      IN THE COURT OF APPEALS OF TENNESSEE

                  AT KNOXVILLE
                                                             FILED
                                                           February 24, 2000

                                                           Cecil Crowson, Jr.
                                                          Appellate Court Clerk


                                              E1998-00732-COA-R3-CV
STEVE MYERS,                   )       C/A NO. 03A01-9812-CV-00407
                               )
          Plaintiff-Appellant, )
                               )
                               )
                               )       APPEAL AS OF RIGHT FROM THE
v.                             )       CLAIBORNE COUNTY CIRCUIT COURT
                               )
                               )
                               )
DANNY WILSON and ELMO MAYES,   )
                               )       HONORABLE CONRAD TROUTMAN, JR.,
          Defendants-Appellees.)       JUDGE


For Appellant                          For Appellees
LYNN TARPY                             JOHNNY V. DUNAWAY
THOMAS M. LEVEILLE                     LaFollette, Tennessee
Hagood, Tarpy & Cox, PLLC
Knoxville, Tennessee




                            O P I N IO N




AFFIRMED AND REMANDED                                          Susano, J.

                                   1
          This case arises out of a dispute over a 30-foot right-

of-way that crosses the property of the plaintiff, Steve Myers,
and provides access to a state highway from the property owned by
the defendant, Danny Wilson, which property is leased to the

defendant, Elmo Mayes.    Wilson was granted an easement over
Myers’ property in a deed providing that Wilson was entitled to
“the right of the unobstructed use of the private road.”    Myers

brought this action seeking a declaratory judgment, damages, and
injunctive relief against the defendants after two gates on the
right-of-way were destroyed.    The trial court denied Myers’

request for damages and an injunction, finding that the two gates
interfered with Wilson’s “unobstructed use.”    Myers appeals,
raising the following issues:



          1. Is Myers barred from maintaining gates
          across the road by the express language of
          the grant of the easement?
          2. If the proper construction of the grant
          of the easement is that it is to be free of
          gates, did Wilson and Mayes abandon the right
          to have the easement free of gates?


                                 I.



          In 1987, Wilson purchased a parcel of farmland from his

father, Hoyt Wilson.    The tract -- known as Tract 27 -- is one of

28 tracts in the subdivision of property formerly known as

Colonial Acre Farm.    Wilson’s deed provides as follows:



          Party of the second part, his heirs and
          assigns along with other abuting [sic]
          property owners, are given the right of the
          unobstructed use of the private road through
          the Colonial Acre farm from the S.E. corner
          of tract no. 27, as shown on the plat of said
          farm, extending eastward and northward to
          where the same intersects with State Highway
          no. 63, at Lot no. 1, shown on said plat.

                                  2
(Emphasis added).        The private road referred to in the deed

crosses a parcel of farmland known as Tract 28 and provides
access to the state highway for Tracts 26 and 27.


              In 1988, Myers purchased Tract 28 from Martha and
Herbert Mayes.        Myers’ deed also makes reference to his right,
along with the other adjoining property owners, to “the

unobstructed use of the private road.”


              When Myers and Wilson purchased their respective

tracts, two gates stood across the road as it passed through
Tract 28.       One of the gates was erected in 1953, the same year
that Colonial Acre Farm was subdivided.             The other gate was

erected in 1970, apparently as a result of an oral understanding
among George Myers, then owner of Tracts 20-26; Hoyt Wilson, then

owner of Tract 27; and Herbert Mayes, then owner of Tract 28.


              The gates were still standing in July, 1996, when Hoyt

Wilson and Danny Wilson1 leased Tract 27 to the defendant Elmo
Mayes.      Mayes testified that although he never found either gate
locked, he and his employees did encounter difficulties in using

the road:



              Q.    The first time you or your employees
              came through, how did they get through the
              gate?

              A.   I don’t know how they got through it.
              All I know is every time they’d start
              through, it would be a phone call....They’ll
              be hollering up there that Steve was on them
              and he didn’t want them to go through the
              gate, particularly this one boy that was
              working for me at that time, Pete Goins.




  1
      Hoyt and Danny Wilson are both identified as lessors in the lease.

                                         3
            Q.   So you’re saying Steve [Myers] prevented
            you all from going through the gate?
            A.   He tried to.

            Q.   He never prevented you, did he?
            A.   No, he never.


            Sometime after Mayes leased Tract 27 from the Wilsons,
Myers discovered that the gates had been cut down with a
chainsaw.    Myers testified that after the gates were destroyed,

some of his cattle got loose and he became concerned about
trespassers and the potential theft of his farm machinery.
Consequently, on April 14, 1997, Myers filed this action, seeking

a declaratory judgment, damages, and a permanent injunction
against Danny Wilson and Elmo Mayes.         Following a bench trial,
the court below held as follows:



            It is the holding of the Court that
            unobstructed use of a roadway means just that
            and that the placing of a gate of said
            roadway obstructs the use thereof. There was
            no problem so long as the adjoining property
            owners orally agreed to the contrary but
            during the course of the hearing, the owner,
            [Danny] Wilson, stated that he desired that
            the gate be removed.

            The Court is aware that the Petitioner Steve
            Myers is going to have to construct cross
            fencing and the Court gives him 45 days from
            the entry [of] the order to do the same.
            The request for damages and a permanent
            injunction from removing the gate are denied.



This appeal followed.2


                                    II.



  2
   On the same day that the notice of appeal was filed, Myers filed a motion
for suspension of relief pending appeal. The record does not indicate whether
the trial court ruled upon this motion.

                                      4
         In this non-jury case, our review is de novo upon the

record, with a presumption of correctness as to the trial court’s
factual determinations, unless the evidence preponderates
otherwise.    Rule 13(d), T.R.A.P.; Wright v. City of Knoxville,

898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).    The trial court’s

conclusions of law, however, are accorded no such presumption.

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);

Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).



                                 III.



             The first issue on appeal is whether Myers is entitled

to maintain gates across the road when the grant of the easement

expressly entitles Wilson to its “unobstructed use.”    Myers

contends that the gates do not in any way obstruct Wilson’s “use”

of the road.    Although he admits that the gates “without
question” may be considered an obstruction on the road itself,

Myers argues that the grant guarantees only the “unobstructed use

of the private road,” and not the “use of the unobstructed
private road.”    Thus, the argument goes, the maintenance of the

gates is not prohibited by the terms of the easement.



             The general rule in Tennessee is that absent an express

provision that the way shall be open, the owner of the servient

estate may maintain gates over a right-of-way (1) if the gates

are necessary for the servient estate owner’s use and enjoyment

of the land; and (2) if the gates do not unreasonably interfere

with the right of passage.     Cole v. Dych, 535 S.W.2d 315, 320

(Tenn. 1976); Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn.

1939); De Busk v. Riley, 289 S.W. 493, 494 (Tenn. 1926).     Thus,


                                   5
the grant of a mere right-of-way, without more, does not, in and

of itself, prohibit the maintenance of gates across the easement
by the servient estate.    See Foshee, 129 S.W.2d at 208; Long v.

Garrison,    1 Tenn.App. 211, 218 (1925).



            A grant may provide for more than a “mere right-of-

way”, however; and in such a case, the language of the grant

determines whether the owner of the servient estate may maintain

gates across the right-of-way.    See Foshee, 129 S.W.2d at 208

(“the extent of the easement is determined by the language of the

grant”); De Busk, 289 S.W. at 494 (“Whether the grantee of a

right of way is entitled to a way unobstructed by gates depends

on the terms of the grant, its purposes, nature, and situation of

the property, and the manner in which the way has been used, and

occupied.”); see also Newsom v. Newsom, 56 S.W. 29, 29-30

(Tenn.Ch.App. 1900) (holding gate should be removed when deed

provided for “free passage and use of all roads”).


            Thus, the question in the instant case becomes: Does

the grant to Wilson of “the right of the unobstructed use of the
private road” prohibit the maintenance of gates across that road?

The answer depends on what the phrase “unobstructed use” means.

We are not aware of any cases in Tennessee construing the meaning
of the phrase “unobstructed use” or similar language in a grant

of an easement.    However, other jurisdictions have addressed this

issue.   For example, in Missionary Soc. of Salesian Congregation

v. Evrotas, the Court of Appeals of New York held that the owner

of the servient estate was not entitled to maintain a gate where
the grant gave the owner of the dominant estate “free and

unobstructed use” of the right-of-way.      175 N.E. 523, 524 (N.Y.
1931).   The Court noted that a grant of “free and unobstructed


                                  6
use” was “unusually broad” in that “it confers far more extensive

rights than [a grant of] mere ingress and egress.”       Id.   The

Court further opined:



          [t]he erection of a gate, even if kept
          unlocked, to some extent interferes with and
          obstructs defendant’s right of passage, and
          is inconsistent with the grant....The only
          kind of gate which can fail to interfere with
          defendant’s right is one which not only
          remains unlocked but which is perpetually
          kept open. Such a gate is useless for any
          purpose.



Id. at 524.



          Another case is Kerr v. Jennings, 886 S.W.2d 117

(Mo.Ct.App. 1994), in which the grant of the easement provided

that none of the owners entitled to use the easement could
“block, obstruct, hinder or interfere with the easement area or
the permitted traffic thereon.”       Id. at 127.   The Missouri Court

of Appeals held that gates could not be maintained across the

easement, finding as follows:



          [i]n the context of the easement, the terms
          “block,” “obstruct,” “hinder” and “interfere”
          have plain and common meanings which are not
          ambiguous and do not require judicial
          construction. The definitions of these terms
          include the complete stoppage of progress on
          a roadway, as well as the slowing or impeding
          of progress of traffic on a roadway. Gates
          slow or impede the progress of traffic on a
          roadway.

Id. at 127-28 (footnote omitted).



          We find the rationale of these two cases persuasive.

The grant to Wilson of the “unobstructed use of the private road”

confers more than a mere right of ingress and egress to the


                                  7
property; it confers the right to use the road without

obstructions.     The plain and common meaning of “obstruction” is a
“hindrance, obstacle, or barrier.”       Black’s Law Dictionary 1078
(6th ed. 1990).    The term “obstruct” is defined as “[t]o hinder

or prevent from progress, check, stop, also to retard the
progress of, make accomplishment of difficult and slow.”         Id. at

1077.    We find that the term “unobstructed,” as used in the grant

of the easement, confers upon Wilson a right to use the road

without hindrance, impediment, or delay -- that is, without

gates.    Accordingly, we hold that the trial court correctly found

that Myers was prohibited by the language of the grant from

maintaining gates across the road.



                                  IV.



            Myers next argues that, even if the proper construction
of the phrase “unobstructed use” means that he is prohibited from

maintaining gates, the defendants have abandoned or surrendered
their right to a road free of gates.         Myers argues in his brief
as follows:



            In the case at hand, [Myers] does not argue
            that [Wilson and Mayes] have completely
            abandoned their right to the use of the
            easement. If the Defendants did have a right
            to use of the private roadway in question
            without any gates being maintained on that
            roadway, it is clear that the Defendants and
            the predecessors in interest of the
            Defendants have abandoned that right.

                            *    *       *
            One of the gates across the right of way
            existed for forty three years and the other
            gate existed for twenty six years without any
            objection by either the Defendants or their
            predecessors in interest. This acquiescence
            is clear evidence of an intent to abandon.



                                     8
          We addressed a similar argument in Edminston Corp. v.

Carpenter, 540 S.W.2d 260 (Tenn.Ct.App. 1976).   In that case, the

owner of the servient estate argued that the owner of the

dominant estate had partially abandoned the 30-foot easement

because the road maintained upon the easement was only 15 feet

wide.   Id. at 262.   We rejected the servient estate owner’s

contention that the non-use of the entire width of the right-of-

way constituted a partial abandonment:



           Mere nonuser, however long continued, affords
           no sufficient evidence of abandonment of an
           easement created by express grant. The
           abandonment of an easement like the
           abandonment of any property right, must be
           accompanied by the requisite intent to
           abandon. The proof totally fails to
           establish an abandonment of the thirty-foot
           easement. To the contrary, the easement has
           been continuously used for the purposes for
           which it was created in 1916. For the past
           10 to 15 years, the county has graded,
           graveled and maintained a road about 15 feet
           wide on the easement. It is not necessary
           that the entire thirty-foot width be actual
           roadbed.


Id. (citations and internal quotation marks omitted).



           In the instant case, we do not find that Wilson

partially abandoned the right-of-way.    When he purchased Tract

27, the deed expressly provided the “right of the unobstructed

use of the private road.”    At that time, the two gates were being

maintained across the road, apparently as a result of an
unwritten agreement twenty years earlier among the previous

landowners.   Wilson’s failure to immediately object to Myers’
maintenance of the gates does not render the express grant of

“unobstructed use” void.    The fact that the gates were, at least

for a time, permissively maintained, is not evidence that Wilson

intended to abandon the easement as granted to him in the deed.

                                  9
See, e.g., Cottrell v. Daniel, 205 S.W.2d 973, 976 (Tenn.Ct.App.

1947)(holding construction of fences across easement was

temporary and permissive and thus did not constitute abandonment

of easement).   It is clear that Wilson no longer consents to the

gates being maintained, and we find and hold that he is entitled,

by the express language of the grant, to have these obstructions

removed.



                                V.



           The judgment of the trial court is affirmed.   This case

is remanded for such further proceedings, if any, as may be

required, consistent with this opinion and for collection of

costs assessed below, all pursuant to applicable law.     Costs on

appeal are taxed to the appellant, Steve Myers.




                                     __________________________
                                     Charles D. Susano, Jr., J.



CONCUR:


________________________
Houston M. Goddard, P.J.



________________________
D. Michael Swiney, J.




                                10
