                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 22, 2010 Session

        ARTHUR A. WINQUIST, et al., v. JAMES A. GOODWIN, et al.

                  Appeal from the Chancery Court for Rhea County
                  No. 10219    Hon. Jeffrey F. Stewart, Chancellor


             No. E2009-02597-COA-R3-CV - FILED OCTOBER 28, 2010




This case was precipitated when defendants blocked plaintiffs' use of an existing driveway.
Plaintiffs brought this action for a declaratory judgment and following an evidentiary
hearing, the Trial Court ruled that plaintiffs had a prescriptive easement to use the driveway
and that defendants would be required to restore the driveway as well as the excavations
damaging plaintiffs' lots. On appeal, we affirm.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and John W. McClarty, J., joined.


Susie Lodico and Gary R. Patrick, Chattanooga, Tennessee, for the appellants, James A.
Goodwin and Verna K. Goodwin.

Rebecca L. Hicks, Dayton, Tennessee, for the appellees, Arthur A. Winquist and Judith
Winquist.


                                         OPINION

      Plaintiffs, Arthur and Judith Winquist, filed their Complaint against James and Verna
Goodwin, seeking a declaratory judgment regarding the parties’ adjoining parcels of property
in Rhea County. Plaintiffs charged the parties owned property in Lakewood Village
Subdivision, and that for over twenty years, plaintiffs and their predecessors had accessed
their property using a private driveway from Lookout Drive. Plaintiffs stated that defendants
had now blocked the driveway and were preventing plaintiffs' use.

       Plaintiffs further alleged the driveway was the only means of access to their residence
and had been since 1982. They claimed that they obtained use to the driveway through
adverse possession, and that their use of the same had been open, notorious, continuous and
exclusive for over 20 years. Alternatively they claimed a prescriptive easement. They stated
that they also owned other lots in the subdivision. Plaintiffs charged that defendants had
trespassed on their property and wrongfully cut trees and deposited debris and garbage, and
sought treble damages for the removal of their timber pursuant to Tenn. Code Ann. §43-28-
312, and asked for a temporary restraining order to prevent defendants from blocking their
driveway. The Court issued a temporary restraining order preventing defendants from
continuing to block the driveway.

        Defendants answered, and denied the material allegations of the Complaint, and
asserted the defenses of waiver, release, and statute of limitations. Plaintiffs amended their
Complaint by adding the allegation that defendants entered onto lots 456-459, owned by
plaintiffs, and performed extensive excavation which damaged the lots by dramatically
changing the contour and elevation of the lots as they join Lookout Drive. Plaintiffs
concluded that defendants’ actions were without their knowledge or consent, and that the
damage caused would require extensive restoration work.

         The Trial Court conducted an evidentiary hearing on the issues, where numerous
witnesses testified. At the conclusion of the evidentiary hearing, the Trial Court ruled from
the bench and found that plaintiffs' only means of ingress and egress was via the driveway
which was installed in 1982. The Court found that the driveway had been utilized by
plaintiffs’ predecessors for more than 20 years. The Court found the driveway was still intact
when plaintiffs bought the property, and that shortly after plaintiffs bought the property,
defendants obliterated the driveway and installed fencing that blocked plaintiffs’ access. The
Court found that defendants also increased the height of the bank and caused erosion, and
that the higher bank made some of plaintiffs’ lots inaccessible. Further, the Court found that
Goodwin moved Lookout Drive without the other owners’ permission, and that the work
benefitted Goodwin but not plaintiffs.

       The Court found that plaintiffs’ predecessors’ use of the driveway which crossed
Goodwin’s lot was shown by clear and convincing evidence to have been for more than 20
years, and that plaintiffs had proven a prescriptive easement. The Court observed that
Tennessee law said a co-owner could improve an easement so long as it did not create an
undue burden or cause unwarranted interference with other owners, but that defendants’
actions here created a steeper bank and erosion and caused an undue burden and unwarranted

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interference with plaintiffs.

       The Court held plaintiffs were entitled to have the bank restored to its previous
height/slope, and to have Lookout Drive restored to its previous location, if necessary. The
Court found that defendant should have the option of performing this work since he had done
the other work himself, and the defendants were ordered to remove the fence and were
enjoined from blocking plaintiffs’ access to the driveway, and that the driveway had to be
restored to its original location. The Court also ordered plaintiffs’ oil line to be repaired.

       Defendants filed a Notice of Appeal, and the following issues are raised on appeal:

       1.      Whether the Trial Court erred in its ruling that the plaintiffs were entitled to
               any recovery related to the bank along Lookout Drive?

       2.      Whether the Trial Court erred in its ruling that the plaintiffs were entitled to
               a prescriptive easement over the defendants’s property for their driveway?

       3.      Whether the Trial Court erred in its denial of defendants’ motion for a
               continuance?

       4.      Whether the Trial Court erred in its refusal to admit evidence related to other
               banks within the same subdivision?

       5.      Whether the Trial Court erred in its refusal to hear testimony and evidence
               from defendants’ expert?

        Defendants argue that it was error for the Trial Court to order that Lookout Drive and
the bank along lots 456-459 had to be restored to their original condition before the extensive
excavation and road work undertaken by defendants. The parties agree that defendants could
not make alterations to this common easement which would render the easement less useful
to the co-owners or which injuriously affects the other owners. The evidence in this case
clearly preponderated that the excavation and road work done by defendants rendered the
easement less useful to plaintiffs, and injuriously affected their property rights. Several
witnesses testified that the slope of the bank along plaintiffs’ lots, after defendants “improved
the road”, was such that gaining access to the lots would be nearly impossible, and certainly
very costly. There was also evidence that the slope of the bank as it was left by defendants
was unstable and would continue to erode unless corrective measures were taken.

        Defendants argue that plaintiffs did not meet their burden of proof for the strict
liability tort of destruction of lateral support, but, as plaintiffs counter, all that must be shown

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is that defendants excavated and caused injury to the adjoining land in its natural state. As
our Supreme Court has explained:

       Landowners who excavate or improve their land are compelled to do so in a manner
       that protects adjoining property in its natural state from collapsing or eroding away.
       A landowner is not prohibited from excavating into the natural soil along a boundary
       line, but must replace by artificial means the natural support removed in the process.
       Strict liability attaches for damage caused by removing the naturally necessary lateral
       support of land in its natural state, with no proof of negligence required.

XI Properties, Inc. v. RaceTrac Petroleum, Inc., 151 S.W.3d 443 (Tenn. 2004).

       We reiterate that the evidence preponderates that defendants not only changed the
slope of the bank such that it was more vertical, but also that the height of the bank was more
than doubled, and that there was significant erosion occurring.

        Defendants argue, however, that plaintiffs failed to prove their damages as the proper
measure of damages would be the difference in market value of the property before and after
the injury. Defendants rely upon the case of Williams v. Southern Railway Co., 396 S.W.2d
98 (Tenn. Ct. App. 1965), for the proper measure of damages:

       The measure of these damages, being to real estate, would be the difference between
       the reasonable market value of the premises immediately prior to and immediately
       after the injury, provided the cost of repairing the injury to the property would be
       more than the depreciation in its value as the result of the injury, but if the reasonable
       cost of repairing the injury is less than the depreciation in value, the cost of repair
       would be the lawful measure of damages.

        Thus it is argued that since plaintiffs failed to prove the difference in fair market value
of their property before and after the excavation was done, the Trial Court did not properly
award damages.

       The Trial Court did not award damages, but rather ordered that the bank should be
restored to its original height and slope. This is also a proper remedy pursuant to the XI
Properties case cited. Clearly, the Trial Court has discretion to fashion an appropriate
remedy in these cases, i.e., restoration or restitution, and the Trial Court did not abuse its
discretion in this case. The Trial Court relied upon the fact that defendant “is in the
construction and real estate development business and had the means to move the driveway”.
We find this issue is without merit.



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       Next, defendants argue that plaintiffs failed to establish a prescriptive easement in the
driveway. As this Court explained in Gore v. Stout, 2008 WL 450597 (Tenn. Ct. App. Feb.
19, 2008):

       An easement is an interest in another's real property that confers on the easement
       holder an enforceable right to use that real property for a specific use. The most
       common form of an easement is a right of passage across another's property. In
       Tennessee, easements can be created in several ways: (1) express grant, (2)
       reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain.
       A prescriptive easement is an implied easement that is premised on the use of the
       property rather than language in a deed. To create a prescriptive easement, the use
       and enjoyment of the property must be adverse, under a claim of right, continuous,
       uninterrupted, open, visible, exclusive, with the knowledge and acquiescence of the
       owner of the servient tenement, and must continue for the full prescriptive period.
       The proponent must prove each of the elements by “clear and convincing evidence.”
       In Tennessee the prescriptive period is twenty years.

(Citations omitted).

       Defendants argue that the plaintiffs could not establish a prescriptive easement in this
case because they did not use the land themselves for the requisite twenty year period, and
thus could not meet this time requirement without “tacking” their use on to that of their
predecessors.

       Plaintiffs acquired the property from Timothy Woodall, who owned it from 2003-
2006, and in the deed from Woodall to plaintiffs, Woodall specifically referenced a
“driveway easement” per the recorded plat. Timothy acquired the lot from his father, Eugene
Woodall, who testified that he owned the property from 1982 to 2003, and that he used the
driveway the entire time, even though it was not included in his deed. Defendants do not
argue that he failed to meet any of the other requirements for a prescriptive easement.

        Defendants do argue, however, that plaintiffs cannot tack on Mr. Woodall’s adverse
use of the property in order to meet the twenty-year requirement because there was no proof
that when Mr. Woodall transferred the property to his son, Timothy, in 2003, that the
disputed driveway was included in the description. As we have previously stated, “[t]he
contractual intention to connect successive adverse possessions through tacking requires the
property claimed through the judicial mechanism to establish a prescriptive easement be
described in the deed transferring ownership between the adverse possessors, or be
established through parol evidence sufficient to establish the buyer's right of reasonable
reliance on representations made by the buyer's predecessor relating to the transfer of

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ownership.” Thompson v. Hulse, 2000 WL 124787 (Tenn. Ct. App. Jan. 26, 2000). Thus,
defendants argue that plaintiffs cannot successfully apply the rule of “tacking” in this case
to establish the requisite twenty year period.

       We have also previously ruled, however, that the rule of legal privity required for such
“tacking” has many exceptions, and is satisfied by the parent/child relationship, as well as
by the reliance of the grantee on the grantor's representations regarding ownership. Id.
While the record is devoid of any evidence regarding what Timothy knew or believed
regarding this driveway, there is no dispute that Eugene and Timothy Woodall are, in fact,
parent and child. As such, Timothy Woodall’s possession could be tacked to that of his
father, and plaintiffs’ possession can be tacked to Timothy Woodall’s via the language
contained in plaintiffs’ deed, such that the requisite twenty year period has clearly been
established. This issue is without merit, and the Trial Court properly found that a
prescriptive easement in the driveway had been proven.

       Defendants argue that the Trial Court erred in failing to grant them a continuance in
this case, asserting that neither party had sought any prior continuances. Plaintiffs assert,
however, that two prior continuances were granted in this case, and that the case had been
pending for nearly three years at the time of trial.1

       Both parties acknowledge that the Trial Court’s decision denying a continuance will
not be disturbed on appeal absent a showing that the Court abused its discretion and the party
seeking a continuance was prejudiced. Blake v. Plus Mark, Inc., 952 S.W.2d 413 (Tenn.
1997). Appellate courts will only find that a trial court “abused its discretion” when the
court has applied an incorrect legal standard, has reached a decision that is illogical, has
based its decision on a clearly erroneous assessment of the evidence, or has employed
reasoning that causes an injustice to the complaining party. Clinard v. Blackwood, 46
S.W.3d 177, 182 (Tenn.2001).

        In this case, the record does not contain anything regarding the Trial Court’s basis for
denying a continuance to defendants, but the fact that the case had been pending for nearly
three years at the time of trial established a basis to support the Trial Court’s decision. The
only reason provided for seeking a continuance (in the motion filed two days before the trial
date) is that the parties had been in settlement negotiations and were hopeful that they would
be able to settle if given more time. Since the parties had nearly three years to work out a
settlement, and it had not been accomplished, it would appear that the Trial Court did not
abuse its discretion in failing to allow additional time. There was no showing that the Court
has applied an incorrect legal standard, reached a decision that is illogical, based its decision

       1
           The record contains no information about prior continuances.

                                                   -6-
on a clearly erroneous assessment of the evidence, or has employed reasoning that causes an
injustice to the complaining party. The defendants will not be heard to complain of their own
failure to prepare for a trial in a case that had been pending for approximately three years.

        Defendants further argue that the Trial Court erred in excluding evidence regarding
the steepness of other banks within the subdivision. This evidence was not relevant,
however, to the question of how defendants’ admitted excavation and road work along the
lots in question altered those banks. The question was not whether having steep banks was
acceptable or expected, it was whether defendants’ admitted actions interfered with
plaintiffs’ use of their property and removed necessary lateral support. The Trial Court did
not err in excluding this evidence.

       Finally, defendants argue that the Trial Court erred in excluding the testimony of
defendants’ expert. Defendants’ counsel admitted at trial that she had a duty to disclose any
expert witnesses and that she did not disclose their expert until two days before trial, which
the Trial Court thought was too late. Again, this decision is reviewed under an abuse of
discretion standard, such that the Trial Court’s decision will not be reversed unless the Trial
court has violated the standard enunciated in this opinion on the issue of continuance. . See
Clinard.

        Appellate courts will not disturb discretionary decisions by the Trial Court where
reasonable minds can differ concerning their soundness. Overstreet v. Shoney's, Inc., 4
S.W.3d 694, 709 (Tenn. Ct. App. 1999). We hold that the Trial Court's discretion to exclude
defendants’ expert witnesses, given the circumstances surrounding his disclosure, renders
this issue without merit.2

       We affirm the Judgment of the Trial Court and remand, and assess the cost of the
appeal to James and Verna Goodwin.




                                                        _________________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




        2
         Reviewing the offer of proof, the testimony given by defendants’ expert would not have aided the
Trial Court in resolving the issues in this case.

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