                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    January 8, 1999 Session

                    ELIZABETH NICOLL DORAMUS, ET AL. v.
                    ROGERS GROUP, INC., AND T.W. COMER

                     Appeal from the Chancery Court for Sumner County
                         No. 97C-120     Tom E. Gray, Chancellor



                    No. M1998-00918-COA-R3-CV - Filed February 28, 2001


This appeal involves an intrafamily dispute over the use of a 498 acre farm. The conflict's seeds
were sown nearly fifty years ago when the now-deceased owners conveyed the farm to a corporation
and entered into a long-term lease which created successive leasehold tenancies for life for them,
followed by their son, T. W. Comer. T. W. Comer’s heirs at law were given the option to choose
to become tenants upon his death. Years later, after T. W. Comer had become the tenant, he and
Rogers Group, Inc., a mining company which had purchased the remainder interest in the farm,
entered into an agreement involving the removal of limestone from the property. Mr. Comer's
daughters and his granddaughters responded by commencing this action, seeking to prevent any
mining on the property. After the daughters voluntarily dropped their claims, the trial court
dismissed the complaint, and the granddaughters appealed. We affirm the trial court's ruling because
we find that the granddaughters’ interest is not sufficient to warrant an injunction against the lessor
and the current lessee.

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

PATRICIA J. COTTRELL J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., J., and
WILLIAM B. CAIN , J., joined.

James V. Doramus, Nashville, Tennessee for the appellants, Elizabeth Nicoll Doramus and Victoria
Lynn Doramus, b/n/f James V. Doramus.

W. Lee Corbett, David F. Lewis, Thor Y. Urness, Nashville, Tennessee, for the appellees, Rogers
Group, Inc., and T.W. Comer.
                                                OPINION

        In 1950, Guy L. Comer and his wife, Mary Nicoll Comer, sold their 498 acre farm to First
National Company1 and entered into a lease with First National as the lessor. The lease identified
the successive lessees as (1) Guy Comer, (2) Mary Comer, (3) T. W. Comer and (4) "those persons
who on the death of T. W. Comer constitute his heirs at law" if a majority of them accepted the lease.
The lease required every successive tenant after Guy Comer to pay the lessor as rent one dollar
($1.00) per month plus all taxes or governmental assessments and premiums for insurance on the
principal residence on the property. The lease also required the successive life tenants after Guy
Comer to "keep and maintain the [property] in a good state of repair, and keep the land in a good
state of cultivation." According to the lease, T. W. Comer additionally possessed "the right to use
the property fully as the tenant." With respect to tenants after T.W. Comer, the lease provided:

       On the death of the survivor of Mrs. Guy L. Comer and T.W. Comer, the Fourth
       Tenant shall be those persons who on the death of T.W. Comer constitute his heirs
       at law, and the lease shall continue in the name of such persons as joint tenants, until
       the death of the last survivor. The rent to be paid by such tenants shall be same as in
       the case of Mrs. Guy L. Comer, that is, One Dollar ($1.00) a month, taxes and
       insurance on the improvements owned by Lessor.

                                                     ***

       Upon the death of T. W. Comer, and within a period of sixty (60) days thereafter, it
       is agreed that his heirs at law who are then to become tenants, shall express to Lessor,
       their consent and intention in writing, to become Lessor [sic] of the Premises, and if
       a majority of such heirs who are then of age and capable of acting, accept the Lease,
       it shall continue as to such heirs at law, with a right in the remainder of them, to
       thereafter at any time become parties to the Lease, or disclaim and forever lose their
       rights as tenants, but the Lease shall remain valid as to all of those expressing in
       writing their willingness and desire to continue on as tenants.

       Upon the death of “the last of the survivors of the heirs of T.W. Comer,” the lease was to
terminate and the property was to “re-vest” back in the lessor.

        Both Guy and Mary Comer predeceased this litigation, leaving T. W. Comer as the present
tenant for his lifetime. In 1995 T. W. Comer entered into a lease and royalty agreement with Rogers
Group, Inc. ("RGI") regarding mining rights on the land. At the time, RGI operated a stone mining
and processing business on property adjacent to the Comer farm. T. W. Comer, his daughters, Lori
Comer Canale and Lisa Lynn Comer Doramus, and Lynn Comer Doramus, acting on behalf of her
minor daughters, Appellants Victoria and Nicoll Doramus, all executed the agreement, which set
the terms allowing RGI to mine the property. Specifically, the agreement limited the size and


       1
        The testimony in the record is that First National Company was owned by the Church of Christ Foundation.

                                                     -2-
location of any open pit operation, but permitted underground mining throughout the property. In
conjunction with this agreement, RGI purchased the farm, including the remainder interest, from
First National Corporation for $1,250,000 and became the lessor.

       After the agreements were executed, Lynn Doramus, acting on her own and her minor
daughters' behalf, repudiated the contract. Ms. Canale indicated she would not support the
agreement, but would accept its provisions if they were imposed upon her. After the repudiation,
RGI and T. W. Comer, as the present tenant, entered into another agreement which permitted RGI
to mine the property.

        T.W. Comer's daughters and his granddaughters, Appellants, identifying themselves as the
"Comer heirs," filed the underlying complaint, seeking to enjoin RGI from all mining on the
property. The complaint alleged that as a mere tenant, T. W. Comer lacked authority to allow
mining. It asserted claims of waste, breach of the original lease agreement establishing the
successive tenancies, intentional inducement to breach the lease, and nuisance. At some point, the
daughters voluntarily dismissed their claims. The granddaughters, with their father acting on their
behalf, continued to pursue this action against T.W. Comer and RGI, Appellees.

        After two hearings, the trial court denied the application for injunction due to a failure to
establish irreparable harm, a likelihood of success on the merits, or impairment of the public interest.
The trial court dismissed the waste claim on a finding that the lease agreement's provision granting
T. W. Comer the right "to use the property fully as the tenant" governed, rather than the common law
of waste. In dismissing the breach of contract claim, the court found the lease agreement's
stipulation that T. W. Comer had the right to use the property fully as the tenant reflected an intent
to allow the mining. The trial court dismissed the inducement to breach of contract claim on the
ground that the Appellants had no vested rights giving rise to the claim. It dismissed the nuisance
claim because Appellants held no property adjacent to the property at issue. Appellants challenge
the trial court’s holdings.

                                                   I.

         Appellees' primary contention is that the granddaughters lack standing to assert the
underlying claims because they have no present interest in the property, precluding them from the
relief requested. Standing is a judge-made doctrine used to analyze whether individuals possess a
sufficient stake in a controversy to warrant the exercise of judicial power on their behalf.
Metropolitan Air Research Testing Auth. v. Metropolitan Gov't of Nashville and Davidson County,
842 S.W.2d 611, 615 (Tenn. Ct. App. 1992). When a party asserting a claim lacks a legally
protectable and tangible interest in the dispute, dismissal is required regardless of the case's merits.
Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). The issue of whether a party possesses
an interest in a legal controversy sufficient to maintain an action must be determined, to some extent,
by reference to the specific cause of action involved. Nevertheless, that analysis must begin with
a determination of the granddaughters’ interest in the farm and its use. The Appellants herein, the
granddaughters of the current tenant, brought this action on their own behalf as potential heirs to


                                                  -3-
a life tenancy and as representatives of a class they define as the Fourth Tenant under the lease.

                                                            A.

        By the specific terms of the lease, the Fourth Tenant’s interest in the farm arises only at the
death of T. W. Comer and the concomitant termination of his tenancy as Third Tenant. The lease
provides that membership in the class of persons eligible to become the Fourth Tenant is to be
determined on the death of T. W. Comer: “those persons who on the death of T. W. Comer
constitute his heirs at law.” Thus, the identity of those persons constituting the class of eligible
Fourth Tenants cannot be determined until the death of T. W. Comer.2 Additionally, there will be
no Fourth Tenant unless and until a majority of those persons who are adult heirs at law at that time
decide to accept the lease.

        The lease’s use of the term “heirs at law” as the definition of the Fourth Tenant requires the
same legal conclusion that members of the class cannot be determined until T.W. Comer’s death.
The term “heirs at law” means those persons who would inherit if Mr. Comer were to die intestate.3
Wright v. Brandon, 863 S.W.2d 400, 402 (Tenn. 1993); In Re Estate of Gray, 729 S.W.2d 668, 670
(Tenn. Ct. App. 1987); Spencer v. Stanton, 333 S.W.2d 225, 229 (Tenn. Ct. App. 1959). The legal
meaning of the word “heirs” is the class of persons upon whom descent is cast by the statute of
descent. Fisher v. Malermo, 650 S.W.2d 43, 46 (Tenn. Ct. App. 1983). A living person has no
heirs, and the membership of the group “heirs at law” cannot be determined until Mr. Comer’s death.
Id.

         The general rule is that a postponed gift to the “issue” or “heirs” of a living person describes
a group of persons who cannot be presently ascertained, imposes the condition precedent of survival,
and thereby makes the gift contingent. See LEWIS M. SIMES AND ALLAN F. SMITH, THE LAW OF
FUTURE INTERESTS §§ 579, 732 (1956). Tennessee law is in accord. “A remainder to the heirs of
the life tenant is generally a contingent remainder, for, there being no heirs to a living person, until
the termination of the life estate, no one can claim as the heir of the life tenant.” Burton v. Kinney,
191 Tenn. 1, 6, 231 S.W.2d 356, 358 (1950) (quoting 23 R.C.L., Section 95, page 551). Therefore,
no individual or group of individuals can presently be identified as the Fourth Tenant under the
terms of the lease.

        The likelihood of the granddaughters becoming members of the class of persons eligible to
become the Fourth Tenant is complicated by an additional contingency created by the Lease’s
definition of Fourth Tenant by use of the term “heirs at law.” As stated above, “heirs at law” are
determined by reference to the statute of descent. Tennessee’s descent and distribution statutes have


         2
          Under the lease, T.W . Comer m ay terminate his tenancy by surrendering it, and the next tenant may exercise
the same righ ts as if T.W . Comer h ad died.

         3
           Although the granddaughters’ interest, if any, arises from the lease and not from any inheritance or gift, we may
look to those areas of law to determine the intent of the parties to the lease in their use of the term “heirs at law.” See
In Re Estate of Gray, 729 S.W.2d 66 8, 670 (Tenn. Ct. App. 1987).

                                                            -4-
changed since execution of the lease in 1950, but not in a way that affects the granddaughters’
interests.4 All potentially relevant statutes treat successive generations in the same manner. In
pertinent part, the statute governing the distribution of land which was in effect when the lease was
signed in 1950 provided:

         The land of an intestate owner shall be inherited . . . [b]y all the sons and daughters
         of the deceased, to be divided among them equally. And if any child of said intestate
         shall have died in his lifetime, his lineal descendants shall represent their parent, and
         be entitled to the same portion of the estate of the deceased as their parent would
         have been entitled to if living.

Tenn. Code Ann. § 31-101(1)(a) (1955) [repealed].

        The statute governing distribution of personalty similarly provided that an intestate’s personal
estate was to pass to the spouse and children “or the descendants of children representing them
equally.” Tenn. Code Ann. § 31-201 (1955) [repealed]. The current statute provides that the portion
of the estate not passing to the surviving spouse passes:

                   To the issue of the decedent; if they are all of the same degree of
                   kinship to the decedent they take equally, but if of unequal degree,
                   then those of more remote degree take by representation.

Tenn. Code Ann. § 31-2-104(b)(1).

         The term “by representation” refers to the principle by which the issue of a deceased person
take or inherit the share of an estate which their immediate ancestor would have taken or inherited
if living. See BLACK’S LAW DICTIONARY 1301 (6th ed. 1990); Barnes v. Redmond, 127 Tenn. 45,
152 S.W. 1035, 1036 (1913). The earlier descent and distribution statutes explicitly embody this
principle. The granddaughters of T. W. Comer would, therefore, become his heirs at law, and thus
potential members of the class of Fourth Tenant only if their mother predeceases Mr. Comer. While
Mr. Comer’s children must survive him in order to become his heirs at law, the granddaughters can
only become his heirs at law if they survive Mr. Comer but their mother does not.

       The granddaughters argue that the lease’s use of the phrase “joint tenants” qualifies “heirs
at law” and “substitutes a joint tenancy among all living descendants” in place of the “by
representation” definition found in the statute. The relevant paragraphs state:



         4
          Tenn. Code A nn. § 31-2-104 currently provides that an intestate’s estate passes to the surviving spouse, if any,
and the decedent’s issue. Prior law excluded the surviving spouse as an heir at law with regard to land. Tenn. Code
Ann. § 31-101(1955 ) [repealed]; In Re Estate of Gray, 729 S.W.2d at 670. The statute govern ing person al proper ty
included the surviving spouse as a distributee. Tenn. Code Ann. § 31-201 (1955) [repealed]. The question of which
statute applies to the definition of “heirs at law” in the lease is not before us and makes no difference to the
granddaughters’ claims.

                                                           -5-
         . . . the Fourth Tenant shall be those persons who on the death of T. W. Comer
         constitute his heirs at law and the lease shall continue in the name of such persons
         as joint tenants, until the death of the last survivor.

         Whenever and if the heirs at law of T.W. Comer become the tenants of the property,
         it shall be upon the condition that a majority of such heirs who are of age and
         capable of acting, shall have authority to determine how the property shall be used,
         but they shall allot to each of the tenants, as near as may be, an equal right to use the
         premises, but such majority may determine which part of the premises is to be used
         by each, in the event there is no joint user [sic] by all.

        There is nothing in the language of these paragraphs to indicate that the parties to the lease
intended to modify the earlier specific definition of those persons eligible to become the Fourth
Tenant, i.e., “heirs at law” on the death of T.W. Comer. To the contrary, the paragraphs refer to the
“heirs at law” of T.W. Comer, repeating the already established definition, and to “such persons” and
“such heirs.” Thus, these paragraphs do nothing to redefine those eligible to become the Fourth
Tenant; they merely describe the manner in which those who elect to accept the lease are to share
their possessory rights to the property.5

        Our Supreme Court has rejected an analogous argument that a testator’s use of the term per
stirpes modified the term “heirs at law” so as to eliminate a surviving spouse as a recipient of a
testator’s estate, where the testator left his residual estate to named individuals, providing that if a
named individual predeceased him, “to the heirs at law of such party living at the time of my death,
per stirpes.” Wright v. Brandon, 863 S.W.2d at 402. The court held that the term “per stirpes”did
not serve to identify the beneficiaries; instead it related to the mode of distribution among those who
were otherwise identified as beneficiaries. “Further, ‘per stirpes’ is not a description of who is to
take under the terms of the will, but describes the portion of the share to be allotted to individual
members of that class of persons designated by the term ‘heirs at law’ . . .” Id. at 403. Analogously,
in the case at hand, the lease’s description of how the members of the Fourth Tenant class will hold
the property, as joint tenants, does not modify the lease’s description of those persons who are
eligible to become members of that class.

        The clear language of the lease in this case requires the interpretation that the class of persons
eligible to vote to accept the lease, and thus become the Fourth Tenant if a majority votes
affirmatively, is limited to those identifiable individuals who on the date of T.W. Comer’s death


         5
           Accordingly, the granddaughters’ reliance on Ewing v. Gibson, 102 S.E.2d 327 (Va. 195 8), is misplaced. In
that case, the court held that a specific direction in a will that all heirs were to take equally or in equal shares required
a per capita distribution rather than the per stirpes (by representation) distribution which would be required under the
statute of descent applicable to intestate succession. The Gibson court considered no question regarding the identity
of those in the class of heirs (which included persons who were heirs only because their parents had died), but dealt only
with the manner of distribution. The will’s reference to the statute of descent was held to mean the method of
ascertaining the heirs, while “in equal shares” told how those identified persons should divide the property. In other
words, the beneficiaries of the will took in equal shares because the language of the will so provided.

                                                            -6-
constitute his heirs at law. Membership in that class is established on that date and does not vary
thereafter.

        To summarize, in order for the granddaughters to acquire any interest under the lease (1)
their mother must predecease T.W. Comer, (2) they must survive T.W. Comer, and (3) a majority
of T.W. Comer’s heirs at law at his death must vote to accept the lease within sixty days of his death.
In order to vote on whether the lease should be accepted by the heirs at law, the granddaughters will
also have to reach the age of majority before T.W. Comer’s death. Thus, any interest of the
granddaughters in the farm is, at this point in time, remote and subject to several contingencies.

                                                           B.

       More significant than the remoteness of any interest the granddaughters may have, or the
contingencies attached to it, is the nature of the interest involved. Even if all the contingencies were
removed today, at most the granddaughters would be mere lessees and would have no interest in the
remainder or fee.

        Any interest which can be claimed by the granddaughters derives from the interests of the
class of people eligible to become the Fourth Tenant under the lease, the potential “heirs at law.”
Any interest that class of persons may have in the farm or its use must be determined by reference
to the lease. While the lease’s use of the term “heirs at law” to define membership in the class
eligible to become the Fourth Tenant requires us to consult the meaning given that term by the legal
authority relating to inheritance, it in no way changes the nature of the rights created in the lease.

        In their briefs the parties refer to the successive lessees under the lease as “life tenants,” but
the lease itself never uses that term and refers to the tenants by name, as lessees, or as First, Second,
and Third Tenants. It refers to the next potential lessees as “heirs at law” or Fourth Tenant. While
the term “life tenants” may not be inaccurate to describe these lessees, the duration of whose
possessory interest is measured by their lifetimes, that term is commonly used to describe a person
holding a very different type of interest, a part of the ownership or freehold estate. Thus, use of the
term “life tenant,” without precision in defining the interests involved, creates the possibility of
misapplication or confused application of legal principles.6 To avoid such confusion, we elect not
to use the term life tenant, even though used by the parties, to refer to any of the lessees.

         Similarly, the parties have described the potential members of the class of Fourth Tenant as
holding future interests in the farm. The granddaughters describe that interest as a contingent future
interest or contingent future estate (a life estate) and equate their interest to that of a contingent
remainderman. RGI also refers to the interest of the heirs at law as “at most, a contingent remainder
for life” and as an executory interest, which they define as “a future interest held by a third person


         6
           For example, the granddaughters’ argument regarding their waste claim includes authority which refers to the
duties of a tenant in possession compared to the rights of successive life tenants and remaindermen. In that context, the
term “life tenant” d escribes the h older of a life es tate, a type of ow nership intere st in real prop erty.

                                                          -7-
(not the Grantor) which either cuts short (shifting) or begins at some time after (springing) the
natural termination of the preceding estate.” 7 Recourse to the distinctions among various types of
contingent future interests in land is not necessary, however, to identify the interests presently held
by the future Fourth Tenant, potential “heirs at law,” or the granddaughters, because no freehold or
ownership interests are at stake.

        First National Company, RGI’s predecessor in interest, owned the real property involved
herein. The Lease Agreement clearly defines First National as the Lessor, and defines as Lessees “the
individuals hereinafter named, who lease the property for the terms hereinafter set out.” First
National never conveyed or purported to convey anything more than a leasehold interest to any of
the lessees under the lease.

        A lease conveys the possessory interest in property from a landlord to a tenant. Other
        types of conveyancing - the creation of present freehold estates and future interests -
        are distinguished from creation of a lease because either they convey something more
        than the present right to possession or they create interests in the property that never
        will be possessory. These non-possessory rights include easements, real covenants
        running with the land, and equitable servitudes.

        Originally the common law distinguished between leases, considered non-freehold
        estates, and the range of ownership interests called freehold estates. Unlike freehold
        estates, leases are not the means of transferring ownership in property. A lease
        creates possessory rights in the tenant, but nothing more. Like the creation of
        leases, the transfer of freehold estates other than future interests - the fee simple
        absolute, the fee tail, and the life estate - involves the transfer of the owner’s rights
        to possessory rights. In the case of freehold conveyances, however, the grantee
        receives something more than present possessory rights. The grantor no longer owns
        the freehold interest conveyed, and the grantee of a freehold estate becomes an owner
        of the property. As far as the interest being conveyed is concerned, the grantee of a
        freehold estate replaces the grantor as owner of that particular interest. The grantor
        may retain certain interests in the property but transfers ownership of the particular
        interest conveyed to the grantee. Others may share that ownership as co-owners. In
        contrast, the landlord conveying a leasehold estate to a tenant retains the ownership
        of the estate, or interest involved, but carves out the present possessory interest for
        the tenant.

        Freehold estates may also be divided between present and future interests in the
        property. Although the conveyance of remainder interests and other freehold estates
        included in the category of future interests does not transfer present possessory rights
        in the property, the grantee receiving a future interest estate is considered a present


        7
           RGI does assert, however, that whatever interest the granddaughters may possess is remote, speculative,
unvested, an d inconseq uential.

                                                       -8-
         owner of the property. Thus, the ownership of the property is split between the life
         tenant, who is entitled to possession of the property, and the remaindermen, whose
         interests become possessory upon the life tenant’s death. In contrast, the tenant
         never shares in the ownership of the property. A lease transfers the owner’s
         present possessory rights but does not make the tenant an owner of the property.
         Ownership remains in the landlord, whose present possessory interest in the
         property is transformed into a future interest estate, a reversion, at the moment
         the leasehold estate is created. The landlord continues to have the freehold estate
         in the property.
                                                  ***
         The possessory rights of a tenant represent a lesser estate than the ownership
         rights available through the freehold estates - both present possessory and
         future interest estates. A tenant has the right to possess real property but the
         property remains the property of another.

4 THOMPSON ON REAL PROPERTY § 39.04 at 496-97 (Thomas ed. 1994) (emphasis added).

        Therefore, potential members of the class of T.W. Comer’s “heirs at law” hold no interest,
present or future, contingent or otherwise, in the ownership of the farm. They have no interest in the
reversion; they are not remaindermen. They are not present holders of contingent future life estates,
contingent springing interests, or any other identifiable future interest in the ownership of the farm.

                                                            C.

         Having determined that the potential “heirs at law” presently hold no freehold interest in the
land, we must next determine if they presently hold a leasehold interest.8 The answer to that question
lies in the language of the lease itself and the determination of whether by that language the lessor
conveyed a possessory interest to the potential “heirs at law.”

        The lessor of the real property agreed to lease the farm to a series of successive named
tenants, the First, Second and Third Tenants, who all executed the lease. In each instance, the
successor tenant automatically became the lessee upon the death of the preceding tenant. No further
action was required by the lessor or the successor lessee to bind either to the lease. With regard to
the unidentifiable group of T.W. Comer’s “heirs at law,” the lessor agreed to continue to the bound
by the lease only if the majority of that group agreed to become the Fourth Tenant. The Fourth
Tenant does not automatically become the lessee upon the death of T.W. Comer. Nothing in this
arrangement conveyed any right to the “heirs at law” greater than the right, as a group, to elect to
accept the lease and become the Fourth Tenant. That right to elect will ripen into tenancy and the
right to possession only if a majority of those eligible to elect choose to accept the lease.


          8
            Again, without determining that the granddaughters are potential “heirs at law,” their interest, if any, derives
from that of the members of that class. In other words, their present interest can certainly be no greater than that of the
“heirs at law.”

                                                            -9-
        Leases have dual nature as a conveyance of an interest in land and as a contract between the
landlord and tenant. See 4 THOMPSON §39.02(a) at 485. With regard to the conveyance, the tenant
ordinarily obtains the present possessory interest in the leased property for the duration of the lease.
See 4 THOMPSON § 39.01 at 482. The key to the formation and definition of a lease is the
conveyance of a possessory interest: “a leasehold, being an estate, gives the right of possession or
occupation.” ROGER A. CUNNINGHAM ET AL., THE LAW OF PROPERTY § 6.2 at 257 (1984);
RESTATEMENT (SECOND) OF PROPERTY: LANDLORD AND TENANT § 1.2 (1977) (“a landlord-tenant
relationship exists only if the landlord transfers the right to possession of the leased property”). A
lease “grants the lessee . . . control over the property against the lessor and all the world.” Soderholm
v. Chicago Nat’l League Ball Club, 225 Ill. App. 3d 119, 124, 587 N.E.2d 517, 520 (1992). In
addition,

         It is well settled that the test for determining what constitutes a lease, as distinguished
         from other rights or interests, is not necessarily the descriptive language used, but
         whether it is the manifest intent of the parties that exclusive control and possession
         of specified space for a specified term has been granted. Thus, it is the transfer of
         absolute control and possession of property at an agreed rental which differentiates
         a lease from other arrangements dealing with property.

Davis v. Dinkins, 585 N.Y.S.2d 978, 981 (N.Y. Sup. 1992), modified by Davis v. Dinkins, 206
A.D.2d 365, 613 N.Y.S.2d 933 (1994).

        Obviously, the lessor did not convey any present possessory interest to the potential “heirs
at law” of T.W. Comer. That does not end the inquiry, however, because the law also recognizes
the validity of leases which are to commence in the future.9 See 1 FRIEDMAN ON LEASES §4.1 at 80
(4th ed. 1997). While a valid lease may exist even though the term of the lease, or possession by the
tenant, is to begin in futuro, the arrangement must otherwise meet the requirements of a valid lease
in order to grant a leasehold. “The law distinguishes between a lease on the one hand and a contract
to make a lease on the other. . . . A lease being a conveyance of an interest in land is more than a
contract because it creates a leasehold estate in the tenant.” 4 THOMPSON § 39.06(a)(2) at 517. A
lease must convey a possessory interest in the real property, even if possession is delayed until the
occurrence of a future event.

        In determining whether the lessor conveyed to the potential “heirs at law” a leasehold estate
whose term was to begin in the future, we are guided by the terms of the lease. Like any other
written instrument, a lease is subject to the principles of contract construction. St. Paul Surplus
Lines Ins. Co. v. Bishops Gate Ins. Co., 725 S.W.2d 948, 951 (Tenn. Ct. App. 1986). In construing


         9
          One commentator has noted that “leases to commence in futuro are unexceptional.” C UNNINGHAM § 6.13 at
271. Often, the term of the lease is set to begin upon the occurrence of a specific event, such as the completion of the
construction of a new building . See, e.g., In re Wonderfair Stores, Inc., 511 F.2 d 1206 (9th Cir. 19 75). A writing may
be a lease though it does not g ive a right to imm ediate po ssession bec ause a lease fo r years may cre ate an estate to
commence in futuro. See R ESTATEMENT (S E C O N D) OF P ROPERTY : L A N D L O R D AN D T E N A N T §1.8 (“a landlord-tenant
relationship may be made to commence upon the occurrence of an event”).

                                                          -10-
leases and other contracts, the intention of the parties is to be ascertained from the language of the
instrument, and such language should be given its usual, natural and ordinary meaning. Id. (citing
First American Nat’l Bank v. Chicken System of America, Inc., 510 S.W.2d 906, 908 (Tenn. 1974)
and Moore v. Life & Casualty Ins. Co., 162 Tenn. 682, 686, 40 S.W.2d 403, 404 (1931)). Contracts
are to be interpreted as written, in the absence of fraud or mistake. Realty Shop, Inc. v. RR
Westminster Holding, Inc., 7 S.W.3d 581, 597 (Tenn. Ct. App. 1999).

        In unambiguous language, especially when compared to the grant to the first three tenants,
who were signatories, the lease herein does not convey a leasehold interest to the potential “heirs
at law” of T.W. Comer.10 It merely grants to them the right, if they are adults, to vote to become
lessees upon the death of T.W. Comer. Rather than a grant of a leasehold interest, the lease’s
provisions with regard to even the actual “heirs at law” create in them, at most, a right to elect to
receive such an interest.11

        Therefore, the language of the lease itself compels the conclusion that, with regard to the
potential “heirs at law” of T.W. Comer,12 this was not a lease whose term was to commence in the




          10
           Potential members of the class of “heirs at law” are not bound to the terms of the lease; they have undertaken
no obligations, present or future; they are not signatories; the lease could not be enforced against them.

          11
           Were the “heirs at law” p arties to the lease , their interest could be characterize d as akin to an option to lease
or to extend a le ase. See Am erican O il Co. v. Ra sar, 203 Tenn. 37, 45, 308 S.W.2d 486, 490 (1957 ) (an option to
[extend a] lease is “a unilateral contract whereby the optionor for a valuab le consider ation grants to the optionee a right
to make a co ntract for purchase (or lease) but this is not binding on the optionee though it is binding on the optionor
during the life of the contract”).

          12
           Under some authorities, the Second and Third Tenants could be said to have been parties to a lease to b egin
in futuro prior to their taking possession or, stated another way, t he lease’s treatment of the First, Second and Third
Tenants could be held to have created, at the execution of the lease, a leasehold interest in all of the first three Tenants,
who were also signatories.

          A lease may provide that on the occurrence of some event, the right to the leasehold interest will shift
          from the original tenant to another tenant. In such case, the occurrence of the event does not ter minate
          the landlord-ten ant relationship but change s that relationship to one betw een the land lord and th e
          successor tenant. When a shift of this type is provided by the terms of the original lease, absent
          contrary provisions in the lease, when the shift occurs the original tenant is completely removed from
          future responsibilities under the lease and the successor tenant moves in and becomes an original
          tenant unde r the lease from the date of the s hift.

R ES T A T E M E N T (S E C O N D) OF THE L AW OF P ROPERTY : L A N D L O R D AN D T E N A N T §1.7 cmt. g. Other authority however,
indicates that the lease’s provisions regarding the first three tenants should be considered as three separate but successive
leases, each to intervene prior to the lessor regainin g possessio n under its reve rsionary interes t. See, e.g ., S IMES & S MITH ,
L AW OF F UTURE I NTERESTS §69. Even if this court were to adopt one of these positions, an issue we need not decide
today, the potential “heirs at law” could not rely on that p osition to enh ance their intere st because o f the specific
language o f the lease distingu ishing the Fou rth Tenan t.

                                                               -11-
future.13 Accordingly, we find that the potential “heirs at law” of T.W. Comer presently have no
leasehold interest in the farm.

                                                               II.

       Because the granddaughters have no interest in the remainder, they have no standing to bring
an action seeking to enjoin waste on the farm. Because they presently hold no leasehold or
possessory interest, even one to begin in the future, they have no standing to seek to enjoin the
mining through a claim of nuisance.

                                                               A.

        The granddaughters’ first claim is brought to enjoin the mining operations under the theory
that such mining constitutes waste, the “technical term of law that describes a use of property by one
lawfully in possession of the property, that is detrimental to another’s interest in the same
property.”14 8 THOMPSON § 70.03; see also WILLIAM H. INMAN , GIBSON’S SUITS IN CHANCERY
§589 (7th ed. 1988).

       The Tennessee Supreme Court has defined waste as “an unreasonable or improper use,
abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession,
which results in its substantial injury.” Chapman Drug Co. v. Chapman, 207 Tenn. 502, 510, 341
S.W.2d 392, 396 (1960) (quoting Thayer v. Shorey, 287 Mass. 76, 191 N.E. 435, 437, 94 A.L.R.
307). Lasting damage to the remainder or depreciation in its value is a requirement of waste in
Tennessee. Thompson v. Thompson, 206 Tenn. 202, 214, 332 S.W.2d 221, 227 (1960); Barber v.
Westmoreland, 601 S.W.2d 712, 716 (Tenn. Ct. App. 1980).



         13
           The lease also ca nnot be co nsidered a contract to lea se to the potential “heirs at law.” They are not parties
to the lease and have not promised to become parties to the lease. Where parties agree to enter into a landlord-tenant
relationship in the future, the document evidencing that agreeme nt is considere d a contrac t to lease, rather than a lease.
“The distinction [be tween a lease and a con tract to make a lease] is important in relation to the issue of remedies
available in the case of a b reach of the a greement. If the agreement is characterized as a lease, both contract remedies
and remedies available for the protection of possessory interests are applicable. . . . If, in contrast, the agreement is a
contract to execute a lease, then no rights of possessi on have been transferred; in other words, no conveyance has
occurred. The parties merely have the contractual right to enforce the promise to execute a lease.” 4 T H O M P S O N
§39.06(a)(2) at 517. “A c ontract to m ake a lease o f realty differs from a lease of realty in nature, effects and
consequ ences, muc h as a contra ct to sell realty does from a conveyance of realty.” Newport Terminals, Inc. v. Sunset
Termin als, Inc., 566 P.2d 1181, 1183 (Ore. 1977). Tennessee courts recognize the validity and enforceability of a
contract to enter into a lease at a future date. “An agreem ent to lease is not a lease, just as a contract to sell is not a sale.
However, in each case, the owner ma y be require d to perfo rm by a Co urt of Equity.” Ryan v. Stanger Inv. Co., 620
S.W.2d 505, 508 (Tenn. Ct. App. 1981) (citations omitted). The potential “heirs at law” are not parties to any a greement.

          14
           The common law doctrine of waste, developed to protect the owner of a future interest in real property from
depredations by the present holder, may have originated as part of Roman jurisprudence, is recognizable in Anglo-Saxon
law, and was the subject of statutory revisions throughout the Middle Ages, including mention in Magna Carta. For a
full discussion o f the develop ment of the law of waste, see 8 T H O M P S O N § 70.07.

                                                              -12-
        Essentially, waste is a violation by the lawful current possessor of the obligation to preserve
the value of the land for those with subsequent or remainder interests, see 1 RESTATEMENT OF THE
LAW OF PROPERTY §138 at 450 (1936), so that “the estate may revert to those having an underlying
interest, undeteriorated [by] any willful or negligent act.”15 93 C.J.S. Waste §1 at 560 (1956).

        The Restatement examines the principles embodied in the legal concept of waste in the
context of the protections accorded a future interest using an analysis based upon the interaction of
four variables: (1) the type of the present interest; (2) the type of the future interest for which
protection is sought; (3) the exact content of the act or omission as against which protection is
desired; and (4) the procedural channel through which protection is demanded. See 2 RESTATEMENT
OF THE LAW OF PROPERTY 755 (1936).


        Actions by the current holder which may constitute waste include changes to the property,
changes in use of the land, and changes in the character of the land, but only where the owners of
subsequent interests have reasonable grounds for objection to the changes, where the change results
in permanent injury to the inheritance, or is contrary to good husbandry.16 See RESTATEMENT OF THE
LAW OF PROPERTY §140; 93 C.J.S. Waste § 6; 8 THOMPSON §70.08(c)(3). In Tennessee, a change
in the land which successive interest holders find merely objectionable would not be considered
waste unless that change results in lasting damage to the remainder or depreciation in its value.
Barber, 601 S.W.2d at 716.17




         15
            These general rights and duties can be expanded or decreased by the language of the document creating the
tenancy, e.g., a life estate “without impeachment for waste,” “free from all control,” o r similar languag e clearly
expressing th e creator’s inte nt to lessen the d uties or increa se the rights of the life ten ant. See 1 R E S T A TE M E N T O F T H E
L AW OF P ROPERTY §141; see also Merrim an v. Moo re, 600 S.W.2d 720 , 725 (Tenn. 1980) (court refused to hold that
the words “the right to use the rents and profits of said lands for their suppo rt and mainte nance” ren dered the life estate
unimpeachable for waste, but held life tenants were entitled to use good farming practices).

          16
            In the case at han d, the grand daughters se ek protec tion against t he mining or quarrying of limestone. In
specific, the current lessee and the holder of the reversion have agreed to a mining operation which will involve the
digging of an open pit of approximately twenty-five acres, measuring 1000 feet by 1000 feet, dug to a possible depth of
three hundred (300) fee t. In addition to the open p it, RGI intend s to remove limestone through a system of interlocking
subterranean tunnels or caverns throughout the farm, which may also involve air shafts from the surface to the caverns.
The mining agreement includes no obligation to reclaim o r restore the twe nty-five acres after m ining ceases. A
representative of RGI testified that the company does not normally reclaim quarry property when they stop using it and
that the comp any could n ot restore the land to the o riginal surface to pograp hy and con tours.

          17
           Tennessee courts have refused to find a life tenant liable for waste where the tenant’s changes to the land were
consistent with good husbandry, but have clearly stated that actions contrary to good husbandry could subject the life
tenant to liability to waste. Merriman v. Moore , 600 S.W.2d at 725 (tenant ’s changes were consistent with good
husband ry, which would preserve or enhance the value of the land, and no liability for waste is found, but “[a]ny material
deviation from good tree farming practice would render the life tenants liable to the remainderman for waste”);
Thompson, 206 T enn. at 214 (timber was c ut for purpo se of preserv ing and enh ancing the farm generally).

                                                                 -13-
        However, it is generally considered waste to open new mines or quarries on the real property
and to extract deposits therefrom.18 93 C.J.S. Waste § 8; 8 THOMPSON § 70.08(c)(2). In most
jurisdictions, removal of a nonreplenishable mineral resource may constitute waste since it inevitably
involves lasting damage to the remainder or depreciation in the value of the remainder. 51 AM . JUR.
2D Life Tenants and Remaindermen §167 (2000).19 Similarly, a possessor’s sale of resources for
profit is generally prohibited, unless the sale can be justified as benefitting the real property.
Thompson, 332 S.W.2d at 226.

        Thus, a tenant who begins a mining operation and removes and sells mineral resources would
likely be liable to the owner of the land, and could be enjoined by the owner or, potentially, by
someone with a future interest in the ownership of the land. However, in the case before us, the
owner of the farm, the holder of the reversion, is RGI, the company doing the mining with the
consent of the holder of the current possessory interest. The potential “heirs at law” have no
intervening ownership interest in the land, as explained earlier. Herein lies the fatal defect in their
action to enjoin waste.

        Although various remedies are available to a party entitled to bring an action for waste, the
most common being damages and injunction, Tenn. Code Ann.§29-36-105, a party’s entitlement to
a particular remedy depends in large part on that party’s interest in the land. The relationship
between the parties’ interests and the availability of remedies for waste has been summarized: “If
the plaintiff in a waste action owns only a reversionary or executory interest in the property, the
available remedies vary depending on the remoteness of the possibility that the interest will become
a fee simple absolute.” 8 THOMPSON §70.09(c).

        In this case, while the likelihood of the granddaughters ever becoming members of the class
of “heirs at law” and the likelihood of that group electing to become lessees are debatable, the
likelihood that any of them will become holders of the reversion or any ownership interest is not.
That possibility is not only remote, it is nonexistent.

         Tennessee courts have examined the type of interest necessary to bring an action for waste.
In Bowman v. Bowman, 77 S.W.2d 455 (Tenn. 1935), the Supreme Court held that “it is elementary
that complainants must show that they have a present interest in the subject-matter of the litigation,
in this case the land, as to which the injunction is sought.” Bowman, 77 S.W.2d at 455. In that case,
creditors of the deceased husband sought to enjoin the widow from cutting trees on land in which


         18
           These general rules are subject to modification by agreement of the parties showing an intent different from
that implied b y the comm on law rule, o r by legislation. See 8 T H O M P S O N § 70.08 (c)(2).

         19
            Most of the Tennessee cases involving removal and sale of resources deal with timber rather than m inerals,
and the courts have not considered timber a scarce or irreplaceable resource. See, e.g., Owen v. Hyde, 14 Tenn. 334
(1834); see also footnote 15 herein. In Barber v. Westmoreland, however, w hich involved the remova l and sale of fill
dirt, this court obs erved that “the term ‘waste’ has a very e xtensive mea ning. Spec ifically, with regard to waste by a
cotenant, the term includes the taking away of soil, the quarrying of rock, and the removal of structures or of fixtures
attached thereto.” Barber, 601 S.W.2d at 716 (quoting 20 AM .J U R .2 D Cotena ncy and Joint Ow nership § 38 (1965)).

                                                          -14-
she held a life estate by virtue of her homestead rights. Finding that the creditors had not subjected
the remainder to sale, subject to the homestead, and that they, therefore, had neither title to nor lien
on the land, the court concluded, "[a] mere inchoate right to acquire by proper steps a title to or other
ownership interest in the land is not sufficient" to establish the interest in land required in a suit to
enjoin waste. Id.; see also Nashville, Chattanooga & St. Louis Ry. v. The Railroad and Pub. Utils.
Comm’n, 32 S.W.2d 1043, 1044 (Tenn. 1930) (action dismissed because plaintiff was seeking to
protect an “alleged right,” one which could only be established in two related lawsuits, a situation
analogous to dismissal of a suit to prevent waste, which can only be maintained by a plaintiff with
“a clear title”).

        Obviously, an injunction to prevent waste is designed to protect the interest of the holder of
the remainder or reversion in land so that it is not devalued by the current possessor. Waste is
actionable only where the action of the present holder results in lasting damage to the remainder or
depreciation in its value. Thompson, 332 S.W.2d at 227 (“only that which does a lasting damage to
the remainder, or depreciates its value, is waste”); Barber, 601 S.W.2d at 716; Priest v. Priest, 621
S.W.2d 577, 578 (Tenn. Ct. App. 1981) (“A remainderman unquestionably is entitled to relief from
threatened waste which impinges upon or impairs his remainder interest”). Thus, a party seeking
to enjoin a particular use of land as waste must have a sufficient stake in the value of the ownership
interest to warrant judicial interference to protect that value. While that interest might be a future
interest or might be contingent, it must be an ownership interest.20

                                                            B.

        Appellants also lack standing to assert their nuisance claim. "A nuisance is anything which
annoys or disturbs the free use of one's property or which renders its ordinary use or physical
occupation uncomfortable." Aldridge v. Morgan, 912 S.W.2d 151, 154 (Tenn. Ct. App. 1995)
(quoting Wilson v. Farmers Chemical Ass’n, Inc., 60 Tenn. App. 102, 444 S.W.2d 185 (1969)). “A
private nuisance involves interference with a person’s use and enjoyment of land.” Wayne County
v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 283 (Tenn. Ct. App. 1988). These
well-established definitions presuppose a present interest in property affected by the nuisance. See
Hadden v. City of Gatlinburg, 746 S.W.2d 687, 689-90 (Tenn. 1988) (as between landlord and
current tenant, the right to maintain a nuisance action depends upon which estate suffers harm from
the wrongful act.) Appellants do not possess such an interest.




         20
            In Giles v. Third Nat’l Bank, 1985 Tenn. App. Lexis 3092 (T enn. Ct. App. Aug. 16, 1985) (no Tenn. R. App.
P. 11 application filed), this court held that non-income receiving, solely contingent beneficiaries to a trust had no
standing to bring an action against the trustee for failure to produce a larger income because they had no right to the
income. The court stated, “We do not mean to intim ate that conting ent beneficiar ies have no sta nding in any ca se to use
[sic] a trustee. It has long been the law of this state that those who hold only continge nt or remain derman in terests in
a res have the right to bring an action to prevent waste of the property.” (citing Miller v. Speed, 56 Tenn. 196, 199
(1872) and Priest v. Priest, 621 S.W.2d at 578).

                                                           -15-
                                                       III.

        The granddaughters also assert that the mining violates their express and implied contract
rights. Specifically, they point to the lease’s provision requiring lessees to “keep and maintain the
same21 in a good state of repair and keep the land in a good state of cultivation.” They argue that the
lease’s grant specifically to T.W. Comer, and only to T.W. Comer, of “the right to use the property
fully as tenant” does not vitiate his obligation to preserve the premises. T.W. Comer, they assert,
is bound deliver the farm in a condition they characterize as “its pristine form” to the Fourth Tenant
at the end of his tenancy.

       In addition to being a conveyance of an interest in real property, a lease is also a contract
between the parties. Williams v. Starce, No. 85-162-II, 1985 WL 4074 at *1 (Tenn. Ct. App. 1985)
(no Tenn. R. App. 11 application filed). Thus, although we have found that the potential “heirs at
law” presently hold no leasehold interest in the farm, we must consider the granddaughters’
contention that they can enforce contractual rights created in the lease.

       We begin with the fact that neither the granddaughters nor any other potential “heir at law”
of T.W. Comer is a party to the lease, although the First, Second and Third Tenants are. The
granddaughters assert that the Fourth Tenants are the express beneficiaries of the lease, and that they
have been granted the “express contractual right to the complete use and enjoyment of the entire five
hundred acres.” Setting aside the issue of whether the granddaughters can assert the rights of the
Fourth Tenant, we must determine whether the potential “heirs at law” of T.W. Comer are intended
beneficiaries of the maintenance provisions of the lease and are entitled to enforce those specific
provisions.

         As a general rule, only parties to a contract are entitled to sue to enforce its provisions, and
it is presumed that the contract has been entered into for the benefit of those parties. However, the
law recognizes an exception to that general rule where a person who is not a party to the contract can
show that the parties intended that he benefit from the contract. First Tenn. Bank Nat’l Ass’n v.
Thoroughbred Motor Cars, Inc., 932 S.W.2d 928, 930 (Tenn. Ct. App. 1996); Moore Constr. Co.
v. Clarksville Dep’t of Elec., 707 S.W.2d 1, 8 (Tenn. Ct. App. 1985). A nonparty asserting the
status of intended beneficiary of a contract must meet the following burden:

        Since the law presumes that a contract has been executed for the benefit of the parties
        thereto, a person claiming to be an intended beneficiary has the burden of proving
        from the terms of the contract itself or the circumstances surrounding the contract’s
        execution that he is entitled to recover. Each case must be decided on its unique facts
        considered in light of the specific contractual agreements and the circumstances
        under which they were made.

First Tenn. Bank, 932 S.W.2d at 930 (quoting Moore Constr., 707 S.W.2d at 9-10).


       21
         The phrase “the same” appears to refer to the principal residence on the farm.

                                                      -16-
        The record includes no testimony regarding the circumstances surrounding the drafting of
execution of the lease, except the fact that the original lessor, First National Company, was owned
by the Church of Christ Foundation. Therefore, any evidence of an intent to benefit persons other
than the parties must be found in the language of the specific agreement.

         A person is a donee beneficiary22 when it appears from the terms of the promise in
         view of the accompanying circumstances that the purpose of the promisee in
         obtaining the promise of all or part of the performance thereof is to make a gift to the
         beneficiary or to confer upon him a right against the promisor to some performance
         neither due nor supposed or asserted to be due from the promisee to the beneficiary.

13 WILLISTON ON CONTRACTS §37:9 at 82 (2000) (citations omitted).

        We can find no intent in the maintenance provision of the lease that that promise was made
to benefit the potential members of a class who will become eligible to vote to exercise the option.
Instead, those provisions are directly related to the relationship between the lessor and the signatory
lessees and for the benefit of the lessor and the actual lessees.

         When Guy Comer first transferred the farm to the lessor, he specifically reserved to himself
all buildings on the property except the principal residence which was transferred to the lessor. The
lease recognizes the First Tenant’s (Guy Comer’s) reservation of these structures as his personal
property and his reservation of the right to remove those and other improvements as he saw fit during
his lifetime. Guy Comer was also given the right to build and sell other buildings on the property
during his tenancy. As the First Tenant, Guy Comer agreed to pay $750 per month in rent, but the
lessor agreed to pay all taxes or other governmental assessments, to maintain the principal residence
in good and substantial repair, to insure the residence, and to restore the residence if it were damaged
or destroyed, subject to Guy Comer’s approval of the plans.

       Under the lease, the Second Tenant, Mary Comer, was to “hold as Lessee for and during the
remainder of her natural life.” She was to pay “as rental” one dollar ($1.00) per month and all taxes
or other governmental assessments on the property. In addition, she was obligated to pay for
insurance on the residence, but the insurance was to be carried in the lessor’s name, “and generally,
she shall relieve Lessor from any and all payments in reference to said property, and keep and
maintain the same in a good state of repair, and keep the land in a good state of cultivation.”

        During Mrs. Comer’s tenancy, she was to allow her son, Mr. T.W. Comer, to live in a
specific house on the property without charge or to erect a new dwelling house at his expense. As
the Third Tenant, T.W. Comer was subject to the same terms and conditions as those applicable to


           22
              Although no longer a ne cessary distinction, a donee bene ficiary’s interest arose from a presume d gift while
a creditor be neficiary’s interest arose from discharge of a duty owed the beneficiary by the promisee. See 13 W I LL IS T O N
O N C O N T R A C TS § 37:7 at 3 5-37 (20 00). Bo th were classes of intended beneficiaries. See id . at 33. Since the
grandda ughters do not claim that the original lessees or lessor ow ed them a d uty, their claim arise s from a gift.

                                                            -17-
the Second Tenant, except that T.W. Comer was specifically given the additional “right to use said
property fully as the tenant.”

        The Fourth Tenant (those adult heirs at law of T.W. Comer at his death who accept the lease)
was to be responsible for rent, taxes, assessments, and insurance on the same terms as the preceding
tenants, including the following:

       On the event the main dwelling on the premises is destroyed after the death of Guy
       L. Comer, and at a time when insurance is maintained by the tenant, the then tenant
       of the premises shall restore the main dwelling out of insurance money, to as near as
       may be the condition it was in at the time of the damage or destruction. The Lessor
       shall have the right to inspect and approve the plans for any such restoration.

       The lease also includes the following forfeiture provisions:

       The Lessor shall have no right to declare a forfeiture of this lease against the first
       three named tenants, Guy L. Comer, Mrs. Guy L. Comer, and T. W. Comer but in the
       event Mrs. Guy L. Comer or T.W. Comer, or either of them, fail or refuse to pay any
       amount which may be due for taxes, insurance or other expenditures contracted to be
       made by them, the Lessor may make such expenditures, including repairs to the
       premises and the reasonable cost thereof, or the amount of taxes or insurance,
       together with interest from the date of advancement shall be a debt of the then tenant,
       immediately payable, and may be collectible in any Court of Competent jurisdiction.

       If after the death of T. W. Comer, the then tenant or tenants fail or refuse to pay
       taxes, insurance, or make repairs after 30 days’ notice by Lessor so to do, the Lessor
       may, without further notice, cancel and terminate this lease and re-enter possession
       of said premises, without the premises being in any way encumbered by this lease.

        The granddaughters would have us find that the obligation to maintain the premises is
intended to benefit potential future lessees. We think it is more likely, however, that that obligation
is merely part of the mutual rights and obligations between the lessor and actual lessees, during the
term of a tenancy. Provisions regarding the duty to maintain premises in good condition are common
in leases. See, e.g., Jaffe v. Bolton, 817 S.W.2d 19, 24 (Tenn. Ct. App. 1991) (detailed provisions
were included regarding condition of premises when leased, improvements to be made, and tenant’s
promise to keep the premises in good repair and condition); Hooten v. Nacarato GMC Truck, Inc.,
772 S.W.2d 41, 47 (Tenn. Ct. App. 1989) (tenant agreed to keep the leased premises in good repair
and landlord could enforce that promise, even though the facts did not support forfeiture of the
tenancy). A tenant’s promise to make repairs is enforceable by the landlord, who is entitled to
damages. See FRIEDMAN ON LEASES § 10.602(a). Common also are agreements regarding
insurance. See Bishops Gate, 725 S.W.2d at 952 (insurance proceeds may be allocated between the
parties depending on the terms of the lease and the nature of the loss). An agreement to purchase
insurance on leased premises is presumed to be for the mutual benefit of the lessor and lessee. Tate


                                                 -18-
v. Trialco Scrap, Inc., 745 F. Supp. 458, 473 (M.D. Tenn. 1989), aff’d 908 F.2d 974 (6th Cir. 1990)
(unpublished disposition).

        Where the tenant promises to keep premises in a good state of repair, that promise is for the
benefit of the lessor. The lessor, as holder of the reversion, is benefitted by the provisions which
require maintenance and insurance of the premises, so that the value of its ownership interest is not
injured. The Fourth Tenant’s obligations to maintain the premises and keep it insured indicates that
the provisions are intended to benefit the lessor. The fact that the Fourth Tenant may forfeit its
tenancy for failure to meet these requirements leads even more forcefully to that conclusion. The
granddaughters have failed to meet their burden of demonstrating that the parties intended that they
benefit from the promise of lessee to maintain the premises in good repair and the land in a good
state of cultivation.

       Although the granddaughters hold no leasehold interest, are not parties to the lease, and are
not obligated by contract to become lessees in the future, they in essence seek to enforce
prospectively a covenant somewhat like a covenant of quiet enjoyment, or habitability, or fitness of
the premises for the lessee’s purpose. See THOMPSON §§ 40.01 - 40.24 (explanation of duties of
landlord and tenant). Since they are, at most, merely potential lessees, they have no standing to
attempt to impose or enforce such a covenant.

        When deciding whether to undertake the obligations of a lease, a potential lessee is generally
expected to inspect the premises to be leased and to weigh the benefits and the obligations of the
lease arrangement. See FRIEDMAN ON LEASES §§10.101 and 27.4. “The traditional common law
view was that the landlord made no implied warranty in connection with this conveyance [the lease]
regarding the initial condition of the leased property or of its fitness for the tenant’s intended
purposes.” THOMPSON § 40.23(a)(1); see also Parris v. Sinclair Refining Co., 359 F.2d 612, 614
(6th Cir. 1966) (under Tennessee law, a tenant takes property as he finds it). The provisions of the
lease in question contemplate that the “heirs at law,” when they become such, may determine
whether to undertake the financial and other obligations of lessees. Part of that analysis would
naturally include assessment of the condition of the farm and its suitability to their purpose at that
time. We decline to presume that the original parties to the lease intended that unknown persons
who might become eligible to decide whether to become lessees were to be guaranteed the right to
refuse the lease of the farm in its pristine condition.

        The fact that the granddaughters have only a contingent, and arguably remote, possibility of
becoming lessees clearly points out the weakness of their position. In essence, they would have us
hold that potential future lessees are intended beneficiaries of a lease’s obligations to maintain the
premises, even where there is no lease to begin in the future, there is no contract to lease, and they
are not parties to an option to lease. We find no authority for this position and decline to create any.




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                                                  IV.

         We need not determine whether the “heirs at law” or the potential “heirs at law” are intended
beneficiaries of any other promise in the lease since they do not seek to enforce any other provision.
When determining third party beneficiary status, courts examine the specific promise which the third
parties contend was intended to benefit them. For example, in Disney Bros.v. Campbell County, 6
Tenn. App. 569 (1926), this court found that the promise of the contractor to hold the county
harmless for debts for materials furnished in construction of a road constituted an express
undertaking to pay those debts, and, being a promise made for the benefit of suppliers, created a
direct liability of the contractor to suppliers, allowing their suit for cost of supplies. Disney Bros.,
6 Tenn. App. at 579. That finding, of course, did not mean that the suppliers were third party
beneficiaries of other provisions of the contract between the county and the contractor to build the
road. “[T]he beneficiary, though not a party to the contract, may maintain an action directly in his
own name against the promisor, where such promise between the promisor and the promisee is made
upon consideration for the benefit of the third party.” Id. Similarly, in Owner-Operator Independent
Drivers Ass’n, Inc. v. Concord EFS, Inc., No. M1999-02560-COA-R3-CV, 2000 WL 225945 (Tenn.
Ct. App. Feb. 29, 2000) (perm. app. granted Sept. 11, 2000) this court determined that truckdriver
holders of credit cards were intended, at least by one of the parties, to benefit from a provision in the
contract between the merchant bank and merchants in which the merchants promised not to add
surcharges to purchases made using that credit card. See Concord EFS, 2000 WL 225945. The fact
that this court found the cardholders to be third party beneficiaries of that promise in the contract
cannot be interpreted as giving them standing to enforce other provisions of the commercial contract
between the bank issuing the cards and the merchants.

        Therefore, we decline to address the question that would be presented if the actual “heirs at
law,” the majority having decided to become lessees, were seeking to enforce the promise of the
lessor to keep the lease in effect as to the Fourth Tenant.

                                                   V.

       We conclude that the granddaughters’ have shown no interest in how the farm is used that
would give them sufficient stake in the issue to warrant an injunction prohibiting the mining which
has been agreed to by the lessor, who is the holder of the reversion interest, and the current lessee
who “may use the property fully” during his tenancy. Therefore, we affirm the judgment of the trial
court. Costs are taxed to the Appellants.



                                                         ___________________________________
                                                         PATRICIA J. COTTRELL, JUDGE




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