                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 27, 2012 Session

     LEROY J. HUMPHRIES, ET AL. v. NICOLAS C. MINBIOLE, ET AL.

             Direct Appeal from the Chancery Court for DeKalb County
                    No. 2009105    Ronald Thurman, Chancellor


               No. M2011-00008-COA-R3-CV - Filed November 8, 2012


This appeal involves a dispute between adjacent landowners over Defendants’ installation
of a private water line within a right-of-way easement across the Plaintiffs’ property.
Following a bench trial, the trial court concluded that Defendants’ private water line
trespassed on Plaintiffs’ property. Further, the trial court ordered that the Defendants would
be incarcerated if they did not remove the water line and return Plaintiffs’ property to its
previous condition within thirty (30) days. Defendants appealed. We affirm in part and
remand for further proceedings.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Robin J. Gordon, Nashville, Tennessee, for the appellants, Nicolas C. Minbiole and Anna A.
Minbiole.

John A. Beam, III, and Andrew Cameron, Nashville, Tennessee, for the appellees, Leroy J.
Humphries and CNMC Land and Livestock Corporation.

                                         OPINION

                         I. Background and Procedural History

       Leroy J. Humphries and his corporation, CNMC Land and Livestock Corporation
(collectively as “Humphries”), own a substantial amount of rural farmland along Hurricane
Ridge Road in DeKalb County, Tennessee. Hurricane Ridge Road is a county road created
by implication that runs north along a ridge and dead ends at the top of a ridge before
reaching Center Hill Lake. In 2003, Humphries and two neighboring property owners each
conveyed a twenty (20) foot right-of-way easement across their respective properties to
DeKalb County (“the County”) for “highway purposes.” The intent of the landowners in
conveying the easements to the County was for the extension of Hurricane Ridge Road.

       In June 2009, Nicolas C. Minbiole and Anna C. Minbiole (“the Minbioles”) purchased
a sixty-eight (68) acre property adjoining Humphries’ property. The Minbioles warranty
deed referenced an easement for ingress and egress to their land from Hurricane Ridge Road
across Humphries’ property. Although the Minbioles believed their land had access to public
water and electricity, it did not. Therefore, after considering multiple options, the Minbioles
hired a contractor, Richard Hayes (“Mr. Hayes”), to install a two-inch water line along the
County’s right-of-way easement across Humphries’ property in order to connect with the
main public water line approximately 1.1 miles down Hurricane Ridge Road. Before the
project began, Mr. Hayes allegedly received permission from the County Superintendent of
Roads to install the Minbioles’ water line within the County’s right-of-way easement.

        Upon learning of the Minbioles’ plan, Humphries objected to the installation of the
water line within the County’s right-of-way easement. Despite Humphries’ objection, the
Minbioles instructed Mr. Hayes to commence construction of their water line. On August
31, 2009, counsel for Humphries sent a cease and desist letter to the Minbioles.
Nevertheless, construction of the Minbioles’ water line continued. As a result, on September
4, 2009, Humphries filed a complaint in the Chancery Court of DeKalb County seeking to
enjoin further installation of the Minbioles’ water line. The trial court immediately issued
a restraining order enjoining the Minbioles and Mr. Hayes from trespassing and installing the
water line. Notwithstanding the restraining order, construction of the water line continued.
Later that day, on September 4, 2009, Humphries filed a motion for contempt of court for
violations of the restraining order. Shortly thereafter, Mr. Hayes completed the installation
of the Minbioles’ water line.

        On October 2, 2009, the trial court agreed to hear Humphries’ motion for contempt
together with a hearing on the merits of their complaint. Thereafter, on November 19, 2009,
Humphries filed an amended complaint further alleging trespass, private nuisance, and
contempt of court. On January 19, 2010, the trial court entered an order requiring a judicial
settlement conference in which the parties were to obtain all information necessary to
evaluate the case, including any expert reports. Subsequently, on September 7, 2010, after
the Minbioles failed to attend the judicial settlement conference as previously ordered, the
trial court entered an order requiring the Minbioles to pay reasonable costs and fees to
Humphries.

       On November 15, 2010, a bench trial was conducted in this matter. At the conclusion

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of the trial, the trial court concluded that the Minbioles’ private water line trespassed on
Humphries’ property. In light of the fact that the Minbioles “thumbed their nose at the legal
process”, the trial court ordered them to remove the water line within thirty (30) days or else
they would be incarcerated. On December 15, 2010, the trial court entered an order
memorializing its ruling. Thereafter, the Minbioles filed a motion to stay the judgment
pending appeal, and later filed a motion pursuant to Rule 60.01 of the Tennessee Rules of
Civil Procedure in which they asked the trial court to clarify the language in its final order
stating that the Minbioles were found in contempt of court. On February 22, 2010, the trial
court entered an order granting the Minbioles’ motion to stay the judgment pending appeal.
Further, the trial court granted the Minbioles’ Rule 60.01 motion and modified the final
order, striking the language from the order which stated that the Minbioles were found in
contempt of court. The Minbioles timely filed a notice of appeal to this Court.1

                                            II. Issues Presented

       We substantially restate and consolidate the issues presented on appeal as follows:

       (1)        Whether the trial court erred in finding that the Minbioles’ water line
                  trespassed on Humphries’ property, and

       (2)        Whether the trial court erred by ordering removal of the water line.

                                         III. Standard of Review

        We review the trial court's findings of fact de novo on the record, with a presumption
of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). If the
trial court fails to make a specific finding of fact on a particular matter, we review the facts
in the record under a purely de novo standard to determine where the preponderance of the
evidence lies. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Fields v. State, 40
S.W.3d 450, 457 n. 5 (Tenn. 2001)). We afford great deference to the trial court’s
determinations on the credibility of witnesses. Hughes v. Metro. Gov’t of Nashville &
Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011); Estate of Walton v. Young, 950 S.W.2d
956, 959 (Tenn. 1997). We review the trial court’s conclusions on matters of law de novo,
with no presumption of correctness. Tenn. R. App. P. 13(d). Likewise, our review of the
trial court’s application of the law to the facts is de novo, with no presumption of correctness.
State v. Ingram, 331 S.W.3d 746, 755 (Tenn. 2011).




       1
           Mr. Hayes did not file a notice of appeal to this Court, and thus, is not a party to this appeal.

                                                       -3-
                                         IV. Analysis

                                         A. Trespass

        We begin by addressing the Minbioles’ argument that the trial court erred in finding
that their water line trespassed on Humphries’ property. The Minbioles argue that, because
the installation of public utilities is a permissible use of a right-of-way easement for
“highway purposes”, the installation of their water line within the County’s easement did not
trespass on Humphries’ property. On the other hand, while conceding that the County’s
right-of-way easement for “highway purposes” could be used for the installation of public
utilities, Humphries argues that the Minbioles did not have authorization to install their
private water line within the County’s easement. Further, assuming that the Minbioles had
authorization to use the County’s easement, Humphries argues that the Minbioles exceeded
the permissible uses of the easement by installing a private water line that only serviced their
property. As a result, Humphries argues that the trial court correctly determined that the
Minbioles’ private water line trespassed on their property.

       As this Court discussed in Cellco Partnership v. Shelby County, 172 S.W.3d 574
(Tenn. Ct. App. 2005):

       We begin our analysis by noting that “[t]he range of permissible uses of any
       particular easement is in the first instance defined by the circumstances
       surrounding the creation of that easement; its use is limited to the purposes for
       which it was created.” 28A C.J.S. Easements § 159 (1996). Our case law
       adopts this general proposition, providing that:

           “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.” 17 Am. Jur. 996, sec. 98.

           ....

           “In other words, an easement appurtenant to a dominant tenement can
           be used only for the purposes of that tenement; it is not a personal right,
           and cannot be used, even by the dominant owner, for any purpose
           unconnected with the enjoyment of his estate. The purpose of this rule
           is to prevent an increase of the burden upon the servient estate, and it
           applies whether the easement is created by grant, reservation,

                                               -4-
           prescription, or implication.”      9 R.C.L., 786, sec. 43; Jones on
           Easements, secs. 99 and 100.

           “A principle which underlies the use of all easements is that the owner
           thereof cannot materially increase the burden of it upon the servient
           estate, nor impose a new and additional burden thereon. . . . It may be
           said in general that if an easement is put to any use inconsistent with the
           purpose for which it was granted, the grantee becomes a trespasser to
           the extent of the unauthorized use.” 9 R.C.L., 790, sec. 47; Jones on
           Easements, secs. 99 and 100.

       Adams v. Winnett, 25 Tenn. App. 276, 156 S.W.2d 353, 357 (1941); see also
       McCammon v. Meredith, 830 S.W.2d 577, 580 (Tenn. Ct. App.1991).

Id. at 595-96. As this Court further explained in Cellco, “[w]e recognize that, ‘[w]hile the
common law recognizes that certain easements may be assigned or apportioned to a third
party, the third party's use cannot exceed the rights expressly conveyed to the original
easement holder.’” Id. at 598 (quoting Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697,
700 (Tex. 2002)).

      In the case at bar, the County’s right-of-way easement was intended for “highway
purposes.” It is well-established in Tennessee that:

       When land has been dedicated or condemned for street purposes, the city has
       the right not only to use the surface of the ground, but also may go beneath the
       surface, or above it, so far as may be necessary to adapt to its proper use the
       land so devoted to the service of the public.

Frazier v. East Tennessee Telephone Co., 115 Tenn. 416, 90 S.W. 620, 621-22 (1906) (“[i]t
is held generally in the courts of the country that electric light poles and wires, gas pipes, and
lamp posts for highway purposes, sewer pipes, and water pipes do not [constitute an
additional burden.]) (emphasis added); see also Pack v. Southern Bell Tel. & Tel. Co., 215
Tenn. 503, 387 S.W.2d 789, 793 (1965) (“[t]he placing of utilities upon a right-of-way is one
of the proper uses of a highway thereby benefitting the public.) (emphasis added). Moreover,
the parties concede that the County may use the dedicated right-of-way easement for the
installation of public utilities for the benefit of the public.

       After thoroughly reviewing the record, however, we are unable to find any credible
proof that the Minbioles had authorization to install their water line within the County’s



                                               -5-
easement.2 Although Mr. Minbiole testified that they had permission from the County to
install their water line within the easement, the trial court specifically found that the
Minbioles’ testimony was not credible. In fact, the trial court stated that “there’s to many
holes in their testimony. I think they have repeatedly stretched the truth and misled the
Court.” While the right-of-way easement was conveyed to “[the County], its successors and
assigns,” there is no evidence in the record of any conveyance or assignment from the County
to the Minbioles. The only proof contained within the record consists of a handwritten
document, purportedly from the County Superintendent of Roads, granting the Minbioles
permission to install their water line within the County’s easement. However, when
questioned by the trial court about the fact that the document was dated four months before
the Minbioles contracted with Mr. Hayes to install their water line, Mr. Hayes admitted that
the document was from a project that he worked on previously. Moreover, during oral
argument, counsel for the Minbioles admitted that the handwritten document in the record
was from one of Mr. Hayes’ previous projects, unrelated to the Minbioles’ water line.
Therefore, after reviewing the record and giving due deference to the trial court’s credibility
determinations, we conclude that the Minbioles did not have authorization to install their
water line within the County’s right-of-way easement across Humphries’ property.

        Assuming for the sake of argument that the Minbioles had permission from the
County, we agree with the trial court’s conclusion that their private water line trespassed on
Humphries’ property. As noted above, the County’s right-of-way easement for “highway
purposes” permits the use of the easement for the installation of public utilities. It is
undeniable in this case, however, that the Minbioles’ two-inch water line services only their
property for their own benefit. According to the parties, the County does not install its own
water lines, but instead takes over privately installed water lines if it finds them to be
acceptable for servicing the surrounding area. Mr. Minbiole, however, testified that he knew
the County would only accept a six-inch water line along Hurricane Ridge Road. Therefore,
the Minbioles’ knew that the installation of their two-inch water line would never be utilized
to service the public. Even if the Minbioles did receive authorization from the County, which
we do not find, their water line constitutes an inconsistent use of the County’s right-of-way
easement for “highway purposes.” See Cellco P'ship v. Shelby Cnty., 172 S.W.3d 574, 598
(Tenn. Ct. App. 2005) (“‘[w]hile the common law recognizes that certain easements may be
assigned or apportioned to a third party, the third party’s use cannot exceed the rights
expressly conveyed to the original easement holder.’”) (quoting Marcus Cable Assocs., L.P.
v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)); Adams v. Winnett, 25 Tenn. App. 276, 156
S.W.2d 353, 357 (1941) (“It may be said in general that if an easement is put to any use
inconsistent with the purpose for which it was granted, the grantee becomes a trespasser to
the extent of the unauthorized use.”) (citations omitted). Accordingly, we conclude that the

       2
           The trial court made no specific findings regarding the alleged permission given by the County.

                                                     -6-
Minbioles’ private water line trespassed on Humphries property.

                                    B. Injunctive Relief

       Finally, we address the Minbioles’ argument that the trial court erred by ordering
removal of the water line as opposed to damages. A trial court’s decision to grant or deny
permanent injunctive relief is reviewed under an abuse of discretion standard. Vintage
Health Res., Inc. v. Guiangan, 309 S.W.3d 448, 466 (Tenn. Ct. App. 2009); Bd. of Comm’rs
of Roane County v. Parker, 88 S.W.3d 916, 919 (Tenn. Ct. App. 2002); Medtronic, Inc. v.
NuVasive, Inc., W2002–01642–COA–R3–CV, 2003 WL 21998480, at *10 (Tenn. Ct. App.
Aug. 20, 2003). A trial court abuses its discretion when it “causes an injustice by applying
an incorrect legal standard, reaches an illogical result, resolves the case on a clearly
erroneous assessment of the evidence, or relies on reasoning that causes an injustice.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (citing Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335
(Tenn. 2010)).

      Regarding the proper relief to award in light of the Minbioles’ trespass, the trial court
concluded that:

       [The Minbioles] will remove this water line within 30 days. If it is not
       removed within 30 days, they will be incarcerated until such time as it is
       removed. That is through civil contempt.

       The reason the Court is going to impose that is that I think that the [Minbioles]
       have ignored – I’m not going to find them in contempt as far as criminal
       contempt, but I think they’ve thumbed their nose at the legal process, both with
       Judge Maddux and with this Court. I think that’s in the record sufficient for
       me to believe that.

       Under civil contempt, the defendant has a right to cure it. They’ve just got to
       do what the Court orders. If they don’t, then there’s the carrot and stick
       approach, and I hope we don’t get to that point.

       The [Minbioles] will put the property back in the same shape they found it.
       That should put [Humphries] back into shape. And as such, I don’t award any
       monetary damages. That’s the other relief. I can either give you money
       damages, or I can put you back in the place you were. And that’s what will
       happen.



                                              -7-
      As this Court explained in Vintage Health Resources, Inc. v. Guiangan, 309 S.W.3d
448 (Tenn. Ct. App. 2009):

       When determining whether to grant injunctive relief, the trial court should
       consider such factors as the adequacy of other remedies, the danger that the
       plaintiff will suffer irreparable harm without the injunction, the benefit to the
       plaintiff, the harm to the defendant, and the public interest. See Zion Hill
       Baptist Church v. Taylor, No. M2002–03105–COA–R3–CV, 2004 WL
       239760, at *5 (Tenn. Ct. App. Feb. 9, 2004) (citing Union Planters’ Bank &
       Trust Co. v. Memphis Hotel Co., 124 Tenn. 649, 139 S.W. 715, 718–19
       (1911); Butts v. City of S. Fulton, 565 S.W.2d 879, 882 (Tenn. Ct. App. 1977);
       Henry County v. Summers, 547 S.W.2d 247, 251 (Tenn. Ct. App. 1976); Kaset
       v. Combs, 58 Tenn. App. 559, 434 S.W.2d 838, 841 (1968); Herbert v. W.G.
       Bush & Co., 42 Tenn. App. 1, 298 S.W.2d 747 (1956); 42 Am. Jur. 2d
       Injunctions § 14 (2000); Robert Banks, Jr. & June F. Entman, Tennessee Civil
       Procedure § 4–3(b) (2d ed. 1999)). “A court's equitable power to grant
       injunctions should be used sparingly, especially when the activity enjoined is
       not illegal, when the injunction is not requested, and when it is broader than
       necessary to achieve its purposes.”                Kersey v. Wilson, No.
       M2005–02106–COA–R3–CV, 2006 WL 3952899, at *8 (Tenn. Ct. App. Dec.
       29, 2006) (citing Earls v. Earls, 42 S.W.3d 877 (Tenn. Ct. App. 2000); Terry
       v. Terry, No. M1999–01630–COA–R3–CV, 2000 WL 863135 (Tenn. Ct. App.
       June 29, 2000)).

Id. at 466-67.

        After reviewing the record, we conclude that the trial court abused its discretion in
ordering the Minbioles to remove their water line. Although it is within the discretion of the
trial court to grant injunctive relief, “[d]iscretionary choices are not left to a court's
inclination, but to its judgment; and its judgment is to be guided by sound legal principles.
An abuse of discretion may be found when the trial court has gone outside the framework of
legal standards or statutory limitations, or when it fails to properly consider the factors on
that issue given by the higher courts to guide the discretionary determination.” Dickson v.
Kriger, 374 S.W.3d 405, 412 (Tenn. Ct. App. 2012) (citations and internal quotation marks
omitted). In this instance, the trial court failed to make findings regarding the relevant
factors before awarding injunctive relief. On the contrary, in an order entered before trial,
the trial court concluded that there was no danger that Humphries would suffer irreparable
harm because the Minbioles already installed their water line. Moreover, the only evidence
in the record regarding damages was the testimony introduced through Humphries’ expert
witness that the land through which the Minbioles installed their water line was valued at

                                              -8-
$1,547.60, and that the cost to install a six-inch water line along Hurricane Ridge Road
through the County’s easement would cost $89,180.45. No evidence was offered regarding
the value of Humphries’ property before and after the trespass, or the reasonable costs of
restoring or repairing Humphries’ property.3 See 2 Lawrence A. Pivnick, Tennessee Circuit
Court Practice § 31:3 (2011 ed.) (citations omitted) (“‘Irreparable injury,’. . . turns on
whether there is a complete remedy at law. If there is a complete, adequate, and efficient
remedy at law, the injunction is not proper. Thus, in cases where substantial redress can be
afforded by the payment of money, an injunction would be improper.”). Furthermore, the
trial court failed to consider the potential harm to the Minbioles– their home would have no
source of water if their water line was removed. While we understand the trial court’s
frustration with the Minbioles’ actions throughout the proceedings below, this does not
absolve the trial court of its duty to consider the relevant factors meant to guide its
discretionary determination of whether to award injunctive relief. Therefore, we vacate the
injunction and remand this cause to the trial court for further proceedings on the issue of the
requested injunction.

                                             V. Conclusion

       For the foregoing reasons, we affirm the decision of the trial court in part, vacate the
injunction and remand for further proceedings consistent with this Opinion. Costs of this
appeal are taxed equally to the Appellants, Nicolas C. Minbiole and Anna A. Minbiole, and
their surety, and the Appellees, Leroy J. Humphries and CNMC Land and Livestock
Corporation, for which execution may issue if necessary.




                                                          _________________________________
                                                          DAVID R. FARMER, JUDGE




        3
          Generally, “[t]he proper measure of damages for injury to real property is the lesser of either (1)
the difference in reasonable market value of the premises immediately prior to and immediately after the
injury, or (2) the cost of repairing the injury.” Simmons v. City of Murfreesboro, No. M2008-00868-COA-
R3-CV, 2009 WL 4723369, at *5 (Tenn. Ct. App. Dec. 9, 2009) (citing Fuller v. Orkin Exterminating Co.,
Inc., 545 S.W.2d 103, 108-09 (Tenn. Ct. App. 1975); Carson v. Waste Connections of Tenn., Inc., No.
W2006-02019-COA-R3-CV, 2007 WL 1227470, at *6 (Tenn. Ct. App. Apr. 27, 2007)). The court may
consider the reasonable restoration costs when calculating the diminished value of the property. Fuller, 545
S.W.2d at 108.

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