                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                  ______________________________________________      FILED
GORDON CARROLL and
                                                                       February 9, 1999
ORA HALL,
                                                                   Cecil W. Crowson
       Plaintiffs-Appellees,
                                                                  Appellate Court Clerk
                                                      Wilson Chancery No. 97-281
Vs.                                                   C.A. No. 01A01-9802-CH-00106

JOHN W. BELCHER and
FRANKIE BELCHER,

      Defendants-Appellants.
____________________________________________________________________________

                 FROM THE CHANCERY COURT OF WILSON COUNTY
                   THE HONORABLE C. K. SMITH, CHANCELLOR




                Alan Poindexter; Rochelle, McCullough & Aulds of Lebanon
                                      For Appellees

                                Michael R. Jennings of Lebanon
                                        For Appellants




                                AFFIRMED AS MODIFIED

                                         Opinion filed:




                                                              W. FRANK CRAWFORD,
                                                              PRESIDING JUDGE, W.S.




CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE


       This appeal involves an easement for ingress and egress. The defendants, John and

Frankie Belcher (Belcher), appeal the decision of the trial court granting the plaintiffs, Gordon

Carroll (Carroll) and Ora Hall (Hall), the right to widen an easement running over their property.
       This dispute arises from the attempts of Carroll, owner of the dominant estate, and Hall,

his vendee under a sales contract, to widen an easement for the ingress and egress over Belcher’s

property, the servient estate. Carroll is the owner of approximately 16 acres of property that has

no road frontage. Access to Carroll’s property is obtained through an easement located on land

Belcher has owned since 1954. This easement has been used by Carroll and previous owners

of Carroll’s property to reach the road for well over 50 years.

        Although no deed described the easement, Belcher and other witnesses stated that it had

been an old wagon road prior to being used by automobiles. The easement itself was described

by witnesses at trial as approximately eight to ten feet wide and traveling approximately six

hundred feet across Belcher’s property. The easement was a dirt and gravel road wide enough

for automobiles to move to and from Carroll’s land.

        Carroll purchased the land in 1997. Carroll and Hall subsequently entered into a land

installment sales contract which required Hall to pay the full amount of the purchase price before

receiving the deed. Hall and James Moon (Moon) presently occupy the residence located on

Carroll’s land.

        In July, 1977, shortly after acquiring possession of the property, Moon, apparently on

behalf of Hall, commenced to widen the easement. This work was undertaken without the

knowledge or permission of Belcher, who, at that time, was in the hospital. Using a bulldozer,

Moon moved debris onto Belcher’s land and made various ruts through Belcher’s land off of the

existing right of way. The testimony indicated that it was Hall’s intention to widen the easement

to fifty feet. Belcher returned from the hospital, and, when he found out what had happened,

he erected fences along the easement’s historical boundaries which were approximately eight

to ten feet in width.

        Hall and Carroll then filed a petition for temporary and permanent restraining order to

keep Belcher from interfering with or preventing Carroll and Hall’s use of easement. The

complaint avers that the defendants, Belcher, had constructed and erected posts within the

premises of the easement and that the posts restricted entry and exit to the residence on the

property and have caused damage to the motor vehicles using the easement. The complaint

seeks a temporary restraining order and a permanent injunction to restrain the defendants from

interfering with or preventing the use of the easement as a driveway access through the

Carroll/Hall property. Plaintiffs also seek an injunction to require removal of any obstacles from


                                                2
the easement to and from the property.

        Defendants’ answer admits that there is an easement across the property and admits that

defendants have constructed and erected posts but avers that they have been erected on the edge

of the easement and do not obstruct the right of way provided by the easement. The defendants

aver that the posts and fence were placed at the edge of the easement that has been used for over

fifty years.

        The case was tried by the court without a jury, and the court entered an order on October

31, 1997 containing findings of fact and states as follows:

                      This cause came on to be heard for trial on October 15th,
               1997 before the Honorable C. K. Smith, Chancellor for Wilson
               County, Tennessee, and with all parties before the Court and after
               due consideration of all sworn testimony and documentary
               evidence, the Court does find as follows:
                                      Findings of Fact

               1. That the Plaintiff, Gordon Carroll, is the owner 16.18 acres
               located of Thomas Road in northern Wilson County, Tennessee.

               2. That the 16.18 acre tract Plaintiff owns has no frontage on a
               public road.

               3. That historically, access to and from the 16.18 acre tract is by
               an unrecorded and undefined easement across Defendants’ lands.

               4. That the Defendants are owners of the servient tenement.

               5. That the Plaintiff, Gordon Carroll, is the owner of the
               dominant tenement.

               6. That the historical width of the aforesaid easement has been
               anywhere from eight to ten feet wide.

               7. That the historical use of the aforesaid easement has been for
               ingress and egress to the Plaintiff’s tract.

               8. That the aforesaid easement does not materially affect the
               Defendants’ use and enjoyment of their land.

               9. That due to the requirements of modern vehicles, e.g.
               ambulances, fire trucks, delivery vehicles, etc, an easement of
               fifteen feet is required so that vehicle may ingress and egress the
               Plaintiff’s property with adequate space.

               10. That increasing the width of the easement does not materially
               increase the burden on the servient tenement so long as the scope
               of the use is limited to ingress and egress.

                                      Conclusions of Law

               1. The Plaintiff, Gordon Carroll, is entitled to a fifteen foot wide
               easement across Defendants’ land from Thomas Road to
               Plaintiff’s 16.18 acre tract.

               2. Plaintiff’s use of the easement is limited to ingress and egress

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              to and from his property.

              3. Plaintiff may make repairs and improvements to the area

              within the easement boundaries.

              4. If Plaintiff must cut trees or remove timber, the Defendants
              will be compensated for such material.

              5. Should Plaintiff damage the Defendants’ property outside the
              easement boundaries, then Plaintiff shall compensate the
              Defendants for such damage.

              6. The centerline of the easement shall be located as near as
              possible to the centerline of the historical easement. The
              easement’s width shall extend seven and one-half feet
              perpendicular from each side of the centerline.

              7. The Defendants are permanently restrained and enjoined from
              erecting any structure or obstacle that would interfere with the
              easement being fifteen feet.

              8. Should the Plaintiff or his agents determine that trees within
              the easement boundaries must be cut, no cutting shall occur until
              a value for the trees has been mutually agreed upon by the parties
              hereto or established by the Court.

              9. The Plaintiff is liable to the Defendants for damages caused to
              the Defendants’ property, to-wit: ruts, debris, etc. by the
              Plaintiff’s agents. The Defendants are entitled to $1,000.00 in
              damages for this act.

              10. In the event the parties cannot mutually agree to the location
              of the centerline of the easement or boundaries thereto, the Clerk
              & Master shall, at the request of either party, appoint a surveyor
              licensed by the State of Tennessee to determine the easement’s
              centerline and mark the boundaries of the easement. The parties
              shall each bear one-half the cost of such survey.

              11. The costs of this action are taxed to each party one-half each.

              12. Execution of the judgment of the Court is stayed for thirty
              days from entry of this Order. Should either party appeal the
              decision of this Court, then the execution of the judgment of this
              Court shall be stayed until a decision is rendered by the
              Tennessee Court of Appeals.

       Belcher appeals the trial courts ruling and in his brief asks this Court to consider the

following issues.

              1. Can the width of an easement for ingress and egress be
              enlarged after its limits have been defined by practical
              construction and many years of use?

              2. Can the width of an easement, established by historical use
              and location, be increased arbitrarily due to the requirements of
              “modern vehicles”?

              3. Is the trial court’s decision supported by the evidence?

       These issues will be considered together. Since this case was tried by the trial court

                                              4
sitting without a jury, we review the case de novo upon the record with a presumption of

correctness of the findings of fact by the trial court. Unless the evidence preponderates against

the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

               We agree with the trial court’s findings of fact except for numbers nine and ten. From

our review of the record, we do not find evidence that an easement of fifteen feet is required for

ingress and egress through the dominant estate. We also do not agree that increasing the width

of an easement does not increase the burden on the servient estate since taking additional

property would appear to be an undue burden.

               Although the trial court found that the easement must be fifteen feet wide in order to

accommodate modern vehicles such as ambulances and fire trucks, no evidence was presented

at trial that would substantiate this finding. In fact, the only testimony concerning the adequacy

of the easement for modern vehicles was that of Belcher who stated that Carroll had driven a

large timber truck loaded with gravel along the easement.

                The proof in the record is that the easement as used, approximately eight to ten feet in

width, has been providing adequate ingress and egress for vehicular traffic to the property. After

the owners of the dominant estate started bulldozing the easement to widen it and thus encroach

upon the servient estate, the owner of the servient estate placed a fence on the border of the

easement as used which apparently was from eight to ten feet in width. This created some

difficult in using the easement because of the close proximity of the fence, and the parties turned

to the courts to resolve this unfortunate dispute between neighbors.

                We must determine whether the trial court erred in widening the easement as it had been

used historically. After a complete review of the record and for the reasons hereinafter stated,

we find the trial court did err in that regard.

                “ A n e a s e m e n t i s a r i g h t a n o w n e r h a s t o s o m e l a w f u l u s e o f t h e r e a l p r o p e r t y o f a n o t h e r . ” Pevear v. Hunt,

9 2 4 S . W . 2 d 1 1 4 , 1 1 5 ( T e n n . A p p . 1 9 9 6 ) . T h e c a s e a t b a r i n v o l v e s a n e a s e m e n t a p p u r te n a n t , a s t h e r e a r e t w o t r a c t s

i n v o l v e d . B e l c h e r ’ s p r o p e r ty , a s th e s e r v i e n t t e n e m e n t , b e n e f i t s C a r ro l l ’ s p r o p e r ty , t h e d o m i n a n t te n e m e n t .

                I n 1 0 T e n n e s s e e J u r i s p r u d e n c e , Easements § 6 ( 1 9 9 4 ) i t i s s t a t e d :

                                                   A lth o u g h th e rig h ts o f th e e as em e n t o           w n     e r a re p a ra m o u n t, to th e e x te n t
                                o    f th e e a s e m e n t, to th o s e o f th e la n d o w n e r, th e            rig    h ts o f th e e as em e n t o w n e r a n d
                                o    f th e l a n d o w n e r a re n o t a b s o lu t e , ir r e la tiv e , a n    d u    n c o n tr o l l e d , b u t a r e s o l i m i t e d ,
                                e   a c h b y th e o th e r, th a t th e re m a y b e a d u e a n d               re a     s o n a b le e n jo y m e n t o f b o t h t h e
                                e   a s e m e n t a n d t h e s e rv i e n t e s ta t e .

                                              T h e e x te n t o f a n e a s e m e n t is d e te rm in a b le b y a tr u e c o n str u c tio n o f th e
                                g r a n t o r r e s e r v a ti o n b y w h i c h it i s c r e a te d , a id e d b y a n y c o n c o m i t a n t

                                                                                                   5
                                c ir c u m s ta n c e s w h i c h h a v e a le g iti m a te te n d e n c y t o s h o w t h e i n t e n ti o n o f t h e
                                p a rty . . . .

                                       The extent of an easement is also determinable by its
                                nature and use. ( e m p h a s i s a d d e d )

                O u r S u p r e m e C o u r t h a s s ta t e d t h e g e n e r a l ru l e r e g a r d i n g c h a n g e s i n e a s e m e n t s o f in g r e s s a n d e g r e s s b y t h e

d o m in a n t e sta te :

                                  ‘ [T ] h e o w n e r o f a n e a s e m e n t o f w a y m a y p r e p a r e , m a in t a in , im p r o v e , o r re p a i r
                                t h e w a y in a m a n n e r a n d to a n e x te n t r e a s o n a b ly c a lc u l a t e d t o p r o m o t e th e
                                p u r p o s e s f o r w h i c h i t w a s c r e a t e d o r a c q u i t t e d , causing neither an undue
                                burden upon the servient estate, nor an unwarranted
                                interference with the rights of common owners or the
                                independent rights of others.’

Mize v. Ownby, 2 2 5 S . W . 2 d 3 3 , 3 5 , 1 8 9 T e n n . 2 0 7 ( 1 9 4 9 ) ( e m p h a s i s a d d e d ) .

                T o a l l o w C a r r o l l t o e x p a n d th e e a s e m e n t t o f i f t e e n f e e t, w i l l , i n e f f e c t, g r a n t C a r r o l l t h e r i g h t t o t a k e

a p p r o x i m a te ly 3 0 0 0 s q u a r e fe e t o f B e lc h e r ’s p r o p e r ty . T h i s a p p e a r s to b e a n “ u n w a r ra n t e d i n t e r fe r e n c e ” w ith B e lc h e r ’s

r ig h ts , a n d a s s u c h , c a u se s a n u n d u e b u rd e n u p o n h im .

                W h ile it is tr u e th a t n e ith e r th e d e e d n o r o th e r w r itin g d e fin e d th e b o u n d a rie s o r w id th o f th e e a s e m e n t, th e

te stim o n y a t tria l in d ic a te d th a t it w a s n o m o r e t h a n t e n f e e t w i d e . T h e e a s e m e n t h a s b e e n u s e d f o r i n g r e s s a n d e g r e s s

f r o m t h e p r o p e r t y p r e s e n t l y o w n e d b y C a r r o l l f o r m o r e t h a n f i f ty y e a r s , a n d t h e w i d t h h a s r e m a i n e d c o n s t a n t . W h e n

C a r r o l l b o u g h t t h e p r o p e r t y t h e e a s e m e n t w a s c l e a r l y v i s ib l e . T h e o n l y e v i d e n c e i n t h e r e c o r d c o n c e r n i n g C a r r o l l ’ s

c o n te n ti o n t h a t t h e e a s e m e n t i s n o t w i d e e n o u g h f o r m o d e r n v e h ic le s a r e p h o to g r a p h s t a k e n b y h i m . T h e s e p h o to g r a p h s

s h o w a n u n i m p r o v e d , o n e - l a n e r o a d a p p r o x i m a t e l y t e n f e e t w i d e . T h e s e s a m e p h o to g r a p h s a ls o sh o w a sp o rts u tility

v e h i c le o n t h e e a s e m e n t w i t h r o o m t o s p a r e o n e it h e r s id e . F r o m t h e e v id e n c e i n t h e r e c o r d , i t s e e m s c l e a r t h a t t h e

e a s e m e n t is a b l e t o h a n d l e m o d e r n v e h i c l e s .

                B y th e s a m e to k e n , th e o w n e r o f th e s e rv ie n t e s ta te c a n n o t in te rf e re w ith th e la w f u l u s e o f th e e a s e m e n t b y th e

o w n e r o f t h e d o m i n a n t e s t a t e . I n 2 8 ( A ) C J S Easements, § 1 7 5 , ( 1 9 9 6 ) i t i s s t a t e d :

                                                T h e o w n e r o f th e s e rv ie n t e s t a t e . . . c a n n o t m a k e a n y a l te r n a t io n s i n h is
                                p r o p e r ty b y w h i c h t h e e n j o y m e n t o f t h e e a s e m e n t w i l l b e m a t e r ia l l y i n t e r f e r e d
                                w ith .

                F r o m t h e p r o o f i n t h e r e c o r d , i t i s s h o w n t h a t B e l c h e r ’ s p la c in g o f t h e f e n c e o n t h e b o r d e r o f t h e e a s e m e n t o f

e i g h t t o t e n f e e t m a t e r ia l l y i n t e r f e r e s w i t h t h e u s e o f t h e e a s e m e n t b y t h e o w n e r s o f t h e d o m i n a n t e s t a t e . T h e t e r r a i n o v e r

w h i c h t h e e a s e m e n t r u n s is w o o d e d , a n d t h e e a s e m e n t i s n o t s tr a ig h t . T h i s m a k e s i t s o m e w h a t d i f f i c u l t i n c l o s e q u a r t e r s

t o d r i v e a v e h i c l e w i t h o u t s tr i k i n g t h e f e n c e . A c c o r d i n g l y , s o m e r e l i e f s h o u ld b e g r a n t e d t o t h e o w n e r s o f t h e d o m i n a n t

e s ta te in th e u s e o f th e e a s e m e n t.

                A c c o rd i n g l y , t h e o r d e r o f t h e t r i a l c o u r t i s m o d i fi e d t o d e f in e t h e e a s e m e n t a s te n f e e t w i d e b u t i f B e l c h e r

d e t e r m i n e s t h a t f e n c e s s h o u l d b e e r e c t e d a l o n g t h e e a s e m e n t , t h e f e n c e s s h a l l b e e r e c te d a t l e a s t t w o f e e t o u t s id e o f t h e

                                                                                                    6
s i d e l i n e s o f t h e t e n f o o t e a s e m e n t , a n d B e l c h e r is e n j o i n e d f r o m e r e c ti n g a n y s t r u c t u r e o r o b s ta c le w i t h i n t h i s tw o f o o t

a r ea .

               A s m o d i f i e d , t h e o r d e r o f t h e t r i a l c o u r t i s i n a l l o t h e r r e s p e c t s a f f ir m e d . C o s t s o f t h e a p p e a l a r e a s s e s s e d

a g a in s t th e a p p e lle e .

                                                                                                              _________________________________
                                                                                                              W. FRANK CRAWFORD,
                                                                                                              PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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