                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   August 8, 2008 Session

                 ERVIN D. SMITH, ET AL. v. PAUL EVANS, ET AL.

                Appeal from the Chancery Court for Montgomery County
              No. MC-CH-CV-MG-07-1      Laurence M. McMillan, Jr., Judge



                   No. M2007-02855-COA-R3-CV - Filed August 27, 2008


Owners of property brought suit to terminate an ingress/egress easement across their land,
contending that the necessity for the easement no longer existed. Following a trial, the Chancery
Court ruled against the owners, finding that since the easement was reserved in a recorded plat, it
was not an easement by necessity; consequently, the easement was not destroyed upon the sale of
the dominant estate. On appeal, the owners maintain that the easement was destroyed at the end of
the necessity. Finding the easement to be express, we affirm the decision of the Chancery Court.
Finding the appeal not to be frivolous, no attorney’s fees are awarded.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR., and
ANDY D. BENNETT , JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellants, Ervin D. Smith and Donna Smith.

Joe Weyant, Clarksville, Tennessee, for the Appellees, Paul Evans and Danielle Evans.

                                            OPINION

        Prior to 1992, the Donald C. Cook Construction Co., Inc. owned a large plot of land located
in Montgomery County. In December 1992, Donald Cook, as president of the company, received
approval of a plat which divided up part of the property into tracts varying from 1.5 to 2.19 acres,
all fronting on the east and west sides of Sawmill Road; the lots were made available for sale. Mr.
Cook retained ownership of a 14.2 acre tract of land immediately behind the lots which fronted on
the west side of Sawmill Road (the “Cook Property”). To ensure access to the Cook Property, he
reserved a 20 foot ingress/egress easement over lot 5 of the subdivision; this easement was included
in the recorded plat and allows access to Sawmill Road.1

       In May 1994, Ervin and Donna Smith (“the Smiths”) purchased lot 5. At the time of the
purchase, they were aware of the easement even though it was not mentioned in their deed. In
addition, their deed expressly provided that the conveyance was subject to the “terms, matters and
conditions” as shown on the recorded subdivision plat. Paul and Danielle Evans (“the Evanses”)
owned property which adjoined the western side of the Cook Property and which fronted on Chester
Harris Road; their homeplace was located on this property. The Cook Property lay between the
Smiths’ property and the Evanses’ property. In October 2000 the Evanses purchased the Cook
Property; as a result of their purchase, access from the Cook Property to Chester Harris Road was
now available across the Evanses’ homeplace lot.

          In February 2007, the Smiths filed suit in Chancery Court for Montgomery County seeking
to terminate the easement over their property, asserting it was an easement by necessity which was
extinguished when the Evanses purchased the Cook Property. The Evanses contended that the
easement was express in the plat and thus was not terminated by the end of the necessity. Following
a trial, the Chancery Court found that the easement continued to exist. This appeal followed.

                                          STANDARD OF REVIEW

        Both parties agree as to the facts of this case; consequently, the appeal concerns a question
of law. The standard of review on appeal of a question of law is “de novo without a presumption
of correctness afforded to the lower court’s conclusions of law.” Blair v. Brownson, 197 S.W.3d
681, 683 (Tenn. 2006); Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn. 2003).

                                                    ANALYSIS

I. The Nature of the Easement

        An easement is “an interest in property that confers on its holder a legally enforceable right
to use another’s property for a specific purpose.” Hall v. Pippin, 984 S.W.2d 617, 620 (Tenn. Ct.
App. 1998); see also Fowler v. Wilbanks, 48 S.W.3d 738, 740 (Tenn. Ct. App. 2000); Pevear v.
Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). Such an interest in land can be created in a
number of ways; the methods applicable to the present case are (1) by express grant, (2) by
implication, and (3) by reservation. Pevear, 924 S.W.2d, at 115.




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            W ithout reserving the easement, the 14.2 acre parcel would have been landlocked from public access roads
by the tracts created in the plat to the east and by pre-existing tracts of land to the west (none of which were owned by
Mr. Cook). The parties agree that, at the time the plat was created, the easement was necessary to ensure access between
the Cook Property and Sawmill Road.

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        An express easement is a grant of an interest in land which must comply with the
requirements of the statute of frauds at Tenn. Code Ann. § 29-2-101. Cellco P’ship v. Shelby
County, 172 S.W.3d 574, 593 (Tenn. Ct. App. 2005); Mitchell v. Chance, 149 S.W.3d 40, 47 (Tenn.
Ct. App. 2004); Nunnelly v. Southern Iron Co., 29 S.W. 361, 365-66 (Tenn. 1895). “To create an
easement by express grant, there must be a writing containing plain and direct language evincing the
grantor’s intent to create a right in the nature of an easement rather than a license.” 25 Am. Jur. 2d
Easements and Licenses § 15 (2008); Adcock v. Witcher, 1995 WL 675852 at *2 (Tenn. Ct. App.
Nov. 15, 1995). “The scope of such an easement is set forth in express terms, either in the granting
documents or as matter of incorporation and legal construction of terms of relevant documents...”
25 Am. Jur. 2d Easements and Licenses § 15. An easement reserved in a recorded plat is sufficient
to constitute an express easement. Moore v. Queener, 464 S.W.2d 296, 302 (Tenn. Ct. App. 1970);
see also Jacoway v. Palmer, 753 S.W.2d 675 (Tenn. Ct. App. 1987); Smith v. Black, 547 S.W.2d 947
(Tenn. Ct. App. 1976).

        An easement by implication is an easement that will “arise upon severance of a single piece
of land into separately owned parts as an inference of an intention of the parties to the conveyance.”
Cellco P’ship, 172 S.W.3d at 588-89 (citing Barrett v. Hill, 1999 WL 802642 *2 (Tenn. Ct. App.
Oct 7, 1999)); see also LaRue v. Greene County Bank, 166 S.W.2d 1044, 1048 (Tenn. 1942). “A
common law way of necessity is a type of easement by implication and ‘rests on the implication that
the parties intended and agreed to provide for such a way.’” Cellco P’ship, 172 S.W.3d at 591
(citing Gowan v. Crawford, 599 So.2d 619, 621 (Ala. 1992)) (emphasis added). The implied
easement arises “where it is of such necessity that we may presume it was within the contemplation
of the parties to the conveyance.” Fowler, 48 S.W.3d at 740; The Pointe, LLC v. Lake Mgmt Ass’n,
Inc., 50 S.W.3d 471, 478 (Tenn. Ct. App. 2000). To create an easement by necessity, a party must
show that:

       (1) the titles to the two tracts in question must have been held by one person; (2) the
       unity of title must have been severed by a conveyance of one of the tracts; (3) the
       easement must be necessary in order for the owner of the dominant tenement to use
       his land with the necessity existing both at the time of the severance of title and the
       time of exercise of the easement.

Cellco P’Ship, 172 S.W.3d at 592 (citing Powell v. Miller, 785 S.W.2d 37, 39 (Ark. 1990)).

        An easement by reservation is “in behalf of the grantor [of] a new right issuing out of the
thing granted, and an easement appurtenant to the grantor’s remaining land may be created by
reservation.” 25 Am. Jur. 2d. Easements and Licenses § 16 (2008). Even though an easement by
reservation is a separate type of easement, it can still be sub-categorized as being either express or
implied. Id.; LaRue, 166 S.W.2d at 1048-49; Johnson v. Headrick, 237 S.W.2d 567, 569-70 (Tenn.
Ct. App. 1949). An implied easement by reservation is created over one parcel of subdivided land
“where, during the unity of title, an apparently permanent and obvious servitude is imposed on one
part of an estate in favor of another part, which servitude, at the time of the severance, is in use and
is reasonably necessary for the fair enjoyment of the other part of the estate...” Johnson, 237 S.W.2d


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at 569-70 (citing 17 Am. Jur. Easements pp. 945, 946). Thus, an implied easement by reservation
requires no writing; just a servitude which is apparent in light of the existing circumstances. LaRue,
166 S.W.2d at 1049. An express easement by reservation “arises when a property owner conveys
part of his or her property to another, but includes language in the conveyance reserving the right
to use some part of the transferred land as a right-of-way.” 25 Am. Jur. 2d. Easements and Licenses
§ 16 (2008) (emphasis added). Any reservation of an easement “is equivalent, for the purpose of
creation of the easement, to an express grant of the easement by the grantee of the lands.” Id.

        When an easement can be either express or implied, a court should find the easement to be
express. “Easements by implications...are exceptions to the general rule that easements must be
created by either an express grant or by prescription.” Cellco P’ship, supra at 589 (citing Barrett,
1999 WL 802642 at *2); see also Cole v. Dych, 535 S.W.2d 315, 318 (Tenn. 1976). The court in
Cellco P’ship held that, where a deed did not expressly grant an easement, the Court must resort to
alternative theories to determine “whether an easement was nevertheless created.” Id. at 588. The
alternative theories referred to were easements by implication. Id. Thus, a court should consider an
easement by implication only if it has determined that there is no express easement.

        The Smiths argue that the substance of the easement should win out over its form and, as it
was born of necessity, the fact that it was reserved in a recorded plat does not make it an express
easement. While they are correct that the intent of the parties is relevant in determining whether an
easement by implication arose, see Cellco P’ship, 172 S.W.3d at 588-89, an express easement will
be found if its creation is in the proper form; the intent behind the creation is not a determining
factor. See Moore v. Queener, supra.

       The Chancellor found that Mr. Cook’s intent in creating the easement was to connect the
landlocked 14.2 acre tract to Sawmill Road and that the easement over lot 5 was reserved by
recording it in the original plat. Because Mr. Cook, as grantor, retained an interest over the land that
he granted (lot 5), an easement arose by reservation. Furthermore, Mr. Cook expressly reserved the
easement when he included it in the subdivision drawing and language of the recorded plat. All the
requirements of an express easement were met.

II. The Termination of the Easement

      We must next determine whether the easement was destroyed when the Evanses bought the
Cook Property or in any other fashion. There are a number of ways to end an express easement;
however, there is no evidence that any action was taken to terminate the easement in this case.

        The Smiths contend that an express easement created out of a necessity should terminate at
the elimination of such necessity, i.e., when the Evanses bought the Cook Property, thereby ending
the necessity for access to Sawmill Road. This is contrary to the law of Tennessee. In Smith v.
Adkinson, 622 S.W.2d 545 (Tenn. Ct. App. 1981), the plaintiffs sought to enforce their rights to use
a road between their property and property of the defendants. The defendants claimed that, at most,
plaintiffs had an easement of necessity; they sought to have the easement extinguished because


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plaintiffs had acquired other property giving them access to the same road at issue. On appeal, this
court cited with approval “the rule that the easement ceases with the necessity has no application
to...an express easement.” Id. at 547 (citing 28 C.J.S. Easements § 54 (1941)). This is the same
situation as in the present case.

       An easement by express grant can be extinguished:

       by an act of the dominant owner, either by release or abandonment, by act of the
       servient owner by prescription or conveyance to a bona fide purchaser without notice,
       by the conduct of both parties, such as by merger or estoppel, or by eminent domain,
       mortgage, foreclosure, or tax sale.

25 Am. Jur. 2d Easements and Licenses § 95. An easement “created by reference to a filed map can
be extinguished only by the united action of all lot owners for whose benefit the easement is
created...” 28A C.J.S. Easements § 140 (2008). No such measures were taken in this case; indeed,
the deed conveying the Cook Property to the Evanses includes the following language: “Included in
the herein conveyance is a 20 foot easement for purpose of ingress and egress over the southern most
portion of Lot 5...from the easterly boundary of the herein described tract to the westerly margin of
the right-of-way of Sawmill Road, so-called.” The easement was not terminated when the Evanses
bought the Cook Property.

III. Attorneys Fees For The Appeal

        The Evanses ask this Court to award attorney’s fees based upon what they contend to be a
frivolous appeal. We do not find the appeal to be frivolous and, consequently, deny the request.

       The remedy for a frivolous appeal is provided in Tenn. Code Ann. § 27-1-122, which states:

       [w]hen it appears to any reviewing court that the appeal from any court of record was
       frivolous or taken solely for delay, the court may, either upon motion of a party or of
       its own motion, award just damages against the appellant, which may include but
       need not be limited to, costs, interest on judgement and expenses incurred by the
       appellee as a result of the appeal.

This statute “must be interpreted and applied strictly so as not to discourage legitimate appeals...”
Davis v. Gulf Ins. Group, 546 S.W.2d 583 at 586 (Tenn. 1997). The Smiths are not asking for any
fundamental changes to existing law; rather, they seek a different interpretation or application of the
law of easements. Simply because this Court agrees with the lower court’s decision does not make
the appeal frivolous.

                                          CONCLUSION




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       For the reasons set forth above, the decision of the Chancery Court finding of an express
easement is AFFIRMED. Costs are assessed against the Smiths, for which execution may issue if
necessary.



                                                    ___________________________________
                                                    RICHARD H. DINKINS, JUDGE




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