                                                                                                           04/27/2017




                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                       March 24, 2017 Session

                   ROGER L. HOLT v. JIMMY CANTRELL, ET AL.

                    Appeal from the Chancery Court for Bradley County
                      No. 2014-CV-105    Jerri S. Bryant, Chancellor


                                  No. E2016-01929-COA-R3-CV


This appeal concerns access to real property (“the lake property”) owned by Roger L.
Holt (“Holt”). Holt sued Jimmy Cantrell,1 Shirley Carroll and Tommy Cantrell
(“Defendants”) in the Chancery Court for Bradley County (“the Trial Court”) alleging
that he was entitled to access his property by means of a road bed (“the Disputed Road
Bed”) on Defendants’ property (“the Cantrell property”). Holt advanced three alternative
theories: that he was entitled to a prescriptive easement; that he was entitled to an
easement by necessity; and that the Disputed Road Bed is a public road by implication.
After a hearing, the Trial Court rejected all three of Holt’s theories and dismissed his
complaint. Holt appealed to this Court. We affirm the judgment of the Trial Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and THOMAS R. FRIERSON, II, JJ., joined.

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Roger Holt.

Travis D. Henry, Cleveland, Tennessee, for the appellees, Shirley Carroll and Tommy
Cantrell.




1
  Jimmy Cantrell is deceased. Barbara Cantrell, Jimmy Cantrell’s widow, joined in Defendants’ answer
to Holt’s complaint insofar as the lawsuit affects her interest in the subject real property. Barbara Cantrell
was served but it is otherwise unclear from the record whether she ever was formally added as a
defendant party in this lawsuit. No party on appeal raises Barbara Cantrell’s status as an issue.
                                         OPINION

                                        Background

        The Disputed Road Bed is on a strip of land around 10 feet wide and 100 feet long
running across the southern part of the Cantrell property in Bradley County. The
Disputed Road Bed has been used previously for access to a rental home and to property
known as the Johnson family property, which was landlocked. Holt owns 6.2 acres of
property adjoining the Cantrell’s property to the north with both situated along Patterson
Road (formerly Lane). Holt’s grandfather Marvin McClure purchased the property in
1964, and it has since passed down to Holt. The 6.2 acre property originally was part of a
much larger tract of land owned by Holt’s grandparents. Marvin McClure dug a lake and
constructed an 80 square foot cabin on the property. The lake was stocked with fish.
There also is a crude dam on the property. Holt, his family and friends frequented the
lake property a number of times from the 1960s onwards. In the 2000s, family illnesses
prevented the Holts from hosting recreational events on the lake property. Holt and other
guests used the lake property for, among other things, fishing, camping, and church
activities.

       The Disputed Road Bed is one means of entering Holt’s property. Another
entrance is directly off the public road at an upper gate. In 1999, defendant Shirley
Carroll placed a telephone pole across the Disputed Road Bed to keep out trespassers. In
2012, a gate was installed. Holt asserts that entry via the upper gate is insufficient
because of the location of the lake and the harshness of the terrain on that side of the lake,
hence this lawsuit seeking access through the Disputed Road Bed on the Cantrell’s
property.

       In May 2014, Holt filed his complaint in the Trial Court. Holt, in successive
amended complaints, advanced three theories: (1) that he is entitled to a prescriptive
easement; (2) he acquired an easement by necessity; and, (3) the Disputed Road Bed is a
public road by implication. This case was tried over the course of two days in August
2016, with a heavy emphasis at trial over how often the Holts and their guests made use
of the Disputed Road Bed.

       At trial, Holt produced photographs of Holt guests attending recreational events by
the lake in different time periods. James Hamilton, a cousin of Holt, testified that in the
‘80s and ‘90s, he and others “pretty much lived” on the lake, and would stay “all
summer.” Don Sizemore, a Holt family friend who visited the lake, testified that in the
‘70s and ’80s there was “cooking and stuff like that or gospel singing sometimes.”
Richard Elliston, another Holt family friend, testified: “During the summers of – I’m sure
                                             -2-
during the summer of 1979 and also maybe a time or two during the summer of 1980 we
would camp on that property.” Holt’s mother and sister testified to use of the Disputed
Road Bed.

      Holt himself testified to the background of the lake property and Disputed Road
Bed as follows:

      Q. Mr. Holt, you currently [are] the owner of the property that’s at issue in
      this case?
      A. Yes.
      Q. Who was Marvin McClure?
      A. My grandfather.
      Q. Now, the deed reference that I saw indicates that he purchased this
      property in 1964. How old are you? When were you born?
      A. ‘62.
      Q. As a youngster, did you have occasions to be on this property?
      A. Yes.
      Q. Tell us about your earliest memories of that.
      A. I can kind of remember when they dug the house. I always went fishing
      there, camped out, parties.
      Q. Okay. Now, all through the 1960s, you’d have been six, seven, eight
      years old.
      A. Yes.
      Q. Were you out there in that period of time?
      A. Yes.
      Q. How frequently would your family be out there?
      A. Every week.
      Q. Now, do you live far away from this property?
      A. No.
      Q. As the crow flies, can you give an estimate to how far away it would be?
      A. Less than a mile.
      Q. Okay. What about through the 1970s, how often were you out there?
      A. Every week.
      Q. Now, on this property – what’s on it, first of all?
      A. A lake and a cabin.
      Q. Do you know when the cabin was constructed?
      A. I would guess in the later ‘60s.
      Q. Now, what was this cabin utilized for?
      A. Had a family live in it for a couple of years, and we’ve used it for
      overnight camp-outs and parties. Had a stove and --
      Q. Is there utilities to it?
                                           -3-
A. Yes.
Q. Public utilities?
A. Yes.
Q. Plumbing?
A. Not in the cabin, but there is a septic tank on the property.
Q. You said camping, how would you camp out there?
A. Campers, tents.
Q. So, both kinds?
A. Yes.
Q. Now, were you out there during the ‘80s?
A. Yes.
Q. Was there any change in the frequency with which you’d be out there?
A. No.
Q. Now, was it just utilized by family members?
A. No.
Q. Who else would go out there?
A. Friends, co-workers went with me, and the church used it for meetings
and fundraisers.
Q. What kinds of church activities would be out there?
A. We’ve had like fall festivals and haunted houses in the cabin and just
fundraisers for the church building fund, different things.
Q. Now, throughout the time that you had occasion to access the property
in the ‘60s, the ‘70s, the ‘80s, let’s say through the ‘90s, too, how would
you come into this property?
A. Patterson Lane.

                                     ***
Q. Okay. Now, at the top of Exhibit 1, to the left of the orange section that
we’ve been talking about on Patterson Lane, does your family have another
gate there on that road?
A. I do, yes.
Q. And are you able to go into the property from that gate?
A. Yes.
Q. Can you access all of the property from that gate?
A. No, not by vehicle, and it would be difficult for a walker to do it.
Q. So, first of all, tell me why it’s not accessible by vehicle.
A. There is a spring right here (indicating) that runs into the lake, and from
there all the way to this end is just marsh. It sinks probably up to your waist
if you step in it, so you can’t go around this way. And there’s not enough
room for a vehicle to pass on this end of the lake.

                                      -4-
                                            ***


       Q. Now, I think the deed reflected that you became the owner of this
       property in 1991. Is that correct?
       A. Yes.
       Q. Between 1991 and 1999, did anybody from the Carroll family or the
       Cantrell family ever come to you and say, We’ve got a problem?
       A. Not at all. No.
       Q. Did you continue to use that property all during that period of time?
       A. Yes.

       Defendants called Charles Randall Brown, a surveyor, to testify. Brown had made
observations of the property at issue. Brown testified regarding whether it would be
feasible for a road to be built so that Holt could access his entire property from the upper
gate:

       Q. Mr. Brown, with regards to, and you’ve answered my question -- you
       answered more I think with regards to the dam -- but back to my original
       question, anything that you observed or that you saw would create any
       issues that would prevent them from being able to install a road coming off
       of Patterson Road leading all the way down to the dam?
       A. I believe I could get a driveway there or a road.
       Q. And once the steps were taken that you just described to Mr. Chancey,
       do you believe that that road could possibly be extended to the cabin?
       A. Yes, sir.

       Beth Long testified for Defendants on which means of entry she saw the McClures
or Holts use to access the lake property:

       Q. And when were you born?
       A. 1961.
       Q. Could you describe for us what Patterson Lane was like when you were
       growing up?
       A. It was a dead end road. It was all family back there. We played on the
       road and rode bicycles. It was a graveled road until they paved it, I guess,
       early in the ‘70s, late ‘60s.

                                            ***


                                            -5-
      Q. Did you ever observe Marvin McClure or any of his relatives using the
      driveway that runs across the area that’s in dispute today?
      A. Occasionally. Maybe once or twice a month I’d see Marvin ride his
      little scooter down through there.
      Q. You say little scooter. Is that like a farm -- was he doing some farming
      or something?
      A. It was a little moped.
      Q. And that was Marvin McClure that you --
      A. Yes.
      Q. -- saw do that? All right.

                                          ***

      Q. Did you ever see any of his guests or anyone else that perhaps were
      related to him that would drive over this area?
      A. No, sir.
      Q. Now, you knew, though, that he and his family they were using this lake
      property, weren’t they?
      A. Yes, sir.
      Q. Well, did you have any ideas of how they were accessing the lake
      property?
      A. They were accessing it off of Patterson Lane. A gate opens to their
      property. It’s about 53 footsteps from the gate that we use.

        Defendant Shirley Carroll testified to her knowledge about the Holt family’s use
of the road:

      Q. And you’ve heard a lot of testimony today about Mr. McClure and his
      use of that property. Did you ever observe Mr. McClure using the area
      that’s in dispute today?
      A. Occasionally, yes.
      Q. When you say occasionally, how often would you see him using that?
      A. Maybe once a month. It would be hard to remember, but he had to come
      right in front of my house.
      Q. Do you recall what he was doing? Was it for farming? Do you know -- I
      mean, did you observe what he was doing when he would come that way?
      A. No. No.
      Q. Did you ever observe anyone else that would be his children or his wife
      or anyone else related to him coming that way?
      A. I do remember that they did have the church over there from time to
      time.
                                          -6-
      Q. When you say from time to time, how often did that happen?
      A. Well, maybe once a month. I really don’t remember.
      Q. Do you recall was it more seasonal as though it occurred in the
      summertime?
      A. Oh, yes, I’m sure. I’m sure, because there would probably be outside
      activities and, you know - - yes. I do recall them using it for that, yes.
      Q. Do you recall the last time that you ever saw Marvin McClure use that
      area, the area that’s in dispute?
      A. No, I don’t.
      Q. Would it have been -- he died. Do you recall when he died?
      A. (The witness makes no audible response.)
      Q. I believe we had testimony today it was in the late ‘90s that he passed
      away.
      A. (Witness nodding head up and down.)
      Q. Since that time have you ever seen anyone else use the area that’s in
      dispute?
      A. They would probably go over there, but they didn’t camp or anything
      like that. I don’t recall.
      Q. Who is they?
      A. Maybe Martha and Willis and maybe Roger. I didn’t pay that much
      attention because they drove right in front of my house and went over there.
      Q. And, of course, they had access to and a gate off of Patterson Road,
      which was down from your house here, didn’t they?
      A. Yes. That’s how Martha and them would go in with the church people.
      They would go there and park in that meadow, as we used to call it, and, I
      guess, then go up toward the cabin. But that’s the way they went in. I
      don’t recall that much traffic going out on that little road. I really don’t.

       Regarding Holt’s public road theory, testimony reflected that a culvert was placed
on the Disputed Road Bed. Old tax maps also included the Disputed Road Bed. Stanley
Thompson, property assessor for Bradley County, testified that the tax maps were
inconclusive on the issue.

      Q. Because a roadway is shown on the tax map, does that necessarily mean
      that it is a county road?
      A. No.
      Q. And so it is possible for a road to be depicted and it not be a county road
      and be a private road?
      A. Correct.
      Q. All right. Did you have an opportunity to go back and look at your tax
      assessment records with regards to Patterson Road?
                                           -7-
       A. Yes.
       Q. Did you find anything in those records to indicate that at any time that
       Bradley County showed for assessment purposes that Patterson Road went
       straight as it shows here on this Exhibit 4?
       A. Just from these original tax maps it shows that that road went through.
       Now, whether it was a county road or not, I couldn’t tell you.

       In August 2016, the Trial Court entered its final judgment dismissing Holt’s
complaint. In September, the Trial Court entered an agreed order amending its final
judgment so as to attach a transcript of the Trial Court’s ruling from the bench. The Trial
Court stated as follows:

              I’m going to address each of the three theories individually.
              As far as it being a public road is concerned, I think that the law is,
       under the McKinney and Duncan case, and requoted in the Lay versus
       Wallace case, that to establish a dedicated road by implication, and I think
       we all know or I can certainly say that this was never a dedicated public
       road where the county accepted the public road, so the question is was it
       impliedly dedicated.
              From Stanley Thompson, the original tax maps were created by a
       flyover where somebody flew over the county in the 1960s with the
       equipment that was available back then and took pictures of the county and
       then they attempted to place property lines on the county tax maps in a way
       to be able to tax the property.
              Neither one of those creates ownership or takes away ownership of
       property, but that’s the county’s way of trying to be sure that they’ve got all
       of their property in the tax system and that it’s all paying its appropriate
       share of taxes.
              There’s no proof that the county worked this road. There’s talk of a
       culvert, but no proof on who did it. To establish a dedication of a road by
       implication there must be proof of facts positively and unequivocally it
       appears that the owner intended to permanently part with their property and
       vest it in the public. There is not proof that the owners of the property
       intended to vest this area in orange into the public and there’s no proof that
       the public accepted that road as a public road. There’s no proof the county
       maintained the area.
              There is proof that it was a driveway for the benefit of the property
       owner and the defendants’ predecessors in title. But there’s no proof that
       the public used this road; that anybody who used this area, whether it’s
       called a driveway or a road, was using it with the plaintiff’s permission and
       the plaintiff didn’t necessarily have the right to give that permission. But
                                             -8-
the landowner in this case there’s no proof opened this road to the public or
acquiesced in the use of this being a public or intended to vest it as a public
for an extended period of time.
        So, as far as the public road theory of this case, this road is not on
the current list for roads, it’s not been consistently maintained, it was never
a throughway, and the Court finds that it was not a public road.
        The next question is whether this road was acquired as an easement
by necessity. The expert in this case, Mr. Brown, said it’s not necessary for
that area to be opened as an access by the plaintiff in this case, that they
have access directly off Patterson Road at their own gate.
        In fact, when Mr. Brown went out there and when the parties went
out there with their attorneys they all accessed this property through a gate
and parked on this property as they walked this property. And now the
cabin is accessible over on that part where the dam has failed, or at least
allowed the lake to be drawn down, whether it’s by this drought that we’ve
been experiencing, as what Mr. Brown said, or because the dam hasn’t been
properly maintained -- Mr. Brown said it wasn’t even properly built -- that
the cabin is now accessible.
        And I will note that the lake was created by the landowner. So, for
the landowner to claim that now he has a necessity by something that he
created, which was the lake, the -- and I can’t see that far away, my
contacts aren’t working. I think that’s 19.04; is that correct?
MR. CHANCEY: Yes, your Honor.
MR. HENRY: Yes, your Honor.
THE COURT: That the parcel 19.04 and the parcel of property south to it
and Ms. Miolen’s property were all owned by Mr. McClure and continue to
be owned by the same family, or descendants of Mr. McClure.
        So, I don’t find that necessity has been proven as in there is no other
ingress or egress there. The question is also, it’s just whether they want to --
whether this is a convenience or not, whether the area on the south side of
the lake is more convenient for them.
        Also, one of the parties testified that the campers were pulled in an
area over the dam or across the dam; and Mr. Miolen was able to access
this property with his lawnmower, according to his wife. So, I don’t find
that there was an easement by necessity.
        Now, the third theory that has been proffered by the defendants --
and not every witness in this case even testified that they got to that piece
of property through the orange area. Several witnesses testified that they
were out there and that they stayed out there. I don’t find that they meant
that they lived out there for months at a time, particularly when there was
no plumbing out there. Finally, on some cross Mr. James, I believe his last
                                      -9-
name was Hutchinson, said, well, he did go home and take showers, and
that certainly makes better sense, but for witnesses to say they stayed out
there all summer I don’t find that that was necessarily credible. There is
some electricity but certainly no plumbing out there.
        For the parties to invite people to go in and out to their lake, I think
that they did that; that there were several people out there from the 1960s at
least through the late ‘70s. There wasn’t a lot of testimony about the ‘80s,
and certainly as far as the late ‘90s any use of the orange area has not been
there.
        So, in order to get a prescriptive easement under Tennessee law, the
party seeking to establish that, which would be Mr. Holt, must demonstrate
all of the elements by clear and convincing evidence. That doesn’t mean a
preponderance of the evidence. Clear and convincing evidence must meet a
higher burden and eliminate any serious or substantial doubt about the
correctness of the conclusions.
        It is important to note that several witnesses said they were on the
land; they didn’t all say how they got to the land. The defendants in this
case testified they would see people drive down Patterson Lane and use
their gate, which was the gate on the McClure property up at the other end.
And so if they assumed that they were using that gate and not traversing on
their property, then there doesn’t seem to be a claim that they were doing
anything over there adversely.
        The exclusive use of this orange area isn’t there. The orange area
was testified was a driveway for the house that was there, so the plaintiff in
this case did not use it exclusively. It has been interrupted since at least
1999. It has not been continuous. The Holt and McClure family never
claimed they had a right to do that until recently. It says under a claim of
right and it must be adverse. In other words, it must be this is our land and
not your land, and that’s not what was going on here. If the owners
acquiesce, if the Cantrells acquiesce to their use, that’s not this adverse
possession to the point where you get a prescriptive easement.
        Mostly the land was used in the summertime, sometimes at New
Year’s. It was seasonal. Sometimes they had hayrides. They had church
groups down there. It was not a continual residence and it wasn’t used
exclusively to the exclusion of others -- and that’s what exclusive means, to
the exclusion of others -- since the Johnson family was using that area
down there.
        So, as far as the three theories given to me today, I will look at those
theories and the evidence that I have and find that the plaintiff has not
established by clear and convincing evidence that they are entitled to go

                                     -10-
       across the Cantrell property to access theirs and I will dismiss their case.
       All right?
       MR. HENRY: Cost?
       THE COURT: Cost taxed to the plaintiff.

Holt appeals to this Court.

                                       Discussion

       Although not stated exactly as such, Holt raises the following three issues on
appeal: 1) whether Holt is entitled to a prescriptive easement across the Disputed Road
Bed; 2) whether Holt is entitled to an easement by necessity across the Disputed Road
Bed; and, 3) whether the Disputed Road Bed is a public road by implication.

       Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

       As our Supreme Court has instructed:

       When credibility and weight to be given testimony are involved,
       considerable deference must be afforded to the trial court when the trial
       judge had the opportunity to observe the witnesses’ demeanor and to hear
       in-court testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.
       1997) (quoting Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)).
       Because trial courts are able to observe the witnesses, assess their
       demeanor, and evaluate other indicators of credibility, an assessment of
       credibility will not be overturned on appeal absent clear and convincing
       evidence to the contrary. Wells v. Bd. of Regents, 9 S.W.3d 779, 783
       (Tenn. 1999).

Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011).

      We first address whether Holt is entitled to a prescriptive easement across the
Disputed Road Bed. This Court has discussed prescriptive easements as follows:



                                           -11-
             “An easement is an interest in another’s real property that confers on
      the easement’s holder an enforceable right to use that real property for a
      specific use.” Vineyard v. Betty No. M2001-00642-COA-R3-CV, 2002 WL
      772870, at *2 (Tenn. Ct. App. Apr. 30, 2002) (citing Bradley v. McLeod,
      984 S.W.2d 929, 934 (Tenn. Ct. App. 1998)). Appellants claim such an
      interest in a portion of the Bucse property under a theory of prescriptive
      easement. “Generally, [a prescriptive] easement arises when a use ... is
      adverse rather than permissive, open and notorious, continuous and without
      interruption, and for the requisite period of prescription.” Cumulus Broad.,
      Inc. v. Shim, 226 S.W.3d 366, 378 (Tenn. 2007) (citing Ralph E. Boyer,
      Survey of the Law of Property 569-70 (3d ed.1981)). “The extent of the
      rights matured by prescription is based upon the extent of the use during the
      period of prescription.” Id. “In order to establish prescriptive easement
      under the common law ..., the usage must be adverse, under claim of right,
      continuous, uninterrupted, open, visible, exclusive, and with the knowledge
      and acquiescence of the owner of the servient tenement, and must continue
      for the full [twenty years].” Id. at 379 (Tenn. 2007) (citing Bradley, 984
      S.W.2d at 934); see also Pevear v. Hunt, 924 S.W.2d 114, 116 (Tenn. Ct.
      App. 1996); House v. Close, 48 Tenn. App. 341, 346 S.W.2d 445, 447
      (Tenn. Ct. App. 1961). “A party claiming a prescriptive easement bears the
      burden of proving each element through clear and convincing evidence.”
      Hager v. George, No. M2013-02049-COA-R3-CV, 2014 WL 3371680, at
      *3 (Tenn. Ct. App. July 8, 2014) (citing Stone v. Brickey, 70 S.W.3d 82, 86
      (Tenn. Ct. App. 2001)). “Clear and convincing evidence means evidence in
      which there is no serious or substantial doubt about the correctness of the
      conclusions drawn from the evidence.” Furlough v. Spherion Atl.
      Workforce, LLC, 397 S.W.3d 114, 128 (Tenn. 2013) (quoting Hodges v.
      S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). “The evidence
      must create a high probability of the truth of the facts asserted, leaving the
      moving party with a heavy burden and a high bar for obtaining relief.”
      Hager, 2014 WL 3371680, at *3 (Tenn. Ct. App. July 8, 2014) (citing
      Furlough, 397 S.W.3d at 128).

The River Oaks, GP v. Bucse, No. M2015-02208-COA-R3-CV, 2016 WL 6248024, at *4
(Tenn. Ct. App. Oct. 25, 2016), no appl. perm. appeal filed.

       In this case, Holt, as the claimant, holds the burden of proving each element of a
prescriptive easement by clear and convincing evidence. This case hinges, in significant
part, upon credibility determinations of the witnesses. We are obliged by longstanding
Tennessee case law to defer heavily to trial courts’ witness credibility determinations.
The Trial Court found that Holt and his guests used the lake property merely in a
                                           -12-
seasonal, occasional manner. The Trial Court specifically found non-credible the
testimony that anyone “lived” by the lake for any extended period of time. More to the
point, the Trial Court found the evidence murky as to whether guests used the Disputed
Road Bed or the upper gate to access the property.

       Our review of the trial testimony supports this conclusion. If dozens of guests
flooded the lake property each day from 1964 through 2012, but only one guest used the
Disputed Road Bed once per decade while the rest used the upper gate, this would not
constitute the kind of continuous, adverse use contemplated by law. Even if we grant
from the testimony that on some occasions some guests used the Disputed Road Bed, we
find, as did the Trial Court, that this occasional use does not rise to the level of
continuous use of the Disputed Road Bed, even in light of Holt’s property’s particular
context as an outdoor recreational site.

       The evidence does not preponderate against the Trial Court’s factual findings, nor
does clear and convincing evidence exist such as to overturn the Trial Court’s implicit
and explicit credibility determinations. Given this, we find that Holt failed to prove the
essential element of continuous use of the Disputed Road Bed by the standard of clear
and convincing evidence. We affirm the Trial Court as to this issue.

      We next address whether Holt is entitled to an easement by necessity across the
Disputed Road Bed. Regarding easements by necessity, we have stated:

            In order to find the creation of an easement by necessity, Shelby
      County and MLGW must show the following:

             The prerequisites to the creation of an easement by necessity
             are: 1) the titles to the two tracts in question must have been
             held by one person; 2) the unity of title must have been
             severed by a conveyance of one of the tracts; 3) the easement
             must be necessary in order for the owner of the dominant
             tenement to use his land with the necessity existing both at
             the time of the severance of title and the time of exercise of
             the easement.

      Powell v. Miller, 30 Ark.App. 157, 785 S.W.2d 37, 39 (1990) (citing
      Burdess v. United States, 553 F.Supp. 646, 649-50 (E.D. Ark. 1982)); see
      also Morris v. Simmons, 909 S.W.2d 441, 444 (Tenn. Ct. App. 1993). The
      first and second elements are satisfied in this case since the parcel now
      owned by Shelby County originated by deed from a larger tract previously
      owned by Stonebridge.
                                           -13-
               The third element, regarding necessity, arises when the conveyance
       results in the dominant parcel becoming landlocked. 28A C.J.S. Easements
       § 93 (1996); see also Thompson v. Hulse, No. E1999-02474-COA-R3-CV,
       2000 WL 124787, at *5, 2000 Tenn.App. LEXIS 31, at *15-16 (Tenn. Ct.
       App. Jan. 26, 2000); Morris v. Simmons, 909 S.W.2d 441, 444 (Tenn. Ct.
       App. 1993); Whitwell v. White, 529 S.W.2d 228, 232 (Tenn. Ct. App.
       1974).

Cellco Partnership v. Shelby County, 172 S.W.3d 574, 592 (Tenn. Ct. App. 2005).

       Regarding the definition of necessity, we have stated:

       Although Tennessee does not require “strict necessity,” the degree of
       necessity must be more than “mere convenience.” Id. (citations omitted).
       Where the claimant has another reasonable or practicable mode of ingress
       and egress, this Court will not imply a way of necessity. Id. at 593 (citing
       28A C.J.S. Easements § 97 (1996)). Where the party claiming the right can,
       at reasonable cost, create a substitute on his own estate the easement is not
       necessary. Line v. Miller, 43 Tenn.App. 349, 351, 309 S.W.2d 376 (1957).

Newman v. Woodard, 288 S.W.3d 862, 868 (Tenn. Ct. App. 2008).

       The Trial Court found: “The expert in this case, Mr. Brown, said it’s not necessary
for that area to be opened as an access by the plaintiff in this case, that they have access
directly off Patterson Road at their own gate.” Brown testified that he believed he “could
get a driveway there or a road.” Holt’s lake property is not landlocked and is directly
accessible via the upper gate without entering anyone else’s property. There was
considerable testimony as to the harshness of the terrain and topography. However, there
was insufficient evidence to establish that Holt lacked any reasonable alternative, such as
having a road built, to an easement in order to access the more remote parts of his
property. As did the Trial Court, we also have some difficulty with Holt’s predecessor
having created the lake on the property and then Holt arguing that this lake created by his
predecessor makes a portion of his property inaccessible without an easement over the
Disputed Road Bed. To the extent any necessity exists, it was the creation of the lake and
not any conveyance of property that created the necessity.

       Apart from the lack of necessity, we note additionally that Holt never established
the unity of title element necessary for the creation of an easement by necessity. In fact,
Holt never discusses the unity of title requirement in the section of his brief discussing
easement by necessity. We affirm the Trial Court on this issue.
                                            -14-
      We next address whether the Disputed Road Bed is a public road by implication.
Regarding public roads by implication, we have stated:

              To establish a public road by implication, the proponent must satisfy
       two requirements. First, the landowner must intend to dedicate the road to
       the public. McCord v. Hays, 202 Tenn. 46, 302 S.W.2d 331, 333 (Tenn.
       1957). Second, the public must expressly or impliedly accept the road. Id.
       The burden of proof is heavy. In short, the proponent must present

              proof of facts from which it positively and unequivocally
              appears that the owner intended to permanently part with his
              property and vest it in the public, and that there can be no
              other reasonable explanation of his conduct. In other words,
              dedication is a question of intention, and the intent must be
              clearly and satisfactorily proven.

       McKinney v. Duncan, 121 Tenn. 265, 118 S.W. 683, 684 (Tenn.1909).

Gore v. Stout, No. M2006-02111-COA-R3-CV, 2008 WL 450597, at *4 (Tenn. Ct. App.
Feb. 19, 2008), no appl. perm. appeal filed.

       The standard on public roads by implication is quite high. We find nothing
approaching unequivocal evidence in the record on appeal that the Cantrells ever
intended to dedicate the Disputed Road Bed to the public. Likewise, neither is there
proof that the public accepted the Disputed Road Bed as a public road. We affirm the
judgment of the Trial Court as to each of the three theories advanced by Holt.

       As a final matter, Defendants attempt, in the body of their brief on appeal, to raise
the issue of whether this appeal is frivolous even though they do not set it out in their
statement of the issues as required. In any event, while unsuccessful, the issues raised by
Holt are not utterly devoid of merit. We decline to find this appeal frivolous.




                                            -15-
                                       Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Roger L. Holt, and his surety, if any.


                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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