                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     January 3, 2000 Session

                   BILLY CONATSER, ET AL. v. L.D. (JOE) BALL

                      Appeal from the Chancery Court for Pickett County
                             No. 1784   Vernon Neal, Chancellor


                     No. M1999-00583-COA-R3-CV - Filed August 3, 2001


This case involves a dispute over the scope of the right of the defendant to use the plaintiffs’ property
as a means of ingress and egress to various sections of the defendant's property. The deed to
defendant’s 1,600 acre tract, which surrounds plaintiffs’ 151 acre tract on 3 sides, included a 26 foot
wide north-south easement over plaintiffs’ property. Plaintiffs alleged that defendant refused to
confine his activities within the easement, thereby trespassing and committing waste upon their land.
The trial court determined that defendant was entitled to use the 26 foot wide easement running in
a north and south direction on the Conatsers’ property and a second 20 foot wide route of ingress and
egress branching off of the 26 foot easement in a northwesterly direction. The court rejected
defendant’s claim that he was entitled to a third easement along another east and west direction route
and awarded plaintiffs $2,500 in damages for trespass. We affirm the trial court’s rulings on the
scope of defendant’s easement and modify the damages to the $5000 originally awarded by the trial
court.

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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN . H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Phillips M. Smalling, Byrdstown, Tennessee, for the appellant, L.D. (Joe) Ball.

James P. Romer, Jamestown, Tennessee, for the appellees, Billy Conatser and Pat Conatser.


                                              OPINION

       Billy and Pat Conatser own a 150 plus acre tract of bottom land running along Rotten Fork,
a branch of the Wolf River near the Tennessee-Kentucky border. Their tract is surrounded on its
western and northern boundaries by 1,600 acres belonging to L.D. (Joe) Ball, who runs a logging
operation on his land. The 1,600 acre tract is mountainous and of a rather rough topography,
whereas a large portion of the Conatser tract is flatter bottom land. Both parties’ tracts were
originally purchased from Stearns Coal and Lumber (“Stearns”), the predecessor of Stearns
Company, Ltd.

        Pat Conatser’s parents (the Smiths) purchased the tract of land from Stearns in 1965. The
deed reserved to Stearns a 26 foot wide easement running north and south to be a used as a means
of ingress and egress to the surrounding property. This easement more or less follows the bed of
Rotten Fork Creek.

        Rotten Fork curves in a north and south crescent through the length of the Conatsers’ tract
on the eastern side. Rotten Fork branches at the northern end of the Conatsers’ property with
Buckeye Lick Creek running northwesterly and Falling Water Creek running northeasterly. At the
southern end of the Conatsers’ tract, Rocky Creek (or Rocky River) runs east and west. The various
routes of access discussed at trial were generally referred to by the names of these creeks.

       Mr. Ball, a retired extension service agent, obtained an option to purchase his tract in 1992.
Shortly thereafter, he met with Pat Conatser at her office to discuss his plans for use of his property.
Mr. Ball purchased the 1,600 acre tract from Stearns. The same easement which was reserved for
Stearns in the conveyance to the Smiths, and later to the Conatsers, was given to Mr. Ball in his
deed.

        Mr. Ball began logging his property by use of a route along Rocky Creek. He departed from
the creek and bulldozed a road approximately 1600 to 1700 feet long by cutting up a mountain in the
lower southwest corner of the Conatsers’ property. According to plaintiffs, he also bulldozed a
north-south road down almost the entire length of their tract nearly parallel to the original easement
along the Rotten Fork creek bed, built another northeast-northwest road along Buckeye Lick Creek
on the north end of their tract, and piled logs on the Conatsers’ property after being asked not to do
so.

         The Conatsers filed the underlying action alleging that Mr. Ball refused to confine his
activities to the north-south easement and committed waste and trespass on their land. Their
complaint alleged that Mr. Ball was cutting trees, constructing roads, and piling wood on their land
after being asked to desist. They claimed that Mr. Ball's actions had caused erosion and sought an
injunction and damages. They did not contest Mr. Ball's right to use the easement along Rotten Fork
as stated in the deeds.

        At the close of the evidence, the trial court concluded that Mr. Ball had nothing other than
the 26 foot easement reserved in the deed, a north-south route generally along Rotten Fork. Thus,
Mr. Ball had no rights to use the east-west route along Rocky Creek or to cut a road up a hillside on
the Conatsers’ property from the Rocky Creek route. The court granted the Conatsers $5,000 in
damages for the injuries resulting from the trespass. The court memorialized this holding in its first
final decree filed September 19, 1994. In that order, the court found that Mr. Ball had certain routes
of ingress according to the deed reservation. Because the parties had disagreed as to the exact



                                                  -2-
location or path of this route, the court suggested and the parties agreed that the Stearns land agent,
who had testified, establish the route. A survey to memorialize the route was agreed to.

        After Mr. Ball filed a motion to alter or modify final judgment or for a new trial, and after
a hearing on the motion, the court entered another order on July 21, 1995. The trial court found that
Mr. Ball was entitled to the 26 foot easement and specified exactly where the easement was located,
based on the survey. The court also found that Mr. Ball had a 20 foot wide right of ingress and
egress along Buckeye Lick Creek running in a northwesterly direction from the original easement
to be used “for the reasonable uses associated with logging and timber operations exclusively and
for no other purpose.” The court again affirmed that Mr. Ball had trespassed by “piling logs,
bulldozing a roadway, and destroying trees and bushes,” but reassessed the damages at $2,500. The
court enjoined Mr. Ball from straying from the indicated easement, gave him 90 days to remove the
timber he had already cut by way of the Rocky Creek route, and determined that Mr. Ball should pay
two-thirds and the Conatsers one-third of the costs of the survey.

         This court twice dismissed notices of appeal filed in this case because no final order resolving
all the issues had been entered. The trial court issued its last final order which disposed of all the
issues including a third party complaint by Mr. Ball against Stearns.1 That order, entered April 28,
1999, stated that the last decree would become the final order, but additionally noted that the claims
against Stearns contained in the third party complaint were dismissed, thereby disposing of all the
issues in the case. Mr. Ball then commenced his appeal.

                                              I. Standard of Review

        This is an appeal from a decision made following a bench trial. Accordingly, the familiar
standard set forth in Tenn. R. App. P. 13(d) governs our review. We must review the record de novo
under the presumption that the findings of fact are correct “unless the preponderance of the evidence
is otherwise.” Tenn. R. App. P. 13(d). No presumption of correctness attaches to the trial court’s
conclusions of law. Hansel v. Hansel, 939 S.W.2d 110, 111 (Tenn. Ct. App. 1996). Additionally,
the weight given to a witness’s testimony lies in the first instance with the trier of fact, and this court
must accord great weight to the trier of fact’s decisions on issues of credibility. Randolph v.
Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); Mays v. Brighton Bank, 832 S.W.2d 347, 352 (Tenn.
Ct. App. 1992); Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844, 849 (Tenn. Ct. App. 1982).

                                        II. Issues Regarding Easement

        This lawsuit involved the scope of Mr. Ball’s rights to use the Conatsers’ land to access his
large timber tract. The scope and location of the 26 foot wide north-south right of way along Rotten
Creek and along the two creek branches at its northern end are no longer at issue. What is at issue
is Mr. Ball’s right to use other routes across the Conatsers’ property to access his land. Specifically


         1
          Mr. Ball had sued his pred ecessor in title regarding representations of the rights con veyed in his deed. The se
issues were no t tried, and the T hird Party C omplaint w as eventually d ismissed by ag reement.

                                                           -3-
at issue is his right to use the east-west Rocky Creek route and to build a road northward from the
creek up the mountainside, all on the Conatsers’ property. He took those actions and was found to
have trespassed in doing so. He was also enjoined from using any route across the Conatsers’ land
except the one described in the order.

        Mr. Ball’s position prior to and throughout this litigation has been that he had a right to cross
the Conatsers’ land and build roads wherever and to the extent he needed in order to gain
economically reasonable access to his land for logging purposes. He asserts and has asserted that
he is not limited to one route for access and egress. He explained his large tract could reasonably
be described as up to five tracts, each requiring a different route of access. He also asserts that,
although he is entitled to an apparently unlimited number of access routes if they are needed, he only
wants one route to access each distinct area of his tract “and no more.” He bases his theory on his
interpretation of the deed to him from Stearns and the Conatsers’ deed. He testified that he did not
ask permission from the Conatsers for the work he did in building or improving passageways across
the Conatsers’ land, including the road along Rocky Creek and up their hillside, because he had the
right to make such improvements.

        While he maintains he has the right to as many routes of access as he needs, he specifically
claims the right to the Rocky Creek route and the right to cut a road from the creek, across the
Conatsers’ land, up their less steep slope to get to his land. In addition to relying on his
interpretation of the deeds for these rights, he also claims the Conatsers are estopped from denying
him access along Rocky Creek.

         The Conatsers describe Mr. Ball’s original position as maintaining he could access his
property through the Conatsers’ property more or less at will as he determined he needed. The trial
court shared that impression of Mr. Ball’s original arguments, stating, “I don’t understand where he’s
got this idea that he can just go off in about any direction he wants to.” Mr. Ball says he got that idea
from the deeds.

                     III. Easement According to Conveyance in the Deeds

         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. Bradley v. McLeod, 984 S.W.2d 929,
934 (Tenn. Ct. App. 1998) (citing Brew v. Van Deman, 53 Tenn. (6 Heisk.) 433, 436 (1871)). 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, 115-116 (Tenn. Ct. App. 1996). Mr. Ball relies upon the grant to him by Stearns of the
easement it reserved in its earlier deed to the Conatsers’ predecessor in title. When an easement
arises from a grant or reservation in a deed, the extent of the easement is determined by the language
of the grant or reservation. Foshee v. Brigman, 174 Tenn. 564, 567, 129 S.W.2d 207, 208 (Tenn.
1939).




                                                  -4-
         The deed from Stearns to Mr. Ball stated in pertinent part:

         The Grantor hereby conveys to the Grantees such rights of ingress and egress as it
         acquired in the case of The Stearns Company and Charles Beaty vs. Chloe Buck,2
         being Civil Action No. 1512 in the Chancery Court of Pickett County, Tennessee,
         along with such rights as it may have reserved in a deed from Stearns Coal and
         Lumber Company to J.E. Smith and wife, Georgia Smith, by deed recorded in Deed
         Book 16, Page 274 of the Register’s Office of Pickett County, Tennessee as may be
         necessary for ingress and egress to the above-described tract of land, however,
         reserving unto the Grantor so much of that easement that Grantor reserved in said
         deed from Stearns Coal and Lumber Company to J.E. Smith and wife, Georgia
         Smith, for purposes of ingress and egress across the lands of J.E. Smith and wife,
         Georgia Smith, as Grantor may need.

(emphasis added).

        Mr. Ball argues that this deed gives him the right to access the Conatsers’ property “as
necessary for ingress and egress” to the tract of land conveyed in the deed, his 1600 acre parcel. That
interpretation overlooks the words of grant, however, which purport to convey only those rights
Stearns had reserved in the deed to the Smiths. It is axiomatic that the Grantor, here Stearns, can
convey no greater rights or interests than it owns. Sloan v. Sloan, 182 Tenn. 162, 165, 184 S.W.2d
391, 392 (1945); Lisenbee v. Parr, 62 Tenn. App. 518, 525, 465 S.W.2d 361, 365 (1970). The deed
from Stearns to the Smiths, and later to the Conatsers, stated in pertinent part:

         Reserving, however, unto the grantor, its successors and assigns, and excluding from
         this conveyance, a right-of-way over and across the above described tract of land
         extending from the south boundary line thereof to the north boundary line thereof,
         running in general the same direction and course as the present passway or roadway
         used over same, and so as to provide ingress and egress to other lands owned by the
         grantor adjacent to the above described tract, which said right-of -way so reserved
         shall be twenty-six (26) feet in width, which shall be used by grantor, its successors
         and assigns, free of obstruction or cost for a passway or road, for persons, trucks or
         other vehicles as and when desired, . . .

(emphasis added).

       Again, Mr. Ball interprets this language as giving him the right to access his tract by crossing
the Conatsers’ land “as and when desired.” Mr. Ball asserts that these deeds reserve to him the right

         2
          The deed to Mr. Ball from Stearns also conveys rights of ingress or egress acquired by Stearns in litigation
against Chloe Buck. There was a great deal of testimony regarding whether a road found to exist in the Chloe Buck case
extended into the Conatsers’ tract. The trial court determined that the Buck case did not involve the property conveyed
to the Smiths and later to the Conatsers or any easements thereon. On appeal, Mr. Ball no longer asserts that the Chloe
Buck lang uage in the de ed gives him any rights of acc ess across the Conatsers ’ property.

                                                         -5-
to access any of his property through the Conatsers’ land. Relying on the phrases which allow the
use of the easement “for persons, trucks or other vehicles as and when desired” and “as necessary
for ingress and egress,” Mr. Ball essentially argues that he is entitled to use passways across the
Conatsers’ land to reach his land if that is desired or necessary. He defines necessary in terms of the
economic feasibility of use of his tract. He describes his 1,600 acre tract as being able to be divided
into five distinct areas surrounding the Conatsers’ property in a rainbow like fashion. He maintains
that he “wanted one route to access each distinct area of his 1,600 acre tract and no more.” He
explained at trial it would not be economically feasible to get logs from the area on the far south-
west of his parcel and remove them by having to go through the other areas of his tract to the north-
south easement entry point. Mr. Ball conclusively asserts, not citing any evidence in the record, that
Stearns intended to maintain access to the vast area of land surrounding the Conatsers so that Stearns
or its successor could log such property, or divide the property and sell it. We share the trial court’s
wonderment at this interpretation.

        Stearns owned all of the property Mr. Ball purchased surrounding the Conatsers on the west,
north and east side and reserved only one access route to that property when it conveyed a parcel to
the Smiths. The “as and when desired” language does not mean that the holder of the easement may
create entirely new ones as and when desired, but instead means that Mr. Ball may use the single
easement reserved as and when desired consistent with its purpose.

         We agree with the trial court that the reservation and grant convey a 26 foot wide right of way
for ingress and egress running in a north to south direction over an area where, at the time of the
conveyance from Stearns to Smith, a roadway or passway existed. This easement is not restricted
in nature and may be used by “grantor, its successors and assigns . . . for persons, trucks or other
vehicles as and when desired.” The deed cannot be read to allow for any new and additional
easements, such as the east-west easement along Rocky Creek which Mr. Ball created and used. As
the trial court noted, Mr. Ball “can’t just run off in every direction on other people’s land because
it makes it more convenient to log his particular land.”

        The owner of an easement “cannot materially increase the burden of it upon the servient
estate or impose thereon a new and additional burden.” McCammon v. Meredith, 830 S.W.2d 577,
580 (Tenn. Ct. App. 1991) (citing Adams v. Winnett, 25 Tenn. App. 276, 156 S.W.2d 353, 357
(1941)). In McCammon, Mr. Meredith owned an easement over Ms. McCammon’s property to
access a specific tract of land. He built another road outside that easement to access a different tract
he owned, destroying fences and vegetation, erecting gates, and paving over a spring. This court
found Mr. Meredith did not have a prescriptive easement for the new road he built, and could not
increase the burden on Ms. McCammon’s land from the easement he had been granted.

      We affirm the trial court’s holding that the deeds granted Mr. Ball only one defined right of
way. The extent and location of that right of way is no longer in dispute.




                                                  -6-
                                   IV. Easement by Estoppel

       Alternatively, Mr. Ball argues that in his logging operation he was entitled to use the Rocky
Creek route through the Conatsers’ property under the doctrine of equitable estoppel. Relying on
Malloy v. City of Chattanooga, 191 Tenn. 173, 232 S.W.2d 24 (1950), he maintains that only after
Pat Conatser agreed that he could use the route, he bought the 1,600 acre piece of property and
upgraded and built roads on the Conatser tract in reliance on her assent.

       Equitable estoppel is the effect of the voluntary conduct of a party whereby he is
       absolutely precluded, both at law and in equity, from asserting a right which might
       perhaps have otherwise existed, either of property, of contract, or of remedy, as
       against another person, who has in good faith relied upon such conduct, and has been
       led thereby to change his position for the worse, and who on his part acquires some
       corresponding right, either of property, of contract, or of remedy. . . . It is not
       absolutely necessary that the conduct mentioned in the first subdivision should be
       done with a fraudulent purpose or intent, or with an actual and fraudulent intention
       of deceiving the other party.

Church of Christ v. McDonald, 180 Tenn. 86, 171 S.W.2d 817, 821 (1943) (quoting P OMEROY’S
EQUITY JURIS ., Vol. 3, p. 193-94); Douglass v. Rowland, 540 S.W.2d 252, 254-55 (Tenn. Ct. App.
1976).

        Therefore, at a very minimum, estoppel requires “(1) reliance upon the statement or actions
of another without opportunity to know the truth and (2) action based on that reliance which results
in detriment to the one acting.” Werne v. Sanderson, 954 S.W.2d 742, 746 (Tenn. Ct. App. 1997)
(citing Campbell v. Precision Rubber Prod. Corp., 737 S.W.2d 283, 286 (Tenn. Ct. App. 1987)).

       In this case, Mr. Ball was unable to prove that he detrimentally relied on the conversation
with Pat Conatser. Determinative of this is the testimony of Mr. Ball himself regarding what was
discussed at the meeting with Pat Conatser:

       Q: Did you specifically discuss the route of Rocky Creek?
       A: No, sir, we did not.
                                                *****
       Q: Now, Mrs. Conatser testified about a discussion wherein she interpreted the
       discussion to say that you wanted to swap your way to get to Falling Water for this
       route to Rocky Creek. What do you remember about that conversation?
       A: I don’t recall any specifics about a route to Rocky Creek. I did meet with Mr. and
       Mrs. Conatser at their home in their back yard and told them that I would like to rent
       a plot of ground adjacent to the gate going into the Conatser property for the purpose
       of storing logs.




                                                -7-
       Later, when describing the route taken and how he went about constructing the roadway
along Rocky Creek and up the hillside, Mr. Ball testified:

         Q: And you didn’t tell the Conatsers that you were going to do that?
         A: I did not tell the Conatsers that I was going to go through their property anywhere.
         Q: I see.
         A: I didn’t ask them could I go through their property.
         Q: I see.
         A: Because I had an easement.
                                                   *****
         Q: You say you went and talked to Pat about going up the mountainside there?
         A: No, sir. Not in a specific location up the mountain.

        This testimony is consistent with Mr. Ball’s position, evident elsewhere in his testimony and
his brief, that he interpreted the deeds as giving him the right to access routes across the Conatsers’
property as he needed them. He did not think he needed the Conatsers’ permission to create roads
or passageways across such routes or to improve them. He testified he was aware he needed to be
sensitive to the Conatsers’ interest, and that he went to talk to Ms. Conatser to assure her he would
use environmentally sound methods and would act in both their interests.

         Therefore, based upon his own statements, Mr. Ball cannot show that he relied on any
permission, assent, or grant of access from the Conatsers. In deciding to purchase the 1600 acre
tract, he relied on his own interpretation of the rights granted him in the deed.3

        Although Mr. Ball was certain he never spoke to either of the Conatsers about using the
Rocky Creek route, Pat Conatser testified to such a conversation. She interpreted Mr. Ball’s remarks
about the Rocky Creek route being “less trouble, it was shorter to his land, and less damage to me,
if he went along the side of the creek” and as a request to swap the Rotten Fork easement set out in
the deed for one along Rocky Creek. Although she admitted Mr. Ball did not specifically state that
he was asking to trade one route for the other, that was her interpretation of the conversation. Based
on that understanding, she agreed, she thought, to his use of the Rocky Creek route. Such agreement,
however, did not include giving Mr. Ball the right to leave the route by the creek and cut a road
1600-1700 feet up a slope on her land. She testified Mr. Ball agreed to “staying close to the creek
bank. I would never have agreed if he had said to go out in the field” and up the side of the
mountain.

       Because Mr. Ball is the party attempting to use the defense of estoppel, he has the burden of
proving all the elements. Jenkins Subway, Inc. v. Jones, 990 S.W.2d 713, 723 (Tenn. Ct. App.

         3
          There is some testimo ny about M r. Ball’s consu ltation with an atto rney prior to his purchase. He attemp ts to
argue that after that consultation, “since the granting language of the deed as quoted did not include a specific description
of a route, Ball took reasonable and prudent steps to assure himself of what rights he had before consummating the
transaction [by talking to M rs. Conatser ].” Howe ver, his testimony is not consistent with such an argument with regard
to use of the Rocky Creek route.

                                                            -8-
1998); Bokor v. Holder, 722 S.W.2d 676, 680 (Tenn. Ct. App. 1986). By his own testimony, he has
failed to establish that he relied on any grant of permission to use the Rocky Creek route. Even
considering Ms. Conatser’s testimony, he has failed to demonstrate an assent to his use of the Rocky
Creek route in addition to the north-south route established in the deed. There is absolutely no proof
of any assent to his cutting a new road from the Rocky Creek route up a slope on the Conatsers’
property.

        Therefore, Mr. Ball has failed to establish the elements required to establish estoppel.
Consequently, the Conatsers are not estopped from denying him the right to use or create an access
route along Rocky Creek or across their land from the creek northward. The judgment of the trial
court is affirmed on this issue.

                                            V. Damages

        Because Mr. Ball’s rights to ingress and egress across the Conatsers’ property were limited
to the north-south easement granted in the deeds, his entry on, use of, and improvement to any other
portion of their land was trespass. McCammon v. Meredith, 830 S.W.2d at 580. “If an easement is
put to any use inconsistent with the purpose for which it is granted, the grantee becomes a trespasser
to the extent of the unauthorized use.” Id. (quoting Adams v. Winnett, 156 S.W.2d at 357).
Therefore, the trial court correctly determined that Mr. Ball was liable for damage caused by his
trespass.

       The record establishes that Mr. Ball created a road for logging which left the east-west Rocky
Creek route and headed north through the Conatsers’ land, crossing a field and going up a
mountainside, eventually reaching his tract. In building that road he bulldozed trees and removed
other vegetation. He testified he took precautions by putting in water bars to lessen erosion and
planted grass and corn. Others testified that erosion would occur, damaging the slope and the fields
below if the damage was not restored.

        Mr. Parris testified as to the work which would need to be done to restore the land to its
previous condition. He testified that if the damage were not addressed soil would wash down to the
field below and erosion would continue. The Conatsers also called Rodney Foy, a registered land
surveyor, to testify to the condition of their property and the extent of damage. He testified that a
trail had been bulldozed out and that erosion will occur.

        The fact there was damage to the Conatsers’ property was, therefore, proved. More
problematic, however, is the question of whether the proof supports the court’s award of damages
under the appropriate measure. The trial court initially awarded $5,000 in damages, but later reduced
the award to $2500 after Mr. Ball filed his motion to alter the judgment.

       Mr. Ball asserts that the Conatsers failed to carry their burden of proof regarding damages
and, consequently, are entitled to no monetary judgment. Mr. Ball asserts that the proper measure
of damages for injuries to real property is the difference in the fair market value before and after the


                                                  -9-
injury or the reasonable costs of repairing the injury, whichever is less, relying on Fuller v. Orkin
Exterminating Co., Inc., 545 S.W.2d 103 (Tenn. Ct. App. 1975). According to Mr. Ball, the
Conatsers were required to prove both amounts so that the “whichever is less” comparison can be
made. Mr. Ball asserts the Conatsers provided an inflated and speculative estimate of the cost to
restore their land and provided no proof regarding the diminution in its value. This failure, according
to Mr. Ball, precludes their recovery of any damages.

        The Conatsers, on the other hand, maintain that they presented evidence of the cost to repair
the damage caused by Mr. Ball’s cutting the road up their hillside, $39,000 to $40,000, that greatly
exceeded the amount awarded by the trial court. They argue the evidence of the cost of repair was
not speculative but was based in part on estimates and that Mr. Ball offered no rebuttal proof of a
lesser cost. The Conatsers further maintain that the proper measure of damages is the reasonable
cost of restoration of any physical injury to the land, citing Citizens Real Estate & Loan Co., Inc. v.
Mountain States Dev. Corp., 633 S.W.2d 763 (Tenn. Ct. App. 1981). Pursuant to Tenn. R. App. P.
13(a), the Conatsers ask this court to award them up to $40,000 in damages. Because Mr. Ball
offered no proof on any alternative measure of damages, they assert he cannot now complain of the
use of their measure.

       The general rule for the measure of damages for trespass is:

       The cost of restoring the property to its condition prior to the injury caused by a
       trespass is an alternative to the measure of diminution of market value, where the
       injury to the land resulting from the trespass is temporary and subject to restoration,
       unless such cost is equal to or exceeds the market value of the affected property, or
       is disproportionate to or greater than the diminution in value of the property.
       Damages for restoration or replacement are limited to situations where replacement
       or restoration costs are feasible and reasonable.

75 AM . JUR. 2d, Trespass § 137 (1991).

        In Redbud Coop. Corp. v. Clayton, 700 S.W.2d 551 (Tenn. Ct. App. 1985), this court found
there was proof in the record to show that the owners of houses in a development had suffered
damages as a result of the developer’s failure to construct a drainage system in accordance with its
original drainage plan. Although liability in Redbud Coop. Corp. was not based on trespass, the
court’s discussion of damages is instructive:

       Our courts have approached the question of the measure of damages for injury to real
       property from several different directions. They have, in the past, drawn distinctions
       between damages for injuries to the land itself as opposed to improvements on the
       land. They have also drawn distinction between injuries that are permanent as
       opposed to those that are “remediable.” In an attempt to reconcile these precedents,
       Judge Carney has stated:



                                                 -10-
                Our appellate courts have uniformly held that the measure of damages
                for injury to real estate is the difference between the reasonable
                market value of the premises immediately prior to and immediately
                after injury but if the reasonable cost of repairing the injury is less
                than the depreciation in value, the cost of repair is the lawful measure
                of damages. Of course, the trier of fact can also take into
                consideration the reasonable cost of restoring the property to its
                former condition in arriving at the difference in value immediately
                before and after the injury to the premises.

Id. at 560-61 (quoting Fuller v. Orkin Exterminating Co., 545 S.W.2d 103, 108 (Tenn. Ct. App.
1975)) (internal citations omitted).

        In Redbud, this court also determined that the only reasonable basis upon which the trial court
could have awarded damages was the cost of repairing the development’s inadequate drainage
system. 700 S.W.2d at 561. This conclusion was based upon (1) the fact that it would have been
impractical to attempt to calculate the exact extent of damage to each home in the development with
any degree of precision, since the experts testified that the diminution in value arose from a decrease
in competitive attractiveness; (2) the inadequate drainage system was causing damage to the
development’s common areas, which had no market value; and (3) based on the developer’s proof
of recent sales prices of homes in the development, it would have been reasonable for the trial court
to conclude that the cost of repairing the drainage system was less than the diminished market value
of all homes in the development. Id. Thus, we concluded that the trial court was justified in
awarding damages based on the estimated cost of repairing the drainage system, noting, “in this case
[such evidence] was the only reliable evidence before the trial court.” Id.

         In Killian v. Campbell, 760 S.W.2d 218, 222 (Tenn. Ct. App. 1988), this court stated that the
cost of restoration is the proper measure of injuries to land where such restoration is possible. In that
case, the defendants made improvements or alterations to real property of another by creating a
roadway and a pad and utilities for a mobile home. These actions were performed pursuant to a deed
which was later set aside. This court stated the proper measure of damages as:

        If an injury to the land is permanent, any depreciation in the value will be an element
        of damages. If the land can be restored to its original value by an expenditure of
        money and labor, the costs of such money and labor is the basic measure of damages.
        Other elements might be present for consideration.

Id. (citing Citizens Real Estate & Loan Co., Inc. v. Mountain States Dev., 633 S.W.2d 763 (Tenn.
Ct. App. 1981)). While the court set forth this standard, it found no need to apply it in Killian
because no proof had been produced regarding the nature of the injuries (permanent or restorable),
the depreciation in the value after the injuries, or the cost to repair the injuries. Id.




                                                  -11-
       In Cole v. Clifton, 833 S.W.2d 75 (Tenn. Ct. App. 1992), a trespass case, this court
recognized that at least one party saw a need to reconcile the Killian holding with that of Fuller v.
Orkin and Redbud. The plaintiffs in Cole framed the issue as

        “[W]hether the measure of damages for trespass to land [is] the cost of restoration
        of the land, or the diminution in value to the land, or the lesser of the two; and if it
        is the law that the measure of damages is the lesser of the two, must the plaintiffs
        prove both measures?”

Id. at 76.

        Unfortunately for the case before us, the court in Cole declined to resolve that issue or “to
rule on any potential conflict between Killian and Fuller”. Id. at 77. Instead, the court affirmed the
trial court’s finding that the plaintiff had not proved damages by a preponderance of the evidence.
Id.

        In a later case, McCammon v. Meredith, 830 S.W.2d 577, this court considered the proper
measure of damages for trespass in building a road over a spring, which trespass the court
characterized as deliberate and showing reckless disregard for the owner of the property. The
plaintiff had asked for a mandatory injunction requiring the trespasser to remove the roadbed and
from the spring and surrounding area.

        In McCammon, the court recognized the various measures of damages explained in Redbud
Coop. Corp., but also relied on Killian for the proposition “If land can be restored to its original
value by an expenditure of money and labor, the cost of such money and labor is the basic measure
of damages.” 830 S.W.2d at 581. The court also quoted the standard from Citizens Real Estate &
Loan Co., Inc. v. Mountain States Development Corp., 633 S.W.2d 763 (Tenn. Ct. App. 1981),
“[w]hen the injury is permanent, any depreciation in the value of the property will be an element of
damages, according to the extent and duration of plaintiff’s estate. An estimate of damages on this
basis presupposes that the premises are subject to the same lasting detriment, and that it is not to be
avoided or removed by any expenditure, for, otherwise, the injury would be measured upon different
elements.” Id.

         This court found the plaintiff’s testimony that the aesthetics of the spring in connection with
her use of her property were more important to her than recovery of any monetary damages was a
compelling reason for requiring the trespasser to remove the roadbed. Id. This court ordered that
the trespasser be mandatorily enjoined to remove the roadbed and restore the spring and surrounding
area to its former condition, “[p]rovided, however, proof may be heard to ascertain if restoration will
exceed $4,000.” Id. at 582. If restoration costs were shown to exceed that amount, plaintiff was to
be awarded $4,000 in damages. Id. Plaintiff had testified that the loss of the spring depreciated the
value of her property between $3400 and $3800. Id. at 581.




                                                 -12-
        In the case before us, the Conatsers presented testimony from Mr. Parris who had been asked
to prepare an estimate for the cost of restoring the damage to the Conatsers caused by the road from
the Rocky Creek route up the hill. Mr. Parris based his repair estimate of $39,000 to $40,000 on
costs of labor and equipment, including a track hoe at an hourly rate of $150, as well as replacement
trees. He testified that this figure would be a high estimate and included costs of other
subcontractors to do things such as plant the trees. As with all estimates, he acknowledged that the
actual time required and resulting cost could differ from the estimate.

       Mr. Ball asserts that this evidence of the cost of repair is insufficient to support the damages
award because the witness was not a land appraiser, timber buyer or other reliable source of
knowledge and admitted his estimate of the repair costs was speculative. However, in Redbud Coop.
Corp., this court discussed the specificity needed in establishing the amount of damages. While
recognizing that uncertain, contingent, or speculative damages should not be awarded, we stated:

         uncertain or speculative damages are prohibited only when the existence of damages
         is uncertain not when the amount of damage is uncertain. All that an award for
         damages requires is proof of damages within a reasonable degree of certainty.

700 S.W.2d at 561. (internal citations omitted). In a footnote, we recognized that an award can be
based upon estimated costs of repair. Id. at 561 n.20 (citing City of Knoxville v. Peebles, 19 Tenn.
App. 340, 87 S.W.2d 1022 (1935)). We find that the Conatsers’ proof regarding the cost of repair
of the damage done by Mr. Ball’s trespass is within a reasonable degree of certainty. Although Mr.
Ball cross-examined Mr. Parris about his evidence, he presented no other evidence of the cost of
repair.

         Mr. Conatser testified that the fair market value of his 150 acre tract was $150,000.4 The
Conatsers presented no testimony as to the value of the property before and after the injury or the
depreciation in value due to the injuries. Mr. Ball presented no such proof either. In this appeal, Mr.
Ball asserts that the Conatsers’ failure to prove any decrease in value in their land due to his trespass
is fatal to their request for damages. Essentially, he asserts that the measure of damages to real
property is calculated by a two-pronged test and that it was the Conasters’ burden to prove both
prongs.

        This court resolved that issue in Nutzell v. Godwin, no docket no., 1989 WL 76306 at *1
(Tenn. Ct. App. July 13, 1989) (no Tenn. R. App. P. 11 application filed), wherein the defendant
made the same argument that Mr. Ball makes: that in a case involving damage to real property the
plaintiff is required to offer proof on both factors (cost of repairs and diminution in value) so that
the court or the jury can choose. We stated:




         4
           Although it is not entirely clear from the testimony, it appears that the Conatsers also paid Mrs. Conatser’s
brother $ 75,000 for his interest in a larg er tract, which inc luded the 1 50 acre tra ct in question.

                                                         -13-
       We hold that the plaintiffs do not have the burden of offering alternative measures
       of damages. The burden is on the defendant to show that the cost of repairs is
       unreasonable when compared to the diminution in value due to the defects and
       omissions. This reasoning is consistent with that of the Texas courts in Greene v.
       Bearden Enterprises, Inc., 598 S.W.2d 649 (Tex. Civ. App. 1980) which dealt with
       a similar factual situation. Other states have applied the same logic applying this
       measure of damages. A.I.D. Insurance Services v. Riley, 25 Ariz. App. 132, 541 P.2d
       595 (1975); Engel v. Dunn County, 273 Wis. 218, 77 N.W.2d 408 (1956). Because
       the burden to produce an alternative measure of damages was on the defendant who
       failed to meet that burden, proof of repairs alone was a sufficient basis on which to
       submit the question of damages to the jury.

Id. at *1-2. See also Oakwood Furniture Mfg., Inc. v. RUH & Pressley Constr. Co., Inc., No.
03A01-9307-CH-00233, 1993 WL 477020 (Tenn. Ct. App. Nov. 15, 1993) (no Tenn. R. App. P. 11
application filed). Therefore, the Conatsers were not required to prove the diminution in value of
their land due to Mr. Ball’s trespass. Mr. Ball was required to present such proof if he wanted the
court to apply that measure.

        Mr. Ball’s trespass caused damage to the Conatsers’ land which can be repaired. Without
such repair, continuing damage will be caused through erosion. Therefore, the proper measure of
damages was the reasonable cost of repair, Citizens Real Estate & Loan Co., Inc. v. Mountain States
Dev. Corp., 633 S.W.2d at 767, unless such cost is disproportionate to or exceeds the diminution in
value or is disproportionate to or exceeds the market value of the affected property. Because there
was no proof regarding the diminution in value, the trial court could properly consider the
proportionality of the cost of repair to the market value of the affected property. In determining an
appropriate and reasonable amount of damages, the court was entitled to consider the nature of the
injury, the portion of the land damaged and the effect of damage of that portion on the entire tract,
the market value of the entire tract or the portion damaged, and the costs of repair. In considering
those factors, the trial court originally assessed damages at $5,000.

        The evidence showed that Mr. Ball cut a road of 1600 - 1700 feet in length across a field and
up a slope, causing injury to the land and creating a condition allowing continuing injury. The trial
court limited the amount for repairs presumably because of the disproportionality of the estimated
cost, $39,000 - $40,0000, to the market value of the entire 150 acre tract, $150,000. We find no
error in the trial court’s award of $5,000 in damages in view of the evidence and record before it.

        The trial court later decreased the judgment to $2,500, and the record includes no explanation
for the change. The only indication we have for the court’s rationale is Mr. Ball’s motion to alter
or amend the judgment wherein Mr. Ball argued:

       The court erred in entering judgment in the amount of $5,000.00 (Five thousand
       dollars). The only testimony as to damages was presented through Jerry Parris. The
       evidence was not competent in that the witness could not answer any questions as to


                                                -14-
        how he calculated damages and further testified that he was merely giving a guess.
        It is averred that the amount of $5,000.00 (Five thousand dollars) would represent a
        substantial portion of the fair market value of the entire Conatser tract when only
        arguably an acre or two of property was damaged at most. The correct calculation
        of damage would be the fair market value of a small portion of hillside.

        We have already dispensed with Mr. Ball’s complaints about the speculative nature of the
testimony regarding the cost of repair. Although he argues that the correct calculation would be the
value of only a small portion of the hillside, he cites and we find no authority for that position. Such
an argument assumes there is a fair market value for only that portion and that the size of the affected
portion has been identified. In view of the fact there was no evidence regarding the potential for
differing values per acre of different portion of the 150 acre tract, it apparently also assumes all acres
are valued the same. Because the trial court’s original judgment was supported by the record when
the applicable measure of damages is applied and all relevant factors considered, and because the
record provides no evidence or justification for the reduction after Mr. Ball’s motion, we modify the
final judgment to award the Conatsers $5,000 in damages.

                                        VI. Frivolous Appeal

        Finally, the Conatsers maintain that because no law supports Mr. Ball’s contention that he
is granted an easement according to the language of the deeds, and because the damages issue was
only an afterthought, Mr. Ball’s appeal is frivolous. Mr. Ball did not respond to this issue.

        Tenn. Code Ann. § 27-1-122, governing frivolous appeals, provides:

        When it appears to any reviewing court that the appeal from any court of record was
        frivolous or taken solely for delay, the court may, either upon motion of a party or of
        its own motion, award just damages against the appellant, which may include, but
        need not be limited to, costs, interest on the judgment, and expenses incurred by the
        appellee as a result of the appeal.

However, an award of damages under § 27-1-122 is discretionary. Banks v. St. Francis Hosp., 697
S.W.2d 340, 343 (Tenn. 1985).

        It is well settled that neither a party, nor this court, should have to bear the costs and vexation
of a meritless appeal. Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999) (citing Davis
v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977); McDonald v. Onoh, 772 S.W.2d 913, 914
(Tenn. Ct. App. 1989)). An appeal is considered frivolous if there is no reasonable chance of success
or is devoid of merit. Id. (citing Davis, 546 S.W.2d at 586; Industrial Dev. Bd. of Tullahoma v.
Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)); Bursack v. Wilson, 982 S.W.2d 341, 345
(Tenn. Ct. App. 1998) (citing, among others, Liberty Mut. Ins. Co. v. Taylor, 590 S.W.2d 920 (Tenn.
1979) and Wilson v. Ricciardi, 778 S.W.2d 450 (Tenn. Ct. App. 1989)); Combustion Eng’g, Inc. v.
Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978).


                                                  -15-
       We do not find the appeal to be frivolous. All the issues raised by Mr. Ball were not without
legal merit.

                                         VII. Conclusion

        For the reasons stated herein, we affirm the trial court’s judgment in all respects regarding
the grant of the easement to Mr. Ball along Rotten Fork and Buckeye Lick Creek and the denial of
use of Rocky Creek. We modify the trial court’s award of damages by vacating its final order on
damages and reinstating the judgment entered after trial, awarding the Conatsers $5,000 in damages.
Costs of this appeal are taxed to the Appellant, Mr. Ball.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




                                                -16-
