                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 19, 2013 Session

   JOHN SHELL and CONNIE SHELL v. SHERRI COLE WILLIAMS v.
                        RICK SHELL

             Direct Appeal from the Circuit Court for Rutherford County
                         No. 62598     Royce Taylor, Judge


                No. M2013-00711-COA-R3-CV - Filed January 14, 2014


The issues in this case involve the proper use and alleged interference with an easement
created by express grant. The trial court concluded that the holders of the easement could use
the easement for recreational purposes and that the servient landowner had interfered with
the use of the easement by planting trees and placing boulders within the easement. We
reverse and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Brad W. Hornsby and Heather G. Parker, Murfreesboro, Tennessee, for the appellant, Sherri
Cole Williams.

Mathew R. Zenner and Malcolm L. McCune, Brentwood, Tennessee, for the appellees, John
Shell and Connie Shell.

                                         OPINION

                                        Background

       This appeal involves a dispute over the use of an easement. The land containing the
easement was originally an undivided parcel. The land was later subdivided into eight
separate parcels, two parcels wide and four parcels deep. It is undisputed that the back six
parcels have no road access. It is also undisputed that the parcels are subject to an easement
that allows the back parcels access to the road. The language of the original deeds
subdividing the land provides for an easement that is “40 feet in width and located across the
south lines of lots Nos. 1,3,5, and 7 and the other one-half across the north lines of lots Nos.
2, 4, 6, and 8. It is understood that this right of way is for the use of all said lots, and shall
pass with all conveyances of any of the same.” Sometime after the easement was created, a
narrow gravel driveway was added to the easement. The driveway does not span the entire
forty-foot width of the easement.

        Petitioners/Appellees John Shell and Connie Shell (“the Shells”) own a back parcel
of the subdivided land. Along with Third Party Defendant/Appellee Rick Shell (collectively,
“Appellees”), the Appellees own the two parcels farthest from the road.
Respondent/Appellant Sherri Cole (now Williams)1 owns a parcel closer to the road than the
Appellees (Ms. Cole’s property is directly in front of Rick Shell’s parcel). Thus, twenty feet
of the easement’s width is on Ms. Cole’s property.

        Sometime after acquiring her parcel, Ms. Cole planted trees and placed boulders 2 on
her property within the easement. The trees and boulders did not impair use of the gravel
driveway. However, the Shells contended that the trees and boulders impeded their ability
to use the easement for recreational purposes, including riding horses and driving all-terrain
vehicles.

        On April 29, 2011, the Shells filed a Petition for a Declaratory Judgment and for Other
Relief, arguing that the boulders and trees impaired the use of the easement. Specifically, the
Shells asked that the trial court enter a Declaratory Judgment “decreeing that [Ms. Cole] has
wrongfully interfered with [the Shell’s] peaceful use of their right of way.” 3 The Shells


        1
          The Appellant changed her name to add the additional surname of Williams during the pendency
of this case. Throughout the proceedings in the trial court, both the parties, and the trial court in its order,
refer to the Appellant as Ms. Cole. For purposes of clarity, we will continue to refer to the Appellant as Ms.
Cole.
        2
          In the trial court, Ms. Cole disputed that the alleged obstructions were, in fact, boulders. Instead,
Ms. Cole characterized the alleged obstructions as “small rocks.” The trial court, however, found that the
alleged obstructions were “boulders.” Although Ms. Cole argues that the trial court erred in finding that the
boulders actually obstructed any legitimate use of the easement, she does not appear to argue that the trial
court erred in finding that the alleged obstructions were, in fact, boulders. We will, therefore, refer to the
alleged obstructions as boulders for purposes of this appeal.
        3
          The Shells also raised an allegation that Ms. Cole in moving significant boulders from her property,
had caused run-off flooding on the Shells’ property. The Shells appear to have abandoned this claim,
however. The trial court did not grant the Shells any relief regarding this allegation in its final order. The
parties also later entered an agreed order dismissing all remaining issues. Thus, this allegation is not at issue
                                                                                                 (continued...)

                                                      -2-
sought a Declaratory Judgment, damages, and attorney’s fees as a result of the alleged
interference.

        Ms. Cole filed an Answer and Counter-Complaint, denying that she had interfered
with any legitimate use of the easement. Specifically, Ms. Cole requested that the trial court
enter a Declaratory Judgment that “any ingress, egress, and other recreational activities need
to take place on the gravel driveway contained within the easement that has been in existence
for many years and can surely meet the needs of [the Shells] and any other individual.” At
Ms. Cole’s request, Rick Shell, who owns the other back parcel of the subdivided land, was
also included in the lawsuit as a third-party defendant.

       Later, on July 27, 2012, Ms. Cole filed a Motion to Amend the Pleadings to add an
additional Counter-Claim.4 The Counter-Claim alleged that Ms. Cole held an easement on
the Appellees’ property and that the Appellees had interfered with her use and enjoyment of
that easement. The Appellees did not oppose the Motion to Amend, and the trial court
granted Ms. Cole’s request on September 12, 2012.

         The trial court held a hearing on September 24, 2012, at which time the parties
submitted the case to the trial court on the pleadings, pretrial briefs, arguments of counsel,
stipulations, and exhibits. The exhibits included the original deeds subdividing the property,
a prior survey of the property, photographs of the easement, and photographs of individuals
riding horses within the easement, between the boulders and the trees placed by Ms. Cole.
The trial court entered a Memorandum Opinion on October 31, 2012 containing detailed and
thorough findings of fact and conclusions of law. The trial court found that “it is reasonable
that all parties could use the easement for extracurricular activities, including walking, riding
horses, and all terrain vehicles.” The Court further found that by placing the trees and
boulders in the easement, Ms. Cole had interfered with the Appellees’ use and enjoyment of

        3
          (...continued)
in this appeal.
        4
            By way of edification, an “amended” complaint and an “amendment to” a complaint are two
different things. An “amended complaint” is complete in itself without adoption or reference to original; as
such, it supersedes and destroys the original complaint as a pleading. McBurney v. Aldrich, 816 S.W.2d 30
(Tenn. Ct. App.1991). An “amendment to” a complaint merely modifies the existing complaint, which
remains before the trial court as modified. Id. In this case, although Ms. Cole’s pleading does not specifically
say that it serves as an amendment to her original counter-complaint, we perceive Ms. Cole’s intention was
not to supplant her earlier pleading with an amended complaint. See Dobbs v. Guenther, 846 S.W.2d 270,
273 (Tenn. Ct. App.1992) (noting that we look to the substance of a pleading, rather than its form, to
determine the filer’s intent). Rather, Ms. Cole merely intended the intercalation of this additional claim
among her previous claims. Thus, the original allegations in Ms. Cole’s Answer and Counter-Complaint
remain intact.

                                                      -3-
the property. The trial court therefore ruled that the Appellees had the right to the remove the
obstructions. Specifically, the trial court’s order states:

                      The parties have stipulated to the following undisputed
              facts. The lots in question were originally owned undivided by
              Mrs. Emma Victory Neely. When the property was later divided
              into eight lots, only lots 1 and 2 had access to Lamar Road. The
              remaining six lots do not have access to a roadway and,
              therefore, an easement was created and granted in the deed
              transferring ownership of each lot. The lots are stacked in four
              rows of two lots, with the easement being down the middle
              between the two columns. The [Shells] own lot number 8, while
              the third party defendant Rick Shell owns lot number 7, with
              these lots being in the top row [i.e, furthest from Lamar Road].
              Lot number 5 is owned by respondent Ms. Cole and is situated
              directly under lot number 7.
                      The original grant of lots 4 and 7 contained in Book 202,
              Page 404 or the Register of Deeds Office for Rutherford
              County, Tennessee, contains the following language granting an
              easement:

                              IT IS UNDERSTOOD AND AGREED
                      that there is hereby granted an easement or right
                      of way leading from the southeast corner of Tract
                      #7 of the above mentioned survey in a westward
                      direction through the entire tract owned by
                      grantor. This easement is 40 feet in width, and
                      located so that one-half thereof is located across
                      the south lines of lots Nos. 1, 3, 5, 7 and the other
                      one-half across the north lines of lots Nos. 2, 4,6,
                      and 8. It is understood that this right-of-way is for
                      the use of all said lots, and shall pass with all
                      conveyances of any of the same.

                                           *   *     *

              The parties in this case agree the easement is used for ingress
              and egress.

                                           *   *     *

                                               -4-
                        In this case, there has been no limitation or restrictions of
                the uses in any of the deeds. The parties all own large lots of real
                property, consisting of approximately 2 acres each, wherein
                horses and other pets reside and therefore, it is reasonable that
                all parties could use the easement for extracurricular activities,
                including walking riding horses and all terrain vehicles.
                However, the activities must take place within the forty (40) feet
                of the easement and not cause damage to the land outside the
                easement. . . . [Ms. Cole] shall not interfere with the Shells[’]
                enjoyment of the easement, including scaring horses and
                otherwise harassing them, as long as they remain within the
                boundary of the easement.

                                                *   *     *

                         [T]his Court finds the easement is not limited to ingress
                and egress of automobiles, as claimed by the respondent.
                Further, the right of way is not limited to the gravel road; it
                consists of the entire forty (40) feet originally granted. The trees
                and boulders are not necessary to the enjoyment of her property
                . . . . By planting trees and boulders within the easement, the
                respondent has interfered with the other landowners[’] use and
                enjoyment of the easement. [The Shells] have the right to
                remove trees, boulders or other obstacles within the easement
                which interfere with their use of the easement.

The trial court also denied Ms. Cole’s Counter-Claim regarding the Appellees alleged
interference with her right to use the easement on their property.5

       Ms. Cole filed a Motion to Alter or Amend the trial court’s judgement, alleging that
the easement was solely for ingress and egress use, and therefore, the use of the easement
was not impaired by the obstructions. The trial court denied the Motion by order of January
7, 2013. Ms. Cole also filed a Motion to Stay the Judgment pending appeal. An agreed order
was later entered on February 5, 2012; the order disposed of all remaining issues, stating:
“[t]he parties have agreed to mutually dismiss with prejudice all remaining issues outside of
those encompassed in the October 31, 2012 Memorandum and Order.” Accordingly, no stay


        5
          On appeal, Ms. Cole does not take issue with the trial court’s decision to deny her Counter-Claim
for interference against the Appellees.

                                                    -5-
on the judgment was ever entered and Ms. Cole then initiated this appeal.

                                      Issues Presented

Ms. Cole raises the following issues on appeal:

              1.     Whether the trial court erred in failing to limit the
                     easement to the purpose for which it was created,
                     specifically for ingress or egress only.
              2.     Whether the trial court erred in finding that the
                     decorative trees and rocks interfered with the Appellees’
                     reasonable use of the easement.
              3.     Whether the trial court erred in ruling that the Appellees
                     could unilaterally determine what objects were
                     “obstacles” and thereafter forcibly remove said
                     “obstacles” from Ms. Cole’s property.

                                    Standard of Review

       This case was decided by the trial court, 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)).

        As an initial matter, we note that our review in this case is somewhat hampered by the
paucity of evidence in the record. As previously discussed, the parties submitted this case to
the trial court on the record without the benefit of any testimony, live or otherwise. In
addition, the trial court noted that the case was being decided on the “pleadings, pretrial
briefs, relevant law and hearing stipulations and arguments of counsel.” However, neither
the pretrial briefs, nor any stipulations are included in the record. In addition, the record
contains no transcript evidencing the arguments of counsel. Thus, we turn to consider the
issues presented in this case keeping these limitations in mind.

                                            Analysis

                         I. Extent and Purpose of the Easement

       Ms. Cole first argues that the trial court erred in finding that the Shell’s recreational

                                              -6-
use of the easement was reasonable. Specifically, Ms. Cole asks this Court to limit the use
of the easement to the purpose for which it was created—ingress and egress. The Appellees,
however, argue that to place such a limitation on the use of the easement would be to
judicially reform the easement.

        The issues in this case involve the interpretation and use of an 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: (1) by express grant, (2) by implication, and (3) by reservation. Pevear, 924
S.W.2d, at 115.

        The easement in this case is undisputedly an express easement. “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.” Smith v. Evans, No. M2007-02855-COA-R3-CV,
2008 WL 3983117, at *2 (Tenn. Ct. App. Aug. 27, 2008) (citing 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.” Smith v. Evans, 2008 WL 3983117, at *2 (citing 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 . . . [.]” Smith v. Evans, 2008 WL 3983117, at *2 (citing 25
Am.Jur.2d Easements and Licenses § 15).

        “In the construction of instruments creating easements, it is the duty of the court to
ascertain and give effect to the intention of the parties.” Burchfiel v. Gatlinburg Airport
Authority, No. E2005-02023-COA-R3-CV, 2006 WL 3421282, at *3 (Tenn. Ct. App. 2006)
(citing 28A C.J.S. Easements § 57 (1996)). The intention of the parties with regard to the
purpose and scope of an easement conveyed by express grant is determined by the language
of the deed. See Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn.1939) (“If the easement is
claimed under a grant, the extent of the easement is determined by the language of the
grant.”). “[T]he easement holder's use of the easement must be confined to the purpose stated
in the grant of the easement.” Columbia Gulf Transmission Co. v. The Governors Club
Prop. Owners Ass'n, No. M2005-01193-COA-R3-CV, 2006 WL 2449909, at *3 (Tenn. Ct.
App. Aug. 21, 2006).



                                                -7-
        The Appellees, like the trial court, rely on the Tennessee Court of Appeals Opinion
in Cellco Partnership v. Shelby County, 172 S.W.3d 574 (Tenn. Ct. App. 2005). The
situation in Cellco Partnership involved the issue of whether an easement holder could
assign its right to the use of an easement to a third-party. In determining that an assignment
was appropriate in that particular case, the Court noted that:

              While a private way may not be used by the public generally or
              by any one having no better right than the general public, the
              owner of such a way is not limited to its use by himself, but it
              may be used by his family, by pets, by tenants occupying the
              land with his authority, by his servants, agents, or employees in
              conducting his business, by persons transacting business with
              him, or by guests for social purposes, except in cases where the
              right of way is created by express agreement and the user is
              restricted by the terms of the agreement.

Cellco P’ship, 172 S.W.3d at 597 (citing 28A C.J.S. Easements § 164 (1996)). The trial court
in this case relied on the above language in holding that the Appellees’ recreational use of
the easement is appropriate because there is no express restriction on the use of the easement
and the use does not unduly interfere with or burden Ms. Cole’s reasonable enjoyment of her
property.

       In Cellco Partnership, the Court of Appeals concluded that because nothing in the
specific language of the easement grant stated that the easement was non-exclusive to the
original holder, the right to use the easement could be assigned to a third-party. Cellco
P’ship, 172 S.W.3d at 598. The issue in Cellco Partnership was not, as here, whether an
easement that states no express purpose is limited to the purpose for which it was created.
Indeed, the Court of Appeals further concluded that the third party’s use of the easement was
limited to using the easement “within the purposes for which the easement was created.” Id.
(citing Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)). Thus, any
family, pets, tenants, employees, agents, or guests that are permitted to use a dominant
landowner’s easement are still limited to use that comports with the purpose for which the
easement was created. Because there was no dispute as to the purpose of the easement in
Cellco Partnership, the Court was not required to determine the appropriate uses of the
easement. The narrow holding in Cellco Partnership regarding the use of an easement by a
third-party is, therefore, inapposite to the question presented in this case.

       This Court’s Opinion in Burchfiel v. Gatlinburg Airport Authority, 2006 WL
3421282 (Tenn. Ct. App. 2006), presents a more analogous factual situation to the case-at-
bar. In Burchfiel, the plaintiffs, the servient landowners, filed a trespass action against the

                                              -8-
defendants for construction of a sign in an easement held by the defendants. The plaintiffs
argued that the construction of the sign was not an authorized use of the easement because
the easement was granted expressly for “ingress and egress” purposes. The defendants argued
that the construction of the sign was a reasonable extension of the use of their easement and
that it did not unduly burden the plaintiffs’ use of their property. The trial court granted relief
to the plaintiffs and the defendant appealed. The Court of Appeals affirmed the trial court’s
decision that the construction of a sign within the easement was not an authorized use of the
easement. The Court explained:

               “[T]he easement holder's use of the easement must be confined
               to the purpose stated in the grant of the easement.” Columbia
               Gulf Transmission Co. v. The Governors Club Prop. Owners
               Ass'n., No. M2005-01193-COA-R3-CV, 2006 WL 2449909, at
               *3 (Tenn. Ct. App. M.S., filed August 21, 2006). The case of
               Adams v. Winnett, 156 S.W.2d 353 (Tenn. Ct. App. 1941),
               provides the following additional guidance for determining
               whether an easement holder's use of an easement is proper:

                      “The use of an easement must be confined strictly
                      to the purposes for which it was granted or
                      reserved. A principle which underlines the use of
                      all easements is that the owner of an easement
                      cannot materially increase the burden of it upon
                      the servient estate or impose thereon a new and
                      additional burden.”

                                              ***

                      “It may be said in general that if an easement is
                      put to any use inconsistent with the purpose for
                      which it was granted, the grantee becomes a
                      trespasser to the extent of the unauthorized use.”

                                              ***

                      “Where [an] easement is not specifically defined,
                      it need be only such as is reasonably necessary
                      and convenient for [the] purpose for which it was
                      created.”



                                                -9-
 Burchfiel, 2006 WL 3421282, at *3 (quoting Adams, 156 S .W.2d at 57–58). Because the
easement in Burchfiel expressly stated that its purpose was for ingress and egress, the
construction of the sign was a “use inconsistent with the purpose for which [the easement]
was granted.” Id. The defendants argued that “the construction of the sign was an authorized
use of the right-of-way because the deed did not expressly prohibit the construction of such
a sign.” Essentially, the defendants argued that an “easement holder can use the easement in
any ‘reasonably related’ way, unless the deed expressly states that the easement holder cannot
use the easement in that way.” Burchfiel, 2006 WL 3421282, at *4. The Court of Appeals
rejected this argument, explaining:

              This argument is flawed. It erroneously assumes that the
              construction of the sign at issue is “reasonably related” to the
              defendants' use of the right-of-way. The construction of the sign
              in this case is not a reasonable use of an easement granted
              specifically for ingress and egress purposes.

 Id. Thus, the defendants were limited to using the easement solely for the purpose for which
it was created—ingress and egress.

        The Burchfiel defendants also argued that the construction of the sign was within
their rights as the holder of the dominant estate because there was no evidence that their use
of the easement had overburdened the plaintiff’s servient estate. Specifically, the defendants
argued that “there was no evidence that the sign interfered with the plaintiffs' use of the
property or that the sign “materially increased” the burden upon the plaintiffs' property.” Id.
at *5. The Court, likewise, rejected this argument:

              We hold that such findings with respect to the plaintiffs' use and
              burden are unnecessary. The construction of the sign exceeded
              the authorized uses of the right-of-way; thus, the [defendants]
              trespassed upon the plaintiffs' property in erecting the sign. See
              Adams, 156 S.W.2d at 357–58. The trial court, therefore, had
              the right to order the removal of the sign.

 Burchfiel, 2006 WL 3421282, at *5. The Court, accordingly, affirmed the trial court’s ruling
that the construction of the sign was a trespass onto the plaintiffs’ property, despite the fact
that the sign was undisputedly placed within the easement.

       We find the Burchfiel decision instructive in this case. Much like in Burchfiel, the
question in this case involves whether a use of an easement is authorized. Because the
construction of the sign did not comport with the purpose of the easement, the Court affirmed

                                              -10-
the trial court’s ruling that such use of the easement was an unauthorized trespass onto the
property of the servient estate. Although the purpose of the easement in Burchfiel was
expressly stated in the granting document, the purpose of the easement in this case is no less
clear. Indeed, according to the trial court, the parties agreed that the purpose of the easement
was for ingress and egress. The Appellees have not appealed from that finding. Further, the
lack of limiting language in a granting document does not, ipso facto, lead to a conclusion
that the easement may be used for any purpose that does not interfere with the servient
estate’s rights. Instead, as discussed in Burchfiel, “Where [an] easement is not specifically
defined, it need be only such as is reasonably necessary and convenient for [the] purpose for
which it was created.” Burchfiel, 2006 WL 3421282, at *3. Here, the easement contains no
specific language regarding its purpose. However, the parties agreement, as well as the
limited evidence in the record, support a finding that the easement was created in order to
provide the back parcels ingress and egress to Lamar Road.

        The Appellees , however, argue that Burchfiel is not analogous because the easement
at issue in Burchfiel contained express language limiting its use to ingress and egress.
Essentially, the Appellees argue that because the easement at issue does not contain an
express provision that the easement is limited to ingress and egress, they are not limited in
their use of the easement, “provided the reasonable use take place within the 40 feet of the
easement.” The Appellees argue that to place an ingress and egress limitation on the
Appellees ’ use of the easement would be to impermissibly “reform the deed language.” We
respectfully disagree. As discussed above, the right to use an easement is limited to that
which “is reasonably necessary and convenient for [the] purpose for which it was created,”
even if the easement’s purpose is not specifically defined in the granting document.
Burchfiel, 2006 WL 3421282, at *3. Further, this Court explained in Shew v. Bawgus, 227
S.W.3d 569 (Tenn. Ct. App. 2007) that the purpose of an easement is determined at an
easement’s creation. According to the Shew Court:

              [t]he range of permissible uses of any particular easement is in
              the first instance defined by the circumstances surrounding the
              creation of that easement; its use is limited to the purposes for
              which it was created.” 28A C.J.S. Easements § 159 (1996).

Id. at 576 (citing Cellco P’ship, 172 S.W.3d at 595) (emphasis added).Thus, in determining
whether the use of any easement is permissible, courts must consider the purpose for which
the easement was created, regardless of whether the purpose is stated or unstated.

       Having concluded that the easement at issue is limited to ingress and egress purposes,
we must conclude that the trial court erred in finding that the authorized use of the easement
included use for “recreational purposes.” Neither the trial court nor the Appellees

                                              -11-
specifically define what is meant by “recreational purposes,” but from the record, we glean
that such purposes include riding horses and all-terrain vehicles along the easement outside
the twenty-foot gravel driveway. We cannot, however, glean from the limited evidence in the
record the proposed frequency or extent of such “recreational” use of the property. Under
these circumstances, we conclude that because the purpose of easement is for ingress and
egress, recreational use of the easement that involves more than mere ingress and egress from
the road to the other parcels of land is not authorized.6

        The Appellees argue, however, that regardless of the purpose for which the easement
was created, nothing in the record supports a finding that their use of the easement interferes
with the use and enjoyment of Ms. Cole’s property, pointing to the trial court’s finding that
the “trees and boulders are not necessary to the enjoyment of [Ms. Cole’s] property.” Again,
we respectfully disagree. The Court in Burchfiel held that consideration of the burden placed
on the servient estate by an unauthorized use of an easement is immaterial. See Burchfiel,
2006 WL 3421282, at *6. Because the Appellees’ use is inconsistent with the purposes of the
easement at its creation, it is unauthorized. An unauthorized use is a trespass regardless of
the burden it places on the servient estate. Id. The trial court’s ruling that recreational use of
the easement is authorized is, therefore, reversed.

                                II. Interference with the Easement

        Next, Ms. Cole argues that the trial court erred in finding that the trees and boulders
within the easement obstructed the Appellees’ legitimate use of the easement. The Shells
filed this action seeking a Declaratory Judgment that the placement of the trees and boulders
interfere with their use of the easement. Ms. Cole argued, in contrast, that the Appellees were
limited to using the twenty-foot gravel road for ingress and egress, and that any obstructions
placed in the easement outside of the gravel roadway were immaterial.

       Just as the owners of the dominant estate have restrictions on their use of an easement,
see discussion above, so too do owners of the servient estate. As recently discussed by this
Court:

                [T]he owners of the land under and surrounding an easement
                also have restrictions on the use of their land:



        6
          Ms. Cole does not ask this Court to limit the Appellees’ ingress and egress by way of the easement
to mere foot passage or automobile passage. Thus, we decline to opine as to whether the Appellees may use
horses or all-terrain vehicles for purposes of ingress and egress to their property.


                                                   -12-
       The owner of the servient estate, while he may
       use his property in any manner consistent with the
       existence of the easement, . . . cannot make any
       alterations in his property by which the enjoyment
       of the easement will be materially interfered with.

28A C.J.S. Easements § 175 (1996).

       The owner of the servient estate has no legal right to
interfere with an easement holder's enjoyment and use of the
easement. Charles v. Latham, 2004 WL 1898261 (Tenn. Ct.
App. Aug. 25, 2004) (citing Cooper v. Polos, 898 S.W.2d 237,
242 (Tenn. Ct. App.1995)).

       Although the respective rights of the owners of
       the dominant and servient estates must be
       construed so as not to unreasonably interfere
       with each other, Miller v. State, 124 Tenn. 293,
       137 S .W. 760, 35 L.R.A.N.S., 407 (1910), the
       owner of the dominant easement has all the
       rights incident or necessary to proper
       enjoyment of the easement. 25 Am.Jur.2d
       Easements & Licenses §§ 72–75. The use of the
       servient estate must be consistent with that of the
       dominant estate. Brown v. Alabama Power Co.,
       275 Ala. 467, 156 So.2d 157 (1963).

U.S. ex rel. and for Use of Tennessee Val. Authority v.
Hughes, 408 F.2d 619, 621(6th Cir.1969) (emphasis added).

       In Tennessee, the rights of the owner of the easement are
paramount to those of the landowner, at least to the extent of the
easement. Cox v. East Tennessee Natural Gas Co., 136 S.W.3d
626, 627–28 (Tenn. Ct. App. 2003); Carroll v. Belcher, 1999
WL 58597, at *3. The owner of the servient estate cannot take
actions that unreasonably interfere with easement holder's rights
under the easement, including any alterations in the landowner's
property. Cox, 136 S.W.3d at 628 (citing Carroll v. Belcher,
1999 WL 58597, at *3).



                               -13-
Rogers v. Roach, 2012 WL 2337616, at *9 (Tenn. Ct. App. 2012).

       As an initial matter, we note that the Appellees have the burden to prove that the trees
and boulders were an impermissible interference with their legitimate use of the easement.
Indeed, in order to prevail on a claim against a servient landowner for unreasonable
interference with the use of an easement, the dominant landowner must show: (1) the
“existence/creation of easement;” (2) “interference with the easement's use;” and (3) “actual
damage to the easement holder's use.” 20 Causes of Action 2d 177 (2002) (discussing the
“Cause of Action for Servient Estate Owner's Unreasonable Interference with Easement of
Way by Placement of Obstruction on Easement”). In addition, evidence, such as testimony,
is required to establish the “unreasonable interference with the easement.” See 20 Causes of
Action 2d 177 (2002). There is no dispute in this case that the Appellees have a valid
easement over Ms. Cole’s property. Accordingly, the remaining questions that were resolved
by the trial court were whether the trees and boulders placed in the easement unreasonably
interfered with the Appellees’ use of the easement, and whether the Appellees suffered
damage as a result.

        Generally, in cases involving the unreasonable interference with a dominant
landowner’s use of an easement, the question “ is whether, under the specific facts presented,
the [obstruction] is necessary to the use and enjoyment of the landowner's land and whether
it does not unreasonably interfere with the easement holder's use of the right of way. Roach,
2012 WL 2337616, at *9 (citing Reynaud v. Koehler, 2005 WL 1868816, *2 (Tenn.Ct.App.
Aug. 8, 2005)). The typical interference case involves the erection of fences or gates. In those
cases, “an owner of land subject to a right-of-way easement may maintain gates, if necessary
to his use and enjoyment and where such obstructions do not unreasonably interfere with the
use of the way.” Cole v. Dych, 535 S.W.2d 315, 320 (Tenn. 1976). Thus, placement of an
obstruction in an easement is not sufficient to prevail in an action for interference; instead,
the dominant landowner must show that the obstruction “unreasonably interfere[s]” with the
use of the easement. Id.

       The trial court concluded that the trees and boulders did constitute unreasonable
interference with the Appellees’ use of the easement, which caused damage to the Appellees’
future ability to use the easement for recreational purposes.7 Thus, the trial court entered a

        7
          The Shells sought damages in the trial court for Ms. Cole’s allegedly unreasonable interference
with their use of the easement. This Court has previously held that damages are appropriate in unreasonable
interference claims: “The type of injury that may be sustained from a wrongful interference with the
easement, includes injury to the land itself and diminution of the easement holder's use and enjoyment of his
own property, or the use of the easement.” Roach, 2012 WL 2337616, at *12 (citing Rector v. Halliburton,
No. M1999-02802-COA-R3-CV, 2003 WL 535924, *10 (Tenn. Ct. App. Feb. 26, 2003)). Although the trial
                                                                                                (continued...)

                                                    -14-
Declaratory Judgment in the Appellees’ favor and ordered the trees and boulders removed
from the easement. The trial court decided this matter simply on the pleadings, the
stipulations of the parties, and the exhibits. No testimony, live or by deposition or affidavit,
was considered by the trial court.

        Having reviewed the limited evidence in this case, we must conclude that the evidence
preponderates against the trial court’s conclusion that the trees and boulders placed in the
easement interfere with any legitimate use of the easement by the Appellees. Although we
agree with the trial court that the dominant estate has the ability to use the entire width of the
easement for authorized uses, see Roberson v. Kitchen, 12 So. 3d 813 (Fla. Dist. Ct. App.
5th Dist. 2009) (finding that an easement was unambiguous and encompassed the entirety
of the described tract); Stanton v. Strong, 2012 ME 48, 40 A.3d 1013 (Me. 2012) (“If a grant
‘expressly details its specific boundaries . . . the owner of the right of way is entitled to use
the entire granted area, and is not limited to what is necessary or convenient.’”) (citing Mill
Pond Condo. Ass'n v. Manalio, 910 A.2d 392, (Me. 2006)), nothing in the record suggests
that the Appellees were prevented from engaging in any authorized activities as a result of
the placement of the trees and boulders. In fact, photographs in the record show individuals
using the easement notwithstanding the presence of the trees and boulders. Further, the
Shells’ original complaint for a Declaratory Judgment, which was never amended, contains
no allegations that the placement of the trees and boulders interferes with their use of the
easement, even for recreational purposes. Without some evidence that the trees and boulders
actually interfere with the legitimate uses of the easement, the Appellees simply have not
met their burden in this case. The trial court’s ruling that the boulders and trees unreasonably
interfere with the Appellees’ use of the property, is therefore, reversed.

                               III. Removal of Trees and Boulders

        Ms. Cole next argues that the trial court erred in allowing the Appellees to remove the
trees and boulders from the easement. As previously discussed, after the trial court ruled that
Ms. Cole was obstructing legitimate recreational uses of the easement with the trees and
boulders, the trial court ordered that the Appellees could remove the trees and boulders.
Having determined that the recreational use of the easement was an erroneous over-
broadening of the permitted uses of the easement and that there was no evidence that the
trees or boulders obstructed any legitimate use of the easement, we must conclude that the
trial court erred in allowing the Appellees to remove the trees and boulders. However, at oral


        7
         (...continued)
court did award the Shells a Declaratory Judgment preventing Mr. Cole from further interfering with their
use of the easement, the trial court declined to award the Shells damages for any alleged interference. The
Shells do not take issue with that ruling on appeal.

                                                   -15-
argument on this appeal, both parties agreed that the trees and boulders had since been
removed from the easement. Although Ms. Cole sought a stay on execution of the judgment,
she agreed to dismiss her request in the trial court. Further, nothing in the record indicates
that Ms. Cole ever sought a stay on the judgment in this Court. Ms. Cole does not seek
damages from the improper removal, nor does she seek a return of her property that was
removed from the easement. A case will generally be considered moot when the prevailing
party will be provided no meaningful relief from judgment in its favor. Further, to avoid
being dismissed as moot, cases or issues must be justiciable not only when a case is first
filed, but must remain justiciable throughout the entire course of litigation, including appeal.
County of Shelby v. McWherter, 936 S.W.2d 923, 115 Ed. Law Rep. 553 (Tenn. Ct. App.
1996); see also Lufkin v. Board of Professional Responsibility of the Supreme Court, 336
S.W.3d 223 (Tenn. 2011) (citing Norma Faye Pyles Lynch Family Purpose LLC v. Putnam
Cnty., 301 S.W.3d 196, 204 (Tenn. 2009) (“If a case no longer serves as a means to provide
some sort of judicial relief to the prevailing party it will be considered moot.”). In this case,
without a request for damages or specific performance regarding the return of the removed
property, this Court can offer Ms. Cole no meaningful relief. Thus, this issue is moot.

                                          Conclusion

       The judgment of the Rutherford County Circuit Court is reversed. This cause is
remanded to the trial court for further proceedings as may be necessary and are consistent
with this Opinion. Costs of this appeal are taxed to Appellees John Shell, Connie Shell, and
Rick Shell, for which execution may issue if necessary.


                                                     _________________________________
                                                     J. STEVEN STAFFORD, JUDGE




                                              -16-
