JAMES FLETCHER and                        )
RONALD LANIER FLETCHER,                   )
                                          )
      Plaintiffs/Appellees,               )
                                          )    Appeal No.
                                          )    01-A-01-9606-CH-00252
VS.                                       )
                                          )    Coffee Chancery
                                          )    No. 95-17
KENNETH STERLIN VASSER,                   )

      Defendant/Appellant.
                                          )
                                          )                       FILED
                                                                   February 5, 1997
                     COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE
                                                                  Cecil W. Crowson
                                                                 Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF COFFEE COUNTY
AT MANCHESTER, TENNESSEE

THE HONORABLE GERALD L. EWELL, SR., JUDGE




JOHN B. INGLESON
3017 Poston Avenue
Nashville, Tennessee 37203
      Attorney for Plaintiffs/Appellees

J. STANLEY ROGERS
ROGERS, RICHARDSON & DUNCAN
100 North Spring Street
Manchester, Tennessee 37355
      Attorney for Defendant/Appellant




                          AFFIRMED AND REMANDED




                                          BEN H. CANTRELL, JUDGE



CONCUR:
TODD, P.J., M.S.
LEWIS, J.
                                OPINION


             The holder of an easement across his neighbor’s property sought to

replace two gates with cattle guards. The Chancery Court of Coffee County denied

the request. We affirm.



                                         I.



             The contending parties are first cousins. Mr. Vasser owns a 112 acre

tract of land lying east of the farms of James Fletcher and Ronald Lanier Fletcher in

the Beech Grove area of Coffee County. Mr. Vasser gains access to his property by

way of a twelve foot easement across the two tracts owned by the plaintiffs. The

easement was established in a 1959 deed.



             There are two gates across the easement. One is located at a point

near the public road at the boundary between the lands of James and Ronald Lanier

Fletcher, and the other is located at the approximate mid point of the easement where

James Fletcher has a cross fence on his property. Apparently the gates have been

in existence for as long as the easement has.



             Mr. Vasser bought his property from the other members of his family

approximately two years before the trial below. He raises cattle and hay on the

property and is restoring his parents’ old home. Although he works in Murfreesboro,

he uses the easement frequently, from one time to several times a day.



             The Fletchers sued Mr. Vasser to require him to close the gates when

he uses the easement. He counter-claimed for the right to replace the gates with

cattle guards so that he would not have to open and shut the gates each time he goes



                                        -2-
in or out over the easement. The Chancery Court of Coffee County denied the relief

sought by Mr. Vasser.



                                          II.



              We start with the general proposition that gates may be installed across

an easement in the absence of a provision to the contrary. Luster v. Garner, 128

Tenn. 160, 159 S.W. 604 (1913); Long v. Garrison, 1 Tenn. App. 211 (1925). In Mize

v. Ownby, 189 Tenn. 207, 225 S.W.2d 33 (1949) our Supreme Court affirmed a lower

court’s decision allowing the owner of an easement to replace the gates with cattle

guards. The question, then, is under what circumstances may the owner of the

easement insist on installing cattle guards instead of gates.



              In Mize the Supreme Court recognized the right where the owner of the

easement agreed to install the guards at his own expense and to pay for any injuries

to the cattle held behind the fence. He also agreed that if the guards did not work he

would take them up and restore the gates.



              While Mr. Vasser did agree to install the cattle guards at his own

expense, we fail to find in the record any agreement on his part to pay for any cattle

that may be injured trying to cross the guards or to restore the gates if the guards did

not work.



              There is also an element of uncertainty about whether cattle guards

would work under the circumstances present in this case. The field that would be

enclosed by the cattle guards is used by James Fletcher to hold young calves that he

is weaning from their mothers. In his opinion at least, the cattle guards would not

deter the calves or other cattle from trying to cross. He testified that he knew of

instances where cattle had broken their legs trying to cross cattle guards. The only


                                         -3-
contrary evidence came from Mr. Vasser who said without objection that the

manufacturer of the guards told him that they had not had any trouble with them. We

think it would be impossible to conclude from this record that the use of the cattle

guards would be appropriate.



             Therefore, the decision of the court below is affirmed and the cause is

remanded to the Chancery Court of Coffee County for any further proceedings that

may become necessary. Tax the costs on appeal to the appellant.




                                         ________________________________
                                         BEN H. CANTRELL, JUDGE




CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_______________________________
SAMUEL L. LEWIS, JUDGE




                                        -4-
                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE




JAMES FLETCHER and                         )
RONALD LANIER FLETCHER,                    )
                                           )      Appeal No.
       Plaintiffs/Appellees,               )      01-A-01-9606-CH-00252
                                           )
                                           )      Coffee Chancery
VS.                                        )      No. 95-17
                                           )
                                           )      Affirmed
KENNETH STERLIN VASSER,                    )      and
                                           )      Remanded
       Defendant/Appellant.                )


                                 JUDGMENT


              This cause came on to be heard upon the record on appeal from the

Chancery Court of Coffee County, briefs and argument of counsel; upon consideration

whereof, this Court is of the opinion that in the decree of the Chancellor there is no

reversible error.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree be affirmed. The cause is

remanded to the Chancery Court of Coffee County for the enforcement of the decree

and for the collection of the costs accrued below.

              Costs of this appeal are taxed against Kenneth Sterlin Vasser, Principal,

and Rogers, Richardson, and Duncan, Surety, for which execution may issue if

necessary.

              ENTER _______________________.



                                           _________________________________
                                           HENRY F. TODD, PRESIDING JUDGE
                                           MIDDLE SECTION

                                           _________________________________
                                           SAMUEL L. LEWIS, JUDGE

                                           _________________________________
                                           BEN H. CANTRELL, JUDGE
