                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  November 16, 2005 Session


            CONNIE J. OTTINGER v. PATRICIA E. STOOKSBURY


                       Appeal from the Chancery Court for Knox County
                         No. 160833-2   Daryl R. Fansler, Chancellor



                 No. E2005-00381-COA-R3-CV - FILED FEBRUARY 7, 2006



Connie J. Ottinger (“Plaintiff”) sued Patricia E. Stooksbury (“Defendant”) seeking, among other
things, to quiet title to a thirty foot easement. Defendant answered the complaint and filed a counter-
claim asserting, in part, that her right to use the easement is exclusive and that Plaintiff has no right
to use the easement. The case was tried without a jury and the Trial Court entered a final order
holding, inter alia, that Defendant is permanently enjoined from interfering with Plaintiff’s right to
use the easement located on Plaintiff’s property. Defendant appeals claiming that the Trial Court
erred by considering parol evidence and by requiring Defendant to prove her case by clear evidence.
Defendant also argues that the evidence preponderates against the Trial Court’s finding that the
original grantors did not intend to create an exclusive easement in favor of Defendant. We affirm.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.


Charles W. Van Beke and Mark N. Foster, Knoxville, Tennessee for the Appellant, Patricia E.
Stooksbury.

Arthur F. Knight, III, Knoxville, Tennessee for the Appellee, Connie J. Ottinger.
                                             OPINION

                                            Background


               This case involves the right to use an easement, or right-of-way, on land currently
owned by Plaintiff. The easement was created in 1963 when Oaty and Mary Shelton deeded a
portion of their land to Charles and Mayme Stooksbury. The September 26, 1963 deed from the
Sheltons to the Stooksburys states, in pertinent part:

       The first parties also grant a 30 foot right of way for ingress and egress adjoining and
       lying north of the north line of subject property extending from the west line of
       Norris Freeway west along the north line of subject property at the north west corner
       of subject property; said right-of-way to be for the second parties, their heirs and
       assigns of the first parties but by the first parties only so long as they are the owners
       of the adjoining property;…

The 1963 deed identifies the Sheltons as the first parties and the Stooksburys as the second parties.

                Defendant is Charles and Mayme Stooksbury’s daughter and is the current record
owner of the parcel deeded to Charles and Mayme Stooksbury by the September 26, 1963 deed from
the Sheltons. The easement at issue contains a driveway that leads to Defendant’s house. Plaintiff
is the current record owner of the parcel of land burdened with the easement. Plaintiff purchased
her land from Wayne Shelton, Oaty and Mary Shelton’s son.

                In the spring of 2003, before Plaintiff moved to her property, Defendant began to erect
a fence to prevent Plaintiff from using the easement. In March of 2004, Plaintiff sued Defendant
seeking, in part, to quiet title to the easement. Defendant answered the complaint and filed a
counter-claim asserting, in part, that her right to use the easement is exclusive and, therefore,
Plaintiff has no right to use the easement even though it is located on Plaintiff’s land. The case was
tried without a jury in October of 2004.

                 At trial, Defendant explained that she began to construct her fence because “it’s
always been my assumption that it was our driveway with a right of way that the Sheltons were
allowed to use. But it has always - - as long as I’ve known, it’s been our driveway.” Defendant
testified that she doesn’t want Plaintiff to use the driveway:

       because it’s out in the country. They have a driveway that goes right to their garage.
       I have lived there where I live now off and on since I was ten, either there or on the
       other side of [Plaintiff]. It’s very private back there. There’s never been anybody use
       that driveway. And I guess I just don’t want to have to look, as I back out of my
       carport, for traffic, because it’s always been a private drive.



                                                 -2-
                Defendant testified that she has lived on this property for approximately two years
and also lived there when she was a child. Defendant explained that her father built the driveway
within the easement. Defendant admitted that, over the years, Oaty Shelton used this driveway
occasionally to get to his barn where he stored his lawnmower.

                 Plaintiff’s husband, Dennis Kyle Ottinger, testified that although he and his wife have
another driveway leading to their property, they want to use the easement “[t]o get access to the top
of the hill. On the left side of the property, it’s pretty steep around the back of it, and there’s not
really a good way to get in there except to go up the driveway [within the easement].” Mr. Ottinger
testified that a motor vehicle cannot get up the back to the southwest corner of the property. He
further testified that he tried taking a Bobcat up the hill, but slid off the hill. Mr. Ottinger testified
that it would cost at least $150,000, not including labor if he constructed it himself, to build another
way of access up to the southwest corner of the property. Mr. Ottinger testified that he and his wife
have no problem with Defendant continuing to use the easement, they simply want to be able to use
it too.

                Hershel John Sharp testified that he was related to Oaty and Mary Shelton and that
he assisted the Sheltons in caring for their property after they became disabled. Mr. Sharp also
testified that he visited the Sheltons over the years and used the easement when he visited. In
addition, Mr. Sharp testified that he had seen other visitors to the Sheltons use the easement over the
years.

                Wayne Shelton testified that his father, Oaty Shelton, always said he planned to build
his wife a home up on the hill on the southwest corner of the property. Wayne Shelton stated:
“When they bought this property back in 1958, Mother - - Dad’s promise to Mom was that he was
going to build her a new home at a later date upon that hill and we - - throughout as far as I can
remember he always tried to maintain that promise, and Mother kept holding it over him. But,
unfortunately, the events didn’t go there.”

                Wayne Shelton testified that his father paid for half of a bridge that Paul and Mayme
Stooksbury constructed within the easement. This bridge leads to the driveway in the easement.
Wayne Shelton testified that his father complained about the cost of the bridge and stated “[h]is
complaint at the time was that he only wanted access to get to his property to the top of the hill and
up the valley there to the barn.”

               Wayne Shelton further testified that he used the easement to get to where he was
allowed to park his car when he was a teenager and still living with his parents. He stated: “From
about 1960 until 1995 Dad had exclusive use of the one-car garage there at the house, and no one
was allowed to block him in.…So, therefore, the rest of us had to go and use the driveway [in the
easement] that goes to the barn to park our vehicles.” Wayne Shelton testified that there was a gravel
driveway leading from the driveway in the easement to the Sheltons’ barn. He further stated:
“Anyone that was a regular visitor would usually get the lecture about using [the driveway in the



                                                   -3-
easement]. My dad’s first cousin, who maintained the yard for them after they became unable to,
he would always take his pickup truck and come in that way to perform the yard maintenance.”

                 Wayne Shelton testified that after he moved out of his parents’ house, he would visit
his parents four or five times a year and would always use the driveway in the easement. He also
stated that “in the failing years of Dad’s health. At that point in time Dad would - - Dad used to go
to the store two to three times a week. Of course, he was always in his car. And he would come up
the southern driveway [in the easement], turn behind the house, unload the groceries and then park
his car. So he was always coming in and out of that driveway numerous times per week.” Wayne
Shelton also testified that his father would use the driveway in the easement so he didn’t have to
negotiate some steps. In addition, Wayne Shelton testified that he and his parents had always paid
taxes on the portion of land containing the easement. Wayne Shelton also testified that to create a
road to the southwest corner of the property now owned by Plaintiff would be cost prohibitive.

               After trial, the Trial Court entered its Final Order of Judgment on November 17,
2004, incorporating the Trial Court’s memorandum opinion. The final judgment, inter alia, held that
Defendant is permanently enjoined from interfering with Plaintiff’s use of the easement, and
dismissed Plaintiff’s claims for wrongful interference of an easement and trespass and Defendant’s
counter-claim. In pertinent part, the Trial Court’s memorandum opinion states:

               Defendant argues that there is a typographical error in the 1963 deed, Ex. 1.
       It is defendant’s argument that if this typographical error is corrected then the
       exclusive right to use the easement vested in the defendant upon the sale of the
       original tract by the Sheltons to Ottinger.

              In its simplest form the Court believes the issue in this case to be whether the
       1963 deed conveyed to defendant’s predecessor in title an exclusive easement.

                                                ***

               The parties have cited no Tennessee case, and the Court has found none,
       dealing with the grant of an exclusive easement. However, plaintiff has cited the
       case of Latham v. Garner, 105 Idaho 854, 673 P.2d 1048 (1983), which dealt with the
       grant of an exclusive easement. Of course this Court is not bound by a decision of
       the Idaho courts but it nevertheless constitutes persuasive authority for this Court’s
       consideration.

                                                ***

               When construing a deed the Court should determine the intention of the
       grantor. This intent is to be ascertained from a consideration of the entire instrument
       read in the light of the surrounding circumstances. Barber v. Westmoreland, 601
       S.W.2d 712 (Tenn. App. 1980).


                                                 -4-
                In reviewing the circumstances surrounding this transaction the Court notes
       that the property conveyed to the Stooksburys in 1963 was surveyed out of a larger
       tract the Sheltons had purchased in 1957. The testimony of Wayne Shelton, the son
       of Oaty and Mary Shelton, by deposition, established that in 1963, and for a period
       of time thereafter, it was Oaty Shelton’s intent to build a house for his wife on a
       portion of his property comprising about two acres and situated in the southwest
       corner of the property.

               The undisputed testimony at trial was that this section of the property is
       relatively flat and presently accessible only by the 30-foot right-of-way. The
       testimony was further undisputed that in order to gain access from any other portion
       of plaintiff’s property she would have to construct a road, which would require a
       great deal of excavation at a cost estimated by plaintiff’s husband, Dennis Ottinger,
       to be in the neighborhood of $150,000.00.

               It is extremely interesting to note that in conveying property to the
       Stooksburys the Sheltons did not convey in fee this 30-foot right-of-way reserving
       an easement to themselves. One would presume that if the grantor only desired to
       preserve the right of ingress and egress during the time he held the retained parcel in
       fee then he would have conveyed the property comprising the right-of-way reserving
       an easement to himself during the time of his ownership. Counsel for defendant
       acknowledged as much in closing argument.

                Additionally, if one intended to build a residence on a portion of the property
       accessible only by the right-of-way it would not seem practical, and in fact would
       seem to be impractical, to deny subsequent purchasers the right of ingress and egress
       to that residence without having to construct another road at considerable cost.

                Without question the 1963 deed is ambiguous and borders on the nonsensical
       in its present form.…

                                                ***

               However, this is not an action to reform the deed and it is unnecessary for this
       Court to determine the precise intent of the parties when Ex. 1 was drafted. It is
       sufficient for this Court to determine whether Ex. 1 establishes a clear intent by the
       grantor to eventually deprive his successors in title the use of the servient estate. The
       Court is of the opinion that Ex. 1 fails to do so.

Defendant filed a motion to alter or amend the judgment, which the Trial Court denied by order
entered January 14, 2005. Defendant appeals to this Court.




                                                 -5-
                                              Discussion

               Although not stated exactly as such, Defendant raises three issues on appeal: 1)
whether the Trial Court erred in considering parol evidence; 2) whether the Trial Court erred in
requiring Defendant to prove her case by clear evidence; and, 3) whether the evidence preponderates
against the Trial Court’s finding that the original grantors did not intend to create an exclusive
easement in favor of Defendant. Plaintiff raises additional issues which we restate as: If the Trial
Court erred in enjoining Defendant from interfering with Plaintiff’s use of the easement for the
grounds relied on by the Trial Court, 1) whether Plaintiff has an easement by prescription; and, 2)
whether Plaintiff has an easement by necessity.

                Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn.
R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of
law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.
Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

                We first consider whether the Trial Court erred in considering parol evidence. To
begin, we note that there is no question that an ambiguity exists in the deed. Defendant, however,
argues, in part, that “[a] court may not consider parol evidence that adds to, varies, or otherwise
contradicts the language of a deed unless there is a latent ambiguity,” and, Defendant argues, the
deed contains a patent, not latent, ambiguity. However, there is no need for us to determine whether
the ambiguity in the deed is patent or latent as Defendant raised no objection to the introduction of
this evidence at trial.

                As this Court stated in Grandstaff v. Hawks,

                Objections to the introduction of evidence must be timely and specific.

                                                 ***

                A party who invites or waives error, or who fails to take reasonable steps to
        cure an error, is not entitled to relief on appeal. Failure to object [to] evidence in a
        timely and specific fashion precludes taking issue on appeal with the admission of
        the evidence.

Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) (citations omitted).

                 Defendant did not object to the introduction of this evidence at trial, and, as such, is
not entitled to raise this as an issue on appeal. We find this issue to be without merit.

                We next consider whether the Trial Court erred in requiring Defendant to prove her
case by clear evidence. Defendant argues, in part, that the Trial Court “relied heavily on the Idaho


                                                  -6-
Supreme Court’s decision in Latham v. Garner,” 673 P.2d 1048 (Idaho 1983), and because of this,
required Defendant to meet a “heightened burden of proof” based upon the Latham Court’s
recognition of cases from other states that discuss that an intention to create an easement excluding
all rights of the grantor cannot be imputed in the absence of a clear indication of such intent.
Defendant, however, has misread the Trial Court’s memorandum opinion.

               The Trial Court stated:

               Defendant argues that there is a typographical error in the 1963 deed, Ex. 1.
       It is defendant’s argument that if this typographical error is corrected then the
       exclusive right to use the easement vested in the defendant upon the sale of the
       original tract by the Sheltons to Ottinger.

              In its simplest form the Court believes the issue in this case to be whether the
       1963 deed conveyed to defendant’s predecessor in title an exclusive easement.

                                                ***

               The parties have cited no Tennessee case, and the Court has found none,
       dealing with the grant of an exclusive easement. However, plaintiff has cited the
       case of Latham v. Garner, 105 Idaho 854, 673 P.2d 1048 (1983), which dealt with the
       grant of an exclusive easement. Of course this Court is not bound by a decision of
       the Idaho courts but it nevertheless constitutes persuasive authority for this Court’s
       consideration.

                                                ***

               When construing a deed the Court should determine the intention of the
       grantor. This intent is to be ascertained from a consideration of the entire instrument
       read in the light of the surrounding circumstances. Barber v. Westmoreland, 601
       S.W.2d 712 (Tenn. App. 1980).

                                                ***

               However, this is not an action to reform the deed and it is unnecessary for this
       Court to determine the precise intent of the parties when Ex. 1 was drafted. It is
       sufficient for this Court to determine whether Ex. 1 establishes a clear intent by the
       grantor to eventually deprive his successors in title the use of the servient estate. The
       Court is of the opinion that Ex. 1 fails to do so.

              The Trial Court correctly recognized that it was not bound by Latham v. Garner, but
in the absence of Tennessee case law directly on point, could consider Latham as persuasive
authority. The Trial Court also correctly recognized that the dispositive issue in this case was


                                                 -7-
whether the 1963 deed conveyed an exclusive easement that would give Defendant the right to
exclude Plaintiff’s use of the easement even though the easement is located on land now owned by
Plaintiff. The Trial Court correctly stated that under Tennessee law, when construing a deed, a court
should determine the intention of the grantor by considering the deed read in light of the surrounding
circumstances. Given the issue at hand, the Trial Court then applied the law to determine if it was
the intention of the grantor to create an easement that would deprive the grantor’s successors in title
the use of the easement. The Trial Court did not hold Defendant to a “heightened burden of proof”
to prove that the easement was exclusive to Defendant only. Additionally and as discussed below,
our review of the evidence shows that whether a clear evidence standard or preponderance of the
evidence standard was required of Defendant, Defendant did not meet her burden based upon the
evidence presented to the Trial Court as contained in the record before us. We find this issue to be
without merit.

               Finally, we consider whether the evidence preponderates against the Trial Court’s
finding that the original grantors did not intend to create an exclusive easement in favor of
Defendant. As our Supreme Court recently explained in Griffis v. Davidson County Metro. Gov’t:

       In construing a deed, our primary task is to ascertain the grantor’s intent from the
       words of the deed as a whole and from the surrounding circumstances. Collins v.
       Smithson, 585 S.W.2d 598, 603 (Tenn. 1979); Bennett v. Langham, 214 Tenn. 674,
       383 S.W.2d 16, 18 (1964). Interpretation of a deed is a question of law. Rodgers v.
       Burnett, 108 Tenn. 173, 65 S.W. 408, 411 (1901); Mitchell v. Chance, 149 S.W.3d
       40, 45 (Tenn. Ct. App. 2004).

Griffis v. Davidson County Metro. Gov’t, 164 S.W.3d 267, 274 (Tenn. 2005).

               In the 1991 case of Lowe v. Gulf Coast Dev., Inc., this Court noted:

       If an easement is exclusive, the owner of the servient estate loses its right to use the
       easement along with the easement holder. Bijou Irr. Dist. v. Empire Club, 804 P.2d
       175, 183 (Colo. 1991); Stephens v. Dobbins, 511 So. 2d 652, 653 (Fla. Dist. Ct. App.
       1987); Latham v. Garner, 105 Idaho 854, 673 P.2d 1048, 1050-51 (1983);
       Restatement (First) of Property § 493 comm. c (1944). Exclusivity will generally not
       be implied unless it is necessary for the use of the easement. Capitol Rod & Gun
       Club v. Lower Colorado River Auth., 622 S.W.2d 887, 893-94 (Tex. Civ. App.
       1981).

Lowe v. Gulf Coast Dev., Inc., No. 01-A-01-9010-CH-00374, 1991 Tenn. App. LEXIS 860, at *28
(Tenn. Ct. App. Nov. 1, 1991), no appl. perm. appeal filed.

               The evidence of the surrounding circumstances shows that at the time the easement
was created, Oaty Shelton planned to build a new house for his wife on the hill on the southwest
corner of the Sheltons’ property and that the only reasonable access to that portion of this property


                                                 -8-
was, and still is, over the 30-foot easement. The evidence further shows that it would cost a
significant amount of money to construct another access road to this southwest corner of Plaintiff’s
property. Plaintiff’s husband estimated that it would cost at least $150,000 if he constructed it
himself, and Wayne Shelton testified that it would be cost prohibitive to construct such a road.

                 Both Wayne Shelton and Mr. Sharp testified that over the years the Sheltons and their
visitors regularly used the driveway in the easement. Wayne Shelton testified that his father paid for
half of a bridge constructed by the Stooksburys within the easement and complained at the time
because “he only wanted access to get to his property to the top of the hill and up the valley there
to the barn.” Wayne Shelton testified that there was a gravel driveway leading from the driveway
in the easement to the Sheltons’ barn. Defendant admitted that Oaty Shelton had used the easement
to get to his barn where he stored his lawnmower. In addition, Wayne Shelton testified that he and
his parents had always paid taxes on the portion of land containing the easement.

                 We cannot imply exclusivity in the easement as it is not necessary for Defendant’s
use of the easement for Defendant to have the sole right to use the easement. Plaintiff’s use of the
easement will not interfere with Defendant’s use. Even if we construe the easement as strongly as
possible against the grantor, as Defendant argues we should, the evidence preponderates in favor of
the Trial Court’s finding that when they created the easement, Oaty and Mary Shelton never intended
to deprive themselves or their successors in interest of the right to use the easement. Further, we
note that it is undisputed that Defendant had the burden to prove that the easement was exclusive.
We find no error with the Trial Court’s decision that Defendant failed to meet her burden.

                Our resolution of Defendant’s issues pretermits the necessity of considering the issues
raised by Plaintiff. We affirm the Trial Court’s Final Order of Judgment entered on November 17,
2004.

                                             Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on appeal are assessed against the Appellant,
Patricia E. Stooksbury, and her surety.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




                                                 -9-
