LEROY J. HUMPHRIES, ET AL. v. NICOLAS C. MINBIOLE, ET AL. (Tenn. Ct. App. November 9, 2012)
This appeal involves a dispute between adjacent landowners over Defendants’ installation of a private water line within a right-of-way easement across the Plaintiffs’ property. Following a bench trial, the trial court concluded that Defendants’ private water line trespassed on Plaintiffs’ property. Further, the trial court ordered that the Defendants would be incarcerated if they did not remove the water line and return Plaintiffs’ property to its previous condition within thirty (30) days. Defendants appealed. We affirm in part and remand for further proceedings.
Opinion available at:
https://www.tba.org/sites/default/files/humphriesl_110912.pdf
Showing posts with label Easement. Show all posts
Showing posts with label Easement. Show all posts
November 03, 2010
Court Reviews Whether Purchaser of Recently-Foreclosed Property has Standing to Bring a Suit Against Property’s Sellers
PROVIDENCE CROSSINGS, LLC v. SC REALTY CAPITAL, L.P., SC CAPITAL, LLC, AND SMITH REALTY INTERESTS, L.P. (Tenn. Ct. App. November 3, 2010)
Purchaser of landlocked property brought action against the sellers, seeking to recover damages allegedly caused by the failure of the sellers to complete a road extension or otherwise to insure reasonable access to the property, which had been purchased for development of multi-family rental units.
The trial court granted summary judgment to the sellers, finding that the right of the purchaser to proceed with the action was extinguished when the bank that provided financing for the development of the property foreclosed on the loan secured by the property and subsequently sold the property to another entity. The court concluded that the purchaser did not have standing to pursue the claims.
Finding that a genuine issue of material fact exists as to whether the purchaser's cause of action was included in the assets foreclosed upon, we reverse the judgment of the trial court and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/providencecrossings_110310.pdf
CLEMENT concurring in the judgement
http://www.tba2.org/tba_files/TCA/2010/providencecrossings_CON_110310.pdf
Purchaser of landlocked property brought action against the sellers, seeking to recover damages allegedly caused by the failure of the sellers to complete a road extension or otherwise to insure reasonable access to the property, which had been purchased for development of multi-family rental units.
The trial court granted summary judgment to the sellers, finding that the right of the purchaser to proceed with the action was extinguished when the bank that provided financing for the development of the property foreclosed on the loan secured by the property and subsequently sold the property to another entity. The court concluded that the purchaser did not have standing to pursue the claims.
Finding that a genuine issue of material fact exists as to whether the purchaser's cause of action was included in the assets foreclosed upon, we reverse the judgment of the trial court and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/providencecrossings_110310.pdf
CLEMENT concurring in the judgement
http://www.tba2.org/tba_files/TCA/2010/providencecrossings_CON_110310.pdf
April 15, 2010
Court reviews summary judgment ruling and award of attorney's fees in a case about road construction
BOBBY R. HOPKINS v. DOYLE K. RIGGS, ET AL. (Tenn. Ct. App. April 15, 2010)
Bobby R. Hopkins (Hopkins) sued Doyle K. Riggs and Ruth Riggs (the Riggs) alleging, in part, that the Riggs had contracted to construct a road on the Riggs' property for Hopkins' use and had failed to construct an adequate road. The Riggs filed a motion for summary judgment and the Trial Court granted them summary judgment. The Riggs then sought attorney's fees pursuant to the parties' contract. The parties then reached an agreement with regard to attorney's fees, an agreement which the Riggs subsequently alleged was breached by Hopkins. The Riggs then filed a motion and the Trial Court entered an order granting the Riggs additional attorney's fees. Hopkins appeals to this Court raising issues regarding the grant of summary judgment and the award of attorney's fees.
We affirm the grant of summary judgment, hold that the Riggs were entitled to an award of attorney's fees pursuant to the parties' contract, vacate the Trial Court's November 25, 2008 Order granting additional attorney's fees, and remand this case to the Trial Court for entry of an order that complies with the parties' August 6, 2008 agreement.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hopkinsb_041510.pdf
Bobby R. Hopkins (Hopkins) sued Doyle K. Riggs and Ruth Riggs (the Riggs) alleging, in part, that the Riggs had contracted to construct a road on the Riggs' property for Hopkins' use and had failed to construct an adequate road. The Riggs filed a motion for summary judgment and the Trial Court granted them summary judgment. The Riggs then sought attorney's fees pursuant to the parties' contract. The parties then reached an agreement with regard to attorney's fees, an agreement which the Riggs subsequently alleged was breached by Hopkins. The Riggs then filed a motion and the Trial Court entered an order granting the Riggs additional attorney's fees. Hopkins appeals to this Court raising issues regarding the grant of summary judgment and the award of attorney's fees.
We affirm the grant of summary judgment, hold that the Riggs were entitled to an award of attorney's fees pursuant to the parties' contract, vacate the Trial Court's November 25, 2008 Order granting additional attorney's fees, and remand this case to the Trial Court for entry of an order that complies with the parties' August 6, 2008 agreement.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hopkinsb_041510.pdf
December 09, 2009
Court of Appeals confirms judgment against city for damages
BOBBY STEVE SIMMONS and JEANNIE L. SIMMONS v. CITY OF MURFREESBORO, ET AL. (Tenn. Ct. App. December 9, 2009)
Appellants granted a sewer line easement to the City. The City hired a sub-contractor to install the sewer line and to restore the property following construction. Appellants, who were dissatisfied with the sub-contractor's restoration, filed suit against the City and the sub-contractor. The sub-contractor subsequently went out of business, and the trial court entered a judgment against the City for $13,070.00, representing the value of Appellants' land plus the cost to repair a fence. Appellants appeal, claiming the proper measure of damages is the cost to restore their property -- $137,779.62. On appeal, the City contends that Appellants may not sue the City, that Appellants breached the contract by refusing the sub-contractor access to their property, and that the trial court's award should be reduced by $132.00.
The proper measure of damages in this case is the lesser of the cost to restore Appellants' property or the difference in reasonable market value of the premises immediately prior to and immediately after the injury. Although neither party presented evidence regarding the property's diminished value, we find that the trial court considered the appropriate factors in setting the amount of damages. Thus, the judgment of the trial court is affirmed.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/simmonsb_121009.pdf
Appellants granted a sewer line easement to the City. The City hired a sub-contractor to install the sewer line and to restore the property following construction. Appellants, who were dissatisfied with the sub-contractor's restoration, filed suit against the City and the sub-contractor. The sub-contractor subsequently went out of business, and the trial court entered a judgment against the City for $13,070.00, representing the value of Appellants' land plus the cost to repair a fence. Appellants appeal, claiming the proper measure of damages is the cost to restore their property -- $137,779.62. On appeal, the City contends that Appellants may not sue the City, that Appellants breached the contract by refusing the sub-contractor access to their property, and that the trial court's award should be reduced by $132.00.
The proper measure of damages in this case is the lesser of the cost to restore Appellants' property or the difference in reasonable market value of the premises immediately prior to and immediately after the injury. Although neither party presented evidence regarding the property's diminished value, we find that the trial court considered the appropriate factors in setting the amount of damages. Thus, the judgment of the trial court is affirmed.
The full text of this opinion may be found on the TBA website at:
http://www.tba2.org/tba_files/TCA/2009/simmonsb_121009.pdf
May 27, 2009
Court holds that easement was abandoned by predecessor-in-interest who had other direct access
DONNIE VAUGHT, ET AL. v. ALAN JAKES, SR. and wife DEBORAH JAKES, ET AL. (Tenn. Ct. App. May 27, 2009)
A group of Rutherford County landowners whose property abutted one side of a private road which they maintained at their own expense filed a suit for trespass against a neighbor and developer who used the same road for access to houses he was building on the other side. Their suit also included a due process claim against the County for erroneously granting building permits for those houses.
The trial court agreed that the building permits were granted in error, but ruled that the county's action was an innocent error rather than a due process violation. The trial court also dismissed the plaintiffs' claims against the developer, holding that he was entitled to use the road because of a permanent easement he had acquired from his predecessors-in-interest. We affirm the trial court's dismissal of the due process claim, but reverse its dismissal of the trespass claim because the evidence shows that the individual who sold the property to the defendant had abandoned the easement and, thus, that the defendant had no right to use the road.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/
"The record indicates that the County correctly informed Mr. Baltz that he was not entitled to sell tracts of his land that did not adjoin Trimble Road, and that the building permits obtained by Mr. Jakes were granted in error. We cannot infer, however, from his acceptance of the Planning Director’s decision that the land could not be subdivided in the way he wished that Mr. Baltz did not know or believe that he could use Bowen Road for other purposes. We conclude on the basis of our examination of the entire record, including the testimony of Henry Parsley and Ronald Baltz, that the Parsleys and Mr. Baltz did know that they could use Bowen Road if they needed to or wanted to, but that they used it only sparingly because they had better access to their property by way of their entrances on Trimble Road. We therefore hold that any easement on Bowen Road enjoyed by the Parsleys or Mr. Baltz was abandoned prior to the sale to Mr. Jakes and that his use of the road amounted to a trespass. We accordingly remand this case to the trial court for further proceedings to determine the damages arising from the defendants’ trespasses which should be awarded to the plaintiffs." Id.
September 24, 2008
Easement by necessity for landlocked property terminates when other means of ingress and egress become available
VICKIE ROBNETT v. EDWARD H. TENISON, JR. (Tenn.Ct.App. September 24, 2008).
The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2008/robnettv_092408.pdf
"[A]n easement by necessity may continue only as long, as a necessity for its use continues [] The fact the way of necessity continues to be the most convenient is not sufficient to prevent its extinguishment if it ceases to be absolutely necessary. [] The easement was created for the purpose of affording Ms. Robnett ingress and egress from a public road. Due to recent improvements to the easement that leads to Highway 412, the easement through Mr. Tenison’s property is no longer absolutely necessary. Because the purpose for which the easement through Mr. Tenison’s property was created no longer exists, there is an end to the easement by necessity through Mr. Tenison’s property." Id. (citations and quotations omitted).
The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2008/robnettv_092408.pdf
"[A]n easement by necessity may continue only as long, as a necessity for its use continues [] The fact the way of necessity continues to be the most convenient is not sufficient to prevent its extinguishment if it ceases to be absolutely necessary. [] The easement was created for the purpose of affording Ms. Robnett ingress and egress from a public road. Due to recent improvements to the easement that leads to Highway 412, the easement through Mr. Tenison’s property is no longer absolutely necessary. Because the purpose for which the easement through Mr. Tenison’s property was created no longer exists, there is an end to the easement by necessity through Mr. Tenison’s property." Id. (citations and quotations omitted).
September 17, 2008
Court finds against landowner who argued different easement theories for access to a secluded portion of property
TERESA WALKER NEWMAN v. WAYNE WOODARD, ET AL. (Tenn.Ct.App. September 17, 2008).
This case concerns the access rights of a landowner to a section of her property divided from the rest of her land by a steep bluff. The trial court held that the landowner did not have an implied easement through her neighbor's land to access her property at the bottom of the bluff because the there was insufficient evidence that the right-of-way preexisted severance of the properties. The trial court determined that Mrs. Newman did not have an implied easement by necessity because there was insufficient evidence that Mrs. Newman would be unable build a road down the bluff for a reasonable cost. Because the evidence does not preponderate otherwise, we affirm that Mrs. Newman does not have an implied easement or an implied easement by necessity over the right-of- way. The trial court also held that Mrs. Newman lacked a prescriptive easement over the right-or- way because she failed to prove that her use was exclusive; we affirm on the basis that Mrs. Newman failed to demonstrate that her use of the right-of-way was continuous.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/newmant_091708.pdf
"Implied Easement. ... The party seeking to establish an easement by implication has the burden of proving the following three elements by a preponderance of the evidence: (1) A separation of title; (2) 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) Necessity that the easement be essential to the beneficial enjoyment of the land granted or retained." Id.
"the trial court also found that Mrs. Newman failed to present evidence that there was a preexisting route between the two properties at the time of separation. At trial, Mrs. Newman presented the minutes of the Lauderdale County Court dated July 26, 1910, as evidence that both the Woodards’ and Mrs. Newman’s property were once part of the greater “Marley tract” divided in 1910. Although Mrs. Newman presented witnesses that testified that the field road existed for decades before trial, none of the witnesses could testify to the use of the field road before the previous owners severed the property in 1910. The trial court noted evidence that there was no preexisting route in the 1910 County Court Minutes Book and that a surveyor’s map indicated that Lot 7 and Lot 8 of the Marley tract, which comprised the modern-day Newman and Woodard properties, were not cleared at the time of separation." Id.
"Easement by Necessity. ... [A]n implied easement by necessity allows for the establishment of a right-of-way where one previously did not exist. [] An easement by necessity is a type of implied easement based upon the premise that wherever one conveys property he also conveys whatever is necessary for its beneficial use and enjoyment, including access to one’s property. [] The party claiming the right-of-way bears the burden of proving the following: (1) the titles to the two tracts in question must have been held by one person; (2) the unity of title must have been severed by a conveyance of one of the tracts; (3) the easement must be necessary in order for the owner of the dominant tenement to use his land with the necessity existing both at the time of the severance of title and the time of exercise of the easement." Id. (citations omitted).
"Where the party claiming the right can, at reasonable cost, create a substitute on his own estate the easement is not necessary. ... The bulldozer operator ... asserted at trial that for six hundred to a thousand dollars he could improve the overgrown field road so that Mrs. Newman could drive farm equipment down the bluff. Although Mrs. Newman questioned the feasibility and durability of the road Mr. Blankenship claimed he could create, she failed to present evidence at trial contradicting Mr. Blankenship’s testimony that he could create a road at a reasonable expense. ... Mrs. Newman, therefore, failed to prove that the cost of creating a road down the bluff was unreasonable," Id.
"Easement By Prescription. ... In order to demonstrate a prescriptive easement, a claimant must prove that the use and enjoyment of land which gives rise to a prescriptive easement must be adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, with knowledge and acquiescence of the owner of the servient tenement, and must continue for the full twenty year prescriptive period." Id.
"Mrs. Newman simply failed to demonstrate by clear and convincing evidence that she or her predecessors in title continuously used the field road. The record is not clear how often Mrs. Newman, her family, or her tenants used the field road to access the fifteen acres. ... At most, the evidence indicated that Mrs. Newman’s predecessors intermittently used the road during the years that they may have farmed the fifteen acres of their land. This is insufficient evidence to prove continuous use of the field road by clear and convincing evidence." Id.
This case concerns the access rights of a landowner to a section of her property divided from the rest of her land by a steep bluff. The trial court held that the landowner did not have an implied easement through her neighbor's land to access her property at the bottom of the bluff because the there was insufficient evidence that the right-of-way preexisted severance of the properties. The trial court determined that Mrs. Newman did not have an implied easement by necessity because there was insufficient evidence that Mrs. Newman would be unable build a road down the bluff for a reasonable cost. Because the evidence does not preponderate otherwise, we affirm that Mrs. Newman does not have an implied easement or an implied easement by necessity over the right-of- way. The trial court also held that Mrs. Newman lacked a prescriptive easement over the right-or- way because she failed to prove that her use was exclusive; we affirm on the basis that Mrs. Newman failed to demonstrate that her use of the right-of-way was continuous.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/newmant_091708.pdf
"Implied Easement. ... The party seeking to establish an easement by implication has the burden of proving the following three elements by a preponderance of the evidence: (1) A separation of title; (2) 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) Necessity that the easement be essential to the beneficial enjoyment of the land granted or retained." Id.
"the trial court also found that Mrs. Newman failed to present evidence that there was a preexisting route between the two properties at the time of separation. At trial, Mrs. Newman presented the minutes of the Lauderdale County Court dated July 26, 1910, as evidence that both the Woodards’ and Mrs. Newman’s property were once part of the greater “Marley tract” divided in 1910. Although Mrs. Newman presented witnesses that testified that the field road existed for decades before trial, none of the witnesses could testify to the use of the field road before the previous owners severed the property in 1910. The trial court noted evidence that there was no preexisting route in the 1910 County Court Minutes Book and that a surveyor’s map indicated that Lot 7 and Lot 8 of the Marley tract, which comprised the modern-day Newman and Woodard properties, were not cleared at the time of separation." Id.
"Easement by Necessity. ... [A]n implied easement by necessity allows for the establishment of a right-of-way where one previously did not exist. [] An easement by necessity is a type of implied easement based upon the premise that wherever one conveys property he also conveys whatever is necessary for its beneficial use and enjoyment, including access to one’s property. [] The party claiming the right-of-way bears the burden of proving the following: (1) the titles to the two tracts in question must have been held by one person; (2) the unity of title must have been severed by a conveyance of one of the tracts; (3) the easement must be necessary in order for the owner of the dominant tenement to use his land with the necessity existing both at the time of the severance of title and the time of exercise of the easement." Id. (citations omitted).
"Where the party claiming the right can, at reasonable cost, create a substitute on his own estate the easement is not necessary. ... The bulldozer operator ... asserted at trial that for six hundred to a thousand dollars he could improve the overgrown field road so that Mrs. Newman could drive farm equipment down the bluff. Although Mrs. Newman questioned the feasibility and durability of the road Mr. Blankenship claimed he could create, she failed to present evidence at trial contradicting Mr. Blankenship’s testimony that he could create a road at a reasonable expense. ... Mrs. Newman, therefore, failed to prove that the cost of creating a road down the bluff was unreasonable," Id.
"Easement By Prescription. ... In order to demonstrate a prescriptive easement, a claimant must prove that the use and enjoyment of land which gives rise to a prescriptive easement must be adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, with knowledge and acquiescence of the owner of the servient tenement, and must continue for the full twenty year prescriptive period." Id.
"Mrs. Newman simply failed to demonstrate by clear and convincing evidence that she or her predecessors in title continuously used the field road. The record is not clear how often Mrs. Newman, her family, or her tenants used the field road to access the fifteen acres. ... At most, the evidence indicated that Mrs. Newman’s predecessors intermittently used the road during the years that they may have farmed the fifteen acres of their land. This is insufficient evidence to prove continuous use of the field road by clear and convincing evidence." Id.
September 08, 2008
Counties are not required to obtain utility easements to undertake repair of existing sewer lines
Authority of Governmental Entity to Replace/Repair Sewer Lines on Private Property (TN Attorney General Opinion No. 08-143, September 8, 2008).
"The provisions of Tenn. Code Ann. § 7-35-401(c)(1)(D), therefore, effectively eliminate the need for a utility easement when the objective is to reduce sanitary sewer overflows, as long as the private property owner provides consent and agrees to hold the municipality harmless for the work. Once the rehabilitative construction is completed, each affected private property owner would be responsible in the future for maintaining that portion of the sanitary sewer connection that is located on the property of the owner. Tenn. Code Ann. § 7-35-201(2) and § 68-221-209(a)(2)." Id.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2008/ag_08_143.pdf
"The provisions of Tenn. Code Ann. § 7-35-401(c)(1)(D), therefore, effectively eliminate the need for a utility easement when the objective is to reduce sanitary sewer overflows, as long as the private property owner provides consent and agrees to hold the municipality harmless for the work. Once the rehabilitative construction is completed, each affected private property owner would be responsible in the future for maintaining that portion of the sanitary sewer connection that is located on the property of the owner. Tenn. Code Ann. § 7-35-201(2) and § 68-221-209(a)(2)." Id.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2008/ag_08_143.pdf
August 28, 2008
Easement reserved on a recorded plat is "express" and does not terminate with the reason for prescription
ERVIN D. SMITH, ET AL. v. PAUL EVANS, ET AL. (Tenn.Ct.App. August, 28, 2008).
Owners of property brought suit to terminate an ingress/egress easement across their land, contending that the necessity for the easement no longer existed. Following a trial, the Chancery Court ruled against the owners, finding that since the easement was reserved in a recorded plat, it was not an easement by necessity; consequently, the easement was not destroyed upon the sale of the dominant estate. On appeal, the owners maintain that the easement was destroyed at the end of the necessity. Finding the easement to be express, we affirm the decision of the Chancery Court. Finding the appeal not to be frivolous, no attorney's fees are awarded.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/smithve_082808.pdf
"Mr. Cook retained ownership of a 14.2 acre tract of land immediately behind the lots which fronted on the west side of Sawmill Road (the “Cook Property”). To ensure access to the Cook Property, he reserved a 20 foot ingress/egress easement over lot 5 of the subdivision; this easement was included in the recorded plat and allows access to Sawmill Road." Id.
"An easement by reservation is “in behalf of the grantor [of] a new right issuing out of the thing granted, and an easement appurtenant to the grantor’s remaining land may be created by reservation.” [] Even though an easement by reservation is a separate type of easement, it can still be sub-categorized as being either express or implied. ... An express easement by reservation “arises when a property owner conveys part of his or her property to another, but includes language in the conveyance reserving the right to use some part of the transferred land as a right-of-way.” [] Any reservation of an easement “is equivalent, for the purpose of creation of the easement, to an express grant of the easement by the grantee of the lands.” Id." Id. (citations omitted).
"An easement by express grant can be extinguished: by an act of the dominant owner, either by release or abandonment, by act of the servient owner by prescription or conveyance to a bona fide purchaser without notice, by the conduct of both parties, such as by merger or estoppel, or by eminent domain, mortgage, foreclosure, or tax sale. [] An easement “created by reference to a filed map can be extinguished only by the united action of all lot owners for whose benefit the easement is created...” [] No such measures were taken in this case; indeed, the deed conveying the Cook Property to the Evanses includes the following language ... . The easement was not terminated when the Evanses bought the Cook Property." Id. (citations omitted).
Owners of property brought suit to terminate an ingress/egress easement across their land, contending that the necessity for the easement no longer existed. Following a trial, the Chancery Court ruled against the owners, finding that since the easement was reserved in a recorded plat, it was not an easement by necessity; consequently, the easement was not destroyed upon the sale of the dominant estate. On appeal, the owners maintain that the easement was destroyed at the end of the necessity. Finding the easement to be express, we affirm the decision of the Chancery Court. Finding the appeal not to be frivolous, no attorney's fees are awarded.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/smithve_082808.pdf
"Mr. Cook retained ownership of a 14.2 acre tract of land immediately behind the lots which fronted on the west side of Sawmill Road (the “Cook Property”). To ensure access to the Cook Property, he reserved a 20 foot ingress/egress easement over lot 5 of the subdivision; this easement was included in the recorded plat and allows access to Sawmill Road." Id.
"An easement by reservation is “in behalf of the grantor [of] a new right issuing out of the thing granted, and an easement appurtenant to the grantor’s remaining land may be created by reservation.” [] Even though an easement by reservation is a separate type of easement, it can still be sub-categorized as being either express or implied. ... An express easement by reservation “arises when a property owner conveys part of his or her property to another, but includes language in the conveyance reserving the right to use some part of the transferred land as a right-of-way.” [] Any reservation of an easement “is equivalent, for the purpose of creation of the easement, to an express grant of the easement by the grantee of the lands.” Id." Id. (citations omitted).
"An easement by express grant can be extinguished: by an act of the dominant owner, either by release or abandonment, by act of the servient owner by prescription or conveyance to a bona fide purchaser without notice, by the conduct of both parties, such as by merger or estoppel, or by eminent domain, mortgage, foreclosure, or tax sale. [] An easement “created by reference to a filed map can be extinguished only by the united action of all lot owners for whose benefit the easement is created...” [] No such measures were taken in this case; indeed, the deed conveying the Cook Property to the Evanses includes the following language ... . The easement was not terminated when the Evanses bought the Cook Property." Id. (citations omitted).
June 30, 2008
Court awards sanctions and attorneys fees for intereference with a prescriptive easement
BRUCE WAYNE FERGUSON v. DARRYL SHARP, ET AL. (Tenn.Ct.App. June 30, 2008).
Bruce Wayne Ferguson (“the Plaintiff”) filed this lawsuit after Darryl and Denise Sharp (“the Defendants”) installed a gate on a right-of-way over their land that the Plaintiff utilized to reach his property. The Defendants claimed the gate was necessary for their safe use and enjoyment of their land because the right-of-way area was being subjected to trespassing, vandalism, and theft. The trial court agreed with the Plaintiff that the gate was not necessary and permanently enjoined the Defendants from maintaining it on the right-of-way. The Defendants appeal the judgment of the trial court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/fergusonb_063008.pdf
"The preponderance of the evidence presented to the court establishes that the Defendants have utilized their gate in an improper and illegal manner to deny the Plaintiff access to his property and to harass him despite the court order prohibiting these actions by the Defendants. The Plaintiff has an easement by prescription free of the impairment of the easement by the erection of gates." Id.
"This case involved a clear violation of the orders of the trial court. Our review of the record reveals that the Defendants interfered with and denied access by the Plaintiff to his property by use of the easement. The Plaintiff had to file motions requesting that the court find the Defendants in contempt of court. ... The trial court had clear authority to assess attorney’s fees against the Defendants pursuant to Tenn. Code Ann. § 29-9-105. The award served to compensate the Plaintiff for the loss he sustained as a result of the actions of the Defendants." Id.
Bruce Wayne Ferguson (“the Plaintiff”) filed this lawsuit after Darryl and Denise Sharp (“the Defendants”) installed a gate on a right-of-way over their land that the Plaintiff utilized to reach his property. The Defendants claimed the gate was necessary for their safe use and enjoyment of their land because the right-of-way area was being subjected to trespassing, vandalism, and theft. The trial court agreed with the Plaintiff that the gate was not necessary and permanently enjoined the Defendants from maintaining it on the right-of-way. The Defendants appeal the judgment of the trial court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/fergusonb_063008.pdf
"The preponderance of the evidence presented to the court establishes that the Defendants have utilized their gate in an improper and illegal manner to deny the Plaintiff access to his property and to harass him despite the court order prohibiting these actions by the Defendants. The Plaintiff has an easement by prescription free of the impairment of the easement by the erection of gates." Id.
"This case involved a clear violation of the orders of the trial court. Our review of the record reveals that the Defendants interfered with and denied access by the Plaintiff to his property by use of the easement. The Plaintiff had to file motions requesting that the court find the Defendants in contempt of court. ... The trial court had clear authority to assess attorney’s fees against the Defendants pursuant to Tenn. Code Ann. § 29-9-105. The award served to compensate the Plaintiff for the loss he sustained as a result of the actions of the Defendants." Id.
June 27, 2008
Court limits use of an easement to the extent that a driveway runs onto the adjacent property; Dominant estate may not materially increase burden
GARY W. FRYE, ET AL. v. CARL PRESLEY, ET AL. (Tenn.Ct.App. June 27, 2008).
This case involves a dispute between the owners of adjoining properties over the use of a driveway. The dispute focuses on the easement rights of the defendants, if any, to a right-of-way across the north edge of the plaintiffs' property and a portion of the west edge. The court, following a bench trial, made findings regarding the subject driveway. The defendants appeal. We affirm in part and reverse in part.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2008/fryeg_062708.pdf
"An easement is a right an owner has to some lawful use of the real property of another. [] Any easement in this case would be an easement appurtenant, involving two tracts of land – the dominant tenement (in this case, the defendants’ property) and the servient tenement (the plaintiffs’ property). The dominant tenement benefits in some way from the use of the servient tenement. [] A prescriptive easement arises when a person acting under an adverse claim of right makes uninterrupted, open, visible, and exclusive use of another’s property for at least twenty (20) years with the owner’s knowledge and acquiescence. []." Id. (citations omitted).
"While the Presleys’ deed to their son refers to an easement 30 feet in width, that easement, to the extent it crosses the plaintiffs’ property, is limited in width to the 14 feet found by the trial court. ... Simply stated, the son’s easement over the Fryes’ property is limited to a width of 14 feet. If the driveway on the ground is more than 14 feet wide, the excess over 14 feet must be located entirely on the Presleys’ property." Id. (quotations to transcript omitted).
"[T]he owner of an easement “cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden.” [] Accordingly, the use of the driveway has been expanded over time from originally benefitting only Mr. and Mrs. Presley to now being used by at least nine drivers, owning a combined fleet of approximately 15 vehicles including boats, trailers, and farm equipment. Mr. Frye testified that a number of the defendants speed along the driveway and “create the nuisance of dust”[]. ... It is clear to us that this testimony is related to the roadway along the northern section of the Frye property, not the portion of the driveway along a portion of their western boundary. The trial court concluded that the defendants’ use of the easement along the northern boundary did not result in an unreasonable increase in the burden to the servient estate. ... Furthermore, our review of the record likewise reveals no evidence of an increased burden along the western section of the easement. Accordingly, we find the plaintiffs’ argument to be without merit." Id. (citations omitted).
This case involves a dispute between the owners of adjoining properties over the use of a driveway. The dispute focuses on the easement rights of the defendants, if any, to a right-of-way across the north edge of the plaintiffs' property and a portion of the west edge. The court, following a bench trial, made findings regarding the subject driveway. The defendants appeal. We affirm in part and reverse in part.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2008/fryeg_062708.pdf
"An easement is a right an owner has to some lawful use of the real property of another. [] Any easement in this case would be an easement appurtenant, involving two tracts of land – the dominant tenement (in this case, the defendants’ property) and the servient tenement (the plaintiffs’ property). The dominant tenement benefits in some way from the use of the servient tenement. [] A prescriptive easement arises when a person acting under an adverse claim of right makes uninterrupted, open, visible, and exclusive use of another’s property for at least twenty (20) years with the owner’s knowledge and acquiescence. []." Id. (citations omitted).
"While the Presleys’ deed to their son refers to an easement 30 feet in width, that easement, to the extent it crosses the plaintiffs’ property, is limited in width to the 14 feet found by the trial court. ... Simply stated, the son’s easement over the Fryes’ property is limited to a width of 14 feet. If the driveway on the ground is more than 14 feet wide, the excess over 14 feet must be located entirely on the Presleys’ property." Id. (quotations to transcript omitted).
"[T]he owner of an easement “cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden.” [] Accordingly, the use of the driveway has been expanded over time from originally benefitting only Mr. and Mrs. Presley to now being used by at least nine drivers, owning a combined fleet of approximately 15 vehicles including boats, trailers, and farm equipment. Mr. Frye testified that a number of the defendants speed along the driveway and “create the nuisance of dust”[]. ... It is clear to us that this testimony is related to the roadway along the northern section of the Frye property, not the portion of the driveway along a portion of their western boundary. The trial court concluded that the defendants’ use of the easement along the northern boundary did not result in an unreasonable increase in the burden to the servient estate. ... Furthermore, our review of the record likewise reveals no evidence of an increased burden along the western section of the easement. Accordingly, we find the plaintiffs’ argument to be without merit." Id. (citations omitted).
March 31, 2008
This opinion discusses several of the ways that courts use to decide which survey is correct
CONNIE R. (DAVIS) PHILLIPS, ET AL., V. LAWRENCE WOODS, ET AL. (Tenn.Ct.App. March 31, 2008).
This appeal involves a dispute over a boundary line and the ownership of a driveway. The plaintiffs, Connie R. (Davis) Phillips and Carol J. (Davis) Miller ("the plaintiffs" or "the Davis heirs"), and the defendants, Lawrence Woods and Charlotte Woods ("the defendants" or "the Woods"), own adjacent tracts of real property in Morgan County. When the initial complaint was filed, the northern tract of property was owned by the plaintiffs' mother, Stella Davis ("Mrs. Davis"), who had filed suit against the Woods, the owners of the southern tract, to quiet title, to establish the common boundary line, and for libel of title. After Mrs. Davis' death prior to trial, her daughters were substituted as plaintiffs.
Upon the conclusion of a bench trial, the trial court found, inter alia, that the Davis heirs owned the property over which the driveway ran, but that the defendants retained an easement by necessity in the roadway, and that the Woods had committed libel of title. While the trial court agreed with the common boundary line described by the surveyor for the Davis heirs, the court reformed the boundary between the parties upon finding that the defendants were entitled to a portion of the Davis property as a result of adversely possessing it for over 30 years. The Woods appeal. We affirm. Case remanded for further proceedings.
Opinion found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/phillipsc_033108.pdf
"In determining disputed boundaries, resort is to be had first to natural objects or landmarks, because of their very permanent character; next, to artificial monuments or marks, then to the boundary lines of adjacent landowners, and then to courses and distances. [] This rule of construction is to aid in determining the intention of the parties to a deed which is to be determined, if possible, from the instrument in connection with the surrounding circumstances." Id.(citations omitted; quoting Thornburg v. Chase, 606 S.W.2d 672, 675 (Tenn.Ct.App. 1980)).
"The legal description for Tract 1 of the Davis property also calls for the property described to contain about half an acre. ... The dimensions of Tract 1 as depicted on the Nance survey are much closer to the quantity of land called for by the deed than the dimensions of Tract 1 as depicted on the Steelman survey. The call for the quantity of land in a deed may be resorted to for the purpose of locating and identifying the land in certain circumstances. [] “The boundaries of a tract of land are not usually delineated by the quantity or acreage,” but “where boundaries are in doubt, the quantity may become an important factor.” [] Thus, the fact that the Nance survey more closely produces the quantity of land called for in the deed supports the conclusion that it correctly located Tract 1." Id.(citations omitted).
This appeal involves a dispute over a boundary line and the ownership of a driveway. The plaintiffs, Connie R. (Davis) Phillips and Carol J. (Davis) Miller ("the plaintiffs" or "the Davis heirs"), and the defendants, Lawrence Woods and Charlotte Woods ("the defendants" or "the Woods"), own adjacent tracts of real property in Morgan County. When the initial complaint was filed, the northern tract of property was owned by the plaintiffs' mother, Stella Davis ("Mrs. Davis"), who had filed suit against the Woods, the owners of the southern tract, to quiet title, to establish the common boundary line, and for libel of title. After Mrs. Davis' death prior to trial, her daughters were substituted as plaintiffs.
Upon the conclusion of a bench trial, the trial court found, inter alia, that the Davis heirs owned the property over which the driveway ran, but that the defendants retained an easement by necessity in the roadway, and that the Woods had committed libel of title. While the trial court agreed with the common boundary line described by the surveyor for the Davis heirs, the court reformed the boundary between the parties upon finding that the defendants were entitled to a portion of the Davis property as a result of adversely possessing it for over 30 years. The Woods appeal. We affirm. Case remanded for further proceedings.
Opinion found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/phillipsc_033108.pdf
"In determining disputed boundaries, resort is to be had first to natural objects or landmarks, because of their very permanent character; next, to artificial monuments or marks, then to the boundary lines of adjacent landowners, and then to courses and distances. [] This rule of construction is to aid in determining the intention of the parties to a deed which is to be determined, if possible, from the instrument in connection with the surrounding circumstances." Id.(citations omitted; quoting Thornburg v. Chase, 606 S.W.2d 672, 675 (Tenn.Ct.App. 1980)).
"The legal description for Tract 1 of the Davis property also calls for the property described to contain about half an acre. ... The dimensions of Tract 1 as depicted on the Nance survey are much closer to the quantity of land called for by the deed than the dimensions of Tract 1 as depicted on the Steelman survey. The call for the quantity of land in a deed may be resorted to for the purpose of locating and identifying the land in certain circumstances. [] “The boundaries of a tract of land are not usually delineated by the quantity or acreage,” but “where boundaries are in doubt, the quantity may become an important factor.” [] Thus, the fact that the Nance survey more closely produces the quantity of land called for in the deed supports the conclusion that it correctly located Tract 1." Id.(citations omitted).
February 21, 2008
Court looked to understandings between parties to a real estate transaction and awarded a prescriptive easement for access
WILLARD D. GORE, ET AL. v. TONY STOUT, ET AL. (Tenn.Ct.App. Feb. 20, 2008)
This appeal involves a dispute between two landowners over use of a route across the defendants' land that the plaintiffs use for access to their nearby land. Plaintiffs filed suit contending they had a right to use the disputed route. The trial court determined that the route had been dedicated and accepted as a public road, that the plaintiffs were entitled to a prescriptive easement over the defendants' land, and that the plaintiffs had a right to use the road by adverse possession. We have determined that the contested section of the route is not a public road, that adverse possession does not apply, and that the plaintiffs are entitled to a prescriptive easement over the defendants' land.
Opinion available at the Tennessee Bar Association website: http://www.tba2.org/tba_files/TCA/2008/gorew_022008.pdf
"To establish a public road by implication, the proponent must satisfy two requirements. First, the landowner must intend to dedicate the road to the public. McCord v. Hays, 302 S.W.2d 331, 333 (Tenn. 1957). Second, the public must expressly or impliedly accept the road. Id. The burden of proof is heavy. In short, the proponent must present 'proof of facts from which it positively and unequivocally appears that the owner intended to permanently part with his property and vest it in the public, and that there can be no other reasonable explanation of his conduct. In other words, dedication is a question of intention, and the intent must be clearly and satisfactorily proven.' ... Mr. Stout asked the county to gravel the entire length of the track. But this was just an attempt to get a little free work, to “gouge” the county as Mr. Stout put it. His intent was to save money, not to donate a road to the county. The county declined his request." Id. (quoting McKinney v. Duncan, 118 S.W. 683, 684 (Tenn. 1909)).
"An easement is an interest in another's real property that confers on the easement holder an enforceable right to use that real property for a specific use. Brew v. Van Deman, 53 Tenn. (6 Heisk.) 433, 436 (1871)). The most common form of an easement is a right of passage across another's property. Shew v. Bawgus, 227 S.W.3d 569, 578 (Tenn. Ct. App. 2007). In Tennessee, easements can be created in several ways: (1) express grant, (2) reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain. Pevear v. Hunt, 924 S.W.2d 114, 115-16 (Tenn. Ct. App. 1996). A prescriptive easement is an implied easement that is premised on the use of the property rather than language in a deed. Shew, 227 S.W.3d at 578. To create a prescriptive easement, the use and enjoyment of the property must be adverse, under a claim of right, continuous, uninterrupted, open, visible, exclusive, with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period. Pevear, 924 S.W.2d at 116 (citing Keebler v. Street, 673 S.W.2d 154 (Tenn. Ct, App. 1984). The proponent must prove each of the elements by “clear and convincing evidence.” Stone v. Buckley, 70 S.W.3d 82, 86 (Tenn. Ct. App. 2001). In Tennessee the prescriptive period is twenty years. Nashville Trust Co. v. Evans, 206 S.W.2d 911, 913 (Tenn. Ct. App. 1947). ... All of this evidence – Johnson and Mr. Gore’s discussions, the fact that there is no other feasible access to Gore’s land, and their use of the route both before and after the sale – can only lead to one conclusion: Johnson and Gore had a parol understanding that Johnson was transferring the right to use the route." Id.
This appeal involves a dispute between two landowners over use of a route across the defendants' land that the plaintiffs use for access to their nearby land. Plaintiffs filed suit contending they had a right to use the disputed route. The trial court determined that the route had been dedicated and accepted as a public road, that the plaintiffs were entitled to a prescriptive easement over the defendants' land, and that the plaintiffs had a right to use the road by adverse possession. We have determined that the contested section of the route is not a public road, that adverse possession does not apply, and that the plaintiffs are entitled to a prescriptive easement over the defendants' land.
Opinion available at the Tennessee Bar Association website: http://www.tba2.org/tba_files/TCA/2008/gorew_022008.pdf
"To establish a public road by implication, the proponent must satisfy two requirements. First, the landowner must intend to dedicate the road to the public. McCord v. Hays, 302 S.W.2d 331, 333 (Tenn. 1957). Second, the public must expressly or impliedly accept the road. Id. The burden of proof is heavy. In short, the proponent must present 'proof of facts from which it positively and unequivocally appears that the owner intended to permanently part with his property and vest it in the public, and that there can be no other reasonable explanation of his conduct. In other words, dedication is a question of intention, and the intent must be clearly and satisfactorily proven.' ... Mr. Stout asked the county to gravel the entire length of the track. But this was just an attempt to get a little free work, to “gouge” the county as Mr. Stout put it. His intent was to save money, not to donate a road to the county. The county declined his request." Id. (quoting McKinney v. Duncan, 118 S.W. 683, 684 (Tenn. 1909)).
"An easement is an interest in another's real property that confers on the easement holder an enforceable right to use that real property for a specific use. Brew v. Van Deman, 53 Tenn. (6 Heisk.) 433, 436 (1871)). The most common form of an easement is a right of passage across another's property. Shew v. Bawgus, 227 S.W.3d 569, 578 (Tenn. Ct. App. 2007). In Tennessee, easements can be created in several ways: (1) express grant, (2) reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain. Pevear v. Hunt, 924 S.W.2d 114, 115-16 (Tenn. Ct. App. 1996). A prescriptive easement is an implied easement that is premised on the use of the property rather than language in a deed. Shew, 227 S.W.3d at 578. To create a prescriptive easement, the use and enjoyment of the property must be adverse, under a claim of right, continuous, uninterrupted, open, visible, exclusive, with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period. Pevear, 924 S.W.2d at 116 (citing Keebler v. Street, 673 S.W.2d 154 (Tenn. Ct, App. 1984). The proponent must prove each of the elements by “clear and convincing evidence.” Stone v. Buckley, 70 S.W.3d 82, 86 (Tenn. Ct. App. 2001). In Tennessee the prescriptive period is twenty years. Nashville Trust Co. v. Evans, 206 S.W.2d 911, 913 (Tenn. Ct. App. 1947). ... All of this evidence – Johnson and Mr. Gore’s discussions, the fact that there is no other feasible access to Gore’s land, and their use of the route both before and after the sale – can only lead to one conclusion: Johnson and Gore had a parol understanding that Johnson was transferring the right to use the route." Id.
January 21, 2008
The law of adverse possession and related legal doctrines are thoroughly examined in this court opinion
ROGER BALL and CARROL E. ROSE, LLC., v. BRUCE MCDOWELL, Individually and as Next Friend for D.B., C.B., B.B., Children under the age of Eighteen (18) years, PENNY CAYLOR, GARY ESTES, BRYAN KEITH BROCK, WARREN YONTS and PAULINE YONTS and JAMES D. YONTS (Tenn.Ct.App. January 18, 2008).
In this action, plaintiffs ask the Court to declare their easement across defendants' lands be cleared of all encroachments and that defendants be barred from interfering with their use. The Trial Court ruled for plaintiffs. Defendants appeal on the grounds they proved adverse possession of the easement for more than seven years, and plaintiffs are barred from interfering with their use by Tenn. Code Ann. section 28-2-103. We reverse the Trial Court's Judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2008/ballr_011808.pdf
"At trial, plaintiffs did not offer any evidence to rebut the testimony regarding the use of the 50 ft. easement. The Trial Court incorrectly applied the law, when it refused to find that Tenn. Code Ann. § 28 - 2 - 103 barred plaintiffs’ cause of action. The Trial Court further erred when it found that there was no adverse possession because “the owner had no actual notice of the claim of adverse possession.” A showing of actual knowledge is not necessary if the possession is so open and notorious that there is an implied presumption of that fact. Kirkman v. Brown, 93 Tenn. 476, 27 S.W. 709, 710 (Tenn.1894). The evidence establishes defendants’ possession was open and notorious. Moreover, plaintiffs offered no testimony as to whether they were aware of the defendants’ activities or not." Id.
In this action, plaintiffs ask the Court to declare their easement across defendants' lands be cleared of all encroachments and that defendants be barred from interfering with their use. The Trial Court ruled for plaintiffs. Defendants appeal on the grounds they proved adverse possession of the easement for more than seven years, and plaintiffs are barred from interfering with their use by Tenn. Code Ann. section 28-2-103. We reverse the Trial Court's Judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2008/ballr_011808.pdf
"At trial, plaintiffs did not offer any evidence to rebut the testimony regarding the use of the 50 ft. easement. The Trial Court incorrectly applied the law, when it refused to find that Tenn. Code Ann. § 28 - 2 - 103 barred plaintiffs’ cause of action. The Trial Court further erred when it found that there was no adverse possession because “the owner had no actual notice of the claim of adverse possession.” A showing of actual knowledge is not necessary if the possession is so open and notorious that there is an implied presumption of that fact. Kirkman v. Brown, 93 Tenn. 476, 27 S.W. 709, 710 (Tenn.1894). The evidence establishes defendants’ possession was open and notorious. Moreover, plaintiffs offered no testimony as to whether they were aware of the defendants’ activities or not." Id.
August 27, 2007
Lack of use of an easement obtained by adverse possession does not revoke the easement
FRANK BAILEY and wife, ALMA SUE BAILEY; EARL BAILEY; CALVIN CHESNEY; and RALPH BAILEY, v. CARROLL S. GWYN and wife, ROSE F. GWYN (Tenn.Ct.App. August 24, 2007).
In this action to have an easement established across defendants' property, the Trial Court held there was clear and convincing evidence that plaintiffs were entitled to an easement by adverse use. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/baileyf_082407.pdf
In this action to have an easement established across defendants' property, the Trial Court held there was clear and convincing evidence that plaintiffs were entitled to an easement by adverse use. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/baileyf_082407.pdf
August 17, 2007
Boundary dispute over easements
CRAIG GREEN v. MORGAN HINES (Tenn.Ct.App. May 29, 2007)
Appellant and cross-plaintiff appeals the trial court's order which, among other things, granted an easement across the appellant's property. The record contains no statement of the evidence or transcript of the proceedings; therefore, the trial court's findings of fact are presumed to be correct. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/greenc_081607.pdf
Appellant and cross-plaintiff appeals the trial court's order which, among other things, granted an easement across the appellant's property. The record contains no statement of the evidence or transcript of the proceedings; therefore, the trial court's findings of fact are presumed to be correct. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/greenc_081607.pdf
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