                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     July 8, 2008 Session

                VICKIE ROBNETT v. EDWARD H. TENISON, JR.

                      Appeal from the Chancery Court for Lewis County
                               No. 3254   Robbie Beal, Judge


                  No. M2007-02490-COA-R3-CV - Filed September 23, 2008


The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked
property may be terminated on the ground it is no longer necessary because the landlocked owner
has an express easement through which that owner has reasonable, although not as desirable, ingress
and egress. The trial court denied the petition to terminate the easement by necessity upon a finding
it would place an undue burden on the landlocked property owner to have it terminated. We have
determined the trial court applied an incorrect legal standard, that of undue burden, to deny the
petition to terminate the easement at issue. Easements by necessity are dependent on the necessity
that created them; therefore, a way of necessity continues only as long as a necessity for its use
continues. The fact that the way of necessity would be the most convenient does not prevent its
extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of
the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which ANDY D. BENNETT , J.,
joined. PATRICIA J. COTTRELL, P.J., M.S., not participating.

James R. Tomkins, Nashville, Tennessee, for the appellant, Edward H. Tenison, Jr.

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Vickie Robnett.

                                            OPINION

        Vickie Robnett and Edward H. Tenison, Jr., are neighbors in a rural area of Lewis County.
Each owns and resides on property adjacent to the other. Mr. Tenison’s property fronts Tutor Lane.
Ms. Robnett’s property, however, is landlocked, meaning her property does not have access to a
public road without the benefit of a way of easement to and from a public road.

       To remedy this problem, in 1995 the Chancery Court for Lewis County decreed a “permanent
implied easement of necessity” across Mr. Tenison’s property thereby giving Ms. Robnett ingress
and egress to Tutor Lane. The easement of necessity was established for the sole purpose of giving
Ms. Robnett ingress and egress to her personal residence. Predating the easement of necessity and
appearing in Ms. Robnett’s chain of title, is a recorded express easement that affords Ms. Robnett
ingress and egress to Highway 412 via another neighbor’s property.1 Ms. Robnett does not cross Mr.
Tenison’s property when she and her guests use the express easement for ingress and egress from
her property to Highway 412. Until recently, however, the express easement was not amenable to
vehicular traffic due to many factors. Accordingly, Ms. Robnett and her guests have always used
the easement by necessity from Tutor Lane for ingress and egress to her residence.

        In an effort to alter the manner and minimize the frequency with which Ms. Robnett, her
husband, their guests, and trucks of their garbage collection company utilized the easement of
necessity, Mr. Tenison began to interfere with and otherwise obstruct their use of the easement. As
a consequence of Mr. Tenison’s interference with her right to use the easement, Ms. Robnett filed
a Petition for Contempt in October of 2006 alleging, inter alia, that Mr. Tenison had unreasonably
interfered with her use of the easement by digging a ditch across the easement, by parking vehicles
on the roadway to block her use of the easement, by harassing her visitors using the easement, and
by not allowing her to pave the easement.

         Mr. Tenison filed an Answer to the Petition and a Counter-Complaint against Ms. Robnett.
In his Answer, he denied the allegations in the Petition and asserted several affirmative defenses.
In the Counter-Complaint, Mr. Tenison sought to terminate the easement of necessity on alternative
grounds. He contended the easement should be terminated because it was no longer necessary due
to substantial improvements to the pre-existing express easement. In the alternative, he contended
that Ms. Robnett was violating the easement by necessity by operating a garbage hauling business
at her residence, that Ms. Robnett and her visitors were misusing the easement by driving excessively
fast and in a reckless manner, that Ms. Robnett was using her residence to distribute marijuana, and
that Ms. Robnett allowed her dogs to run loose and cause damage to his property.

        A bench trial was held on August 31, 2007. At the close of all the proof, the trial judge went
to the parties’ properties to personally view the easements at issue. Ms. Robnett then withdrew her
petition for contempt, leaving only Mr. Tenison’s Counter-Complaint at issue. Thereafter, the trial
court issued its ruling. The court denied Mr. Tenison’s request to terminate the easement by
necessity based on a finding that termination “would place an undue burden” on Ms. Robnett;
however, it permanently enjoined Ms. Robnett from operating a commercial business from her
property. The court also ruled that Ms. Robnett has the right to improve the easement by necessity,
and it ordered Mr. Tenison to repair the ditch he had dug across the easement to reduce speeding.
This appeal followed.




         1
           Tutor Lane is on the east boundary line of Mr. Tenison’s property. Highway 412 does not touch either of the
parties’ properties; it is located just south of their properties. Tutor Lane connects with Highway 412 via Indian Creek
Road.

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                                      STANDARD OF REVIEW

        The standard of review of a trial court’s findings of fact is de novo and we presume that the
findings of fact are correct unless the preponderance of the evidence is otherwise. Tenn. R. App. P.
13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001).
For the evidence to preponderate against a trial court’s finding of fact, it must support another
finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66,
71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581,
596 (Tenn. Ct. App. 1999). Where the trial court does not make findings of fact, there is no
presumption of correctness and we “must conduct our own independent review of the record to
determine where the preponderance of the evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405
(Tenn. 1999). We also give great weight to a trial court’s determinations of credibility of witnesses.
Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997); B & G Constr., Inc. v. Polk, 37
S.W.3d 462, 465 (Tenn. Ct. App. 2000). Issues of law are reviewed de novo with no presumption
of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                                             ANALYSIS

        Although both parties have presented issues for our consideration, we have determined the
dispositive issue on appeal is whether the trial court erred in denying Mr. Tenison’s petition to
terminate the easement by necessity.

       The trial court denied Mr. Tenison’s petition to terminate the easement by necessity based
upon a finding that termination of the easement by necessity would place an undue burden on Ms.
Robnett. The fact Ms. Robnett may be burdened if she loses the benefit of the easement by necessity
is a justifiable concern to her; however, it is not the correct legal standard for the court’s
consideration.

        The existence of an easement by necessity is dependent on the necessity that created it. 28A
C.J.S. Easements § 161 (2008). Therefore, “a way of necessity continues as long, but only as long,
as a necessity for its use continues.” Id. (emphasis added). “If an easement for a particular purpose
is granted, when that purpose no longer exists, there is an end of the easement.” McGiffin v. City of
Gatlinburg, 260 S.W.2d 152, 154 (Tenn. 1953) (quoting Washburn, Treatise on Easement, 654 (3d
ed.)). “The fact that a former way of necessity continues to be the most convenient way will not
prevent its extinguishment when it ceases to be absolutely necessary.” 28A C.J.S. Easements § 161
(2008).

       The trial court’s decision to deny Mr. Tenison’s petition to terminate the easement was based
upon an incorrect legal standard. Therefore, it is incumbent on this court to apply the correct
standard to the facts in the record and to determine the parties’ rights accordingly.

        It is undisputed that Ms. Robnett has two easements, each of which affords her ingress and
egress to her residence from a public road. One is the easement by necessity, which goes through,


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and thus encumbers, Mr. Tenison’s property. That easement affords her ingress and egress from
Tutor Lane. The other is an express easement that affords her ingress and egress to her residence
from Highway 412 via another neighbor’s property. The express easement was obtained by
agreement of the respective property owners. The easement by necessity was court ordered in 1995,
over Mr. Tenison’s objections, upon a finding that the easement was necessary to afford ingress and
egress to a public road.

        At trial, Ms. Robnett acknowledged that she had an express easement of record that afforded
her ingress and egress to her residence from Highway 412. She, however, contended that the express
easement continues to be impassable and that Mr. Tenison had failed to show that circumstances had
changed since 1995 sufficient to prove that the express easement, which was found to be essentially
impassable in 1995, afforded her reasonable ingress and egress. We respectfully disagree.

         Mr. Tenison testified that the express easement had been improved “a lot” since the court-
ordered easement by necessity was mandated in 1995. He testified that culverts had been installed
where the road would previously “wash out” and the road and land around it had been graded, which
improved the condition of the road and minimized problems from drainage. Mr. Tenison also
testified that he had seen vehicles using the express easement for ingress and egress to Ms. Robnett’s
property. For her part, Ms. Robnett admitted that culverts had been put in on both sides of the
express easement to prevent flooding of the express easement. She also admitted that immediately
prior to trial the portion of the express easement “going up the hill” had been graded with a bobcat
and a gate that was wide enough for a vehicle had been installed. Photographs of the express
easement show a recently graded roadway that resembles a driveway.

        Significantly, Ms. Robnett did not testify that the express easement was not suitable for
ingress and egress, she merely stated that the express easement was not “as reasonable” as the
easement by necessity. In an effort to explain why the express easement was not as reasonable as
the easement by necessity, Ms. Robnett testified that to use the express easement she would have to
come down the paved driveway used by another neighbor and then split off onto her unpaved portion
of the easement. When asked why she was seeking the court’s permission to spend money to pave
the easement by necessity rather than use her express easement, Ms. Robnett could only state the
easement by necessity “has always been our access.”

        We acknowledge that the trial judge visited the properties at issue at the close of all the proof
and that the trial judge noted that he was “glad” he went out to the properties because “[i]t really put
everything into perspective.” The trial court did not, however, state on the record how the on-site
visit put things in perspective. The court merely announced that “[h]aving gone out to the property,
I think it would be an undue burden.”

        A trial judge has “the inherent discretion to take a view of the site of a property dispute . .
. where such a view will enable the judge to assess the credibility of witnesses, to resolve conflicting
evidence, or to obtain a clearer understanding of the issues.” Tarpley v. Hornyak, 174 S.W.3d 736,
748-49 (Tenn. Ct. App. 2004). However, the trial judge’s viewing is not a substitute for the evidence


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presented in court, Id. at 749, and without the benefit of knowing how the viewing put everything
into perspective, our analysis is limited to the evidence in the record.

        As we stated earlier, an easement by necessity may continue “only as long, as a necessity for
its use continues.” 28A C.J.S. Easements § 161 (2008) (emphasis added). The fact the way of
necessity continues to be the most convenient is not sufficient to prevent its extinguishment if it
ceases to be absolutely necessary. Id. The easement was created for the purpose of affording Ms.
Robnett ingress and egress from a public road. Due to recent improvements to the easement that
leads to Highway 412, the easement through Mr. Tenison’s property is no longer absolutely
necessary. Because the purpose for which the easement through Mr. Tenison’s property was created
no longer exists, there is an end to the easement by necessity through Mr. Tenison’s property. See
McGiffin, 260 S.W.2d at 154.

          Based upon the evidence in the record, we find the preponderance of the evidence shows that
it is no longer necessary for Ms. Robnett to use Mr. Tenison’s property for ingress and egress to her
residence.

                                        IN CONCLUSION

         The judgment of the trial court is reversed, and this matter is remanded with instructions for
the trial court to enter an order terminating the easement by necessity that encumbers Mr. Tenison’s
property and for such other proceedings as the trial court may deem necessary. Costs of appeal are
assessed against Ms. Vickie Robnett.



                                                       ___________________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




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