               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              September 22, 2016 Session

          THE RIVER OAKS, GP, ET AL. v. IOAN BUCSE, ET AL.

                Appeal from the Chancery Court for Sumner County
                     No. 2014CV23      Joe Thompson, Judge
                     ___________________________________

               No. M2015-02208-COA-R3-CV – Filed October 25, 2016
                     ___________________________________

This property dispute involves adjacent commercial property owners. When defendants
revealed their intent to erect a fence between the adjoining properties, plaintiffs sued
under the theories of adverse possession, prescriptive easement, and implied easement to
use a portion of defendants‘ property for parking, trash removal, and receiving deliveries.
After a bench trial, the trial court found that plaintiffs failed to meet their burden of
establishing their asserted rights over the area in dispute. Plaintiffs appeal the trial
court‘s conclusions as to prescriptive easement and easement by implication only.
Discerning no error, we affirm.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which Brandon O.
Gibson, J., joined, W. NEAL MCBRAYER, J., not participating.

Peter H. Curry, Nashville, Tennessee, for the appellants, The River Oaks, GP, and Ray
Morris.

Brandon R. Meredith, Gallatin, Tennessee, for the appellees, Ioan Bucse and Felicia
Bucse.

                                       OPINION

                                     BACKGROUND

      Plaintiffs/Appellants The River Oaks, GP (―River Oaks‖) and Ray Morris (―Mr.
Morris,‖ and together with River Oaks, ―Appellants‖) and Defendants/Appellees Ioan
Bucse (―Mr. Bucse‖) and Felecia Bucse (―Ms. Bucse,‖ and together with Mr. Bucse,
―Appellees‖) are adjacent commercial property owners in Hendersonville, Tennessee.
Appellants‘ properties together make up a strip shopping center (―Shopping Strip‖).
Specifically, Mr. Morris owns the two westernmost ―bays‖ of the Shopping Strip
(―Morris property‖), while River Oaks owns the remaining bays (―River Oaks property‖).
Each of the Shopping Strip‘s bays fronts State Highway 31E/West Main Street (―West
Main Street‖); i.e., West Main Street borders the Shopping Strip to the north. Each bay
also has a rear door leading to a paved area on the southern side. Appellees own a parcel
of land (―the Bucse property‖) directly south of and abutting Appellants‘ property.
Candy Lane abuts the eastern boundary of both the River Oaks property and the Bucse
property.1

       River Oaks is a partnership consisting of Conoly Brown (―Mr. Brown‖) and David
Hood (―Mr. Hood‖). Mr. Brown and Mr. Hood each individually purchased the River
Oaks property by deed2 dated March 8, 2007, and both partners subsequently conveyed
the property to River Oaks on October 4, 2013. Mr. Morris purchased the Morris
property by deed dated November 2, 1978.

       Harold Vandercook originally owned the parties‘ properties and is the common
grantor in all of the parties‘ chains of title. On November 2, 1978, Mr. Vandercook
conveyed the River Oaks property to River Oaks‘s predecessors-in-interest and granted
them by deed a sixteen-foot non-exclusive easement ―for ingress and egress and utilities‖
along the northern boundary of the Bucse property (―sixteen-foot deeded easement‖). On
that same day, by deed, Mr. Vandercook also conveyed to Mr. Morris the Morris property
and granted to Mr. Morris the same sixteen-foot deeded easement ―for ingress and egress
and may also be used for the location of utilities provided that the same is restored.‖

       By deed dated February 25, 1997, Mr. Morris became owner of a one-half
undivided interest in the Bucse property; Mr. Vandercook retained the other one-half
interest. On November 20, 1998, Mr. Morris conveyed by deed his one-half interest in
the Bucse property to Appellees‘ predecessor-in-interest. Appellees purchased the Bucse
property by deed dated March 3, 2006.

       On February 11, 2014, Appellants filed a complaint and applied for a temporary
injunction in the Sumner County Chancery Court (―trial court‖). The complaint alleged
Appellants were entitled to ―use the alley at the rear of their property . . . for employee
parking, trash storage, deliveries, and access to the street‖ because Appellees, ―upon
whose property the alley is located, have stated their intention to fence the alley thereby
blocking [Appellants‘] access.‖ In support of their claim over this portion of the Bucse

        1
        The parties agree that the only way to get to the northern part of the Bucse property abutting the
Shopping Strip is via Candy Lane. In a pleading, Appellees contended that they own an easement over
Candy Lane to access their property.
        2
           All of the deeds in this cause were admitted into evidence as part of the parties‘ joint
stipulations.

                                                  -2-
property, Appellants relied on the theories of statutory adverse possession pursuant to
Tennessee Code Annotated Section 28-2-103, common law adverse possession,
prescriptive easement, and easement by implication. Appellants also requested an
injunction enjoining Appellees from erecting a fence blocking access to ―the alley.‖
However, Appellants never specifically defined ―the alley‖ in the complaint but generally
referred to the area as an ―alleyway‖ or the ―property in question.‖

       On March 7, 2014, Appellees filed an answer denying Appellants‘ allegations that
their use of a portion of the Bucse property was adverse and exclusive and opposing
Appellants‘ application for the injunction. On March 10, 2014, the trial court issued a
temporary injunction enjoining Appellees ―from erecting a fence, or placing any other
obstruction, on or across that portion of their property described in the [c]omplaint which
is currently used by the [Appellants] for access to the rear of their adjoining property.‖
On April 28, 2015, an agreed order was entered allowing Appellants to add an additional
ground pursuant to Tennessee Code Annotated Section 28-2-104 as an amendment to
their complaint.

       A bench trial took place on May 26 and 27, 2015. Prior to the presentation of the
proof, Appellants‘ counsel defined for the trial court the ―area in dispute‖ as the area
between the Shopping Strip‘s southern property line to a point 12.5 feet south of the
Nashville Electric Service power lines (―NES power lines‖) located on the Bucse
property. As discussed in detail, infra, Appellants‘ counsel often referred to this ―area in
dispute‖ when questioning the witnesses.

       Jackie Vandercook, daughter of Mr. Vandercook and owner of property near both
the Shopping Strip and Bucse property, testified on Appellants‘ behalf. When questioned
about Appellants‘ use of the ―area in dispute,‖ Ms. Vandercook testified that she
observed the continuous uses of parking, trash removal, and truck deliveries since the
early 1970s when development of the area concluded. On cross-examination, however,
Ms. Vandercook testified that she was unsure of the exact location of the boundary
separating the two properties or of the location of the easement. Specifically, Ms.
Vandercook was unsure whether the cars that she observed were normally parked on the
Shopping Strip, within the sixteen-foot deeded easement, or beyond the sixteen-foot
deeded easement further into the Bucse property. She was also unsure as to the usual
location of the dumpsters and was unsure of where and how often the delivery trucks
made their deliveries.

       Mr. Morris testified that he had been a tenant on the Morris property since 1972
and owned the property since 1978. When questioned about Appellants‘ use of the ―area
in dispute,‖ Mr. Morris testified that he, his tenants, and their employees continuously
used the area for dumpsters, parking, and deliveries. Mr. Morris testified that he
improved the ―area in dispute‖ with gravel but was unsure whether he placed the gravel
within the sixteen-foot deeded easement or whether the gravel encroached on the Bucse
                                           -3-
property past the sixteen-foot deeded easement. Mr. Morris testified that his tenants
usually park with ―their nose up to the building‖ on the Morris property. On cross
examination, Mr. Morris admitted that he was not familiar with the true boundary line
between the Shopping Strip and the Bucse property or with the location of the sixteen-
foot deeded easement. Mr. Morris was also unable to state whether the cars normally
park beyond the sixteen-foot deeded easement further into the Bucse property. Mr.
Morris also admitted that he neither encouraged nor directed the dumpster truck drivers
to drop the dumpsters on any particular area.

       Mr. Brown testified that he became a tenant in the River Oaks property in January
2003 but became an owner in 2007. Mr. Brown admitted that the River Oaks property
was not landlocked and that he had access to the main road. According to Mr. Brown, he
believed that the southern property line of the Shopping Strip followed the NES power
lines but he did not have the property surveyed. When questioned about the
improvements he made to the ―area in dispute,‖ Mr. Brown testified that he added gravel
on three occasions although some gravel was already present when he purchased the
River Oaks property. On a fourth occasion, however, he testified that he improved the
―area in dispute‖ with asphalt.

        Mr. Brown testified that he and his tenants used the ―area in dispute‖ for dumpster
service, parking, delivery access, and access to work on the ―mechanicals.‖ According to
Mr. Brown, cars necessarily traveled beyond the sixteen-foot deeded easement into the
Bucse property in order to pull into the spaces to park behind the buildings. On cross-
examination, however, Mr. Brown conceded, when presented with pictures admitted as
trial exhibits (―pictures‖), that a car could physically make the turn off Candy Lane and
park behind the River Oaks property while staying entirely within the sixteen-foot deeded
easement. Mr. Brown also admitted that he was unsure whether the dumpsters were
placed within or beyond the sixteen-foot deeded easement. Mr. Brown agreed that the
pictures accurately represented the way cars were usually parked and that most of the cars
were parked either on the Shopping Strip or within the sixteen-foot deeded easement.
Mr. Brown testified that on February 18, 2011, a restaurant became a tenant of the River
Oaks property and that parking began to increase in the ―area in dispute‖ since the
restaurant opened.

        Mr. Brown testified that he was only present at the River Oaks property two to
three times per week for thirty to forty-five minutes each time. Mr. Brown admitted that
the standard leases that his tenants sign contain no provision dictating where they should
park or where they should place their dumpsters. According to Mr. Brown, his tenants
informed him of the no trespassing signs and of orange cones and rope blocking the
―access point off Candy Lane.‖ When Mr. Brown learned that Appellees intended to
erect a fence blocking off access to the ―area in dispute,‖ Appellants filed suit.


                                           -4-
        Mr. Bucse testified that he had been using the Bucse property for storage and
parking tractor trailers in connection with his trucking business since 2011. In addition,
Mr. Bucse testified that he cut the grass and, about a year before trial, improved his
property with 40,000 pounds of gravel. According to Mr. Bucse, Appellants‘ tenants
asked him for permission to level a hole in the ―area in dispute‖ about six or seven years
prior to trial and that he granted them permission.

       Mr. Bucse agreed that since the restaurant‘s opening in 2011, traffic in the ―area in
dispute‖ increased. Due to the increased traffic to this area, Mr. Bucse wished to fence
the Bucse property to secure from trespassers the goods stored in the trailers, which
include refrigerated items. Mr. Bucse testified that he was present on the Bucse property
every day since he began his trucking business to check on the refrigerated goods stored
in the trailers. Mr. Bucse testified that he had not seen any dumpsters on the Bucse
property.     On cross-examination, when questioned about whether he observed
Appellants‘ uses of the ―area in dispute,‖ Mr. Bucse admitted that he sometimes would
observe cars parking on the ―area in dispute‖ and that he was aware that dumpster trucks
and delivery trucks frequent the area. However, Mr. Bucse testified that he never made
any complaints prior to 2011 because parking had not been an issue prior to the
restaurant‘s opening.

        In lieu of closing arguments, the trial court requested that the parties submit
proposed findings of fact and conclusions of law. On July 30, 2015, the trial court issued
a memorandum opinion and order dismissing Appellants‘ complaint with prejudice and
dissolving the temporary injunction. The trial court found that legal title to the ―entire
disputed area‖ was vested in Appellees subject to the sixteen-foot deeded easement. The
trial court rejected all of Appellants‘ legal theories, finding that Appellants failed to
clearly establish the elements of their claims.

        On August 28, 2015, Appellants moved the trial court to amend and/or make
additional findings by finding that the sixteen-foot deeded easement is ―a valid
encumbrance on [the Bucse] property‖ and ―that [the sixteen-foot deeded easement] may
be used by [Appellants] to construct new sanitary sewer lines.‖ On October 28, 2015, the
trial court partially granted Appellants‘ motion to amend and/or make additional findings
by quoting the exact language of the deeds granting the sixteen-foot deeded easement but
declined to make a finding with respect to the nature and extent of the easements because
the issue was not litigated at trial. Appellants timely appealed.

                                          ISSUES

       On appeal, Appellants abandoned their claim to the area 12.5 feet south of the
NES power lines as well as the adverse possession theories. Appellants therefore raise
only two issues, which we have taken, and slightly restated, from their brief:

                                           -5-
       1.     Whether the trial court erred in ruling that Appellants failed to
       establish their claim for a prescriptive easement for access across a portion
       of the Bucse property.
       2.     Whether the trial court erred in ruling that Appellants failed to
       establish their claim for an easement by implication for access across a
       portion of the Bucse property.

                                 STANDARD OF REVIEW

       The trial court heard this case sitting without a jury. Accordingly, we review the
trial court‘s findings of fact de novo with a presumption of correctness unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of
correctness, however, attaches to the trial court‘s conclusions of law, and our review is de
novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000)). Additionally, the trial court‘s findings on credibility,
whether express or implicit, are entitled to great deference on appeal. See Taylor v.
McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App.
Aug. 5, 2008). Where the trial court‘s factual determinations are based on its assessment
of witness credibility, this Court will not reevaluate that assessment absent clear and
convincing evidence to the contrary. Franklin Cnty. Bd. of Educ. v. Crabtree, 337
S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002)).

                                   DISCUSSION
                                   Prescriptive Easement

       ―An easement is an interest in another‘s real property that confers on the
easement‘s holder an enforceable right to use that real property for a specific use.‖
Vineyard v. Betty, No. M2001-00642-COA-R3-CV, 2002 WL 772870, at *2 (Tenn. Ct.
App. Apr. 30, 2002) (citing Bradley v. McLeod, 984 S.W.2d 929, 934 (Tenn. Ct. App.
1998)). Appellants claim such an interest in a portion of the Bucse property under a
theory of prescriptive easement. ―Generally, [a prescriptive] easement arises when a use .
. . is adverse rather than permissive, open and notorious, continuous and without
interruption, and for the requisite period of prescription.‖ Cumulus Broad., Inc. v. Shim,
226 S.W.3d 366, 378 (Tenn. 2007) (citing Ralph E. Boyer, Survey of the Law of
Property 569–70 (3d ed.1981)). ―The extent of the rights matured by prescription is
based upon the extent of the use during the period of prescription.‖ Id. ―In order to
establish prescriptive easement under the common law . . . , the usage must be adverse,
under claim of right, continuous, uninterrupted, open, visible, exclusive, and with the
knowledge and acquiescence of the owner of the servient tenement, and must continue
for the full [twenty years].‖ Id. at 379 (Tenn. 2007) (citing Bradley, 984 S.W.2d at 934);
see also Pevear v. Hunt, 924 S.W.2d 114, 116 (Tenn. Ct. App. 1996); House v. Close, 48
Tenn. App. 341, 346 S.W.2d 445, 447 (Tenn. Ct. App. 1961). ―A party claiming
                                             -6-
a prescriptive easement bears the burden of proving each element through clear and
convincing evidence.‖ Hager v. George, No. M2013-02049-COA-R3-CV, 2014 WL
3371680, at *3 (Tenn. Ct. App. July 8, 2014) (citing Stone v. Brickey, 70 S.W.3d 82, 86
(Tenn. Ct. App. 2001)). ―Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.‖ Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 128 (Tenn.
2013) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
―The evidence must create a high probability of the truth of the facts asserted, leaving the
moving party with a heavy burden and a high bar for obtaining relief.‖ Hager, 2014 WL
3371680, at *3 (Tenn. Ct. App. July 8, 2014) (citing Furlough, 397 S.W.3d at 128).

       The trial court found that Appellants presented insufficient proof as to the specific
portion of the Bucse property that Appellants actually used for purposes of establishing
their prescriptive easement claim. Appellants argue that they and their predecessors-in-
interest adversely used the ―area in dispute‖ for access to the rear of the Shopping Strip
continuously for over forty-two years. We respectfully disagree.

        As an initial matter, we note that the lack of clear evidence on the issue of
Appellants‘ use of the Bucse property to establish their claim of a prescriptive easement
is illustrated by the lack of specificity regarding exactly what property was actually in
dispute. For example, Appellants‘ complaint described the area in dispute only as a
―clearly defined alleyway.‖ Similarly, as discussed supra, Appellants‘ counsel referred to
the area in dispute at trial as ―the area between [Appellants‘] southern property line and
the area which [Appellants] claim [they had] used which encroaches upon the deeded
property line[, referring to the area 12.5 feet south of the NES power lines].‖ 3 From our
review of the testimonial and photographic evidence, however, the area or alleyway
behind the Shopping Strip includes not only the area claimed to be held in a prescriptive
easement but also the sixteen-foot deeded easement undisputedly held by both the River
Oaks and Morris properties. Thus, much of the testimony regarding Appellants‘ use of
the area behind the Shopping Strip did not delineate between uses within the sixteen-foot
deeded easement and uses of the Bucse property beyond the sixteen-foot deeded
easement. Only uses of the Bucse property outside the sixteen-foot deeded easement will
establish Appellants‘ adverse use of that property for purposes of Appellants‘ claim of
prescriptive easement. See Shealy, 2010 WL 3504449, at *7 (quoting City of Whitwell v.
White, 529 S.W.2d 228, 230 (Tenn. Ct. App. 1974)) (―Easement by prescription can only
be obtained where the use is adverse, not permissive.‖). As a result, we are unable to
ascertain whether the alleged uses supporting Appellants‘ claimed prescriptive easement
were in fact adverse to the Bucse property, as some of the uses testified to at trial appear
to have occurred within the sixteen-foot deeded easement. Indeed, the pictures stipulated
by the parties into evidence indicate that most of the cars were parked either on the

        3
         As noted previously, on appeal, Appellants, abandoned their claim over the area 12.5 feet south
of the NES power lines.
                                                 -7-
Shopping Strip or within the sixteen-foot deeded easement with an abundance of unused
easement space. All of the dumpsters, likewise, were located in the space Appellants
already have the right to use. As such, where the testimony at trial was equivocal that
Appellants‘ claimed uses of the Bucse property actually occurred beyond the boundary of
the sixteen-foot deeded easement, Appellants have failed to meet their burden to establish
an adverse use of the Bucse property by clear and convincing evidence.

       Even assuming, arguendo, that Appellants may establish their adverse use of the
―area in dispute,‖ including by the uses of third parties, such as garbage collectors, we
determine that neither Mr. Morris nor River Oaks have established that they adversely
and continuously used the ―area in dispute‖ for the requisite twenty-year period. We will
address each appellant and their property in turn.

                                        Morris Property

         With respect to Mr. Morris‘s claim, the record shows that he was a tenant of the
Morris property in 1972 and became an owner on November 2, 1978. Appellees argue
that any claimed adverse use by Mr. Morris was interrupted when he owned a one-half
undivided interest with Mr. Vandercook in the Bucse property from February 26, 1997,
through November 20, 1998. We agree. ―A party claiming ownership by adverse
possession ‗must sustain the proposition that the possession was in fact adverse to the
true owner.‘‖ Shealy v. Williams, No. E2009-00126-COA-R3-CV, 2010 WL 3504449, at
*7 (Tenn. Ct. App. Sept. 8, 2010) (quoting Bynum v. Hollowell, 656 S.W.2d 400, 403
(Tenn. Ct. App. 1983)). Thus, Mr. Morris could not have adversely used the Bucse
property during this period of time because he was an owner of the property himself. See
id. (―[B]ecause a party cannot use property adversely to his or her own interests, we agree
with [p]laintiff that the [defendant‘s predecessor-in-interest‘s] simultaneous ownership of
[d]efendant[‘s] property . . . and [p]laintiff‘s property . . . precluded the prescriptive
period from running during the [predecessor-in-interest‘s] period of use.‖); Haun v.
Haun, No. E2004-01895-COA-R3-CV, 2005 WL 990566, at *3 (Tenn. Ct. App. Apr. 28,
2005) (quoting Peltz v. Peltz, No. 01A01-9711-CH-00659, 1998 WL 717231, at *1
(Tenn. Ct. App. Oct. 14, 1998)) (―[P]ossession by one tenant in common is not adverse to
another co-tenant [for purposes of establishing a prescriptive easement claim] until a
disseisin4 of the others by actual ouster.‖). Because of his brief period of ownership in the
Bucse property, Mr. Morris‘s prescriptive period was interrupted. As previously
discussed, in order to establish a prescriptive easement, the use of the property must be
both adverse and continuous for the twenty-year period. See Cumulus Broad., 226
S.W.3d at 378–79. Mr. Morris‘s continuous period of adverse use of the Bucse property
would therefore have begun on November 20, 1998, when he no longer held an
ownership interest in the Bucse property. Because the twenty-year prescriptive period

       4
          The term ―disseisin‖ means ―[t]he act of wrongfully depriving someone of the freehold
possession of property.‖ Black’s Law Dictionary (10th ed. 2014).
                                             -8-
from that date does not conclude until November 19, 2018, the evidence does not
establish that Mr. Morris adversely used the ―area in dispute‖ for the requisite twenty-
year period as of the date of the filing of the complaint.    We therefore proceed to
examine whether River Oaks established clearly and convincingly that they adversely
used the ―area in dispute‖ for the requisite twenty years.

                                   River Oaks Property

       Likewise, River Oaks failed to establish the continuous and adverse use of the area
in dispute for the requisite twenty years. The record shows that River Oaks owned its
property since March 8, 2007, though Mr. Brown was a tenant as early as January 2003.
Although River Oaks had not been on the property for the requisite twenty years, it may
―establish the . . . prescriptive period [by] ‗tack[ing]‘ on the adverse use of [its]
predecessor‘s title.‖ Gore v. Stout, No. M2006-02111-COA-R3-CV, 2008 WL 450597, at
*6 (Tenn. Ct. App. Feb. 19, 2008) (citing Laurel Valley Prop. Owners Ass’n, Inc. v.
Hollingsworth, No. E2003-01936-COA-R3-CV, 2004 WL 1459404 at *8 (Tenn. Ct.
App. June 29, 2004)). ―Tacking requires that the combined periods be successive, that
each possession must meet the elements of prescriptive easement, and that the
possessions be in privity.‖ Hollingsworth, 2004 WL 1459404 at *8 (quoting Thompson
v. Hulse, E1999-02474-COA-R3-CV, 2000 WL 124787, at *3 (Tenn. Ct. App. Jan. 26,
2000)). No testimony was presented by any of River Oaks‘s predecessors-in-title,
however. To the extent that River Oaks relies on the use of the ―area in dispute‖ prior to
2003, it relied upon Mr. Morris‘s and Ms. Vandercook‘s testimony regarding the
continuous use of the area in dispute, as Mr. Brown himself would not have had personal
knowledge of any use of the ―area in dispute‖ by the River Oaks property prior to that
time.

        As noted above, however, the evidence presented by these witnesses was
ambiguous at best. First, as previously discussed, throughout the trial court proceedings
the parties failed to effectively delineate between uses of the Bucse property outside the
sixteen-foot deeded easement and uses of the area that also included property to which
River Oaks had the right to use, such as its own property and the sixteen-foot deeded
easement. The testimony of the witnesses failed to clarify whether River Oaks‘s use of
the area behind the Shopping Strip routinely included unauthorized use of the Bucse
property. For example, although Ms. Vandercook testified that she observed continuous
use of the area in dispute for parking, trash removal, and truck deliveries, she was unable
to determine which portion of the Bucse property was actually used by the River Oaks
property for these purposes. Additionally, the only portion of Mr. Morris‘s testimony
referring to the River Oaks property was that the River Oaks tenants ―parked all around
wherever they needed to.‖ Thus, even if River Oaks did in fact use the ―area in dispute‖
for the requisite twenty-year period, the testimonial evidence in the record regarding
which portion of the Bucse property was actually used, as discussed supra, is equivocal at
best. Consequently, we cannot conclude that the evidence preponderates against the trial
                                             -9-
court‘s finding that River Oaks failed to show that they and their predecessors-in-title
continuously and adversely used the ―area in dispute‖ for the requisite twenty years by
clear and convincing evidence.

                                 Easement by Implication

       Appellants next take issue with the trial court‘s finding that an easement by
implication was not established. ―An easement by implication arises upon severance of a
single piece of land into separately owned parts as an inference of the intention of the
parties to the conveyance.‖ Cellco P’ship v. Shelby Cnty., 172 S.W.3d 574, 588–89
(Tenn. Ct. App. 2005) (quoting Barrett v. Hill, No. 01A01-9806-CV-00295, 1999 WL
802642, at *2 (Tenn. Ct. App. Oct. 7, 1999)). There are two types of easement by
implication: easement implied by prior use and easement created by necessity. Id. at *9.
―Both are implied, both arise from a conveyance, both hinge on a finding of necessity.‖
Id.

       From what we can discern, Appellants appear to be arguing that an easement by
implication is necessary. Appellants‘ brief contains very little argument regarding this
contention. Rather, their argument provides only that:

      [Appellants] also claim an easement by implication across the same area.
      [Appellants] are entitled to such an easement because the facts show that
      the same is reasonably necessary and essential for the beneficial enjoyment
      of their property. See Johnson v. Headrick, . . . 237 S.W.2d 567 ([Tenn.
      Ct. App.] 19[4]8). The [trial] court rejected this claim, holding that the
      [Appellants] could not establish an easement by implication because such
      an easement was incompatible with the 16[-]foot easement of record, citing
      Cole v. Dych, 535 S.W.2d 315 (Tenn. 1976). Cole, however, does not
      appear to support this holding.

We agree with Appellants that the Tennessee Supreme Court‘s decision in Cole is
inapposite to the easement at issue here. As Appellants‘ argument above makes clear,
they claim an easement by implication and indicate that such an easement is appropriate
because their use of the Bucse property is reasonably necessary to the use and enjoyment
of their own property. In Cole, however, the Tennessee Supreme Court expressly stated
that the claimed easement in that case did not ―deal with a way of necessity or easement
by implication.‖ Cole, 535 S.W.2d at 318. Rather, the Tennessee Supreme Court held that
the easement at issue in that case was ―acquired by dedication.‖ Id. Still, regardless of
the trial court‘s improper reliance on Cole, we conclude that the trial court correctly
declined to find an easement by implication in this case.

      In order to prevail on a claim of easement by implication, the following elements
must be shown:
                                          - 10 -
      (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. Another essential is
      sometimes added to these—namely, that the servitude be continuous, as
      distinguished from temporary or occasional.

Cellco P’ship., 172 S.W.3d at 589 (quoting Johnson, 237 S.W.2d at 570 (citations
omitted)). ―‗An implied easement . . . should only arise where it is of such necessity that
we may presume it was within the contemplation of the parties to a conveyance.‘‖ Id. at
589 (quoting The Pointe, LLC v. Lake Mgmt. Ass’n, Inc., 50 S.W.3d 471, 478 (Tenn.
Ct. App. 2000)). Unlike a prescriptive easement, the elements of an easement by
implication need only be proved by a preponderance of the evidence. See Newman v.
Woodard, 288 S.W.3d 862, 866 (Tenn. Ct. App. 2008). Here, at least one essential
element is lacking: the necessity of the easement.

       As noted above, Appellants‘ brief simply fails to address how an extension of the
sixteen-foot deeded easement would be ―necessary and essential for the beneficial
enjoyment of their property.‖ Indeed, upon our review of the record, it is undisputed that
Appellants have both the ability to access the front of their property from West Main
Street and the ability to access the rear of their property via Candy Lane while staying
entirely within the sixteen-foot deeded easement. See Cellco P’ship., 172 S.W.3d at 589
(holding that an implied easement only arises where its use is necessary). We therefore
conclude that the evidence does not preponderate against the trial court‘s finding that no
easement by implication was established.

                                      CONCLUSION

       Based on the foregoing, the judgment of the Sumner County Chancery Court is
affirmed, and this cause is remanded to the trial court for all further proceedings as are
necessary and consistent with this Opinion. Costs of this appeal are taxed to Appellants,
The River Oaks, GP and Ray Morris, and their surety, for which execution may issue if
necessary.


                                                   _________________________________
                                                   J. STEVEN STAFFORD, JUDGE




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