             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE


                                                         FILED
EDDIE COOK, in his capacity as             )
HICKMAN COUNTY HIGHWAY                     )             November 5, 1998
SUPERINTENDENT, and THE                    )
HICKMAN COUNTY HIGHWAY                     )            Cecil W. Crowson
COMMISSION,                                )           Appellate Court Clerk
                                           )
       Plaintiffs/Appellees,               )
                                           )   Appeal No.
                                           )   01-A-01-9712-CH-00705
VS.                                        )
                                           )   Hickman Chancery
                                           )   No. 9612187
ARCHIE GLEN EDWARDS and                    )
wife, MARTHA SUE EDWARDS,                  )
                                           )
       Defendants/Appellants.              )


      APPEALED FROM THE CHANCERY COURT OF HICKMAN COUNTY
                   AT CENTERVILLE, TENNESSEE

                 THE HONORABLE DONALD P. HARRIS, JUDGE


DANA DYE
P. O. Box 11
105 West End Avenue
Centerville, Tennessee 37033
       Attorney for Plaintiffs/Appellees

JERRY SCOTT
JOHN KEA
110 City Center Building
100 East Vine Street
Murfreesboro, Tennessee 37133-1216
      Attorneys for Defendants/Appellants




                    AFFIRMED IN PART; REVERSED IN PART;
                              AND REMANDED




                                               BEN H. CANTRELL, JUDGE

CONCUR:
KOCH, J.
CAIN, J.
                                 OPINION


              The Hickman County Road Superintendent filed a declaratory judgment

action to ascertain if an old cemetery road across the defendants’ property was a

public road. The Chancery Court of Hickman County ruled that the road was not a

public road but that the defendants’ property was subject to an easement created in

a deed in their chain of title. Since the court granted relief that no one had sought, to

individuals not parties to the action, we reverse.



                                           I.



              The complaint in this case, filed by the Highway Superintendent and the

members of the Highway Commission, named Archie Glen Edwards and his wife,

Martha Sue Edwards, as defendants, and sought a declaration that a road across the

Edwards’ property to the Bates Cemetery was a county road. After a hearing, the

chancellor held (1) that the road was not a public road, but (2) that the Edwards’

property is the servient estate of an express easement contained in a 1946 deed to

the Edwards’ predecessors in title. The deeds are in the record, but there was no

other evidence preserved at the hearing. The Edwards filed this appeal attacking the

holding that there was an easement across their property. The County Highway

Commission filed an appellee’s brief but did not raise any issues with respect to the

chancellor’s holding that the road was not a public road.



                                           II.



              Mr. and Mrs. Edwards assert that the portion of the lower court’s

judgment finding that their property is subject to an easement is void, because it was

not alleged in the pleadings. In an earlier dispensation we would have agreed and



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summarily reversed the lower court’s judgment. Our cases made it clear that the

court’s jurisdiction over a question “which it assumes to decide” was only invoked by

that question being raised in the pleadings. Isham v. Sienknecht, 59 S.W. 779 at 782

(Tenn. Ct. Chan. App. 1900). A judgment had to be justified by the facts alleged.

State v. Collier, 53 S.W.2d 982 (Tenn. 1932).           Otherwise the judgment was

considered coram non judice. Loftis v. Dearing, 201 S.W.2d 655 (Tenn. 1947). See

also Fidelity-Phenix Fire Ins. Co. of N.Y. v. Jackson, 181 S.W.2d 625 (Tenn. 1944).



              The question, now, however, is governed by Rule 54.03, Tenn. R. Civ.

Proc., which reflects a more liberal approach to pleading. Rule 54.03 provides that

“[e]very final judgment shall grant the relief to which the party in whose favor it is

rendered is entitled, even if the party has not demanded such relief in the party’s

pleadings.” Under that provision we would hesitate to hold a judgment void where all

the necessary parties were before the court and the issue was fairly tried, even though

the issue was not raised in the pleadings. Rule 15.02, Tenn. R. Civ. Proc. also allows

the parties to try issues by express or implied consent. Thus, a judgment deciding an

issue not raised in the pleadings is no longer per se invalid.



              The last part of Rule 54.03, however, imposes a due process

requirement on the trial court. It provides: “[T]he court shall not give the successful

party relief, though such party may be entitled to it, where the propriety of such relief

was not litigated and the opposing party had no opportunity to assert defenses to such

relief.” In this case the “successful party,” any person claiming the right to use the

easement, was not even before the court (the only plaintiffs being the Road

Superintendent and the Highway Commission.) The record does not reflect that the

easement issue was litigated or that the Edwards had an opportunity to defend that

issue. It is true that the burden is usually on the appellant to preserve the record for

review, State v. Banes, 874 S.W.2d 73 (Tenn. Crim. App. 1993), but the appellant

may proceed with less than a full record, and the burden then shifts to the appellee


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to designate the parts of the record it deems essential. Rule 24(a), Tenn. R. App.

Proc. Since there was no party before the court having an interest in the easement,

it is understandable that the remaining part of the record was not designated. Thus,

on the state of the record before us, we hold that the trial court’s declaration of an

easement across the Edwards’ land must be reversed.



              The judgment declaring an easement across the appellants’ land and

enjoining the appellants from closing the gates across the old road is reversed. In all

other respects the lower court’s judgment is affirmed and the cause is remanded to

the Chancery Court of Hickman County for any other proceedings that may become

necessary. Tax the costs on appeal to the appellees.




                                   ______________________________________
                                   BEN H. CANTRELL, PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE



_____________________________
WILLIAM B. CAIN, JUDGE




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