                                                                                      10/05/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                       Assigned on Briefs September 4, 2018

            HERBERT T. STAFFORD v. MATTHEW L. BRANAN

              Appeal from the Chancery Court for Sequatchie County
                       No. 2482   Jeffrey F. Stewart, Judge
                     ___________________________________

                          No. M2018-00072-COA-R3-CV
                      ___________________________________

Appellant appeals the trial court’s grant of an easement by implication in favor of
Appellee along a common driveway on Appellant’s property. Because Appellee met his
burden to establish an easement by implication, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Howard L. Upchurch, Dunlap, Tennessee, for the appellant, Matthew L. Branan.

Edward L. Boring, Dunlap, Tennessee, for the appellee, Herbert T. Stafford.


                                      OPINION

                                    I. Background

        Appellant Matthew L. Branan and Appellee Herbert T. Stafford are neighbors and
share a common driveway. The parties’ respective properties were once part of the same
parcel, which was owned by Major Johnson, Jr. Mr. Stafford acquired his property on
February 18, 1998 from Donald Johnson, who acquired the property from Major Johnson,
Jr. Mr. Branan acquired his property on June 30, 2015 from Kelly Angel, who acquired
the property from Donald Pendergrass, who acquired the property from Major Johnson,
Jr. It is undisputed that none of the deeds provide for an easement of any kind over Mr.
Branan’s property. Before Mr. Branan purchased his property, Mr. Stafford erected a
garage, which he then accessed by use of the common driveway. After Mr. Branan
acquired the adjoining property, a dispute arose concerning the use of the common
driveway arose. In March 2017, Mr. Branan erected a fence, which precluded Mr.
Stafford from accessing his garage by the common driveway. Trial exhibit 17 contains
two photos—one showing the shared driveway before Mr. Branan erected the fence and
the other showing the location of the fence:




      On April 7, 2017, Mr. Stafford filed a “Petition to Restrain Defendant for
Obstructing Community Drive /Shared Drive” against Mr. Branan. In the petition, Mr.

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Stafford averred that Mr. Branan had “erected a fence[, within] which is [contained] a
community drive or shared drive,” thus precluding Mr. Stafford from “pulling into his
garage which is attached to his home.” It is undisputed that the fence lies only on
property owned by Mr. Branan. In his petition, Mr. Stafford asked the trial court to
enjoin Mr. Branan to remove the fence and to enjoin him from further interference with
Mr. Stafford’s use of the driveway. On May 16, 2017, Mr. Branan filed an answer,
wherein he denied “the existence of a community or shared drive” and “that a fence has
been constructed on any property in which [Mr. Stafford] possess[es] any right or
interest.”

Following a hearing on October 9, 2017, the trial court entered an order on December 14,
2017, wherein it awarded Mr. Stafford “an easement by implication . . . across the drive.”
The trial court further enjoined Mr. Branan “from obstructing [Mr. Stafford’s] access to
his garage.” The order specifies

       [t]hat the portion of the fence approximately thirty two (32) feet from the
       end of the fence to the first post from the gate which is marked as Exhibit
       14 shall be removed which is blocking the common/shared drive and [Mr.
       Branan] and/or his agent be permanently enjoined from interfering with
       [Mr. Stafford’s] use of the common/shared drive. It is further ordered that
       [Mr. Stafford], his tenants, guest, occupants and/or agents shall be
       permanently enjoined from parting on [Mr. Branan’s] portion of the shared
       drive which is currently marked by a line drawn on the concrete.

Mr. Branan appeals.

                                          II. Issue

      The sole issue for review is whether the trial court erred in finding an easement by
implication in favor of Mr. Stafford.

                                 III. Standard of Review

        Because this case was tried by the trial court, sitting without a jury, we review the
trial court’s findings of fact de novo on the record with a presumption of correctness
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). However, no
presumption of correctness attaches to the trial court’s conclusions of law, and our review
is de novo. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013)).

                                       IV. Analysis

       To establish an easement by implication, the party asserting the easement has the
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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.

Newman v. Woodard, 288 S.W.3d 862, 866 (Tenn. Ct. App. 2008) (citing Fowler v.
Wilbanks, 48 S.W.3d 738, 741 (Tenn. Ct. App. 2000)). “The reasoning behind implied
easements is that a grantor intends to include in a conveyance whatever is necessary for
the beneficial use and enjoyment of the property conveyed.” Adcock v. Witcher, No. 01-
A-01-9505-CH00220, 1995 WL 675852, at *4 (Tenn. Ct. App. Nov. 15, 1995).
However, the law does not favor implied easements, and “the courts of this state have
expressed a policy in favor of restricting the use of the doctrine.” Cellco P’Ship v.
Shelby Cnty., 172 S.W.3d 574, 589 (Tenn. Ct. App. 2005) (citing Cole v. Dych, 535
S.W.2d 315, 318 (Tenn. 1976)).

        In this case, the parties do not dispute that the first two elements required for an
implied easement exist. The third element, i.e., whether the purported easement is
necessary and essential to the beneficial enjoyment of Appellee’s land, is in dispute. We
will limit our discussion to this third element.

       In determining whether an easement is necessary to the beneficial enjoyment of an
individual’s lands, “Tennessee does not ... require strict or absolute necessity[.]”
Newman, 288 S.W.3d at 866 (citing Fowler, 48 S.W.3d at 740). Instead, we have
interpreted the term “necessity” as meaning “reasonably necessary” for the enjoyment of
the dominant tenement. Fowler, 48 S.W.3d at 741 (citing Line v. Miller, 309 S.W.2d
376, 377 (Tenn. Ct. App. 1957); Johnson v. Headrick, 237 S.W.2d 567, 570 (Tenn. Ct.
App. 1948)). “Under this rule, the easement must be of such necessity that it is presumed
to have been within the contemplation of the parties at the time of the severance.”
Rhoades v. Taylor, No. M2001-00643-COA-R3-CV, 2003 WL 724672, at *5 (Tenn. Ct.
App. March 4, 2003) (citing LaRue v. Greene Cnty. Bank, 166 S.W.2d 1044, 1049
(Tenn. 1942); Line, 309 S.W.2d at 377; Johnson, 237 S.W.2d at 570).

       In his appellate brief, Mr. Branan contends that “[t]he driveway is not reasonably
necessary to the beneficial enjoyment of [Mr. Stafford’s] property. The erection of the
fence does not prohibit [Mr. Stafford] from using and enjoying his property. Despite the
erection of the fence, [Mr. Stafford] continues to be able to use his property consistent
with its purpose for ingress and egress. [Mr. Stafford] is able to use the driveway to park
his vehicles. . . .”


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       Concerning Mr. Stafford’s complaint that the fence renders him unable to drive a
vehicle into his garage, Mr. Branan contends that Mr. Stafford did not build the garage
until 2000. As such, Mr. Branan contends that Mr. Stafford “created the restrictions
related to the garage and boundary lines. . . ., [and Mr. Stafford] had knowledge of the
location of the driveway and property lines at the time he constructed the garage creating
the angle that restricts his enjoyment of the property at issue.” As noted above, Mr.
Stafford constructed the garage in 2000; by all accounts, there were no complaints from
Mr. Branan’s predecessors in title concerning Mr. Stafford’s using the common driveway
for ingress/egress to and from the garage from 2000 until 2015. In 2015, Mr. Branan
bought the adjoining property and began to dispute Mr. Stafford’s use of the driveway.
Mr. Stafford continued to use the driveway to access the garage until 2017, when Mr.
Branan erected the fence. With due respect to Mr. Branan’s arguments, the question of
when and by whom the garage was built is not dispositive of the issue of whether an
easement by implication is created. Here, the sole question is whether the easement is
“essential to [Mr. Stafford’s] beneficial enjoyment of the land granted or retained.”
Newman, 288 S.W.3d at 866. We now turn to that question.

        The record contains no transcript of evidence, but does contain a statement of the
evidence approved by the trial court. Tenn. R. App. P. 24(c). As indicated above, the
party asserting the presence of an easement [i.e., Mr. Stafford] bears the burden of
proving the required elements by a preponderance of the evidence. Newman, 288
S.W.3d at 866. Turning to the statement of the evidence, Mr. Major Johnson, Jr. testified
that, “when he built the houses he intended for the existing driveway to be a common
drive servicing both homes.” Mr. Johnson further testified that “the only way the houses
and garages attach[ed] to the houses could be accessed was through the use of the
common drive.” Mr. Donald Johnson, Mr. Stafford’s immediate predecessor in title,
testified that “Major Johnson, his Grantor, told him that the driveway was a common
driveway and should not be obstructed so as to interfere with the use of the driveway by
[the owner of the adjacent property].” Donald Johnson further stated that, while he lived
next to Mr. Stafford, he and Mr. Stafford “used the driveway servicing each house as a
common driveway.” Mr. Branan’s predecessor in title, Mr. Angel, testified likewise. He
stated that “he considered the drive as a common drive and treated it as such.” Mr. Angel
further stated that “it is obvious both [properties] need[] the driveway” and that “the
subdivision was designed and laid out so that the drive would be used as a common
drive.” We agree. As discussed above, “[t]he reasoning behind implied easements is that
a grantor intends to include in a conveyance whatever is necessary for the beneficial use
and enjoyment of the property conveyed.” Adcock 1995 WL 675852, at *4.
Furthermore, “the easement must be of such necessity that it is presumed to have been
within the contemplation of the parties at the time of the severance.” Rhoades, 2003 WL
724672, at *5 (Tenn. Ct. App. March 4, 2003). Here, the owner at the time of the
severance, i.e., Mr. Major Johnson, Jr., testified that “he intended for the existing
driveway to be a common drive servicing both homes” because “the position of the
houses was such that the only way the . . .garages attach[ed] to the houses could be
                                            -5-
accessed was through the use of the common drive.” In other words, at the time of the
severance, Mr. Johnson saw the necessity for both properties to have access to the
improvements thereon by way of the common driveway. Mr. Johnson’s testimony
further establishes that the only means of access from the street to Mr. Stafford’s garage
is by the driveway. From the photos above, one can clearly see that the left fork of the
common driveway services Mr. Stafford’s property, while the right fork services Mr.
Branan’s property. This fact corroborates Mr. Johnson’s testimony concerning the need
for access to both properties by the common driveway. Indeed, there is no evidence of
any way, other than the shared driveway, for Mr. Stafford to access his garage from the
street. From the record and the statement of the evidence, we conclude that Mr. Stafford
has met his burden to establish an easement by implication along the common driveway.

                                     V. Conclusion

        For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed to the Appellant, Matthew L. Branan and his surety, for
all of which execution may issue if necessary.




                                                _________________________________
                                                KENNY ARMSTRONG, JUDGE




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