                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 15, 2013 Session

 JAMES EBERLE ET AL. v. LISA PARROTT ELLIOTT, INDIVIDUALLY AND
                        AS PERSONAL REPRESENTATIVE OF THE
                   ESTATE OF JERRY WAYNE PARROTT, DECEASED

                  Appeal from the Chancery Court for Monroe County
                      No. 16715     Jerri S. Bryant, Chancellor

                          _________________________________

                  No. E2012-00298-COA-R3-CV - Filed June 28, 2013


This is a contested easement action regarding wooded mountain property in Monroe County.
The Plaintiffs/Appellants, James and Edna Eberle, filed a complaint requesting that the
Defendant/Appellee, Lisa Parrott Elliott, be enjoined from crossing the Eberles’ property
from her adjoining thirty-acre tract without benefit of an easement. Following a bench trial,
the Monroe County Chancery Court dismissed the Eberles’ complaint for injunctive relief
and ruled that an easement exists for ingress and egress over the Eberles’ property,
appurtenant to and serving Ms. Elliott’s property. The Eberles have appealed. At issue is
whether the trial court erred by finding the existence of an easement, either express,
prescriptive, or implied. The Eberles also assert that the trial court erred by failing to limit
the easement to a use no greater than the use previously made over the servient property.
Discerning no error, we affirm the trial court’s ruling that an easement exists for ingress and
egress and the court’s dismissal of the complaint for injunctive relief.

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

T HOMAS R. F RIERSON , II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellants, James and Edna Eberle.

John Carson, III, Madisonville, Tennessee, for the appellee, Lisa Parrott Elliott.
                                         OPINION

                          I. Factual and Procedural Background

       The Eberles purchased approximately twelve acres of real property (“Eberle
Property”), comprised of four contiguous tracts of wooded land, in Monroe County in
September 2006. Title to the Eberle Property was conveyed by two separate deeds, each
transferring two tracts of land, the northern two tracts conveyed by Melvin and Sharon Moss
and the southern two tracts by Glenn R. and Marilyn T. Breeding. The chains of title for all
four tracts merge with the common predecessor in title, Sequoyah Land Company, Inc.
(“Sequoyah”). The deed conveying the southern two tracts to the Eberles included a
provision reserving a twenty-five-foot right-of-way to Sequoyah, and a provision that the
land was conveyed “subject to all previous easements, visible or otherwise.”

        The Eberle Property is bounded on the northwest corner by a thirty-acre tract owned
by Ms. Elliott (“Elliott Property”), which she inherited from her father, Jerry Wayne Parrott,
upon his death in July 2009. Title to the thirty-acre tract was conveyed to Mr. Parrott by
Donald and Helen Cochran in 1979. Mr. Parrott purchased other tracts contiguous to the
thirty-acre tract at about the same time, with one of these parcels having direct egress to an
asphalt county road. The chain of title for the Elliott Property and the other Parrott land
originated with Sequoyah as the common predecessor in title. Sequoyah initially owned
approximately 300 acres that included all of the property relevant to the present dispute.

        The dirt road determined by the trial court to be an easement is labeled “Mountain
Road” on survey maps and drawings admitted into evidence by both parties. Mountain Road
begins at Shields Branch Road, an asphalt county road, and extends the length of the Eberle
Property to the common boundary between the Eberle Property and the Elliott Property.
Regarding the easement as established by the trial court, the Elliott Property is the dominant
estate and the Eberle Property the servient estate.

        At the trial, there was undisputed testimony from Mr. Eberle that he and Mr. Parrott
were good friends and that Mr. Parrott had helped him choose the site on which to set the
Eberles’ mobile home. Mr. Parrott also assisted in building an addition to the Eberle home.
Mr. Eberle identified photographs of a gate between the two properties, indicating that
initially Mr. Parrott built the fence with Mr. Eberle, who later erected the gate. Both Mr.
Eberle and Ms. Elliott testified that the gate had remained open as a matter of course while
Mr. Parrott was alive. After Mr. Parrott’s death in 2009, a dispute erupted between the
parties over whether an easement existed. The Eberles began locking the gate in January
2010.



                                             -2-
       The Eberles filed a complaint on June 16, 2010, alleging that Ms. Elliott and her
brother, Wayne Edward Parrott,1 were crossing the Eberle Property without having been
granted an easement by deed or otherwise. Upon the Eberles’ request, the trial court granted
a temporary restraining order against Ms. Elliott and her brother, enjoining them from “going
onto, over or across” the Eberle Property.

        Following a bench trial held on November 9, 2010, the trial court concluded that there
existed an easement across the Eberle Property for ingress and egress. The court also
dismissed the Eberles’ complaint and dissolved the temporary restraining order against Ms.
Elliott and her brother. Attendant to these rulings, the court permanently enjoined the
Eberles from interfering with Ms. Elliott’s use of the right of way.

     In finding the existence of an easement, the trial court stated, inter alia, in its Final
Judgment:

                It is the decree of this Court that there is an easement for ingress and
        egress over the lands conveyed to James Eberle and wife, Edna Eberle by
        instruments of record in WD 315, p. 684 and WD 316, p. 189 (generally shown
        on 2010 Tax Assessment Map [174] as Parcel 55.00), appurtenant to and
        serving the lands conveyed to Lisa Yelene Parrott Elliott by instruments of
        record in WD 339, p. [614] and Will Book GG, page 653 (generally shown on
        2010 Tax Assessment Map 174 as Parcel 56), across the road generally shown
        on the plats of record in Plat Book 7, p. 104 and Plat Cabinet H, Slide 29, all
        in the office of the Register of Deeds for Monroe County, Tennessee.

       The Eberles moved to alter or amend the judgment on June 30, 2011, arguing that no
easement existed. The Eberles requested that the court limit the easement to benefit the
unimproved dominant estate to a use no greater than Ms. Elliott claimed she and her family
had made of the servient estate in the past; that the court establish the width of the easement;
and that the court limit the easement to run with the land, but only for use by Ms. Elliott and
her successor(s) in title. They specifically requested that if the court affirmed its award of
the easement, they be allowed to erect and maintain a gate at the Eberle-Elliott common
boundary with a lock to which both parties would possess keys. The Eberles also asked that



        1
          Ms. Elliott argued in her answer to the complaint that her brother, Wayne Edward Parrott, was not
properly a party to this action. He remained in the style of the case until the parties filed a joint motion to
realign the parties on appeal, which was granted by this Court in an Order entered July 31, 2012. For ease
of reference, we shall refer to Ms. Elliott’s father, Jerry Wayne Parrott, as “Mr. Parrott” and Wayne Edward
Parrott as “Ms. Elliott’s brother.”

                                                     -3-
the permanent injunction against interference with use of the easement be dismissed as to Ms.
Elliott’s brother because he did not own any land that adjoined the Eberles’ land.

        After a hearing on October 4, 2011, the trial court entered an Order Amending Final
Decree and Amended Final Decree on January 6, 2012, in which the court affirmed the
dismissal of the Eberles’ claim, the dissolution of the temporary restraining order, and the
permanent restraining order enjoining any interference by the Eberles in Ms. Elliott’s use of
the right of way. Regarding injunctive relief granted against the Eberles, the court amended
its previous use of the plural “Counter-Plaintiffs” for Ms. Elliott and her brother to the
singular “Counter-Plaintiff,” presumably in response to the Eberles’ request to remove Ms.
Elliott’s brother from the injunction. The court also amended the paragraph granting an
easement to read:

              It is the decree of this Court that there is an easement for ingress and
       egress over the land conveyed to James Eberle and wife, Edna Eberle by
       instruments of record in WD 315, p. 684 and WD 316, p. 189 (generally shown
       on 2010 Tax Assessment Map 174 as Parcel 55.00), appurtenant to and serving
       the land conveyed to Lisa Yelene Parrott Elliott by instruments of record in
       WD 339, p. 614 and Will Book GG, page 653 (generally shown on 2010 Tax
       Assessment Map 174 as Parcel 56), all in the office of the Register of Deeds
       for Monroe County, Tennessee, across the existing road at its general width
       and location extending to, but not beyond, the boundary line between the
       parties for such use as has been made of said road and land, but to create
       no greater burden on the servient estate than has been made heretofore.

(Emphasis supplied to reflect the trial court’s amendments to Final Judgment.)

        Ms. Elliott filed a “Motion to Alter or Amend Judgment or in the Alternative for
Specific Statement of Finding of Fact” on February 2, 2012, in which she requested specific
findings of fact as to “ (1) the ‘current width and location’ of the decreed right of way; and
(2) ‘use as has been made of said road and land’; and/or (3) the burden upon the servient
estate.” The Eberles filed a response to this motion on April 5, 2012, by which they argued
that the specific findings requested by Ms. Elliott did not need to be addressed by the trial
court.

       Ms. Elliott subsequently filed a petition for contempt on March 19, 2012, in which she
alleged that the Eberles had “blocked the roadbed with vehicles, placed trash and debris in
said roadway, and placed fence in the same.” The Eberles filed a response to the petition for
contempt on April 5, 2012, in which they denied the allegations.



                                             -4-
       Following a hearing on April 12, 2012, the trial court entered a Second Amended
Final Judgment on May 31, 2012, in which it made the following findings of fact:

       (1)    The easement is for ingress and egress; and

       (2)    The easement is as described in the deeds of Mr. Eberle and is neither
              enlarged nor is it reduced in physical size and/or limitation of use based
              on past use by the parent tract.

The trial court affirmed its previous ruling and amended the description of the easement to
eliminate the substantive revisions made in the First Amended Final Judgment:

              It is the decree of this Court that there is an easement for ingress and
       egress over the lands conveyed to James Eberle and wife, Edna Eberle by
       instruments of record in WD 315, p. 684 and WD 316, p. 189 (generally shown
       on 2010 Tax Assessment Map 174 as Parcel 55.00), appurtenant to and serving
       the lands conveyed to Lisa Yelene Parrott Elliott by instruments of record in
       WD 339, p. 614 and Will Book GG, page 653 (generally shown on 2010 Tax
       Assessment Map 174 as Parcel 56), across the road generally shown on the
       plats of record in Plat Book 7, p. 104 and Plat Cabinet H, Slide 29, all in the
       office of the Register of Deeds for Monroe County, Tennessee.

       The Eberles timely appealed.

                                    II. Issues Presented

        On appeal, the parties present the following issues for review, which we have restated
as follows:

       1.     Whether the trial court erred in finding an express grant of an easement for
              Ms. Elliott to cross the Eberle Property.

       2.     Whether the trial court erred in dismissing the Eberles’ complaint for
              injunctive relief because Ms. Elliott failed to prove by clear and convincing
              evidence that she has a prescriptive easement across the Eberle Property.

       3.     Whether the trial court erred in finding an easement by implication.

       4.     Whether the trial court erred in declaring that Ms. Elliott is entitled to an
              easement greater than the prior use made of the servient estate.

                                             -5-
                                   III. Standard of Review

        In this non-jury easement dispute, our review is de novo upon the record, with a
presumption of correctness as to the trial court’s findings of fact unless the preponderance
of the evidence is otherwise. See Tenn. R. App. P. 13(d); Shew v. Bawgus, 227 S.W.3d 569,
576 (Tenn. Ct. App. 2007) (citing Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001)). “In
order for the evidence to preponderate against the trial court’s finding of fact, the evidence
must support another finding of fact with greater convincing effect.” Wood v. Starko, 197
S.W.3d 255, 257 (Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co.,
78 S.W.3d 291, 296 (Tenn. Ct. App. 2001)). We review the trial court’s conclusions of law
de novo with no presumption of correctness. Shew, 227 S.W.3d at 576 (citing S.
Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001)).

                             IV. No Express Grant of Easement

      The parties differ in their interpretation of the legal basis for the trial court’s ruling
that Ms. Elliott enjoys an easement for ingress and egress across the Eberle Property. The
Eberles contend that it is unclear whether the trial court found an easement by express grant.
The Eberles specifically argue that neither Ms. Elliot nor her predecessors in title were
expressly granted an easement across the Eberle Property.

        In her brief on appeal, Ms. Elliott acknowledges that the trial court did not establish
the easement by express grant. We agree that the court’s judgment is unclear as to the basis
for its establishment of an easement in favor of Ms. Elliott.

       “‘An easement is a right an owner has to some lawful use of the real property of
another.’” Cellco P’ship v. Shelby County, 172 S.W.3d 574, 588 (Tenn. Ct. App. 2005)
(quoting Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996)) (internal citation
omitted). Tennessee courts recognize several different types of easements:

              Easements can be created in several ways in Tennessee, including: (1)
       express grant, (2) reservation, (3) implication, (4) prescription, (5) estoppel,
       and (6) eminent domain. Easements can be divided into two broad classes,
       easements appurtenant, and easements in gross. 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.

                                              -6-
Cellco, 172 S.W.3d at 588 (quoting Pevear, 924 S.W.2d at 115-16) (internal citations
omitted).

        An express grant of an easement is a right conveyed by deed. See, e.g., Mitchell v.
Chance, 149 S.W.3d 40, 47 (Tenn. Ct. App. 2004); Shew, 227 S.W.3d at 576. An express
grant must comply with the requirements of the statute of frauds, as codified in Tennessee
Code Annotated § 29-2-101 (Supp. 2012). See Cellco, 172 S.W.3d at 593. “To create an
easement by express grant, there must be a writing containing plain and direct language
evincing the grantor’s intent to create a right in the nature of an easement rather than a
license.” Smith v. Evans, No. M2007-02855-COA-R3-CV, 2008 WL 398117 at *2 (Tenn.
Ct. App. Aug. 27, 2008) (quoting 25 Am.Jur.2d Easements and Licenses § 15 (2008)
(internal citation omitted)); see also T.C.A. 29-2-101. Our Supreme Court has noted that
“[i]n construing a deed, our primary task is to ascertain the grantor’s intent from the words
of the deed as a whole and from the surrounding circumstances.” Griffis v. Davidson County
Metro. Gov’t, 164 S.W.3d 267, 274 (Tenn. 2005).

       The chains of title for both parties merge with the common predecessor in title,
Sequoyah. The two tracts that comprise the sourthern portion of the Eberles’ property were
conveyed to the Eberles by Glenn R. and Marilyn T. Breeden on September 25, 2006. In
relevant part, the property descriptions for these tracts are as follows:

       TRACT 1:

       BEGINNING at a point in the center of the road, corner with Donald G.
       Ritchey; thence running from said point in the center of the road the following
       calls and distances: North 89 degrees 40' East 76.87 feet; North 75 degrees 02'
       East 63.46 feet; North 56 degrees 07' East 39.70 feet; North 41 degrees 56'
       East 48.26 feet and North 55 degrees 06' East 80.97 feet to a point in the center
       of the road; thence running from said point North 67 degrees 11' West 1136.95
       feet to a point; thence running from said point South 32 degrees 05' East
       542.66 feet to a point, corner with Donald G. Ritchey; thence running from
       said point North 76 degrees 07' East 506.77 feet to a point; thence running
       from said point South 2 degrees 08' West 231.46 feet to a point in the center
       of the road and being the point of beginning. Said property containing 4
       acres, more or less.




                                              -7-
       TRACT II:

       BEGINNING at an iron pin, being the common corner of James Richie and
       Sequoyah Land Company, Incorporated; thence running from said iron pin
       North 76 degrees 07' East and with the line of James Richie 506.77 feet to a
       point; thence running from said point South 2 degrees 08' West 231.46 feet to
       a point in the center of the road; thence running with the center of the road the
       following calls and distances; North 87 degrees 52' West 91.64 feet; North 73
       degrees 18' West 65.12 feet; South 86 degrees 09' West 30.80 feet; South 60
       degrees 07' West 133.79 feet; South 75 degrees 34' West 59.57 feet and South
       64 degrees 52' West 40.41 feet to a point in the center of the road; thence
       running from said point North 25 degrees 08' West 208 feet to an iron pin in
       the James Richie line and being the point of beginning. Said property
       containing 2 acres more or less.

       Sequoyah Land Company, Incorporated reserves a 25 foot right-of-way for
       road purposes along the Southern portion or [sic] the property and for egress
       and ingress purposes.

       Said property is SUBJECT to all right-of-ways and easements that may exist
       on the property either visible or otherwise.

(Emphasis in original.)

       Title to Ms. Elliott’s thirty-acre tract passed to her through Mr. Parrott’s last will and
testament upon his death in 1992. Mr. Parrott acquired title to the property by deed dated
September 14, 1989, from William Donald Ledford and Wilby Jean Ledford. The relevant
portion of the property description for this tract provides:

       BEGINNING at an iron pin corner near the County Road; thence running from
       said iron pin corner, South 24" 39' East 1151.22 feet to an iron pin corner with
       the Sequoyah Land Company, Inc., property; thence running from said iron
       pin, North 60" 50' West, 1057 feet to an iron pin corner; thence running from
       said iron pin, N. 11" 55' East 1102.53 feet to an iron pin; thence running from
       said iron pin, South 65" 01' East and crossing the County Road, 1503.44 feet
       to an iron pin and being the point of BEGINNING, containing thirty (30)
       acres, more or less and sold by the boundary and not by the acreage as acreage
       is to guaranteed.

       ...

                                               -8-
      [S]aid premises are free from all encumbrances, with no exceptions, other than
      all visible easements and rights of way, and those specifically set out
      hereinabove. . . .

       In its Memorandum Opinion, announced from the bench at the trial and incorporated
into the Final Judgment, the trial court noted, in pertinent part:

      Mr. Eberle’s deeds have the words in them that say, a right of way for road
      purposes, which he doesn’t want a road there. And the Elliott deed doesn’t say
      anything, and she wants one. So I think that they each are trying to argue
      against what their specific deeds say in them, which makes it an interesting
      case.

      ...

              The Elliott deed description begins at an iron pin corner near the county
      road, and it’s agreed, I think between the parties that the county is not
      maintaining the road on the land of either of these parties. I think even though
      [Sequoyah President] Sloan testified he thought that meant the county road is
      Mountain Road, there’s just [no] way that that’s even possible. The county
      road, I think, at that description had to have talked about that road or the part
      of land that connected to Pine Road. There’s just no way [the county road]
      could’ve been Mountain Road.

              The Eberle chain–all their deeds say beginning at a point in the center
      of the road. So obviously, Sequoyah Land thought that there was more than
      one road running into this piece of property. And it’s not the law that you can
      only have or that you’re only entitled to one in and out on your piece of
      property. You can have more than one.

             The Eberle chain also has another paragraph that talks about subject to
      any and all prior easements or right of ways, including the right of way running
      with the center of the road. I think one of them said visible or all visible rights
      of way. Sequoyah was the latest predecessor in title of all the property, and
      conveyed it to Elliott without a reservation of an easement. So we’re not
      talking about a reservation to Elliott specifically.

            Although, the deeds called for a corner near the county road–I went
      through that–that’s not the corner of Mountain Road. Eberle deed at Warranty
      Book 316 Page 189–which Eberle, I think, received [. . . ] in 2000 has a right

                                              -9-
       of way for road purposes along the southern portion of the property for ingress
       and egress purposes. It doesn’t say to whom this right of way is given, but it
       does say the right of way is there for road purposes for ingress and egress, and
       that road reaches all the way to the 30-acre tract.

               In 2006 is when Eberle obtained title to the southern portion of that
       road. That deed says, subject to prior easements. At the time that he owned
       the northern part of the road or the pink line, it went all the way back to the 30-
       acre tract, and that certainly didn’t change anything by the acquisition of the
       sourthern parts of the property that he obtained.

               Sequoyah sold their 30-acre tract subject to all visible easements. There
       is no easement by reservation to Elliott. Sequoyah–and there is no proof of
       this, and it’s no speculation on the Court’s part. Can’t speculate as to whether
       Sequoyah thought that they were giving anything on the southern part of the
       Eberle tract to anyone, but it wouldn’t make any sense [. . . ] for that to go all
       the way back to the 30-acre tract without it to benefit the 30-acre tract.
       There’s no limiting language on the language of the easement along the
       southern boundary for ingress and egress and road purposes.

               The Court finds it benefits, not only the southern parts of the Eberle
       property, but also benefits the 30-acre tract. The Court dissolves the
       restraining order in this case. It would’ve–then it also benefitted, since Moss
       had the property–I believe it was Moss that had the southern part of that
       tract–that ingress and egress also benefitted them. So I’m finding that that
       pink line in Exhibit 17 [Mountain Road] is there for the benefit of not only
       the–both sides of the road for Eberle, but also the 30-acre tract.

       We conclude that the trial court found an express reservation of at least one easement,
the twenty-five-foot right-of-way, as well as the express grant of “all visible easements” in
the Eberle chain of title, which the parties do not dispute and which is supported by clear and
convincing evidence in the deeds and the maps admitted into evidence showing the twenty-
five-foot easement as Mountain Road. We do not conclude, however, that the trial court
found an express grant of an easement in favor of Ms. Elliott, as supported by the absence
of an express grant in Ms. Elliott’s deed. Instead, the court ruled that Mountain Road,
reserved as an easement in the Eberles’ chain of title, also benefitted the Elliott Property.
Our analysis therefore must focus on whether the trial court established the easement by
reason of prescription, or, as asserted by Ms. Elliott, by implication.




                                              -10-
                               V. No Easement by Prescription

       “A prescriptive easement is an implied easement that is premised on the use of the
property rather than language in a deed.” Shew, 227 S.W.3d at 578-79 (quoting Stinson v.
Bobo, No. M2001-02704-COA-R3-CV, 2003 WL 238723 at *3 (Tenn. Ct. App. Feb. 4,
2003)). To establish a prescriptive easement, the complainant must prove by clear and
convincing evidence that her use of the property is made under an adverse claim of right and
is “continuous, uninterrupted, open, visible, and exclusive” for “at [least] twenty years with
the owner’s knowledge and acquiescence.” Id.; see also Stone v. Brickey, 70 S.W.3d 82, 86
(Tenn. Ct. App. 2001).

        The trial court made no specific findings of fact in its Memorandum Opinion
regarding whether Ms. Elliott’s or Mr. Parrott’s use of Mountain Road was continuous,
uninterrupted, open, visible, and exclusive or whether it had occurred for at least twenty
years with Mr. Eberle’s and his predecessors’ knowledge and acquiescence. The Eberles
argue that Ms. Elliott failed to prove by clear and convincing evidence that her use of the
property was made under an adverse claim of right for the applicable period. Our review of
the trial court’s findings and the record in this case leads us to agree with the Eberles that the
trial court did not award the easement by reason of prescription.

                                 VI. Easement by Implication

       The Eberles contend in their initial brief on appeal that if Ms. Elliott does not have an
easement by express grant or one by prescription, the trial court should not have dismissed
the Eberles’ claim for injunctive relief against Ms. Elliott. This assertion discounts the
existence of an easement by implication and shall therefore be addressed with our analysis
of whether the trial court properly established an implied easement.

       Tennessee courts have long held that to find the existence of an easement by
implication, the following elements must be present:

       (1) A separation of the title; (2) Necessity that, before the separation takes
       place, the use which gives rise to the easement shall have been long
       established and obvious or manifest as to show that it was meant to be
       permanent; and (3) Necessity that the easement be essential to the beneficial
       enjoyment of the land granted or retained.

Cellco, 172 S.W.3d at 589 (quoting Johnson v. Headrick, 34 Tenn. App. 294, 237 S.W.2d
567, 570 (1948)). A fourth element of continuous servitude was indicated in Cellco as
“sometimes added” but has been found since by this Court to be “subsumed within the other

                                              -11-
three long-established elements.” See Ingram v. Wasson, 379 S.W.3d 227, 242 n.17 (Tenn.
Ct. App. 2011) (citing Cellco, 172 S.W.3d at 589). The burden of proof for establishing an
implied easement is by a preponderance of the evidence, rather than the burden of clear and
convincing evidence needed to establish a prescriptive easement. See Haun v. Haun, E2004-
01895-COA-R3-CV, 2005 WL 990566 at *4 (Tenn. Ct. App. Apr. 28, 2005) (citing Allison
v. Allison, 193 S.W.2d 476 (Tenn. Ct. App. 1945)) (additional internal citations omitted).

      This Court recently distinguished between two types of easement by implication:
easement implied by prior use and easement created by necessity:

       [T]here is considerable overlap between an easement implied from prior use
       and an easement created by necessity. Both are implied, both arise from a
       conveyance, both hinge on a finding of necessity. Hence, the confusion. To
       distinguish between them, an easement created by necessity “does not depend
       on a prior use” and the fact that any prior use “is permissive is irrelevant to the
       question [of] whether [an] easement [created by] necessity will be deemed to
       exist.” 25 Am.Jur.2d Easements and Licenses § 32. Moreover, an easement
       created by necessity “need not be in existence at the time of the conveyance”
       and may allow for a route of access where one previously did not exist. Id.;
       see Cellco, 172 S.W.3d at 591.

Ingram, 379 S.W.3d at 240 (footnote omitted).

        In this case, the trial court stressed in its Memorandum Opinion that both parties’
chains of title originated with Sequoyah as the common predecessor; that the right-of-way
reserved by Sequoyah in the Eberle chain of title was, in the language of the deed, “for road
purposes for ingress and egress”; and that the road extended “all the way back to the 30-acre
tract,” which the court found made no sense on Sequoyah’s part unless the road was meant
to benefit the thirty-acre tract. The court’s focus on the language reserving a right-of-way
and other visible easements in the deed from Sequoyah to the Eberles’ predecessor-in-title
indicates that the court found an easement implied from prior use rather than one created by
necessity.

                                    A. Separation of Title

        The record shows and the parties have stipulated that the first element needed for an
implied easement is satisfied. The chains of title for both parties’ property merge with the
common predecessor in title, Sequoyah. The titles were separated when Sequoyah sold the
Elliott Property to Donald and Helen Cochran on January 5, 1979. Both sets of tracts, two
tracts each, that now comprise the Eberle Property were sold by Sequoyah in 1984.

                                              -12-
                                        B. Prior Use

        To satisfy the second element, the trial court had to determine that before Sequoyah
sold the Elliott Property in 1979, the use of what is now Mountain Road across the Eberle
Property was “long established and obvious or manifest as to show that it was meant to be
permanent.” See Cellco, 172 S.W.3d at 589. In their reply brief, the Eberles argue that what
is now Mountain Road had been “a farm road, a footpath and a logging road” but that such
temporary use made by a common owner(s) did not constitute a use meant to be permanent
once the titles were separated. Ms. Elliott contends that Mountain Road had been used to
access what is now the Elliott Property for as long as anyone could remember, was still in use
at the time of separation, and was intended for use after separation.

         During the trial, two witnesses testified regarding the use made of the property prior
to the separation of title. Sequoyah’s President, Jerry Sloan, identified a drawing, dated
November 14, 1978, which was created by the surveyor who surveyed all of the property
involved in this case about the time it was acquired by Sequoyah from Ernest West. He
indicated that the property had been logged recently when Sequoyah purchased title and that
he believed Mr. West was in the logging business. He related that Mountain Road was a “log
road” and was not maintained by the county when Sequoyah purchased the property.
According to Mr. Sloan, Mountain Road adjoined Bullet Creek Road at that time and
continued to an asphalt road near Maple Springs Church.

       Mr. Sloan also testified that when Sequoyah purchased the property, the county began
to maintain what he described as the road that “goes out to the asphalt road, comes in, and
dead-ends back here.” When asked to clarify, he said it was the “pink line on Exhibit 17,”
which has been identified by the parties as Mountain Road on the exhibits. Mr. Sloan
indicated that when Sequoyah bought the property, Mountain Road was “graded and
graveled.” He recalled that when Sequoyah sold the property, he and other developers made
“mistakes” and “[e]verything we deeded was deeded to the center of the road with an
easement to that road.” He agreed that the Elliott Property did not border any county-
maintained road other than Mountain Road when Sequoyah sold it.

        Mr. Sloan also testified that when Sequoyah purchased the thirty-acre tract, now the
Elliott Property, from Mr. West, it did not purchase any access north and east out of the
property. He said that no road into the thirty-acre tract was maintained from the northeast
while Sequoyah owned the property and that Mountain Road was the only access to that
thirty acres when Sequoyah sold it.

      During his continuing testimony, Mr. Sloan indicated that Sequoyah acquired title
from Mr. West in the late 1970s. He identified the deed by which Sequoyah conveyed the

                                             -13-
Elliott Property to the Cochrans and confirmed his signature on the deed. He agreed he
would not have sold the thirty-acre tract without any means to get onto or out of the property.
He agreed his company did not by deed grant an easement of egress or ingress to the thirty-
acre tract when the company sold the tract, explaining, “[I]f it’s not in the deed, I didn’t.”

        On redirect examination, Mr. Sloan identified the deed by which Sequoyah conveyed
title to the two southernmost tracts that now comprise the Eberle Property to Clyde and
Carolyn Freeman. He noted that the road shown on Mr. Freeman’s deed followed the
property line and was the same Mountain Road as that marked in pink on exhibit 17. He
agreed that on Sequoyah’s 1978 survey drawing, the dotted line coming into the property
from the southeast represented Mountain Road.

       Mr. Sloan further testified that when Sequoyah bought the 300 acres, there was a
sawmill site but no longer any sawmill. He said there were two roads, one to the north that
dead-ended and was used when loggers picked up logs, and a second to the southwest, now
called Mountain Road. He explained that Mountain Road was the road into the sawmill site.
On recross examination, Mr. Sloan agreed that the recording dates of the respective deeds
from Sequoyah evinced that Sequoyah sold the Elliott Property before it sold the Eberle
Property.

          The second witness testifying to prior use before the separation of title was Ray
Evans, who testified that he was born in 1941 and had been raised in the area. He said that
when he was a child, the Elliott Property was called “Shields Fields” because it was owned
by the Shields family. According to Mr. Evans, his parents lived in the gap depicted at the
top of the property map, and he attended Bullet Creek School on Bullet Creek Road. He said
that to travel from his house down to the school in the late 1940s and early 1950s, he and
others would come “down a ways up the holler up on the top of that 30 acres there and down
what’s called Mountain Road now.” Mr. Evans related that Mountain Road was a farm road
and did not have a name when he walked it.

        Mr. Evans also testified that after the Shields family no longer owned the Elliott
Property, he knew the Wests, who came to own it. As he explained, the Wests cut timber off
the Elliott Property and had two sawmills on it, one on the northern end and one in the “big
holler” on the lower side. When the Wests needed to move the cut logs off the upper side,
they hauled them with horses on what is now called Pine Grove Road. He said that no one
ever objected to the children using Mountain Road to walk to school and that there was only
one house on the property at the time. Mr. Evans indicated that he did not remember
Mountain Road being blocked in his lifetime.




                                             -14-
       Mr. Evans further explained that the Shields family owned all of the property from
what is now the thirty-acre Elliott Property to Shields Branch Road when he was growing up.
His father owned the property on which they lived, and there was one road that went down
to Pine Grove Road, but it was not a county road at that time. He said that before he went
to the turnaround a few weeks before the trial with Ms. Elliott, he had not been on the
property for about thirty years.

        This testimony established that Mountain Road had been used, as the Eberles concede,
as a footpath and logging road prior to the separation of title in 1979. Mr. Evans
remembered crossing the property on Mountain Road in the late 1940s when the Shields
family owned the land, and he recalled the Wests later using Mountain Road to transport logs
and lumber prior to their selling the property to Sequoyah. Although Mr. Sloan expressed
some confusion over whether Mountain Road was maintained by the county before Sequoyah
sold the Elliott Property, he was adamant that Mountain Road was used to access the Elliott
Property, and he implied when he admitted “mistakes were made” that Sequoyah’s intent was
for such access to continue. The testimony from these witnesses supports the trial court’s
finding that Mountain Road had been used to access the Elliott Property for several years
before the separation of title. See, e.g., Ingram, 379 S.W.3d at 242 (affirming trial court’s
finding that the prior use element was established by testimony to such use in affidavits);
Smith v. Hankins, No. E2010-00733-COA-R3-CV, 2011 WL 3847148 at *8 (Tenn. Ct. App.
Aug. 30, 2011) (affirming trial court’s finding that the prior use element was established by
testimony that a roadway had been used by tractors and ATVs for approximately twenty
years).

                                  C. Reasonable Necessity

        To satisfy the third element, the trial court was required to find necessity in that the
easement is essential to Ms. Elliott’s beneficial enjoyment of her thirty-acre tract. The
Eberles argue that Ms. Elliott failed to show that the use of Mountain Road across the Eberle
Property is necessary because she already has access to her property via a county road and
because she failed to show that the expense of creating an alternate passage from the county
road to the section of Mountain Road on her property would be unreasonable. Ms. Elliott
posits that the terrain of the parties’ property is such that the Elliott Property should not be
limited to one means of ingress and egress. We agree with Ms. Elliott and also conclude that
proof of comparable expense was not required to support the trial court’s finding.

      At the trial, Mr. Eberle testified that Mr. Parrott had often visited the Eberles and
would frequently traverse the “back way” on his four-wheeler. He explained that the only
time Mr. Parrott drove any vehicle larger than a four-wheeler onto the Eberle Property via
Mountain Road was when he took a backhoe through the area. He said Mr. Parrott accessed

                                              -15-
his own house from Reliance Road, which was a paved state road, and never used the Eberle
Property to access his home unless returning from a visit on his four-wheeler. Mr. Eberle
related that no one had crossed his property during the time he owned it to go to and from the
Parrotts’ property.

        According to Mr. Eberle, he had been a guest in Mr. Parrott’s home several times.
Although Mr. Parrott maintained a sawmill on his property, Mr. Eberle never saw logs hauled
out of the sawmill down Mountain Road. Mr. Eberle bought oak lumber from Mr. Parrott’s
sawmill and brought the lumber to his house via Reliance Road to Maple Springs Road to
Shields Branch Road to Mountain Road. He said he saw Mr. Parrott take his four-wheeler
and backhoe out Pine Grove Road many times. Mr. Eberle opined that from the end of
Mountain Road at the Eberle home to the thirty-acre Elliott Property, the way is passable but
that it is “pretty tough to do with [the Eberles’] house sitting there.” According to Mr.
Eberle, he had scratched his truck several times trying to go around the house on that path.
He said that when he viewed the sawmill site, he accessed Mr. Parrott’s land via Reliance
Road. He did admit that the surveyors used Mountain Road to access the Elliott Property.

       Mr. Eberle agreed that when he bought his property, Sequoyah reserved a twenty-five-
foot right-of-way along the southern portion for ingress and egress purposes and that the
southern portion is along “Mountain Road.” He said that to his knowledge, Sequoyah owned
no other tracts past his property at the time he purchased it.

       Mr. Eberle also testified that the deed identified was for two tracts to the north of the
road. He agreed his deed provides “to the center of the road” and that the property to the
center of the road is subject to a right-of-way for the property to the south of the road. He
said he had been up Pine Grove Road and had accessed the thirty-acre Elliott Property from
Pine Grove Road, which was a gravel road that any car or truck could travel.

        Ms. Elliott testified that no one had ever lived on her thirty-acre tract and that Mr.
Parrott began logging the property as soon as he bought it in 1989. Mr. Parrott used logs
from what is now the Elliott Property to build his own home, build her brother’s home, and
help Mr. Eberle build his porch. She remembered seeing Mr. Parrott take the logs from the
thirty-acre tract to his sawmill, which structure was located on the same tract as the Parrott
home. She said Mr. Parrott transported the logs “out Mountain Road to Shields Branch to
Maple Springs to Reliance and then into the front of his property to the sawmill.” She opined
there was no way to transport the logs straight up the mountain and across the Parrott land
because the terrain was so steep that logs would fall off a truck.

      Ms. Elliott also testified that the fifteen-acre tract behind the improved ten-acre tract
belonged to her brother, who inherited it from Mr. Parrott. She agreed that initially Mr.

                                              -16-
Parrott owned both the ten-acre and fifteen-acre tracts and that the assessment map shows
a road or private drive going from Reliance Road past the house and into the sawmill area.
She said this road dead-ends at her brother’s house and that her brother’s tract joins the
thirty-acre tract at one corner. She said that at one time, Mr. Parrott simultaneously owned
the ten-acre, fifteen-acre, and thirty-acre tracts. She agreed that when Mr. Parrott conveyed
the fifteen-acre tract to his son, there existed a tract of land he did not own between his ten-
acre and thirty-acre tracts.

        According to Ms. Elliott, there had never been a house built on the Elliott Property,
and the Parrott home, built by her father, was on a separate ten-acre tract with a driveway
leading to county-maintained Reliance Road. She said the tract improved with the Parrott
home does not adjoin the thirty-acre Elliott Property and that it is only possible to access the
Elliott Property from the Parrott home by four-wheeler or other all-terrain vehicle. Two
roads lead to the Elliott Property, Pine Grove Road and Mountain Road, and neither is
maintained by the county to the point where it accesses the Elliott Property. She identified
the portion of Pine Grove Road maintained by the county, explaining that the road surface
becomes progressively worse, transitioning from gravel to dirt, and that no part of the gravel
road touches the Elliott Property at any point.

        Ms. Elliott testified that she can travel from Pine Grove Road to her property by
crossing into the driveway of another neighbor, Mrs. Pickelsimer, traversing the culvert in
the Pickelsimer yard, and turning by the fence. She indicated there are three ways to access
the thirty-acre Elliott Property: (1) through Mrs. Pickelsimer’s yard, (2) through Mr. Eberle’s
yard, or (3) via the four-wheeler trail behind her brother’s house that crosses a creek. She
related that the Eberles’ home is on a ridge at the “top of the mountain” and that the section
by Mrs. Pickelsimer’s yard off Pine Grove Road is the lowest part of the Elliott Property.
She explained that from the top of the property to the bottom, there are steep cliffs and sharp
drop-offs, such that it is impossible to drive a straight route from top to bottom.

       In its Memorandum Opinion, the trial court surmised from the description in the
Eberle Property chain of title that Sequoyah intended more than one road “running into” the
property and that Mountain Road was one of these. The court ultimately concluded that
Mountain Road was meant to benefit the Elliott Property as well as the two tracts of the
Eberle Property, despite the undisputed fact that Ms. Elliott had another access to the
southern portion of her property from Pine Grove Road.

        As this Court has explained regarding the demonstration of necessity, “Tennessee law
interprets the concept of ‘necessity’ as being ‘reasonably necessary’ for the enjoyment of the
dominant tenement, as opposed to strict or absolute necessity.” Haun, 2005 WL 990566 at
*6 (citing Rightsell v. Hale, 18 S.W. 245, 246 (Tenn. 1891)); The Pointe, LLC v. Lake Mgmt.

                                              -17-
Ass’n, Inc., 50 S.W.3d 471, 478 (Tenn. Ct. App. 2000); Johnson, 237 S.W.2d at 570; Allison,
193 S.W.2d at 477-78. The prevailing rule is that:

       Where, during the unity of title, an apparently permanent and obvious
       servitude is imposed on one part of an estate in favor of another part, which
       servitude is in use at the time of severance and is necessary for the reasonable
       enjoyment of the other part, on a severance of the ownership the grant of the
       right to continue such use arises by implication of law.

Haun, 2005 WL 990566 at *5-6 (quoting Lively v. Noe, 460 S.W.2d 852, 854-55 (Tenn. Ct.
App. 1970)).

        We conclude that the evidence does not preponderate against the trial court’s finding
that it was reasonably necessary for Ms. Elliott to access her property via Mountain Road
across the Eberle Property. We also conclude that such a finding was not precluded by Ms.
Elliott’s failure to show a cost analysis for creating access to Mountain Road across her own
property. See, e.g., Ingram, 379 S.W.3d at 242 (affirming the trial court’s refusal to find that
an alternate mode of access advocated by the servient estate owners relieved the necessity
of the dominant estate to benefit from an implied easement); Rhoades v. Taylor, No. M2001-
00643-COA-R3-CV, 2003 WL 724672 at *5 (Tenn. Ct. App. Mar. 4, 2003) (noting that it
was not necessary for the defendants to build another driveway to access their land from a
public road where the evidence showed sufficient use of the plaintiffs’ property to find an
implied easement).

       The Eberles posit that a fourth element of an easement by implication, that of
continuous use, was not shown by a preponderance of the evidence. As stated above, this
Court has recently noted that in Tennessee, continuous use generally has been subsumed into
the three long-standing elements. See Ingram, 379 S.W.3d at 242 n.17 (citing Cellco, 172
S.W.3d at 589); but see Barrett v. Hill, No.01A01-9806-CV-00295, 1999 WL 802642 at *3
(Tenn. Ct. App. Oct. 7, 1999) (listing continuous use as a fourth element essential to create
an easement by implication). With our conclusion that the prior use element is satisfied,
supported by testimony at trial that Mountain Road was used to access the Elliott Property
to some extent since before the separation of title and throughout Mr. Parrott’s life, we
conclude that the Eberles’ argument based on lack of continuous use cannot prevail.

      After an exhaustive review of the record, we hold that the evidence supports a
determination that the easement identified in the Eberle chain of title exists by implication
to benefit the Elliott Property. We further hold, therefore, that the trial court properly
dismissed the Eberles’ claim for injunctive relief.



                                              -18-
                               VII. Limited Use of Easement

        The Eberles next contend that the trial court erred by not limiting the extent of the
easement for ingress and egress granted to Ms. Elliott to the parameters of its past use by Ms.
Elliott and her family. They argue that if this Court affirms the grant of an easement to Ms.
Elliott, the case should be remanded to the trial court for an amended judgment limiting the
ingress and egress to the purposes of “recreational use of horses or four-wheelers, to gather
firewood and stovewood and for harvesting timber” and limiting the location of the easement
to only that which now exists, without any interference with the Eberles’ use and enjoyment
of the property and without any destruction to the Eberles’ property. Ms. Elliott contends
that the trial court’s ruling did not enlarge the existing easement and that no limiting
amendment is needed. We agree with Ms. Elliott.

      In support of their argument, the Eberles accurately cite the following general
proposition as adopted by Tennessee case law:

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

Cellco, 172 S.W.3d at 595-96 (quoting Adams v. Winnett, 156 S.W.2d 353, 357 (1941)). The
Eberles also rely on the holding in Shew, in which this Court reversed the trial court’s grant
of a prescriptive easement for a thirty-foot driveway when the easement had been used for
approximately fifty years as a much narrower driveway. See 227 S.W.3d at 579-80. In
contrast, there exists no evidence in the record in this case to indicate that the trial court
expanded the implied easement beyond the prior use made by the parties and their
predecessors-in-title. The Eberles’ reliance on Shew is misplaced.

        The trial court, after a hearing on the Eberles’ motion to alter or amend the judgment,
entered an Order Amending Final Decree and Amended Final Decree, in which it amended
the description of the easement from “across the road generally shown on the plats of record
in Plat Book 7, p. 104 and Plat Cabinet H, Slide 29 . . . .” to “across the existing road at its
general width and location extending to, but not beyond, the boundary line between the
parties for such use as has been made of said road and land, but to create no greater burden
on the servient estate than has been made heretofore.” Ms. Elliott filed a motion requesting
specific findings of fact regarding the width of the road, prior use of the road, and the burden
on the servient estate, to which the Eberles responded. After a subsequent hearing, the trial
court entered a Second Amended Final Judgment, reverting back to the language in the
original Final Judgment and making the following findings of fact:

                                              -19-
       (1)    The easement is for ingress and egress; and

       (2)    The easement is as described in the deeds of Mr. Eberle and is neither
              enlarged nor is it reduced in physical size and/or limitation of use based
              on past use by the parent tract.

       In the above findings of fact, the trial court clarified that the easement originated with
the Eberles’ chain of title, and as noted in the court’s Memorandum Opinion, included the
twenty-five-foot right-of-way reserved by Sequoyah and any easements, “visible or
otherwise,” that existed on the property at the time of conveyance. The evidence does not
preponderate against the trial court’s finding that Mountain Road is an easement intended for
the benefit of the Elliott Property as well as the Eberle Property on each side of the easement.
This finding constitutes an easement by implication that benefits both the dominant and
servient estate. As such, neither landowner is entitled to interfere with the other’s reasonable
use of the easement for ingress and egress or to enlarge or decrease the existing easement.
See Rogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 WL 2337616 at *8-10 (Tenn.
Ct. App. June 19, 2012) (“[T]he rights of the easement owner and of the landowner are not
absolute, irrelative, and uncontrolled, but are so limited, each by the other, that there may be
a due and reasonable enjoyment of both the easement and the servient estate.”) (quoting
Carroll v. Belcher, No. 01A01-9802-CH-00106, 1999 WL 58597 at *1 (Tenn. Ct. App. Feb.
9, 1999) (quoting 10 Tennessee Jurisprudence, Easements § 6 (1994))). For this reason, we
conclude that the easement is sufficiently limited as a matter of law and that the trial court
did not err by declining to limit the easement further. The Eberles are not entitled to relief
on this issue.

                                       VIII. Conclusion

        For the reasons stated above, the judgment of the trial court finding an easement for
ingress and egress over the Eberle Property, appurtenant to and serving the Elliott Property,
is affirmed, as is the trial court’s dismissal of the Eberles’ complaint for injunctive relief
against Ms. Elliott. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and collection of costs assessed below.




                                                     _________________________________
                                                     THOMAS R. FRIERSON, II, JUDGE




                                              -20-
