               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               August 10, 2016 Session

            DWIGHT DOUGLAS ET AL. V. CHARLOTTE CORNWELL

               Appeal from the Circuit Court for Washington County
                        No. 28386 Jean A. Stanley, Judge


           No. E2016-00124-COA-R3-CV-FILED-SEPTEMBER 28, 2016


At issue is whether an easement for ingress and egress exists. Plaintiffs commenced this
action to enjoin the adjacent property owner from using Plaintiffs’ driveway for ingress
and egress. Defendant filed a counterclaim asserting that she had an easement by
implication; alternatively, she claimed Plaintiffs purchased the property subject to an
easement because the easement was apparent upon inspection. The dispositive issue
concerning the alleged easement by implication is whether the easement is essential to
Defendant’s beneficial enjoyment of her property. The trial court found that Defendant
failed to establish that she would incur an unreasonable expenditure to create another
means of ingress and egress to her property; therefore, the easement was not a necessity.
The court also found that the claimed easement was not apparent upon inspection.
Accordingly, the court enjoined Defendant from using the driveway for ingress and
egress. We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which
CHARLES D. SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.

Mark S. Dugger, Elizabethton, Tennessee, for the appellant, Charlotte Cornwell.

Rick J. Bearfield, Johnson City, Tennessee, for the appellees, Dwight Douglas and Keela
Douglas.

                                       OPINION

      The two parcels at issue were initially under the common ownership of Andrew
Barnes, who acquired the property in 1958. In 1969, Mr. Barnes conveyed by quitclaim
deed a portion of his property to his daughter, Charlotte Cornwell (“Defendant”).
Defendant built a house on her property in 1972. Although her property joined a public
road, Defendant did not construct a driveway to access the property from this road.
Instead, although she never received an express easement for such purpose, Defendant
used a driveway on her father’s property for ingress and egress. Defendant has
continuously used this driveway since 1972.

       Mr. Barnes died intestate in 2003. He was survived by six heirs at law: Defendant;
her sister, Evelyn Norwood; and their four nieces and nephews, Keela Douglas,
Christopher Hodges, Kathy Barnes, and Kent Barnes.1 Unfortunately the sisters and their
nieces and nephews could not agree upon the disposition of the property they inherited.

       In 2006, Defendant initiated an action to partition the property the six heirs
inherited. The heirs submitted the matter to mediation and, during the course of the
mediation, discussed, inter alia, granting Defendant an easement concerning the
driveway Defendant used for ingress and egress and dividing the property among the
heirs with certain cash considerations. The mediator drafted a tentative agreement which
included this right of way. The portion of the mediation agreement discussing
Defendant’s purported easement states:

       All interested parties will execute a formal writing to be prepared giving
       Charlotte Cornwell a non-exclusive right of way for ingress and egress to
       and from her own property. That right of way will traverse along the
       driveway described as “her father’s drive-way” as well as her own
       driveway and will run with the land.

The mediation agreement also required the parties to subsequently agree upon certain
economic issues, which they failed to do. As a consequence, the mediation agreement
was never acted upon. After the mediation failed, the chancery court ordered the property
be sold.

       The clerk and master conducted the partition sale, and the property was sold to a
third party, Gary Sanders. The deed conveying the property to Mr. Sanders did not
include or make any reference to an easement for Defendant’s use of the driveway.

      In 2009, Mr. Sanders sold the property to Dwight Douglas. Mr. Douglas is married
to one of Mr. Barnes’ grandchildren, Keela Douglas; however, Keela Douglas’ name
does not appear on the deed. The warranty deed to Mr. Douglas states that the
conveyance “is expressly made subject to any and all restrictions, reservations, covenants
and conditions contained in former deeds and other instruments of record as may now be
       1
         Andrew Barnes had four children: Marvene Hodges, Evelyn Norwood, Allen Barnes, and
Defendant. Marvene and Allen predeceased Mr. Barnes; however, both were survived by children of their
own. Marvene was survived by two children: Keela Douglas and Christopher Hodges. Allen was survived
by two children: Kathy Barnes and Kent Barnes.


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binding on said property, and to any easements apparent from an inspection of said
property.”

        On May 6, 2010, Mr. Douglas and his wife, Keela Douglas (collectively
“Plaintiffs”), commenced this action in the Washington County Circuit Court to enjoin
Defendant from using their driveway for ingress and egress.2 Defendant filed an answer
and counterclaim to establish that she had an easement upon the disputed property.
Specifically, Defendant averred that she has continuously, openly, and notoriously used
the driveway for ingress and egress for over 40 years and, thus, obtained a prescriptive
easement over the disputed area. In May 2014, Defendant amended her counterclaim to
assert an easement by implication over the disputed driveway. Defendant claimed that an
easement by implication should be recognized because both properties were part of a
common tract once owned by Defendant’s father, the driveway was in existence prior to
the separation of the property, and the driveway is necessary to the beneficial use and
enjoyment of Defendant’s property. Plaintiffs replied to the amended counterclaim,
denying that Defendant is entitled to an easement by implication and asserted the
affirmative defenses of estoppel, unclean hands, abandonment of the easement, waiver,
and extinction by merger.

       The case was tried without a jury on May 1, 2015. At the beginning of trial, the
parties stipulated that there is no prescriptive easement. As for Defendant’s claim of an
easement by implication, the parties stipulated that two of the three essential elements are
present and that the only element at issue was whether the continued use of the driveway
was necessary for the beneficial use and enjoyment of Defendant’s property.3 The other
claim to be tried was Defendant’s assertion that Plaintiffs acquired the property subject to
her easement because the driveway was visible upon inspection when Plaintiffs acquired
the property and Plaintiffs’ deed contained a limitation making it subject to any
“easements apparent upon inspection.”

       At trial, Plaintiff submitted evidence to rebut Defendant’s claim of easement by
implication by showing that Defendant could construct an alternate means of ingress and
egress to her property because she has 200 feet affronting a county road. Accordingly,
        2
          The warranty deed from Mr. Sanders conveyed the property to Dwight Douglas; Keela Douglas’
name does not appear on the deed. Nevertheless, Keela Douglas has standing to bring this action along
with her husband based on her marital rights to the property, and Defendant does not challenge her
standing.
        3
          As described below, to establish an implied easement a party must show that there is: “(1) [a]
separation of title; (2) [n]ecessity that before the separation takes place, the use which gives rise to the
easement shall have been so long continued and obvious or manifest as to show that it was meant to be
permanent; and (3) [n]ecessity that the easement be essential to the beneficial enjoyment of the land
granted or retained.” Newman v. Woodard, 288 S.W.3d 862, 866 (Tenn. Ct. App. 2008) (quoting Fowler
v. Wilbanks, 48 S.W.3d 738, 741 (Tenn. Ct. App. 2000)).


                                                   -3-
Plaintiffs argued that the driveway crossing their property was not reasonably necessary
to Defendant’s enjoyment of her land.

       Defendant testified that it would be impossible to build a separate driveway due to
her limited income of $1,400 a month. In support of this assertion, she submitted the
deposition testimony of a land surveyor, Stephen Pierce. Mr. Pierce stated that
constructing an alternate access would be “fairly difficult because of the change of
elevation and the steepness and the angle that it would have to be constructed off of [the
county road],” and that such an undertaking would cost around $20,000. However, on
cross examination, Mr. Pierce stated that this figure was a “ballpark” estimate and
acknowledged that he is not a contractor or “a construction estimator.” Mr. Pierce also
admitted that he did not calculate the amount of fill that would be required to construct a
driveway, the number of hours or people it would take to complete such a task, how
many feet of ground would have to be disturbed to build the driveway, or what size
retaining wall that would be required.

      As for her claim that Plaintiffs purchased the property subject to her open and
obvious easement, Defendant testified that her use of the driveway was open and obvious
from an inspection of Plaintiffs’ land and Plaintiffs’ deed states that title is subject to
“any easements apparent from inspection.”

        After closing arguments, the trial court found that there was no implied easement
and the driveway did not constitute an open and obvious easement. The court explained
its reasoning from the bench as follows:

       First of all, it’s uncontroverted there is no easement of record. Therefore, at
       first glance, [Plaintiffs] would simply have carried their burden of proof
       and . . . we would be done. However, [Defendant] has a counterclaim and
       says that she has an easement on the property basically with two
       arguments[.] [First,] that there’s an open and obvious use of the driveway
       which gives [Defendant] the right to that easement by virtue of . . .
       [P]laintiffs’ deed saying they take subject to [easements apparent on
       inspection]. [Second,] is that [Defendant] has an easement by implication.

       Number one, . . . [a] driveway . . . is not the same as an open and obvious
       easement, so the Court does find that [Defendant] fails on that point.

       The second question is whether or not [Defendant] has an easement by
       implication and the Court has to look at whether or not there is a . . .
       necessity. There . . . should be a necessity that the easement be essential to
       the beneficial enjoyment of the land. One thing the Court would consider in
       that regard is the cost associated with a new driveway. . . . [T]here in comes
       into play the expert witness, the surveyor. . . . [T]he Court does find him to

                                            -4-
       be qualified and to be credible to tell the Court that there is some
       topographical issues, that this could in fact be a difficult driveway to install
       on this property; however, the surveyor testified that the $20,000 [necessary
       to construct a new driveway] was a ballpark, it was a guess. He later came
       back and said . . . he could say that [figure] within a reasonable degree of
       engineering certainty. I don’t know what engineering certainty has to do
       with his testimony as a surveyor so it was a guess. It was a ballpark. . . . So
       the Court doesn’t know what that new driveway will cost.

       Nobody said it was impossible to put a second driveway in except for
       [Defendant] . . . . I don’t think she’s lying to me, I think she thinks it’s not
       possible to put one in. But the fact is I think it is possible to have an
       alternative driveway. Is it going to be expensive? Probably. Is it going to
       take some time and some fill? Probably. But can I say that she has carried
       the burden of proof that this would require an unreasonable expenditure to
       create this new driveway[?] [T]he Court cannot say that. Therefore,
       [Defendant] fails on that action. The Court does not find an easement by
       implication.

      Accordingly, the court granted Plaintiffs’ request for an injunction to prevent
Defendant from using the driveway. Defendant filed a motion to alter or amend the
judgment and to amend the pleadings to allege easement by estoppel, which motion was
denied by the trial court.

       Thereafter, Defendant initiated this appeal and raises the following issues: (1)
whether the mediation agreement which provided that Plaintiff would convey a right of
way over the disputed driveway to Defendant created an express easement to Defendant;
(2) whether the trial court erred by failing to find that Defendant is entitled to an
easement by estoppel over the disputed driveway; (3) whether the trial court applied the
incorrect standard and erred by failing to find the existence of an implied easement over
the disputed driveway; and (4) whether the trial court erred in ruling that the limitation in
Plaintiffs’ deed, “easements apparent upon inspection,” did not refer to the disputed
driveway.

                                  STANDARD OF REVIEW

       The factual findings of a trial court are accorded a presumption of correctness, and
this court will not overturn those findings unless the evidence preponderates against
them. Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001); Tenn. R. App. P. 13(d). We
review the trial court’s legal conclusions under a pure de novo standard of review,
according no deference to the conclusions of law made by the lower courts.
S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).


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                                               ANALYSIS

        An easement is an interest in property that confers on its holder a legally
enforceable right to use another’s realty for a specific purpose. Smith v. Evans, No.
M2007-02855-COA-R3-CV, 2008 WL 3983117, at *2 (Tenn. Ct. App. Aug. 27, 2008)
(citing Hall v. Pippin, 984 S.W.2d 617, 620 (Tenn. Ct. App. 1998)). This interest can be
created in several different ways. Id. (citing Pevear v. Hunt, 924 S.W.2d 114, 115-16
(Tenn. Ct. App. 1996)). The methods applicable to the present case are: (1) express grant;
(2) estoppel; and (3) implication.4

                                 I. EASEMENT BY EXPRESS GRANT

       Defendant contends the mediation agreement entered into between the parties
created an express easement in her favor and that the trial court erred by failing to
consider this evidence. However, we have determined that Defendant did not assert this
claim in the trial court. As a consequence Defendant has waived this claim.

         Rule 8.01 of the Tennessee Rules of Civil Procedure requires defendants who wish
to assert an affirmative claim to file a counterclaim that provides “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Further, parties are
required to “set forth affirmatively facts in short and plain terms relied upon to constitute
. . . an affirmative defense.” Tenn. R. Civ. P. 8.03. As a general rule, a claim or defense
not raised in a party’s pleadings or at trial is deemed waived. See Tenn. R. Civ. P. 12.08
(“A party waives all defenses and objections which the party does not present either by
motion . . . or . . . in the party’s answer or reply, or any amendments thereto”); Moses v.
Dirghangi, 430 S.W.3d 371, 376 (Tenn. Ct. App. 2013) (“There is no duty on the part of
the court to create a claim that the pleader does not spell out in his complaint.”).

       Here, Defendant never asserted a claim of an express easement in her pleadings.
Moreover, she did not assert this claim at trial; to the contrary, she objected to evidence
presented by Plaintiffs regarding the mediation agreement, which would have been the
only basis for an express easement. Accordingly, Defendant waived any claim of an
express easement.


        4
          Easements may also be created by prescription, necessity, reservation, or eminent domain.
Pevear, 924 S.W.2d at 115-16. Additionally, easements can be divided into two broad classes: easements
appurtenant and easements in gross. Id. An easement appurtenant involves two tracts of land—the
dominant tenement and the servient tenement—whereby 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. Id. This case involves a dispute between the owners of two neighboring
parcels over a purported easement appurtenant.


                                                   -6-
      For the forgoing reasons, the mediation agreement entered into between the parties
cannot be relied upon to establish an express easement.

                                    II. EASEMENT BY ESTOPPEL

        Defendant contends she is entitled to an easement by estoppel because Plaintiffs
were aware of the driveway accessing Defendant’s property prior to their purchase of
their land and because Plaintiffs’ deed contained a limitation making it subject to any
“easements visible upon inspection.” However, as was the case with the claim of an
express easement, Defendant did not plead such a claim and she did not present proof of
nor argued the issue of easement by estoppel at trial. Defendant filed a post-trial Rule
15.02 motion to amend the pleadings to include estoppel; however, the trial court denied
this motion, and we find no abuse of discretion with this decision. See In re Estate of
Haskins, 224 S.W.3d 675, 685 (Tenn. Ct. App. 2006) (“The granting or denying of a
motion to amend is within the sound discretion of the trial court and will be reversed only
for an abuse of discretion.”).

        As stated above, a claim or defense not raised in a party’s pleadings or argued at
trial is deemed waived. See Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003).
Accordingly, Defendant is precluded from asserting this issue on appeal.

                                 III. EASEMENT BY IMPLICATION

       Defendant properly asserted her claim of an implied easement and contends in this
appeal that the trial court erred by applying a standard of “strict necessity” to her claim.

      To establish an easement by implication, the party asserting the easement has the
burden of proving the following three elements by a preponderance of the evidence:

        (1) A separation of title; (2) necessity that before the separation takes place,
        the use which gives rise to the easement shall have been so long continued
        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.[5]

Newman v. Woodard, 288 S.W.3d 862, 866 (Tenn. Ct. App. 2008) (citing Fowler v.
Wilbanks, 48 S.W.3d 738, 741 (Tenn. Ct. App. 2000)). “The reasoning behind implied

        5
           A fourth element of “continuous servitude” has been added on occasion; however, we have
previously noted that this element is “subsumed within the other three long-established elements.” Eberle
v. Elliot, No. E2012-00298-COA-R3-CV, 2013 WL 3357129, at *5 (Tenn. Ct. App. June 28, 2013)
(citing Ingram v. Wasson, 379 S.W.3d 227, 242 n.17 (Tenn. Ct. App. 2011); Cellco P’Ship v. Shelby
Cnty., 172 S.W.3d 574, 589 (Tenn. Ct. App. 2005)).


                                                  -7-
easements is that a grantor intends to include in a conveyance whatever is necessary for
the beneficial use and enjoyment of the property conveyed.” Adcock v. Witcher, No. 01-
A-01-9505-CH00220, 1995 WL 675852, at *4 (Tenn. Ct. App. Nov. 15, 1995). However,
the law does not favor implied easements, and “the courts of this state have expressed a
policy in favor of restricting the use of the doctrine.” Cellco P’Ship v. Shelby Cnty., 172
S.W.3d 574, 589 (Tenn. Ct. App. 2005) (citing Cole v. Dych, 535 S.W.2d 315, 318
(Tenn. 1976)).

       In this case, the parties stipulated that the first two elements required for an
implied easement exist. The third element, whether the purported easement is necessary
and essential to the beneficial enjoyment of Defendant’s land, is in dispute.

       In determining whether an easement is necessary to the beneficial enjoyment of an
individual’s lands, “Tennessee does not . . . require strict or absolute necessity[.]”
Newman, 288 S.W.3d at 866 (citing Fowler, 48 S.W.3d at 740). Instead, we have
interpreted the term “necessity” as meaning “reasonably necessary” for the enjoyment of
the dominant tenement. Fowler, 48 S.W.3d at 741 (citing Line v. Miller, 309 S.W.2d 376,
377 (Tenn. Ct. App. 1957); Johnson v. Headrick, 237 S.W.2d 567, 570 (Tenn. Ct. App.
1948)). “Under this rule, the easement must be of such necessity that it is presumed to
have been within the contemplation of the parties at the time of the severance.” Rhoades
v. Taylor, No. M2001-00643-COA-R3-CV, 2003 WL 724672, at *5 (Tenn. Ct. App.
March 4, 2003) (citing LaRue v. Greene Cnty. Bank, 166 S.W.2d 1044, 1049 (Tenn.
1942); Line, 309 S.W.2d at 377; Johnson, 237 S.W.2d at 570).

       The cost of constructing an alternate means of ingress and egress is a factor that
may be considered when assessing the necessity of an implied easement. See Haun v.
Haun, No. E2004-01895-COA-R3-CV, 2005 WL 990566, at *6 (Tenn. Ct. App. April 28,
2005). For example, in Rightsell v. Hale, our Supreme Court upheld an easement by
implication in order to access a public road because of the unreasonable expenditure
required to create another means of accessing the property. Rightsell v. Hale, 18 S.W.
245, 246 (Tenn. 1891) (“While it was possible to make another way out . . . to make such
other way at all convenient would involve an expenditure altogether disproportionate to
the value of the estate to be benefited.”). Conversely, where a replacement “would not
involve an unreasonable or disproportionate expenditure,” we have held that an implied
easement is not reasonably necessary. See Allison v. Allison, 193 S.W.2d 476, 477-78
(Tenn. Ct. App. 1945); Bradley v. McLeod, 984 S.W.2d 929, 935 (Tenn. Ct. App. 1998),
overruled on other grounds by Harris v. Chern, 33 S.W.3d 741, 742 (Tenn. 2000).

        In this case, it is undisputed that Defendant’s property has nearly 200 feet
affronting a county road to which Defendant could conceivably construct an alternate
driveway. However, Defendant argues that the cost of constructing an alternate driveway
to this road would be excessive and, therefore, the current driveway accessing her land is
reasonably necessary.

                                           -8-
       As indicated above, the party asserting the presence of an easement bears the
burden of proving the required elements by a preponderance of the evidence. Newman,
288 S.W.3d at 866. Here, the proof presented by Defendant at trial consisted of
Defendant’s own testimony and the deposition testimony of Mr. Pierce, a professional
land surveyor. Although Defendant originally testified that it would be “impossible” to
construct an alternate driveway on her property due to her limited income, she later
conceded that neither Mr. Pierce nor anyone else told her that a driveway could not be
constructed on her property. Additionally, although Defendant presented the deposition
testimony of Mr. Pierce—who estimated a cost of $20,000 for a replacement driveway—
on cross-examination, Mr. Pierce stated that he is not “a construction estimator” and that
his figure was merely a “ballpark” estimate. Further, Mr. Pierce admitted that he failed to
calculate the amount of fill that would be required to construct a driveway, the number of
hours or people it would take to complete such a task, how many feet of ground would
have to be disturbed to build the driveway, or what size retaining wall that would be
required.

       Based on this evidence, the trial court concluded that, although Mr. Pierce was
qualified as a licensed surveyor to testify regarding the topographical issues involved in
constructing a new driveway, Mr. Pierce’s testimony was not sufficient to establish a cost
of constructing this driveway. Because no other evidence was presented regarding the
cost of the driveway, the trial court held that Defendant failed to establish that
construction of a new driveway would be unreasonably expensive.

        After reviewing the record, we conclude that the evidence does not preponderate
against this finding. Additionally, contrary to Defendant’s assertion, the record indicates
that the trial court applied the correct principle in reaching its conclusion. This standard
required Defendant to put on competent proof that the driveway was reasonably
necessary to the use and enjoyment of her property. In this case, Defendant’s evidence
failed to meet this requirement. Accordingly, we affirm the trial court’s conclusion that
Defendant is not entitled to an easement by implication.

                             IV. THE LIMITATION IN PLAINTIFF’S DEED

       Finally, Defendant contends Plaintiffs acquired the property subject to her interest
in the driveway. This contention is based on the fact the driveway is visible upon
inspection, it was in existence when Plaintiffs acquired the property, and Plaintiffs’ deed
contained a limitation making it subject to any “easements apparent upon inspection.” 6

        6
          Specifically, Plaintiffs’ deed states that it “is expressly made subject to any and all restrictions,
reservations, covenants and conditions contained in former deeds and other instruments of record as may
now be binding on said property, and to any easements apparent from an inspection of said property.”


                                                    -9-
       The provision making Plaintiffs’ ownership subject to “easements apparent upon
inspection” does not, in and of itself, create a new property interest in Defendant; instead,
its purpose was to protect any previously existing legal interests. In this case, it is
undisputed that there is no former deed or instrument of record containing a restriction,
reservation, or covenant permitting Defendant to access the driveway. Further, as
discussed above, we have determined that Defendant has not met her burden of proving
that an easement exists in this case. Accordingly, we conclude that the language of
Plaintiffs’ deed does not entitle Defendant to access the disputed driveway.

                                     IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Charlotte Cornwell.


                                                    ________________________________
                                                    FRANK G. CLEMENT, JR., P.J., M.S.




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