                                                                                          04/09/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                        February 4, 2020 Session

         STEVEN J. STANGE ET AL. V. HANK E. ROBERTS ET AL.

                 Appeal from the Chancery Court for Maury County
                   No. 12-283     Christopher V. Sockwell, Judge


                            No. M2019-01060-COA-R3-CV


The owners of the dominant estate sued the owners of the servient estate of an easement
to Tanner’s Bar, a piece of land near a river. The trial court ruled that the easement was
an easement appurtenant for ingress and egress only and did not entitle the dominant
estate owners to engage in recreational activities at Tanner’s Bar. The trial court further
ruled that a member of the dominant estate family had to accompany all invitees to the
easement. Having concluded that the intent of the easement was for the dominant estate
owners to have the right to enjoy the river at Tanner’s Bar, we reverse the decision of the
trial court prohibiting recreational use. We have further determined that the trial court
erred in requiring that a dominant estate family member be present with invitees.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS
and THOMAS R. FRIERSON, II, JJ., joined.

Jacob Andrew Vanzin and David Hall King, Franklin, Tennessee, for the appellants,
Steven J. Stange and Mary L. Stange.

Leland Bruce Peden, Columbia, Tennessee, for the appellees, Hank E. Roberts and Edna
E. Roberts.

                                        OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

       This case concerns real property located near the Duck River in Maury County,
Tennessee and a dispute between adjoining land owners, the Stanges and the Robertses.
At issue is access to property known as “Tanner’s Bar,” a piece of land on the river that is
a peninsula during part of the year and an island during other parts of the year, depending
upon the water level.

       Mary Gail Moser and her first husband, Jim Moser, originally owned all of the
land at issue, which is now subdivided as Tracts 1, 2, and 3. In August 1997, after Mr.
Moser’s death, Ms. Moser1 and her second husband, James Parr, conveyed Tract 1 to her
son, Jimmy Moser. The general warranty deed (“1997 deed”) included the following
language:

       Grantee shall have the right of ingress and egress to Tanner’s Bar, along the
       presently existing road traveling behind the mobile home now on this tract
       across the 5.98 acre tract to the North and East [Tract 3].

On April 14, 1999, Jimmy Moser executed a deed conveying Tract 1 to himself and his
wife as tenants by the entirety. That deed included language identical to that quoted
above from the 1997 deed. The same day, April 14, 1999, Ms. Moser and her husband
conveyed Tract 2 to Jimmy Moser and his wife as tenants by the entirety.

       In October 1999, Ms. Moser and her husband conveyed Tract 3 to the Robertses.
The Roberts deed provides that the property is unencumbered except for the “restrictions
and easements of record in Plat Book 11, page 305 of the Maury County, Tennessee
Register of Deeds Office, easements granted in book R1399, page 159 [of] the Maury
County, Tennessee Register of Deeds Office.” The latter is a reference to the 1997 deed.

       The Kuykendalls, neighboring landowners, filed a lawsuit against the Robertses
and the Mosers concerning, in part, the ownership of Tanner’s Bar. The parties
eventually settled their lawsuit. In an order entered by the court in March 2006, the
parties established a common boundary line that bisected Tanner’s Bar so that the
Robertses owned the eastern half and the Kuykendalls owned the western half.

      In July 2010, Jimmy Moser and his wife sold Tracts 1 and 2 to the Stanges. The
deed incorporates the “right of ingress and egress to Tanner’s Bar” language quoted
above from the 1997 deed.

       The relationship between the Stange and Roberts families deteriorated. The
Stanges filed suit against the Robertses in May 2012 for denying them access to their
easement. According to the complaint, the Robertses “erected a fence across the said
easement cutting off access to the Plaintiffs[’] ingress/egress easement and placed eight
“NO TRESPASSING” SIGNS . . . to deny Plaintiffs access to the Duck River along the
ingress/egress easement.” In November 2016, the Robertses answered and asserted

1
 After the death of her second husband, James Parr, Mary Moser Parr resumed use of the surname Moser.
We will refer to her as Mary Moser or Ms. Moser throughout this opinion.
                                                -2-
counterclaims for a declaratory judgment, to quiet title, and quia timet; and for damages
due to trespass, slander, and libel of title. The Robertses disputed whether the Stanges
had an easement appurtenant or, if they did, whether that easement entitled them to use
the Robertses’ property recreationally.

       In August 2017, the Stanges sought permission to amend their complaint to add
new causes of action as well as new parties, asserting that “the investigation of this case
has revealed facts and law that were unknown to Plaintiffs at the time of the filing of the
original Complaint.” The trial court denied the Stanges’ request to add new parties but
allowed them to add causes of action. In their amended complaint, the Stanges added
causes of action for impairment or obstruction of the river, a declaratory judgment
regarding ownership of Tanner’s Bar, a declaration of rights pursuant to the Tennessee
Scenic Rivers Act of 1968, public ownership of the streambed, and denial of use of the
river.

        After a two-day bench trial, the court issued a memorandum opinion on March 12,
2019, finding that the Robertses are the owners of the upstream portion of Tanner’s Bar
(as stated in the March 2006 order); that there is an easement appurtenant that runs with
Tract 1 only and gives the owner of Tract 1 an easement through Tract 3 to Tanner’s Bar;
and that the easement is for ingress and egress only and not for recreational purposes.
The court further found that “guests must have the Stanges with them and/or the
resident(s) of Tract 1” when using the easement. The court found that the Robertses had
not proven their claims for trespass or slander of title. The trial court entered judgment
on April 13, 2019, in accordance with the findings in its memorandum opinion. The
court stated that all other claims for relief by the plaintiffs or the defendants were denied
and dismissed.

       The Stanges then filed a motion to amend or make additional findings of fact. On
May 22, 2019, the trial court entered an order amending the judgment to add language
including a legal description of the easement appurtenant. The Stanges have appealed.

       In this appeal, we must determine (1) what kind of easement the Stanges have, (2)
whether the easement entitles them to use Tanner’s Bar for recreational purposes,2 and
(3) whether the other conditions placed upon the Stanges’ use of the easement by the trial
court are proper.

                                      STANDARD OF REVIEW




2
 The Stanges draw a distinction between the right to be and remain on Tanner’s Bar and the right to use
Tanner’s Bar for recreational purposes. For purposes of this opinion, we consider both categories of
activity to fall within “recreational purposes.”
                                                 -3-
       In a civil case tried without a jury, we review the trial court’s findings of fact de
novo without a presumption of correctness, unless the evidence preponderates to the
contrary. TENN. R. APP. P. 13(d); Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405,
414 (Tenn. 2013). The interpretation of a deed presents a question of law, which we
review with no presumption of correctness. Mitchell v. Chance, 149 S.W.3d 40, 45
(Tenn. Ct. App. 2004); see also Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628
(Tenn. 1999).

                                        ANALYSIS

       I. Nature of the easement.

       The central question at issue is the nature of the easement granted to the Stange
family by their deed. The Stanges argue that it is an easement appurtenant, as the trial
court found. The Robertses assert that the easement should be classified as an easement
in gross.

       The term “easement” has been defined as “‘a right an owner has to some lawful
use of the real property of another.’” Cellco P’ship v. Shelby Cnty., 172 S.W.3d 574, 588
(Tenn. Ct. App. 2005) (quoting Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App.
1996)). Although there are a number ways in which easements can be created, easements
are divided into two broad categories: easements appurtenant and easements in gross.
Pevear, 924 S.W.2d at 115-16. These two categories can be distinguished as follows:

       In an easement appurtenant, there are 2 tracts of land, the dominant
       tenement, and the servient tenement. The dominant tenement benefits in
       some way from the use of the servient tenement. Easements in gross are
       simply a personal interest or right to use the land of another which does not
       benefit another property, or dominant estate, thus easements in gross
       usually involve only one parcel. An easement appurtenant to land is favored
       over an easement in gross in Tennessee.

Id. at 116. An easement appurtenant runs with the land and “‘may be enforced by
subsequent purchasers of the dominant tenement against owners of the servient
tenement.’” Holder v. Serodino, No. M2014-00533-COA-R3-CV, 2015 WL 5458377, at
*8 (Tenn. Ct. App. Sept. 16, 2015) (quoting Newman v. Woodard, 288 S.W.3d 862, 865
(Tenn. Ct. App. 2008)). Because an easement in gross is considered a personal right, “the
[easement holder’s] rights are not attached to a dominant estate,” id. (citing Cellco
P’ship, 172 S.W.3d at 588), and “‘[t]he beneficiary need not, and usu[ally] does not, own
any land adjoining the servient estate,’” id. (quoting BLACK’S LAW DICTIONARY 586 (9th
ed. 2009)).



                                           -4-
       In the present case, the trial court found that the easement from Tract 1 through
Tract 3 onto Tanner’s Bar is an easement appurtenant. As previously stated, Tennessee
law favors easements appurtenant over easements in gross. Pevear, 924 S.W.2d at 116.
As our Supreme Court has stated:

       If there be a dominant tenement to which the easement may conveniently
       attach and if the easement will add to the proper use and enjoyment of such
       dominant tenement, then the questioned clause will be construed to create
       an easement appurtenant, rather than a personal license or easement in
       gross.

Lynn v. Turpin, 215 S.W.2d 794, 796 (Tenn. 1948). Furthermore, “[s]ince the right is
created by a clause in deeds, the paramount rule obtains that the intention of the parties is
controlling as that intention is found to be evidenced by the language of the deed and the
circumstances surrounding the conveyance.” Id.

       The Robertses assert that the language of the deed and the surrounding
circumstances support the conclusion that this is an easement in gross. To support their
argument, they point first to the contrasting language used with respect to ingress and
egress to Tanner’s Bar, described as a “right,” and with respect to ingress and egress over
a driveway, later in the deed, where the word “easement” appears. The Robertses argue
that the drafters would have used the term “easement” in both instances if they had
intended to create an easement appurtenant and not a personal license (easement in gross)
regarding Tanner’s Bar. Second, the Robertses aver that the circumstances surrounding
the conveyance point to a personal license because Ms. Moser did not include the ingress
and egress language when she deeded Tract 2 to her son and his wife in 1999. At trial,
Ms. Moser gave the following testimony:

       Q. So let me ask you this question: If you know, why would you-all
       include that in the first Deed to your son and not include it in the second
       Deed?
       A. Because he already had it in the first one. He didn’t need it in the
       second one.
       Q. In your mind, did you consider that to be something personal to your
       son?
       A. Yes.

      We find the Robertses’ arguments unavailing. The Court’s analysis in Lynn v.
Turpin, 215 S.W.2d at 794, is instructive. The operative language from the deed in the
Lynn case stated as follows:

       The above property is a part of the Henry Cornett property that was
       conveyed to Evern Rogers, and wife on the 27th day of July, 1942, Evern

                                            -5-
       Rogers is to have the privilege to get water from the well on this property
       sold to Criss Moore, with the hereditaments and appurtenances thereto
       appertaining, hereby releasing all claims to Homestead and dower therein.
       To Have And To Hold the said premises to the said parties of the second
       part, their heirs and assigns forever.

Lynn, 215 S.W.2d at 795. The Court noted that there was “no language to indicate a
separation of the reservation of the water rights from the absolute conveyance of the
habendum.” Id. Furthermore, “[i]n determining the intention of the parties, subsequent
deeds of the dominant and servient tenements are competent.” Id. at 796. The Court in
Lynn remarked that the water rights provision was “incorporated actually or by reference,
in all deeds through which Complainant traces her title back to Rogers” and was
expressly incorporated in the warranty deed by which the complainant acquired title. Id.
at 795. Similarly, all deeds of conveyance to the defendant, owner of the dominant
tenement, “contained the same provision for water rights as that . . . from the deed from
Rogers to Tinnell [the original transferee of the dominant tenement].”3 Id. Another
factor considered by the Court in Lynn was the fact that, according to the answer, “the
water was necessary to the proper enjoyment of the dominant tenement” and was “the
only available and convenient water supply.” Id.

        All of the factors considered by the Court in Lynn support the trial court’s
conclusion that the easement in this case is an easement appurtenant. The 1997 deed by
which Ms. Moser and her second husband transferred Tract 1 to Jimmy Moser provided,
in pertinent part, as follows:

               For and consideration of love and affection, the property having
       previously belonged to the Grantee’s father, and other good and valuable
       considerations, the receipt and sufficiency of all of which are hereby
       acknowledged, we, JAMES McDONALD PARR and wife, MARY GAIL
       MOSER PARR, have this day bargained and sold, and do by these presents
       sell, transfer and convey unto JAMES COLEMAN MOSER, his heirs and
       assigns, the following described tract or parcel of land lying and being in
       the Fourth (4th) Civil District of Maury County, Tennessee, and being more
       particularly described as follows:

            [Property description]

            Grantee shall have the right of ingress and egress to Tanner’s Bar,
            along the presently existing road traveling behind the mobile home
            now on this tract across the 5.98 acre tract to the North and East.

3
 The provision stated: “This Deed also includes the water right to the well reserved in the Criss Moore
deed.” Id.
                                                 -6-
             According to survey of Rex Northcutt, Tennessee No. 77, dated
             August 1, 1997.

             Being a portion of property conveyed to Grantors in Deed Book
             1133; Page 284 in the office of the Register of Deeds, Maury
             County, Tennessee.

               TO HAVE AND TO HOLD the above-described tract or parcel of
        land, together with all rights, titles, interests, easements, appurtenances,
        and hereditaments thereto belonging and pertaining unto the said JAMES
        COLEMAN MOSER, his heirs and assigns, in fee simple forever.

(Emphasis added). As in Lynn, the language conveying the easement comes immediately
after the property description. Also as in Lynn, there is no separation between “the right
of ingress and egress to Tanner’s Bar” and the fee simple conveyance of the habendum
clause.4 We emphasize that, in the present case, as in Lynn, the fact that the holders of
the easement own land adjoining the servient estate provides strong support for the
conclusion that the easement is an easement appurtenant rather than an easement in gross.
See Holder, 2015 WL 5458377, at *8.

       The Robertses assert that the use of the word “grantee” and the absence of the
word “easement” demonstrate an intent to create an easement in gross. As the Stanges
rightly point out, however, the deed in Lynn, like the deed at issue here, did not use the
word “easement” or the word “appurtenant.” In Lynn, the deed actually named a specific
person, Evern Rogers, who was to have the “privilege to get water from the well on this
property sold to Criss Moore.” Lynn, 215 S.W.2d at 795. Nevertheless, the Court found
the easement to be an easement appurtenant. Id. at 796. We conclude that use of certain
words is not required to create an easement appurtenant.

       With respect to the circumstances surrounding the conveyance in the present case,
a look at the chain of title for both the dominant and servient estates reflects an intent by
the parties to the original deed to create an easement appurtenant. We begin with the
subsequent chain of title for the dominant estate, Tract 1, which was transferred from
Jimmy Moser to himself and his wife as tenants by the entirety in 1999. That deed
included the easement at issue with the following language:

4
  A habendum clause is “[t]he part of an instrument, such as a deed or will, that defines the extent of the
interest being granted and any conditions affecting the grant. The introductory words to the clause are
ordinarily to have and to hold.” BLACK’S LAW DICTIONARY (11th ed. 2019).

        We consider the intent expressed by the “heirs and assigns” language of the habendum clause to
override the ambiguous meaning of Ms. Moser’s affirmative response to the question whether she
considered the ingress/egress provision to be something “personal” to her son.
                                                   -7-
       Grantee shall have the right of ingress and egress to Tanner’s Bar, along the
       presently existing road traveling behind the mobile home now on this tract
       across the 5.98 acre tract to the North and East.

This is the exact language included in the original 1997 deed. In 2010, Jimmy Moser and
his wife conveyed Tract 1 to the Stanges with a deed including language identical to that
above with the exception of using the word “acres” instead of “acre.” The inclusion of
essentially the same language in all of the deeds in the chain of title since the 1997 deed
is a strong indication that the grantors’ intent was for the easement to run with the land,
making it an easement appurtenant.

       As to the Robertses’ argument emphasizing the absence of the ingress/egress
language in the deed conveying Tract 2, the Stanges assert that including that language
would have been redundant. Jimmy Moser already owned Tract 1 when Ms. Moser and
her husband conveyed Tract 2 to him; therefore, he already had access to Tanner’s Bar by
virtue of his ownership of Tract 1. There was no reason to include an additional
easement in the conveyance of Tract 2. We believe the Stanges have the better argument
here.

       The subsequent deeds in the chain of title for the servient estate, Tract 3, also
indicate that the parties to the original deed intended to create an easement appurtenant.
Ms. Moser and her second husband conveyed the servient estate to the Robertses in 1999.
That deed includes the following provision:

               James McDonald Parr and wife Mary Gail Moser Parr do hereby
       covenant with the said Hank E. Roberts, and wife, Edna E. Roberts, that
       they are lawfully seized and possessed of the above described tract or
       parcel of land, has a good and lawful right to sell and convey same, and that
       it is unencumbered except for setback lines, restrictions and . . . easements
       granted in book R1399, page 159 [of] the Maury County, Tennessee
       Register of Deeds Office.

(Emphasis added). The referenced easement—at book R1399, page 159—is the
easement to Tanner’s Bar granted to Jimmy Moser in the 1997 deed.

      The inclusion of the easement in all subsequent deeds of conveyance involving the
dominant and servient estates supports the trial court’s designation of the easement as an
easement appurtenant.

       Finally, as the Court stated in Lynn, we must consider whether “the easement will
add to the proper use and enjoyment of [the] dominant tenement.” Lynn, 215 S.W.2d at
796. This Court has recognized that “riparian land derives part of its value from its

                                           -8-
proximity to water.” The Pointe, LLC v. Lake Mgmt. Ass’n, Inc., 50 S.W.3d 471, 475
(Tenn. Ct. App. 2000). Without the easement at issue, Tract 1 has no access to the Duck
River. The right of ingress and egress to Tanner’s Bar “add[s] to the proper use and
enjoyment” of the Stanges’ property. Lynn, 215 S.W.2d at 796.

       In sum, we agree with the trial court’s conclusion that the right of ingress and
egress included in the 1997 deed is an express easement appurtenant.



      II. Recreational use.

      The Stanges argue that the trial court erred in determining that the use of the
express easement appurtenant “for recreational purposes is forbidden.”

        In construing an instrument creating an express easement, a court must attempt
“‘to ascertain and give effect to the intention of the parties.’” Burchfiel v. Gatlinburg
Airport Auth., No. E2005-02023-COA-R3-CV, 2006 WL 3421282, at *3 (Tenn. Ct. App.
Nov. 28, 2006) (quoting 28A C.J.S. Easements § 57 (1996)). The parties’ intention
regarding “the purpose and scope of an easement conveyed by express grant is
determined by the language of the deed.” Shell v. Williams, No. M2013-00711-COA-R3-
CV, 2014 WL 118376, at *4 (Tenn. Ct. App. Jan. 14, 2014); see also Foshee v. Brigman,
129 S.W.2d 207, 208 (Tenn. 1939). An “easement holder’s use of the easement must be
confined to the purpose stated in the grant of the easement.” Columbia Gulf
Transmission Co. v. The Governors Club Prop. Owners Ass’n, No. M2005-01193-COA-
R3-CV, 2006 WL 2449909, at *3 (Tenn. Ct. App. Aug. 21, 2006). In this case, the deed
states that the easement is for the purpose of “ingress and egress to Tanner’s Bar.” The
Robertses assert that this phrase defines the limits of the uses to which the Stanges may
properly put the easement—i.e., they may use the easement only to travel to Tanner’s Bar
from their property and return from Tanner’s Bar to their property. The Stanges argue
that the original parties intended for the easement holders to use the easement for
recreational purposes and that such use is necessary to their enjoyment of the easement.

       What is the purpose of an easement granting “ingress and egress to Tanner’s Bar”?
The trial court made the following relevant findings:

      As regards the extent of the easement as it pertains to Tanner’s Bar, the
      Court notes that the easement itself does not give a description of the land
      but simply refers to “Tanner’s Bar.” This Court is left with the task of
      determining what that means. Clearly, Tanner’s Bar is an end point, as any
      motorized or foot traffic must end at the waterline on Tanner’s Bar. Thus,
      the logical end point would be the Duck River. Access to water is a
      valuable right. In addition, access to water in order to use it for recreation

                                          -9-
      purposes is also a valuable right. Ms. Parr [Moser] testified that the
      purpose of the easement was to give her son, Jimmy Moser, the ability to
      go to and enjoy Tanner’s Bar. Ms. Parr also testified that she did not intend
      for strangers to go down to Tanner’s Bar. This Court so finds that the
      easement as reflected in the original deed gives the Stanges the right to
      access Tanner’s Bar and, eventually, the Duck River.

The trial court found ambiguity in the deed as to whether access to Tanner’s Bar includes
use of the bar for recreational purposes (such as boating, fishing, and picnicking) or mere
access to the bar and the river. When a deed’s meaning is in doubt, “‘the court may
consider the surrounding circumstances at the time the instrument was executed, the
situation of the parties, and any practical construction of the instrument given by the
parties themselves in determining their intention.’” Cellco, 172 S.W.3d at 595 (quoting
28A C.J.S. Easements § 146 (1996)).

       There is strong evidence that the intent of the original grantors was for the
easement holders to have the right to be and remain on Tanner’s Bar. At trial, counsel for
the Stanges asked Ms. Moser what use she and her first husband made of Tanner’s Bar.
She testified as follows:

      Q. . . . And you testified that you and Mr. Moser, the elder, would go down
      and you would hang out on the bar here and you would camp. Would you
      build campfires down there while you were down there?
      A. Yes.
      Q. And you would take a camper or a tent down there to camp?
      A. Both.
      Q. Did you guys fish while you were down there?
      A. Yes.
      Q. And swam, I assume, while you were down there?
      A. Yes.
      Q. What other kinds of things would you do when you were down there
      besides camping, fishing, swimming?
      A. The women would lay out in the lawn chairs at the end of the bar and
      get suntans and visit, and the men would fish and go up and down the river.

Counsel for the Stanges then asked Ms. Moser what rights she intended to convey when
she granted the easement:

      Q. . . . So I guess my question would be, to get to a question, when you-all
      gave Mr. Moser, the younger, so let’s call him “Jimmy Moser,” when you-
      all gave Jimmy Moser the ability to access Tanner’s Bar, when you wrote
      that into his Deed, did you mean for him to go down there and be able to
      camp and fish and swim and all that stuff?

                                          - 10 -
       A. Yes.
       Q. So you intended, when you all gave him that access in his Deed, he
       could go down there, he could camp if he wanted to overnight, he could
       fish off the bar, is that correct?
       A. Yes.
       Q. He could swim, and his wife could sit in the lawn chair, as we’ve joked
       about, and sunbathe on the bar?
       A. Yes.
       Q. And so that was your intent when you gave him that right in his Deed?
       A. Yes.
       The above testimony reflects an intention on the part of the original parties to
allow the easement holders to remain on and use Tanner’s Bar once they arrived there.
The Robertses emphasize Ms. Moser’s testimony that she did not intend for “strangers”
to make use of Tanner’s Bar.5 Her testimony does not make clear the meaning of the
word “strangers.” In any event, under the law, an easement appurtenant “run[s] with the
land and may be enforced by subsequent purchasers of the dominant tenement against
owners of the servient tenement.” Newman, 288 S.W.3d at 865.

       Even with an express easement, the intention of the parties may not be fully set out
in the deed. For example, in Burchfiel v. Gatlinburg Airport Authority, 2006 WL
3421282, at *1, the plaintiffs conveyed to the Gatlinburg Airport Authority (“the
Authority”) an “access and utility easement for ingress and egress to and from property
owned by the [Airport] Authority and Dolly Parton Parkway.” The Authority later
allowed a museum to be built on its property. Burchfiel, 2006 WL 3421282, at *1. With
the approval of the planning commission, the Authority began to construct a sign on the
easement, and the plaintiffs filed suit to enjoin further construction. Id. at *1-2. The trial
court granted summary judgment in favor of the plaintiffs. Id. at *2. After setting out the
previously cited principles governing the interpretation of express easements, the court in
Burchfiel quoted with approval the following additional rule regarding the use of an
easement: “‘Where [an] easement is not specifically defined, it need be only such as is
reasonably necessary and convenient for purpose for which it was created.’” Id. at *3
(quoting Adams v. Winnett, 156 S.W.2d 353, 358 (Tenn. Ct. App. 1941)). The Burchfiel
court determined that construction of a sign was not “a logical extension or promotion” of
the express purpose of the easement. Id. at *5.

       In Rogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 WL 2337616, at *1
(Tenn. Ct. App. June 19, 2012), this court had to determine whether a landowner had a
claim for interference with her ability to use an access easement because her neighbors
had erected fence posts preventing her from pulling her horse trailer along the easement.

5
  On redirect examination, plaintiffs’ counsel asked Ms. Moser: “[D]id you intend for strangers to be able
to go down and camp on Tanner’s Bar and fish and do whatever?” She responded, “No, never.”


                                                 - 11 -
The court cited the principle quoted above regarding what is “reasonably necessary and
convenient” for the purpose for which the easement was created and found that
agricultural use was part of the historical purpose of the easement. Rogers, 2012 WL
2337616, at *7-8. Because the landowner had presented sufficient evidence to establish
the elements of interference with her use and enjoyment of the easement, the court
reversed the trial court’s dismissal of the claim and remanded for further proceedings. Id.
at *11.

        Although the precise issue before this court has not arisen previously in this state,
two cases from Massachusetts address the extent of ingress/egress easements to a beach.
In Anderson v. De Vries, 93 N.E.2d 251, 253 (Mass. 1950), abrogated on other grounds
by M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004), the dominant estate
landowners claimed “a right of way appurtenant to their lots over [the servient estate ] to
the beach and the right to use the entire beach.” The grant upon which the dominant
estate in Anderson relied stated:

       There is appurtenant to [the] above described lot a right of way to the beach
       over the way shown on said plan as Beaton Road, and along the westerly
       side of lot B2 as shown on Plan No. 15396B, in common with others
       entitled thereto.

Anderson, 93 N.E. 2d at 254. For present purposes, the important part of the trial court’s
ruling is its determination “that the words ‘to the beach’ carried with them the use of the
beach.” Id. The Supreme Judicial Court of Massachusetts affirmed the lower court’s
decision against the servient estate owners’ argument that the dominant estate owners
“had no rights beyond the high water mark.” Id. at 255. In so holding, the Court stated,
in pertinent part:

       It would be inconsistent with the manifest intention of the parties if these
       deeds and instruments were so construed as to deprive these owners of land
       in lot A from reaching the water. They were given a way to the beach.
       There is no express mention of any right to use the beach. A beach as
       customarily understood by residents of seashore resorts comprises the land
       above the ordinary high water mark, “more or less well defined by natural
       boundary, or in the rear by a sea wall, providing a convenient and safe
       access to the water for bathing or for sun baths either before or after going
       into the water.” The way to the beach carried with it the right to use the
       beach for the purposes for which the way was obviously intended. We do
       not agree with the respondents’ contention that the use of the beach should
       be confined to an area not greater than the width of the right of way. The
       owners of parcels in lot A had used the entire beach with the assent of the
       petitioners, who in some instances stated to intending purchasers that they
       would have such right in the beach, and the respondents were told before

                                           - 12 -
      they purchased “that parties had rights in the beach.” . . . The judge was not
      wrong in finding that these lot owners, that is, those claiming under deeds
      containing said uniform clauses had the right to use the entire beach on the
      sea side of lot B2 “for swimming, sunning, boating and other usual
      purposes in common,” and to this extent the lots of the respondents were
      servient estates to these prior vested rights. The use of the beach by these
      lot owners included whatever was reasonably necessary for the full
      enjoyment of the privilege granted.

Id. at 255-56 (citations omitted) (emphasis added).

       In the present case, like in Anderson, the grantors’ deed does not mention any right
to use the beach/bar. Ms. Moser testified that, when she and her husband gave Tract 1 to
her son, they intended for him to be able to engage in activities such as camping, fishing,
swimming, and sunbathing at the bar. The Court in Anderson applied the principle that
“‘[w]hen an easement . . . is created, every right necessary for its enjoyment is included
by implication.’” Id. at 256 (quoting Sullivan v. Donohoe, 191 N.E. 364, 365 (Mass.
1934)). Under this analysis, the Stanges have the right to engage in recreational pursuits
at Tanner’s Bar.

       Similarly, in Murphy v. Olsen, 826 N.E.2d 249, 250 (Mass. Ct. App. 2005), inland
landowners sought beach rights “incident to an express reservation of a pedestrian
easement ‘to the beach’ in deeds to two of the defendants.” The trial court denied relief
to the plaintiffs. Murphy, 826 N.E.2d at 250. In reversing the trial court, the appellate
court cited Anderson and the principle quoted above. Id. at 254.

       Some Tennessee decisions have relied upon the Restatement (Third) of Property
(Servitudes) in interpreting easements. See, e.g., BakerSouth, LLC v. Green Hills Mall
TRG, LLC, No. M2018-02129-COA-R3-CV, 2020 WL 398597, at *5 (Tenn. Ct. App.
Jan. 23, 2020); Ingram v. Wasson, 379 S.W.3d 227, 238-240 (Tenn. Ct. App. 2011);
Rawdon v. Johnston, No. M2010-01097-COA-R3-CV, 2010 WL 4867451, at *3 (Tenn.
Ct. App. Nov. 23, 2010). Several provisions of the Restatement (Third) of Property
(Servitudes) support the Stanges’ position in this case. Comment b to section 2.15 states
that an easement includes “[r]ights necessary to [the] reasonable enjoyment of property.”
Section 4.10 of the Restatement (Third) of Property (Servitudes) (2000) provides in
pertinent part as follows:

      Except as limited by the terms of the servitude determined under § 4.1, the
      holder of an easement . . . is entitled to use the servient estate in a manner
      that is reasonably necessary for the convenient enjoyment of the servitude.

      We further note that, in Goetz v. Knoxville Power & Light Co., 290 S.W. 409, 411,
414 (Tenn. 1926), our Supreme Court held that an express easement for “right of access

                                          - 13 -
to the adjoining park and use of the spring on same” included “by necessary implication,
the right to the use and enjoyment of the park” and not simply “the right to pass through
the park in order to reach the spring.”      Thus, the concept that an express easement
contains implied rights has been recognized by the courts of this state.

       In its memorandum opinion, the trial court cited Foshee v. Brigman, 129 S.W.2d
at 207, in support of its conclusion that, under the language of the deed, the easement was
for ingress and egress only. We respectfully conclude that the trial court read the Foshee
case too restrictively. In Foshee, the Court considered the right of the servient estate
owner to erect gates across a right of way held by the dominant estate owner. Foshee,
129 S.W.2d at 207. The Court applied the general rule that “‘the grant of a way without
reservation of the right to maintain gates does not necessarily preclude the owner of the
land from doing so’” unless there is an express stipulation or clear expression of intention
for the way to remain open, so long as the landowner constructs the gates “‘so as not
unreasonably to interfere with the right of passage.’” Id. at 208 (quoting 17 AM. JUR.
1011). The authorities supporting this rule, the Court explained, recognized a distinction
between “the rights of the owner of the dominant estate where his easement arises by
prescription and where it arises under a deed.” Id. It was in this context that the Court in
Foshee made the statement relied upon by the trial court in the present case: “If the
easement is claimed under a grant, the extent of the easement is determined by the
language of the grant.” Id. The Court then stated that, “If the easement is claimed by
adverse use, the extent of the easement is determined by the character of the use.” Id.

       The question before the Court in Foshee was different than that before us and the
Court’s analysis does not preclude a determination that, where there is an ingress/egress
easement such as that in the deed in the present case, the owner of the dominant estate
may have the right to the reasonable enjoyment of the property, which in this case is for
recreational purposes. As we have already discussed, the intent of the original granting
parties governs this determination.

       The Robertses have cited several opinions in support of their position, all of which
we find distinguishable. The case of Shell v. Williams, 2014 WL 118376, at *1, involved
the proper use of an express easement by the servient estate owner, who planted trees and
placed boulders in the easement. The Shells “contended that the trees and boulders
impeded their ability to use the easement for recreational purposes, including riding
horses and driving all-terrain vehicles.” Shell, 2014 WL 118376, at *1. The trial court
found that it was reasonable for the parties to use the easement for recreational purposes
and that the servient estate owner had interfered with the Shells’ use and enjoyment of
the property. Id. at *2. The court, therefore, ruled that the Shells had the right to remove
the obstructions from the easement. Id.

       On appeal, this court addressed the issue of whether the trial court erred in failing
to limit the use of the easement to ingress and egress. Id. at *4. The trial court found that

                                           - 14 -
“the parties agreed that the purpose of the easement was for ingress and egress,” and this
finding had not been appealed. Id. at *7. This court relied upon the principle that,
“‘Where [an] easement is not specifically defined, it need be only such as is reasonably
necessary and convenient for [the] purpose for which it was created.’” Id. (quoting
Burchfiel, 2006 WL 3421282, at *3. The court also stated that “the purpose of an
easement is determined at an easement’s creation.” Id. (citing Shew v. Bawgus, 227
S.W.3d 569, 576 (Tenn. Ct. App. 2007)). The recreational purposes at issue included
“riding horses and all-terrain vehicles along the easement outside the twenty-foot gravel
driveway.” Id. at *8. The court concluded that, “because the purpose of [the] easement
is for ingress and egress, recreational use of the easement that involves more than mere
ingress and egress from the road to the other parcels of land is not authorized.” Id.
        The circumstances at issue in Shell are materially distinct from the facts before us
in this case. In Shell, the court found that the easement was created to provide back
parcels access to Lamar Road. Id. at *7. As we have already discussed, the easement in
this case was created to provide access to Tanner’s Bar, a place used for recreational
purposes.

       The Robertses also rely on the case of Burchfiel v. Gatlinburg Airport Authority,
2006 WL 3421282, the facts and holding of which we discussed above. In that case, this
court determined that the construction of a sign within the easement by the owner of the
dominant estate was not related to the express purpose of the easement (which was to
provide ingress and egress to and from the airport’s property). Burchfiel, 2006 WL
3421282, at *1, *5. Putting a sign on the easement was not “‘reasonably necessary and
convenient for [the] purpose for which [the easement] was created.’” Id. at *3 (quoting
Adams, 156 S.W.2d at 358). By contrast, in the present case, the right of ingress and
egress had no significant value without allowing recreational activities at Tanner’s Bar,
and the easement was originally created for that purpose.

       Finally, the Robertses cite Columbia Gulf Transmission Co., 2006 WL 2449909.
In that case, however, the language of the deed was “clear and unambiguous” as to the
issue before the court. Columbia Gulf, 2006 WL 2449909, at *5. In the present case, by
contrast, the trial court noted that the deed did not explain the nature of Tanner’s Bar and
that the court was “left with the task of determining what this means.” As discussed
above, the intention of the parties in the present case is apparent from the circumstances
surrounding the creation of the easement.

        For all of the reasons discussed above, we conclude that trial court erred in
denying the Stanges the right to the recreational use of Tanner’s Bar. The easement
entitles the Stanges to engage in recreational activities at Tanner’s Bar, including
canoeing, swimming, fossil hunting, fishing, picnicking, camping, and sunbathing. This
opinion does not address the issue of four-wheeler use on the easement.

       III. Other conditions on use of the easement.

                                           - 15 -
       The last issue before us is whether the trial court erred in ruling that use of the
easement was “limited to the plaintiffs and the resident(s) of Tract 1” and that “guests
must have the Stanges with them and/or the resident(s) of Tract 1 (currently Angela
Stange)” in order to use the easement appurtenant.

       We find no support in the law for these conditions on the Stanges’ use of the
easement appurtenant. This court has quoted with approval the following general rule
regarding the permissible use of an easement:

       “While a private way may not be used by the public generally or by any
       one having no better right than the general public, the owner of such a way
       is not limited to its use by himself, but it may be used by his family, by
       pets, by tenants occupying the land with his authority, by his servants,
       agents, or employees in conducting his business, by persons transacting
       business with him, or by guests for social purposes, except in cases where
       the right of way is created by express agreement and the user is restricted
       by the terms of the agreement.”

Cellco, 172 S.W.3d at 597 (quoting 28A C.J.S. Easements § 164 (1996)) (emphasis
added). There is nothing in the terms of the deed preventing the dominant tenement
holder from inviting persons to use the easement. The requirement that the dominant
tenement holder be present while invitees use the easement has no basis in Tennessee law
or in the terms of the deed.

       Moreover, these conditions impermissibly burden the Stanges’ use and enjoyment
of the easement. For example, “[i]t is the generally accepted rule of law that the owner of
an easement may make reasonable maintenance as necessary for its use.” Hager v.
George, No. M2013-02049-COA-R3-CV, 2014 WL 3371680, at *4 (Tenn. Ct. App. July
8, 2014). Requiring the Stanges to be physically present for invitees to have access to the
road would limit the Stanges’ ability to contract with professionals to perform
maintenance on the road.

        Furthermore, such a condition interferes with the Stanges’ use and enjoyment of
the dominant estate. Mr. Stange testified at trial that he was attracted to purchasing Tract
1 largely because of its proximity and access to the river. He stated that, after buying the
property, he and his family would go down to Tanner’s Bar or to the river and “go
canoeing, swim, look for fossils, play with the kids . . . [and] picnic.” Angela Stange
testified about several occasions when she had used the river access with her friends.
Allowing their guests to use the easement to get to their property from the Duck River
was part of what made the property attractive to the Stange family.

      We conclude that the trial court’s requirement that the Stanges or a resident of
Tract 1 be present when their invitees use the easement unreasonably restricts the

                                           - 16 -
Stanges’ use and enjoyment of their easement and of the dominant estate and is not
authorized by the law or the facts of this case.

                                     CONCLUSION

       The judgment of the trial court is affirmed in part and reversed in part, and this
matter is remanded with costs of appeal assessed against the appellees, Hank E. Roberts
and Edna E. Roberts, for which execution may issue if necessary.


                                                  ________________________________
                                                  ANDY D. BENNETT, JUDGE




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