                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               December 13, 2012 Session

  BARRY RUSSELL, ET AL. v. HENDERSONVILLE UTILITY DISTRICT

                 Appeal from the Chancery Court for Sumner County
                     No. 2010C120     Tom E. Gray, Chancellor


                No. M2011-02728-COA-R3-CV - Filed March 20, 2013


Property owners sued utility district for damages and an injunction as a result of the
excessive use of an easement across the property owners’ land by the district’s assignees.
The utility district denied any wrongdoing and moved the trial court to dismiss the complaint.
The trial court dismissed the complaint for failing to state a cause of action for which relief
can be granted. The property owners appealed. We conclude the trial court erred in
dismissing the property owners’ complaint because the property owners have stated a cause
of action for which relief can be granted. We therefore reverse the trial court’s judgment and
remand the case for further proceedings.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Devon Jeffrey Sutherland, Hendersonville, Tennessee, for the appellants, Barry Russell and
Theda F. Russell.

Shelton Hatcher, Hendersonville, Tennessee, and Donald Lee Scholes, Nashville, Tennessee,
for the appellee, Hendersonville Utility District.

                                         OPINION

                                       B ACKGROUND

       Barry and Theda F. Russell purchased a parcel of property in Hendersonville in 1996
(the “Property”). The Property was subject to an easement the Russells’ predecessors had
granted to Hendersonville Utility District (“HUD”) in 1991. The easement is described in
a document entitled “Agreement of Dedication of Easements for Public Utility, Drainage,
and Access Road Uses” (the “Agreement”).

       The Russells filed a complaint against HUD in June 2010 in which they stated the
following:

      4.     Plaintiff would state that the “agreement” set forth in Exhibit A was
             solely for the purpose of access to and from a Water Reservoir
             maintained by the Hendersonville Utility District.

      5.     Plaintiff would state that the Water Reservoir was abandoned by the
             Hendersonville Utility District several years ago, however, they have
             maintained a monitoring station at said location.

      6.     Plaintiff would state that since abandoning the Water Reservoir, the
             Hendersonville Utility District has engaged in leasing the Water
             Reservoir to numerous telecommunication companies for the placement
             of various antennas, microwaves, etc. and in so doing Plaintiff would
             state that the use of the easement far exceeds the anticipated use of the
             easement.

      7.     Plaintiff would state that the excessive use of the easement by
             numerous company vehicles has caused damage to Plaintiff’s property.

      8.     Plaintiff would state that the excessive use of the easement by
             companies not contemplated by the “agreement” has caused a
             diminished value to the Plaintiffs’ property and interferes with the
             Plaintiffs’ quiet enjoyment of the property.

      9.     Plaintiff would state that if the Defendant is not enjoined from leasing
             the abandoned Water Reservoir that Plaintiff will continue to suffer
             damages and their property value will be adversely affected.

      The Agreement, which was attached to the complaint as an exhibit, grants HUD, its
successors, and assigns certain easements across the Russells’ property for the following
purpose:

      (1) to construct, maintain, repair, and otherwise construct and maintain the
      access road located within the boundaries of the easement applicable to an
      access road, (2) to construct, operate, maintain, repair, and replace public

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       utilities and similar improvements within the limits of the aforedescribed
       easements or rights-of-way and to grade the land located within the drainage
       easements so that water will flow across and through same.

       HUD filed an Answer denying any wrongdoing. Several months later HUD filed a
Motion for Declaratory Judgment in which it asked the trial court to dismiss the Russells’
complaint. The trial court treated the motion as a Rule 12 motion to dismiss. Following a
hearing in November 2011, the trial court entered an order dismissing the Russells’
complaint. The court wrote:

       Whereupon, the Court heard arguments of Counsel for both parties and
       determined that the Motion is well founded, wherefore:

              IT IS ORDERED, ADJUDGED and DECREED that the Plaintiff’s
       Motion for a Declaratory Judgment is hereby granted inasmuch as the
       Complaint fails to state a ground upon which relief should be granted and the
       action is dismissed.

       The Russells appeal the trial court’s dismissal of their complaint.

                                          A NALYSIS

        “A Rule 12.02(6) motion to dismiss admits the truth of all of the relevant and material
allegations contained in the complaint, but it asserts that the allegations fail to establish a
cause of action.” Leach v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004) (citing Stein v. Davidson
Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997)). The motion challenges only the legal
sufficiency of the complaint; it does not address the strength of the plaintiffs’ proof. Webb
v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (citing
Highwoods Props, Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009)). In ruling
on a motion to dismiss, courts are to construe the complaint liberally, presume all factual
allegations to be true, and give plaintiffs the benefit of all reasonable inferences. Tigg v.
Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007) (citing Trau-Med of Am., Inc. v.
Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002)).

       A complaint must include enough factual allegations to set forth a claim for relief, but
it need not include detailed allegations of every fact giving rise to the claims. Abshure v.
Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). Our Supreme
Court has explained that although a complaint

       need not contain in minute detail the facts that give rise to the claim, it must

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       contain direct allegations on every material point necessary to sustain a
       recovery on any legal theory, even though it may not be the theory suggested
       . . . by the pleader, or contain allegations from which an inference may fairly
       be drawn that evidence on these material points will be introduced at trial.

Leach, 124 S.W.3d at 92 (citing Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977)).

        In our review of a trial court’s dismissal of a complaint under Rule 12.02(6), we must
take the factual allegations stated in the complaint as true and review the trial court’s legal
conclusions de novo without any presumption of correctness. Leach, 124 S.W.3d at 90
(citing White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000)).

       The Russells alleged in their complaint that HUD had abandoned the water reservoir
and was leasing the reservoir to telecommunication companies, which use exceeded the
anticipated use of the easement. The Russells further alleged the excessive use of the
easement by the telecommunications companies’ vehicles has caused damage to their
property and has caused the value of their property to diminish. Finally, the Russells alleged
the excessive use of the easement interferes with their quiet enjoyment of the property.

       A review of the case law in Tennessee shows that the Russells have stated a cause of
action based on the facts they allege in their complaint. As the Court of Appeals has
explained,

       The use of an easement must be confined strictly to the purposes for which it
       was granted or reserved. A principle which underlies the use of all easements
       is that the owner of an easement cannot materially increase the burden of it
       upon the servient estate or impose thereon a new and additional burden.

       . . . . [A]n easement appurtenant to a dominant tenement can be used only for
       the purposes of that tenement; it is not a personal right, and cannot be used,
       even by the dominant owner, for any purpose unconnected with the enjoyment
       of his estate. The purpose of this rule is to prevent an increase of the burden
       upon the servient estate, and it applies whether the easement is created by
       grant, reservation, prescription, or implication.

       A principle which underlies the use of all easements is that the owner thereof
       cannot materially increase the burden of it upon the servient estate, nor impose
       a new and additional burden thereon. . . . It may be said in general that if an
       easement is put to any use inconsistent with the purpose for which it was
       granted, the grantee becomes a trespasser to the extent of the unauthorized use.

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Cellco P’ship v. Shelby Cnty., 172 S.W.3d 574, 596 (Tenn. Ct. App. 2005) (quoting Adams
v. Winnett, 156 S.W.2d 353, 357 (Tenn. 1941) (internal quotations omitted)); see Rector v.
Halliburton, 2003 WL 535924, at *4 (Tenn. Ct. App. Feb. 26, 2003) (easement owner may
not materially increase the burden on the servient estate or impose a new and additional
burden). The Cellco Partnership court recognized that “[w]hile the common law recognizes
that certain easements may be assigned or apportioned to a third party, the third party’s use
cannot exceed the rights expressly conveyed to the original easement holder.” Cellco P’ship,
172 S.W.3d at 598 (quoting Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.
2002)).

       If an easement is put to any use that is not consistent with the purpose for which it was
granted, or which exceeds the scope as granted, the grantee may be liable for any resulting
damages, measured by either the cost of restoring the property to its condition prior to the
injury or its diminishment in value, depending on the circumstances. Conatser v. Ball, 2001
WL 873457, at *8-9 (Tenn. Ct. App. Aug. 3, 2001). Having alleged damage to their property
as a result of the use of the easement by excessive use beyond the original purpose, the
Russells have stated a claim.

        Concluding the Russells have stated a cause of action for which relief can be granted,
we reverse the trial court’s judgment dismissing the Russells’ complaint and remand the case
for further proceedings.

                                        C ONCLUSION

        The trial court’s judgment is reversed and the case is remanded for further
proceedings. Costs of this appeal shall be assessed against the appellee, Hendersonville
Utility District, for which execution shall issue if necessary.




                                                           ____________________________
                                                           PATRICIA J. COTTRELL, JUDGE




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