                                                           FILED
                 IN THE COURT OF APPEALS OF TENNESSEE
                                                             March 23, 2000
                               AT NASHVILLE
                                                           Cecil Crowson, Jr.
B. B. JONES,                        )                     Appellate Court Clerk
                                    )
             Appellan t,            ) FRANKLIN CHANCERY
                                    )
vs.                                 ) APPEAL NO.
                                    ) M1999-00883-COA-R3-CV
NANCY McMILLAN EWELL and            )
SAMUEL K. JOHNSON,                  )
                                    )
             Appellees.             )


                    APPEAL FROM THE CHANCERY COURT
                          FOR FRANKLIN COUNTY
                        AT WINCHESTER, TENNESSEE

                 THE HON. JEFFREY F. STEWART, CHANCELLOR


For Appellant:                           For Appellees:

JOHN L. STEPHE NS and                    CLINTON H. SWAFFORD
JAMES S. STEPHENS                        SWAFFORD, PETERS, PRIEST
Sewanee, TN 37375                        & COLVIN,
                                         Winchester, TN 37398
                                         and MICHAEL W. EWELL
                                         FRANTZ, McCONNELL &
                                         SEYMOUR
                                         Knoxville, TN 37901

                           AFFIRMED AND REMANDED


                                         HERSCHEL P. FRANKS, JUDGE
                                          OPINION

              In this action for a statutory easement pursuant to T.C.A. §54-14-101
and 102, the Trial Court granted defendants summary judgment, and plaintiff has
appealed.

                The plain tiff o wns a 457 acr e trac t of la nd in sout hern Fran klin Cou nty,
which b orders on S tate Highw ay 56 for a dis tance of ab out a mile. T he land is
mountainous with ridge and ravine running through the middle of it. Plaintiff has
built sev eral struc tures on his land , and ha s obtain ed build ing per mits fo r others. A
substantial portion of the tract lies on the other side of the ravine, which plaintiff
contends he has no access, due to the nature of the ravine. Appellant claims the
Chance llor erred in ch aracterizing h is request as se eking a “p rivate road c ondemn ed to
the back sid e of his pro perty”. He take s issue with th e phrase “b ack side of his
property”, contending that he was seeking access to the center of his property. He
admits that “what eff ect that may have had on the court is hard to say”, but asks for a
remand.

              This issue is w ithout merit. T aken in co ntext, the Co urt was m erely
distinguishing that part of the property that is behind the ravine and not fronting on the
highw ay.

               Next, plaintiff claims that the Chancellor improperly considered the fact
that the plaintiff did not discuss the possibility of an easement with his neighbors prior
to the purchase of the property. He argues that equitable doctrine, such as “clean
hands”, estoppel and good faith are not part of the proper analysis of whether
appellant has adequate and convenient access. He urges that the Chancellor must have
considered this to be a factor, since it was mentioned in his Order. Again, the
plaintiff’s claim is nothing more than a quarrel with the wording of the Order. The
mere mention of this fact does not establish that the Chancellor made any reliance on
this in his decision. The Order is clear that the Chancellor ruled that plaintiff had
adequate and conv enient acce ss to the prop erty, regardless of any of these e quitable
doctrines.

                When e valuating a motion fo r summa ry judgment, th e trial court sho uld
consider whether a factual dispute exists, and whether a disputed issue of material fact
is a gen uine issu e for a tr ial. Byrd v. H all, 847 S.W.2d 208, 214 (Tenn. 1993). No
presumption of correctness attaches to decisions granting summary judgment, because

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they invo lve only q uestion s of law . Hemb ree v. State, 925 S .W.2d 513 (T enn. 19 96).
We are required to view the evidence in the light most favorable to the opponent of
the mo tion. Gray v. Amos, 869 S.W.2d 92 5 (Tenn. Ct. Ap p. 1993).

               The facts are not in dispute. Appellant seeks access to his property by
court cond emnation of a right-of -way over p roperty own ed by defen dants, pursu ant to
the statute. He claims that while he has access to part of his property from Highway
56, he can not access th e portion of his property loca ted across th e ravine. Th e statute
provides the following:

              Any person owning any lands, ingress or egress to and from which is cut
              off or obstructed entirely from a public road or highway by the
              intervening lands of another, or who has no adequate and convenient
              outlet from such lands to a public road in the state, by reason of the
              intervening lands of another, is given the right to have an easement or
              right-of-way condemned and set aside for the benefit of such lands over
              and acro ss su ch in tervenin g lan ds or prop erty.

T.C.A. §54-14 -102(a).

              This statute was interpreted in Draper v. Webb, 418 S.W.2d 775 (Tenn.
Ct. App. 1 967). Dra per own ed a tract of 2 4.7 acres on which w as located h is
residence and other buildings. The property had an outlet on the eastern side, the side
with the buildings, to a well maintained hardtop road. This was admitted to be
adequate and convenient access to that portion of the property. However, Draper
maintained that a high ridge near the middle of the tract made it difficult to reach the
road from the western side of the property, and he sought a right-of-way across the
defenda nt’s property fro m the we stern side of his property to an other road. T he Cou rt,
in denying a right to condemn as a premise for that ruling, observed:

              The statute , being in de rogation of the rights of th e owne r of private
              property, is to be s trictly construed a gainst the righ t of the priva te
              individual to expropriate the priva te property of another.

Draper, at 776. The Court quotes Vinson v. N.C. & St. L. Ry ., 321 S.W.2d 841 (Tenn.
Ct. App. 1958), a similar case, for further explanation:

               It is tr ue co mplaina nts are en titled to make t he best use of their prop erty,

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               but they have no right to take defendant’s property for such use, or any
               use bu t that auth orized b y the statute . . . .

Id. at 776.

               The Court ruled that because the plaintiff had access to part of his land
sufficient for its use as a single residential unit, he did not have the right to condemn a
portion of another’s land to improve the use and enjoyment of his own.

                The case before us is analogous to Draper. Jones has adequate and
conve nient ac cess to a portion of his la nd suf ficient f or him to built a re sidenc e, etc.
He is petition ing for a righ t-of-way to m ake better u se of his pro perty, specifically
building in a different location. H owever, this does no t meet the statutory
requirements necessary to supercede the property rights of defendants.

               Appellant relies on several cases wherein the court allowed
condemnation. However, in all the cases which he cites, the petitioners were seeking
adequ ate acce ss to thei r prope rty, not just a portion thereof . See Sorrell v. Woods, 8
Tenn. A pp. 84 (Te nn. Ct. Ap p. 1928); Fite v. Gassaway, 184 S.W .2d 564 (T enn. Ct.
App. 19 44); Lay, et al v. Pi Beta Phi, 207 S .W.2d 4 (Ten n. Ct. A pp. 194 7).

                For the foregoing reasons, we conclude that the facts of this case do not
entitle plaintiff to have an easement condemned under the statute, and we affirm the
judgmen t of the Trial C ourt with co sts of the ap peal assesse d to the app ellant.


                                               __________________________
                                               Herschel P. Franks, J.
CONCUR:


____________________________
Charles D. Susano, Jr., J.

____________________________
D. Michael Swiney, J.



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