               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               August 26, 2014 Session

       HERMAN ROLAND, JR., ET AL. v. KELLI BRIDWELL, ET AL.

                 Appeal from the Chancery Court for Carter County
                     No. 28382    John C. Rambo, Chancellor




             No. E2014-00435-COA-R3-CV-FILED-OCTOBER 20, 2014


       This case involves a dispute as to whether the defendants’ predecessors in title
abandoned an easement to a shared driveway either through an express intention to
abandon the easement or by inference. The defendants deny that there was an
intention to abandon the right-of-way. After a bench trial, the trial court found that
the plaintiffs failed to present evidence to support their claim that the predecessors in
title abandoned the driveway easement. Accordingly, the trial court entered a
judgment that the easement has not been abandoned by the defendants or their
predecessors in title. The court further concluded that the easement was to be used for
ingress and egress only, and prohibited the parties from parking on or obstructing the
easement in any way. The parties were found equally responsible for the upkeep and
maintenance of the shared driveway. The trial court also determined that the garage
maintenance agreement had been terminated. Plaintiffs appeal. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Mark S. Dugger, Elizabethton, Tennessee, for the appellants, Herman Roland, Jr., and Diana
Roland.

Keith Bowers, Jr., and Joshua A. Hardin, Elizabethton, Tennessee, for the appellees, Kelli
Bridwell and Robert Bridwell.

                                       OPINION

                                  I. BACKGROUND
       The plaintiffs in this action, Herman Roland, Jr., and Diana Roland (“the Rolands”),
are neighbors of the defendants, Kelli Bridwell and Robert Bridwell (“the Bridwells”) in
Elizabethton, Tennessee. The property currently owned by the Bridwells, 2514 Stateline
Road, was owned previously by Haskell and Eula Felty (“the Feltys”).1 Mr. Roland acquired
his property, 2512 Stateline Road, from his father, Herman Roland, Sr., in 1979.2 Mr.
Roland later conveyed a one half undivided interest in 2512 Stateline Road to his wife, Diana
Roland, creating an estate by the entireties.3

       On October 15, 1980, the Feltys, the Bridwells’ predecessors in title, and Mr. Roland
executed a “Deed for Easements for Joint Driveway” (“the Easement”).4 The Easement
conveyed to Mr. Roland and the Feltys the perpetual right and easement of egress, ingress,
and regress over and upon the joint driveway located between 2512 and 2514 Stateline Road.
The Easement specifically stated that it was an appurtenant easement -- it was intended to run
with both parcels of land and to bind all heirs and assigns forever.

       The following year, on April 7, 1981, Mr. Roland and the Feltys entered into another
agreement5 in which they agreed to the shared use of a garage located at the end of the
driveway they shared. Additionally, they agreed to share the maintenance for the garage and
the driveway leading to the garage. The document provided that the shared use and
maintenance of the garage and driveway was appurtenant to and runs with the land.

        In April 1990, the Feltys transferred 2514 Stateline Road to Robin Felty Scamuffa.6
A little over a decade later, in June 2000, Ms. Scamuffa transferred 2514 Stateline Road to
Larry and Linda Blalock (“the Blalocks”), the predecessors in title to the Bridwells.7



       1
           Deed Book 97, Page 473, Carter County Register of Deeds.
       2
           Deed Book 317, Page 300, Carter County Register of Deeds.
       3
           Deed Book 460, Page 97, Carter County Register of Deeds.


       4
           Misc. Book 38, Page 132, Carter County Register of Deeds.
       5
           Misc. Book 38, Page 136, Carter County Register of Deeds.
       6
           Deed Book 380, Page 914, Carter County Register of Deeds.


       7
           Deed Book 455, Page 419, Carter County Register of Deeds.

                                                   -2-
        In July 2002, the Rolands and the Blalocks agreed to tear down the shared garage due
to its dilapidated condition. No change was made to the shared driveway agreement.
Thereafter, the Blalocks engaged in the following actions on their property: removed the
concrete pad and asphalt around the former location of the garage; erected a fence and
planted trees along the shared driveway; landscaped the back yard; and constructed a new
gravel driveway on the other side of their property.

       In September 2012, the Blalocks transferred 2514 Stateline Road to the Bridwells, the
current owners of record.8 Later that year, on Christmas Day, a dispute occurred when a
guest of the Bridwells’ parked on the shared driveway. The Rolands thereafter filed this
lawsuit on January 3, 2013, alleging that the Blalocks, the Bridwells’ predecessors in title,
had abandoned the joint driveway easement based on the changes they had made on their
property. Mrs. Roland later testified at trial that the Blalocks never used the easement for
ingress and egress after the gravel driveway was constructed.

       At the trial, Mr. Blalock related as follows: “I will state categorically that we never
had any intent to abandon that portion of the right of way that was on our property, now the
Bridwells’ property.” Mr. Blalock testified that it was a mutual decision to tear down the
shared garage due to its condition. He provided that

       the roof on our side of the garage was partially missing . . . Water had gotten
       into the roof trusses and the ceiling joists, et cetera, and were rotted out. The
       old garage was leaning I’m guesstimating a good ten degrees towards town.
       So, it was pretty much an unsafe structure. I wouldn’t walk under it.

He further noted that the concrete pad and asphalt where the garage once stood were
removed due to water runoff from that area causing mold and mildew problems along the
back of the Blalocks’ house. According to Mr. Blalock, the trees were planted for privacy
purposes and the fence was erected to keep his dogs contained.

       Contrary to the assertions of Mrs. Roland, Mr. Blalock claimed that even after all the
actions were taken, he, his wife, and their guests continued to make use of the easement near
the front of the driveway for ingress and egress by automobile. He asserted that the easement
was used to roll his garbage can to the road for pickup and to trim the trees planted along the
driveway. Mr. Blalock further observed that the brick walkway from his front door to the
shared driveway was left in place to access the easement.



       8
           Deed Book 137, Page 711, Carter County Register of Deeds.


                                                  -3-
      After hearing the testimony and reviewing the exhibits presented at trial, the trial court
concluded, inter alia, that the Blalocks had not abandoned the shared driveway easement:

       Now, in order to prove abandonment, the Plaintiffs, who have the burden of
       proof, must show not only an intent, or an intention, to abandon the easement,
       but also external acts carrying that intention into effect. This means that the
       non-use of the easement by the landowner, abutting landowner, is not
       sufficient by itself to prove abandonment. Non-use must be coupled with
       proof that the easement-holder, or -holders, intended to abandon the easement.

       Now, this intention may be proved with evidence of acts clearly indicating that
       the easement-holder desired to lay no further claim to the benefits of the
       easement. Abandonment may be proved by either a single act or a series of
       acts. When this Court is called upon to determine whether the holder of that
       easement intended to abandon the easement, the Court must consider five
       elements, or factors.

       One, statement by the easement-holder acknowledging the easement’s
       existence, and disavowing it. Two, the easement-holder’s failure to maintain
       the easement in a condition permitting it to be used for access. Three, the
       easement-holder’s acquiescence in the acts of others that reduce the utility of
       the easement. Four, the easement-holder’s placement of a permanent
       construction across the easement, or five, the easement-holder’s development
       of alternative access in lieu of that easement.

       Two instruments in question today: the shared-use agreement -- I call it a
       “shared-use agreement,” but the agreement in the easement they are both in the
       chain of title; both parties are aware, or were on notice to be aware, of both
       instruments because it exists in the chain of title.

       The Court finds that the fence is on the Defendants’ property, Bridwells,’ and
       formerly the Blalocks.’ Part of the old pad that was underneath the garage that
       was on the Bridwell/Blalock property was removed by the Blalocks. The
       garage, by mutual agreement of the parties in chain of title -- both sides agreed
       on the removal of the garage.

       It was necessary and appropriate to remove the garage because it was old, it
       was listing, part of the roof was missing, there was extensive water damage to
       roofing, wood substructure underneath the roof. So much so that the garage
       had lost its useful purpose for the protection of things and automobiles. There

                                              -4-
was no dispute; both sides, both property-owners, agreed that it needed to be
removed and it was done so with the participation of both property-owners.

Part of the asphalt on the Bridwell/Blalock side of the property-line, on their
own property, was removed. A new driveway was constructed approximately
two years after the removal of the garage, a new driveway for the Blalocks,
now Bridwells. This is a gravel driveway and it remains gravel. The mailbox
was moved, too. Now, the garage was removed, it appears and the Court so
finds, in July, the summer of 2002. The new driveway came approximately
two years thereafter.

In applying the four elements, the Court will begin with Element No. 1:
statements by the easement-holder acknowledging the easement’s existence
and disavowing its use. Plaintiffs have failed in their burden of proof to show
that the easement-holder, whether it’s the Bridwells or the Blalocks, and those
are the property-owners who have exclusively owned the property since 2000,
have, either in writing or verbally, disavowed the easement. Accordingly,
Element 1, a finding of abandonment, has not been made.

Two, the easement-holder’s failure to maintain the easement in a condition
permitting it to be used for access. Although there were photographs showing
that the edge of the pavement of the joint driveway is crumbling slightly, and
that may be attributable to the vegetation screening planted by the Blalocks,
the cypress-shrub trees, the Plaintiffs have not proven that the easement-holder
has failed to maintain the easement. The driveway is still there. There has
been no request for its resurfacing or its improvement.

The record is empty of any claim that the Defendants have failed in their
responsibility, which is set out in their 1981 agreement, to maintain that
driveway. So, Element 2 has not been proven, the failure to maintain that joint
driveway. Now, there may be some question about the removal of the asphalt
and the pad, but that was exclusively on the Bridwell/Blalocks’ property. It
was not part of the joint driveway.

Moving to Element 3: The easement-holder’s acquiescence in the acts of
others that reduce the utility of the easement. The record shows that the
Plaintiffs, Mr. and Mrs. Roland, have not constructed any permanent barricade,
locked gate, continuously parking a car at the end of the driveway next to State
Line Road, nothing to block the Blalocks or Bridwells except an occasional,
sporadic time or two. For example, at the auction of personal property in

                                      -5-
2012. But there has been nothing done by them to obstruct the use of the
easement by the Defendants or their predecessors-in-title, and therefore there’s
nothing by the Defendants that shows that they have washed their hands and
acquiesced in their inability to use the easement because of any actions of
Plaintiffs.

Moving on to Element 4: The easement-holder’s placement of a permanent
obstruction across the easement. And let me add No. 5, too: The easement-
holder’s development of alternative access in lieu of easement. No. 4 and No.
5, in the Court’s opinion, is the heart of the dispute adjudicated today. What
was the intent of Mr. Blalock in all those actions that commenced in 2002 with
the removal of the garage?

The Court finds that the removal of the garage was done, not for the purpose
of abandoning the easement, but for the purpose of removing an old structure
whose usefulness had come and gone as evidenced by the failure to use it as
an automobile garage. It was in need of extensive repairs and both parties
agreed it needed to come down. There was no agreement, that came along
with that agreement to remove the garage, to abandon the [easement].

Second, the Court finds that the pad that was under the garage and the asphalt
on the Blalock/Bridwell side of the property behind the Blalock/Bridwell home
at the end of the joint driveway was removed. The question is: Was it
removed for the intent to abandon the easement or for some other purpose?
Was this removal clearly and unequivocally done for the purpose of ceasing
the use of the easement?

The Court is not persuaded by the witnesses and testimony of the parties and
the witnesses today. The Court finds the testimony of Mr. Blalock credible.
It was done because there was water coming into the home that the purpose of
removing the asphalt and the pad was not done to abandon the joint driveway;
it was done to control runoff primarily, to convert impervious property, or
land, to pervious. In other words, ground that could absorb water instead of
asphalt and concrete that water would run off of toward the Blalock home.
That was the purpose of removing the asphalt and the concrete pad; that was
the primary purpose.

The secondary purpose was to provide a nice, relaxing, well-landscaped, well-
featured property in the back for the enjoyment of the Blalocks, and now that
benefit has been purchased and utilized by the Bridwells. These relate to each

                                      -6-
other, of course, as landscaping measures and removal of asphalt and concrete
go together in the control of runoff that was damaging the home on the
property.

Next: Was the fence installed for the purpose of abandoning the joint
driveway? The Court finds that it was not. The fence was built in the back for
the purpose of the protection of two dogs owned by the Blalocks; that’s why
they built the fence, not to repudiate the driveway.

And finally: What does it mean that they built a new driveway, a gravel
driveway? Does this meet Element 5, the easement-holder’s development of
alternative access in lieu of the easement? The Court heard testimony from
Mr. Blalock of his intent, but the actions and the explanations are more
persuasive than just the verbal testimony that “it was not my intent as a
property-owner to abandon” an easement.

The Court believes that the driveway was built as an additional access to the
property so that they could screen their property with cypress, Leyland, trees
on three sides. This was a natural visual privacy screen installed by the
Blalocks for the purpose of privacy. It was not constructed just along the side
of the property, the one side, that was the shared property line with Plaintiffs.
It was installed on three sides, both sides of the property, the northwest
property line adjacent to the Rolands, the southeast property line adjacent to
their other neighbor, and across the back, 84 feet, of their property where
there’s an apartment building in the back. The only areas that was not
screened was State Line Road, which is not unusual and is customary. So, the
purpose of that screening, or those trees, was not to block the driveway. They
could accomplish that by just putting the screening on the one property line.
It was placed on all property lines, all around the property.

So, the Court finds that the planting of the cypress trees was not done for the
intent of abandoning the easement, but rather for screening, privacy purposes.
That necessitated the new driveway, new parking area. Also, the new
driveway and parking area are convenient. They, of course, do not preclude
a future replacement garage, which presumably would account for better
construction to prevent runoff into the Blalock/Bridwell home.

Further, the use of this driveway and parking lot and this joint driveway
continued after 2002 and after 2004. Mr. Blalock himself would, on occasion,
sporadically, and visitors and guests sporadically, but nevertheless would,

                                       -7-
drive across the front yard from the gravel parking area in the front of the
home, on the State Line Road side of the home, onto the joint driveway. And
the Court finds, in reviewing and hearing the testimony and reviewing the
exhibits, that there was sufficient space for them to exit from this parking area
onto the joint driveway.

Further, there is evidence that by foot the joint driveway has been jointly used
for egress and ingress, and the sidewalk that goes to the joint driveway has not
been removed or abandoned. It has actually been utilized from time to time for
the trimming of the cypress screen.

For these reasons, the Court finds that the deed -- or easement for joint
driveway has not been abandoned by the Defendants or their predecessors-in-
title.

The next question is: What does the easement say and what does the
agreement say? In the construction of instruments creating the easement, it’s
the duty of this Court to ascertain and give effect to the intention of the parties.
The intention of the parties with regard to the purpose and scope of the
easement conveyed by an express grant -- and that’s what we have here -- is
determined by the language of the deed. And the easement-holder’s use of the
easement must be confined to the purpose stated in the grant of the easement.
It is not a personal right and cannot be used, even by the dominant owner, for
any purpose unconnected with the enjoyment of his estate.

The purpose is to prevent an increase . . . of the burden upon the servient
estate. The Plaintiffs are the primary, or servient, estate; most of the joint
driveway is upon their property. So, the easement-owner may not materially
increase the burden on the servient estate or impose a new and additional
burden. That’s why we follow what the deed says.

The easement grants the other parties, each to the other, a perpetual right and
easement of ingress, egress, and regress over and upon said driveway. It does
not grant either party the right to park cars in the joint driveway. It’s ingress
and egress; it’s to go to and from each property-owner’s property.

Now, what does the agreement mean? Is it still in effect, the agreement of
April 7, 1981? That agreement was for two purposes: One is the upkeep,
repair, and maintenance of the garage and of said driveway. Driveway, of
course, being the joint driveway. The expense to be borne one-half by the

                                        -8-
       parties each.

       The Court finds that the agreement as to the garage, the upkeep, repair, and the
       maintenance, has run its course. It is of no legal effect because the garage, by
       mutual consent of the parties in chain of title -- have agreed and did remove
       it. There is no need for the upkeep, repair, and maintenance of the garage.

       But this agreement served more than one purpose. It also served for the
       upkeep, repair, and maintenance of the joint driveway. That element of the
       agreement remains in effect so long as the easement is in effect or the parties
       expressly repudiate the agreement jointly, which of course, they have not done.

       Both parties are enjoined from blocking or interfering with the use of the joint
       driveway right-of-way by the other party. Both parties are enjoined and
       prohibited from parking in the joint driveway. The joint driveway shall remain
       open for ingress, egress, and regress, as contemplated by the easement
       executed in 1980.

       Both parties are responsible for the upkeep and maintenance of the joint
       driveway as contemplated by the April 7, 1981 agreement, which, the Court
       may add, provides its own means of determining how that will be done if the
       parties are unable to agree on each party’s responsibility for the upkeep and
       repair and maintenance. That procedure of arbitration is set out in the
       agreement itself.

       To this ruling the Rolands filed this timely appeal.


                                          II. ISSUE

        The sole issue presented in this appeal by the Rolands is as follows: Did the trial court
err in determining that the easement for a joint driveway has not been abandoned by the
Bridwells or their predecessors in title?


                              III. STANDARD OF REVIEW

      Appellate review of the trial court’s decision is de novo upon the record accompanied
by a presumption of correctness of the findings of fact unless the preponderance of the
evidence is otherwise. See Tenn. R. App. P. 13(d). A trial court’s conclusions of law are

                                               -9-
subject to a de novo review with no presumption of correctness. Southern Constructors, Inc.
v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). We may only overturn the
judgment of the trial court if there was an error of law or the preponderance of the evidence
is otherwise.


                                    IV. DISCUSSION

        The party asserting an abandonment of an easement must prove it “by clear,
unequivocal evidence.” Hall v. Pippin, 984 S.W.2d 617, 620 (Tenn. Ct. App. 1998); Miller
v. Street, 663 S.W.2d 797, 798 (Tenn. Ct. App. 1983); Cottrell v. Daniel, 205 S.W.2d 973,
976 (Tenn. Ct. App. 1947). Clear and convincing evidence and clear and unequivocal
evidence are one and the same. See Gambill v. Hogan, 207 S.W.2d 356, 360-61 (Tenn. Ct.
App. 1947). An easement may be abandoned, but the party attempting to prove abandonment
must show both “an intention to abandon the easement [and] also external acts carrying that
intention into effect.” Hall, 984 S.W.2d at 620; Cottrell, 205 S.W.2d at 975. Mere nonuse
of the easement “is not sufficient, by itself, to prove abandonment. Nonuse must be coupled
with proof that the easement holder or holders intended to abandon the easement.” Hall, 984
S.W.2d at 620-21; Cottrell, 205 S.W.2d at 975. The required external acts necessary to prove
abandonment may be “either a single act or a series of acts.” Hall, 984 S.W.2d at 621.
Courts may consider several factors in making a determination of whether an easement has
been abandoned including:

       (1) statements by the easement holder acknowledging the easement’s existence
       and disavowing its use, (2) the easement holder’s failure to maintain the
       easement in a condition permitting it to be used for access, (3) the easement
       holder’s acquiescence in the acts of others that reduce the utility of the
       easement, (4) the easement holder’s placement of a permanent obstruction
       across the easement, or (5) the easement holder’s development of alternative
       access in lieu of the easement.

Id.

        When asked if he intended to abandon the shared driveway easement, Mr. Blalock
testified “we never had any intent to abandon that portion of the right of way that was on our
property, now the Bridwells’ property.” Indeed, Mr. Blalock testified that he had obtained
the permits to build a new garage off the shared driveway, but dropped those plans when he
and his wife decided to move. Mr. Blalock further noted the gravel driveway “didn’t have
access at the back, and if I had wanted access to the [back of the] property, I would have
gone up the shared driveway, removed a couple of sections of fence, re-routed the fence

                                             -10-
appropriately, and used it.”

        The Rolands contend the explanation given by Mr. Blalock lacks credibility. They
note that when Mr. Blalock put up the fence, planted the trees, tore up the asphalt in the rear
of his property, and landscaped the rear of his property, he eliminated any means of access
to the rear of the property from the joint driveway. The Rolands assert that Mr. Blalock, in
constructing a new driveway on the opposite side of the property, showed a clear and
unequivocal intention to abandon the joint driveway as a means of access.

        The trial court found Mr. Blalock to be a credible witness. The Rolands were unable
to point to any act or acts that demonstrate clearly and unequivocally that the Blalocks
intended to abandon the driveway easement. Accordingly, the trial court determined that the
Rolands had failed to prove by clear and unequivocal evidence that the Easement had been
abandoned. The evidence does not preponderate against the trial court’s findings with regard
to the issue appealed.


                                    V. CONCLUSION

      We affirm the decision of the trial court. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are assessed to the appellants, Herman
Roland, Jr., and Diana Roland.




                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




                                             -11-
