THE LAW OF

EASEMENTS § 7:2.

If the description of the easement in the deed or other instrument is inadequate or

nonexistent, the courts may consider extrinsic evidence to ascertain the parties’ intent regarding the

location and dimensions of the easement. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229,

1237-38 (Colo. 1998); Anchors v. Manter, 714 A.2d 134, 140 (Me. 1998); Highway 7 Embers, Inc.

v. Northwestern Nat’l Bank, 256 N.W.2d 271, 277 (Minn. 1977); Sacco v. Narragansett Elec. Co.,

505 A.2d 1153, 1155-56 (R.I. 1986); R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.

1999). The courts should take into consideration (1) the purpose of the easement, (2) the geographic

relationship between the dominant and the servient tenements, (3) the use of each of the tenements,

(4) the benefit to the easement holder compared to the burden on the servient tenement owner, (5)

the admissions of the parties, and (6) the use existing at the time of the easement’s creation. THE

LAW OF EASEMENTS § 7:6.

When called upon to determine the location and dimensions of an easement, the courts focus

on the circumstances existing when the easement was created. Wilson v. DeGenaro, 415 A.2d 1334,

1339 (Conn. Super. Ct. 1979); Vallas v. Johnson, 390 N.E.2d 939, 941 (Ill. App. Ct. 1979); R.C.R.,

Inc. v. Rainbow Canyon, Inc., 978 P.2d at 587. However, the use of an easement commenced after

its execution and to which the owner of the servient tenement acquiesces can also provide persuasive

evidence of the intended location of the easement. Isenberg v. Woitchek, 356 P.2d 904, 907 (Colo.

1960); Peters v. Milks Grove Special Drainage Dist. No. 1 of Iroquois County, 610 N.E.2d 1385,

1389 (Ill. App. Ct. 1993); Hall v. Allen, 771 S.W.2d 50,53 (Mo. 1989); Parrish v. Hayworth, 532

S.E.2d 202, 206 (N.C. Ct. App. 2000); R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d at 587.

B.

When a deed creating an easement explicitly refers to an existing road, the courts commonly

construe the location and dimensions of the intended easement to conform with the location and

dimensions of the road. Wilson v. DeGenaro, 415 A.2d at 1335-36; Cleveland v. Tinaglia, 582

N.W.2d 720, 724-25 (S.D. 1998); Waskey v. Lewis, 294 S.E.2d 879, 881 (Va. 1982). Thus, the fact

that the Peeks’ 1995 deed describes the easement as “Woods Road” is strong evidence that the

intended location and dimensions of the easement were coextensive with Woods Road.

The trial court’s legal description of Woods Road is supported by the testimony in the record.

Mr. Peek, Dr. Mitchell, and Mr. Clement testified that Woods Road was an existing path long before

the Peeks conveyed the 76-acre tract to Dr. Mitchell and Mr. Clement. Mr. Chance, Dr. Mitchell,

Mr. Clement, and Mr. Peek all testified that Woods Road ran along the boundary line between the

114-acre tract and the 76-acre tract, crossed the southern portion of the 76-acre tract, and then

intersected with the 50-foot road easement to Little Hurricane Creek Road on the 31-acre tract.

In addition, the September 27, 1995 survey map shows Woods Road running along the

western boundary line of the 76-acre and the 114-acre tracts. While the map does not show the path

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that Woods Road takes across Dr. Mitchell’s and Mr. Clement’s property, the surveyor indicated that

the road continues across the 76-acre tract by drawing dashed lines into the property and labeling it

“Woods Road.”8 Similarly, a 1998 aerial photograph clearly shows the road that runs along the

border of the 114-acre and the 76-acre tracts and then crosses the southern portion of the 76-acre

tract. Based on our review of the evidence, we have concluded that the record supports the trial

court’s legal description of the location and dimensions of Woods Road.9

IV.

COMPLIANCE WITH THE STATUTE OF FRAUDS

As a final argument, Dr. Mitchell and Mr. Clement insist that the trial court’s decree violated

the statute of frauds [Tenn. Code Ann. § 29-2-101(a)(4) (2000)] because it granted a right of way

broader than that encompassed by the words in the deed. We find that this argument is without

merit. Dr. Mitchell’s and Mr. Clement’s deed to the 76-acre tract satisfied the statute of frauds

because it was in writing and signed by the parties to be charged. The clear reservation of an

easement over Woods Road is contained within the deed, and we have affirmed the trial court’s

conclusion that the easement ran across Dr. Mitchell’s and Mr. Clement’s land. No additional

writing was required to enforce the easement.

V.

We affirm the judgment and remand the case to the trial court for whatever further

proceedings may be required. We tax the costs of this appeal jointly and severally against Kenneth

W. Mitchell and Michael S. Clement for which execution, if necessary, shall issue.

_____________________________

WILLIAM C. KOCH, JR., J.

8

See Appendix 1.

9

The trial court’s description of the location of W oods Road compensates for the deficiency in the survey

regarding precisely where W oods Road crossed the 76-acre tract. The relevant portion of the court’s legal description

states “thence leaving the common boundary line along and with the meanders of the existing road in a generally

southeasterly direction to a point in the south boundary line of said Tract 2.”

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A PPENDIX O NE

Survey Map of Peek/Mitchell properties dated September 27, 1995