09/26/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 31, 2018 Session
CHARLES STEPHEN PERRY, ET AL. v. WINFIELD SCOTT NILES, ET AL.
Appeal from the Chancery Court for Greene County
Nos. 20150231, 20150221, 20150042 Douglas T. Jenkins, Chancellor
No. E2017-01891-COA-R3-CV
Winfield Scott Niles (“Niles”) and Nancy Niles1 appeal the judgment of the Chancery
Court for Greene County (“the Trial Court”) in this suit involving disputes regarding
easements across real property owned by Niles located in Greene County, Tennessee.
Niles raises issues regarding the Trial Court’s findings regarding the width and the
permitted uses of the easements and the Trial Court’s finding that Niles was in contempt
of court. We find and hold that the Trial Court did not err in determining the width and
permitted uses of the easements. We further find and hold that the Trial Court did not err
in finding Niles in contempt of court. Finding no error, we affirm the Trial Court’s
February 28, 2017 Judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.
Jeffrey A. Cobble, Greeneville, Tennessee, for the appellants, Winfield Scott Niles and
Nancy Niles.
1
In the Answer to Second Amended Complaint, Niles asserted that Nancy Niles is not an owner of the
real property at issue. A review of the record on appeal reveals that Winfield Scott Niles purchased his
property from Tony Hagwood, and that Nancy Niles is not named in that deed. Despite this, Nancy Niles
is a named party to the suit and is a named appellant. To the extent that Nancy Niles has an interest in
this case, her interest is identical to that of her husband, Winfield Scott Niles. For ease of reading only, in
this Opinion in the appropriate places when we refer to ‘Niles’ we are referring both to Winfield Scott
Niles and to Nancy Niles collectively with the understanding that Winfield Scott Niles testified at trial
and Nancy Niles did not and that Winfield Scott Niles was found to be in contempt of court, but Nancy
Niles was not.
Jerry W. Laughlin, Greeneville, Tennessee, for the appellees, Charles Stephen Perry,
Charles A. Montgomery, and 612 Trust Under Amendment and Restated Declaration of
Trust Dated May 21, 2014.
OPINION
Background
Since purchasing real property adjacent to property currently owned by Niles in
March of 2000, Charles A. Montgomery (“Montgomery”) and his family have used an
easement (“Easement 1”)2 across the Niles property as the only means of access to the
Montgomery property. Easement 1 adjoins Whirlwind Road and is an express written
easement created in the 1996 deed from Tony Hagwood and Joy Hagwood to J.C. Dollar
and Carolyn Dollar. In pertinent part, this deed provides:
THERE IS FURTHER CONVEYED HEREBY an easement, for residential
purposes only for the benefit of J.C. Dollar and wife, and for their
successors, assigns and invitees, the right to access the 9.15 acre property
over an existing private road which extends from the Clyde Austin Road,
over property of Austin and the remaining property of Hagwood, which
said right of way shall be permanent.
The right to use Easement 1 passed to Montgomery when he and his wife purchased their
real property from the Dollars in March of 2000.
Charles Stephen Perry (“Perry”) and his wife purchased real property adjoining
the Niles property from Tony Hagwood in May of 2003. In conjunction with the sale and
purchase of the Perry property, Perry and Tony Hagwood entered into a written Easement
Agreement providing Perry with the right to use Easement 1 and the right to create
another easement across the Niles property (“Easement 2”), which would connect
Easement 1 with the Perry property. Without Easement 2, Easement 1 does not lead to
the Perry property, making Easement 1 alone useless to Perry. This Easement Agreement
provides:
2
A portion of Easement 1 is sometimes referred to within the record on appeal as Clyde Austin Road.
Issues were raised at the trial level with regard to whether Easement 1 actually was Clyde Austin Road, or
whether the name Clyde Austin Road referred to another road. As no issues were raised on appeal with
regard to the location of Clyde Austin Road, we need not discuss in this Opinion either the location of
Clyde Austin Road or whether Easement 1 is properly referred to as Clyde Austin Road. We take this
opportunity to mention that Easement 1 is sometimes referred to as Clyde Austin Road merely to assist
readers in understanding the facts presented in this Opinion.
2
WHEREAS, Tony D. Hagwood has entered into an agreement to sell
to Charles Stephen Perry and wife, Marie S. Perry, five (5) parcels of real
estate situated in the 9th Civil District of Greene County, Tennessee, which
consists of a 3.44 house tract, a 5.71 acre tract, a 0.08 acre parcel, a 1.39
acre tract and a 0.49 acre tract as evidenced by a warranty deed of even date
herewith;
WHEREAS, following the execution of the deed, Hagwood shall
retain approximately 23 acres of real estate upon which is situated a road
which provides a means of access into the remaining property of Hagwood
and also provides a means of access into approximately 16 acres owned by
Dr. Charles Montgomery and wife;
WHEREAS, the private road is presently used as a means of access
into the properties of Hagwood and Montgomery by Hagwood and the
Montgomery’s [sic] and their invitees;
WHEREAS, Hagwood has further agreed to grant unto the Perrys an
easement over a portion of the said road, and an additional easement over
certain other remaining property of Hagwood, to provide the Perrys an
additional means of access to the property which they have purchased from
Hagwood; and
WHEREAS, Hagwood and the Perrys which [sic] to reduce the
agreement to writing;
1. Grant of Easement Over Existing Road. Hagwood does hereby
grant unto the Perrys a non-exclusive personal easement, to be shared
between Hagwood, the Montgomerys, and the Perrys, and their successors
in title, over the existing road from the point where same leaves the
Whirlwind Road, proceeds in a northwesterly direction for approximately
500 feet, and then turns in a southwesterly direction, and extends into and
through the remaining 23 acres of Hagwood to a point where same is within
50 feet of an existing pond to the south of the said existing road. The grant
of this non-exclusive personal easement shall be conditioned upon the duty
of Hagwood, the Montgomerys, and the Perrys, and their heirs, successors
and assigns, to share the cost and duty of maintaining same, provided that
the Perrys [sic] share of the cost of the maintenance of same shall be 25%.
The width of the easement granted hereby shall be the width of the existing
road bed along the road described in this paragraph.
3
2. Grant of Second Easement. Hagwood does further grant to the
Perrys an additional personal easement, 15 feet in width, the location of
which is generally described as follows:
BEGINNING at a point in the southern edge of the existing
private road described in the foregoing paragraph, which said
point is 50 feet from the northeastern edge of an existing
pond, and running thence in a southerly direction for
approximately 240 feet to a point where same enters into the
property this day purchased by the Perrys from Hagwood.
The parties mutually acknowledge that there is no existing road upon the
site of the location of the second easement. The parties mutually agree that
in the event the Perrys wish to exercise the second easement granted hereby
as a means of additional ingress and egress, that they shall cause to be
constructed a road, not wider than 15 feet, at their sole cost, and shall be
solely responsible for the cost of maintaining same.
3. Exclusivity of Easement. The grant of both of these easements
shall be for the sole and and [sic] exclusive use of the Perrys and their
immediate family members and their guests, but shall not be assignable or
transferable to any third party without the written consent of Hagwood.
4. Relocation of Easement. No term herein shall preclude the
parties hereto from relocating the second easement or from changing the
length of the first easement by mutual agreement.
5. Binding Effect. The terms and conditions of this Easement
Agreement shall be binding upon the parties hereto and their heirs,
successors and assigns.
Niles purchased the real property upon which the two easements sit from Tony
Hagwood in March of 2005. The deed to Niles provided, in pertinent part:
THERE IS EXCEPTED from the foregoing described premises an existing
right of way or easement for the Clyde Austin Road, a public road, which
crosses a portion thereof.
4
In early 2014, Perry decided to exercise his right to create Easement 2 and
constructed a road linking Easement 1 to the Perry property. Perry then began using
Easement 1 and Easement 2 to access his property.
In September of 2014, a parcel of real property adjoining the Niles property was
deeded to the Trustees of the 612 Trust under the Amended and Restated Declaration of
Trust for 612 Trust Agreement, dated May 21, 2014 (“612 Trust”). Perry is one of the
trustees of the 612 Trust. The 612 Trust also has used Easement 1 to access its property.
In 2015, Niles placed T-posts, which blocked the use of Easement 1. Montgomery
then filed suit against Niles. Perry filed a separate suit against Niles, and the 612 Trust
filed a third suit against Niles. The cases were consolidated and proceeded to trial
without a jury.
Montgomery testified at trial that he resides on Whirlwind Road which is a paved
road in Greeneville, Tennessee. Montgomery explained it is a little over three tenths of a
mile from the Montgomery property line to Whirlwind Road. Montgomery acquired his
property in March of 2000 from the Dollars who had purchased the property from the
Hagwoods. At the time that Montgomery purchased his property, Tony Hagwood owned
other property located between the Montgomery residence and Montgomery’s mailbox
on Whirlwind Road. Niles now owns this other property.
Montgomery testified that his deed conveyed to him a right to use Easement 1 for
residential purposes. Part of Easement 1 consists of gravel. Montgomery testified that at
different times he has put gravel on Easement 1, Perry has put gravel on Easement 1, and
Perry’s son-in-law and daughter have put gravel on Easement 1. Montgomery explained
that they have not put gravel on the entire width of Easement 1 because it would cost too
much. Montgomery has had the gravel graded at times.
Montgomery testified that there is no other road to the Montgomery residence and
that when he first began residing on his property, the Hagwoods also used Easement 1.
Montgomery explained that the Hagwoods built another residence that connects with
Easement 1, and this is the residence where Niles now lives. Niles purchased his land
from Hagwood in March of 2005.
During the five years before Niles purchased his property, Montgomery and his
wife traveled from their residence to Whirlwind Road on a daily basis using Easement 1.
They sometimes traveled Easement 1 two or three times a day. Montgomery testified
that occasionally he would meet another vehicle traveling in the opposition direction.
Montgomery testified that when this happened, the vehicles never had to back up but
would pull off to the side of Easement 1 to allow the vehicles to pass one another.
5
Montgomery stated: “We never looked at the graveled part as being the entire easement.
There was never any obstructions there that we would run into or hit or anything.” Until
2015, no one ever had placed an obstacle or barrier along Easement 1. Montgomery
testified that during the first ten years that Niles owned his property, the parties continued
the pattern of pulling to one side to pass one another on Easement 1 when necessary and
never had to back up.
Montgomery filed suit in 2015 after Niles placed T-posts in the road that
effectively blocked Easement 1. Montgomery explained that he had a friend who was
coming to cut his hay, and the friend was unable to get his trailer in through Easement 1
without moving some T-posts. Montgomery’s friend moved some of the T-posts and laid
them on the ground, and then Montgomery spoke to Niles. After speaking with Niles,
Montgomery decided to file suit. Montgomery testified that T-posts were placed at two
different times in two different locations. The first time, T-posts were placed “[w]here
Clyde Austin Road comes into the private road” and the second time where Perry’s
Easement 2 joins Easement 1.
Montgomery testified that he and his household use Easement 1, Perry and his
household use Easement 1, and Niles and his household use Easement 1. Montgomery
agreed that because all three households use Easement 1, it is becoming more common to
meet vehicles traveling in the opposite direction on Easement 1.
Montgomery was asked how wide Easement 1 was treated as being during the first
five years he owned his property, which was prior to Niles purchasing his property.
Montgomery stated: “Well, I looked at it as the gravel part of the easement. We went off
to the right of the easement. We went off to the left of the gravel part of the easement. I
would say, and that’s what I told you, twenty-five feet.” Montgomery testified that until
Niles put up the T-posts, no one obstructed Easement 1 to anything less than twenty-five
feet. Montgomery agreed that a survey showed the width of the graveled portion of
Easement 1 to be ten to eleven feet wide until the easement turns and then between
eleven and fourteen feet wide.
When Montgomery filed suit, he asked for Easement 1 to be declared to be twenty
feet wide. By the time of trial, Montgomery was asking for a declaration that Easement 1
was twenty-five feet wide. Montgomery stated that he changed his request because he
discovered that twenty feet would not be wide enough for two emergency vehicles to pass
one another on Easement 1. Montgomery agreed that what he was asking for would more
than double the width of the gravel road as it currently exists. He stated: “But I feel like
that’s the way we’ve used it. We’ve always used it going off to the right side or we’ve
used it going off to the left side. Not just the gravel portion of the road.” Montgomery
admitted that there is a culvert on Easement 1 that limits the width of the travel lane at
6
that point and that two vehicles could not pass one another at the culvert. There is one
other culvert along Easement 1, and Montgomery testified that he thought that this other
culvert was about ten or twelve feet wide.
Melvin Seaton, Chief of the Sunny Side Volunteer Fire Department and Secretary
of the Greene County Association of Fire Departments, testified that there is no fire
hydrant at Montgomery’s residence. If a fire broke out at the Montgomery residence, the
firefighters would have to shuttle water in by truck. Seaton testified that if there were a
substantial fire, they would probably need at least four tanker trucks. He testified that the
width of a tanker truck is nine feet two inches, and the width of a pumper truck, which
would be first on the scene of a fire, is ten feet. When asked, Seaton admitted that there
are some county roads that are not wide enough for two fire trucks to pass in opposite
directions. He stated that there are times when firefighters have had to go across fields to
fight fires and that they do what they need to do to fight a fire even if that involves
trespassing.
Perry testified at trial that he purchased his property in 2003 from Tony Hagwood.
At that time, Hagwood owned adjoining property. Perry explained that he negotiated
Easement 2 with Hagwood to accommodate future anticipated construction on Perry’s
property and to allow for tour busses used by Perry’s adult children in their business to
access the back of the Perry property.
Perry chose to exercise his right to create Easement 2 in the spring of 2014, in
preparation for his daughter’s upcoming wedding, which was held in June of 2014. Perry
had a surveyor locate the beginning point for Easement 2. Perry was asked about the
width he and Hagwood had negotiated for Easement 2, and he stated: “the width of
easement 1 in 2003 appeared to be adequate and since it was already established we felt it
was adequate to allow the type of traffic that we anticipated using it for.”
Perry testified that when Hagwood owned the property now owned by Niles, there
were no obstacles or barriers that would interfere with the use of Easement 1. Niles
placed T-posts that interfered with both Perry’s use of Easement 1 and the 612 Trust’s
use of Easement 1. Perry stated that because of the T-posts, he could not negotiate the
curve in his pickup truck. Perry also testified that John Deere, who was mowing the 612
Trust property and using it as a test facility, was unable to bring in vehicles with mowers.
Perry testified that there are improvements on the 612 Trust property and that emergency
vehicles would be unable to reach the property with the T-posts in place.
Niles also parked a pickup truck to block Perry’s access to Easement 2. Perry
moved for a temporary injunction, and the Trial Court entered a Temporary Injunction on
March 9, 2015 enjoining and restraining Niles from obstructing Easement 2 until trial “in
7
order to preserve the status quo . . . .” Perry testified that after entry of the Temporary
Injunction Niles again placed T-posts that interfered with Perry’s ability to travel from
Easement 1 on to Easement 2.
Perry testified that he believes Easement 1 is wider than the gravel bed. He
believes that the gradings of the gravel on Easement 1 have narrowed the width of
Easement 1 over the years. Perry stated that the width of Easement 1 should be at least as
wide as the stated width of Easement 2.
When asked, Perry agreed that since opening Easement 2, he has used both
Easement 1 and Easement 2 fairly regularly for heavy equipment, for construction
equipment, and for bringing in rock, dirt, and other things. Perry admitted that during the
last two years and since the filing of the lawsuit, there have been dozens and dozens of
trips over the easements made by heavy equipment traveling to the back of the Perry
property.
There is a gate between the Niles property and the 612 Trust property that sits on
the 612 Trust side of the property line. This gate was installed before the 612 Trust
purchased the property in 2014. Perry stated that the gate sits four or five feet inside the
boundary line of the 612 Trust property. The gate, however, swings on to the Niles
property. When asked, Perry agreed that the property slopes upward at the gate.
Daniel Coffey (“Coffey”), registered land surveyor and professional engineer,
testified that he performed work for Niles and prepared sketches. Coffey was asked to
look at Clyde Austin Road and measure the width of the gravel from the outside edge of
the right to the outside edge of the left every ten feet. Coffey testified that he did not
prepare a survey, but that his sketches bear his seal. Coffey stated:
I believe we show that out on Whirlwind Road in the right of way
it’s twenty-four feet, but it’s in a, it’s in a fill, there’s a fill, typically is
when you have an intersection vehicles have to swing out wider, so it, it
goes from seventeen feet down to twelve and then it runs between ten and
eleven feet pretty much until it gets back to the curvature. It goes up to a
little bit wider in spots. . . . There’s thirteen to fourteen feet along in this
area and, and then the drive going on this way is, is ten to twelve feet wide.
The one going on to the, to the northwest onto the 612 property is twelve,
fourteen, ten. It, it varies, but that was the existence of the gravel as we fill
located it this past March.
The widest measurement was twenty-six feet at the Y, where the road forks and goes
either to the 612 Trust property or to the Niles and Montgomery residences. Coffey did
8
not visit the property, but sent his field crew to obtain the information. Coffey stated that
they only measured the part of the easement past the Y for thirty or forty feet because
they were not asked to measure any further. Coffey stated that in that 30 or 40 feet the
largest width was 12.5 feet, and then it narrowed down to 10.9 feet.
Niles testified at trial that “historically this width of the so-called Clyde Austin
section of the driveway has been the same as the rest of the driveway that services my
property and Dr. Montgomery.” Niles testified that the Montgomery easement is more
narrow than the gravel drive from Whirlwind Road. Niles testified that he measured
Easement 1 south of Perry’s Easement 2, and stated that the road is between eight and
nine feet wide. He stated that the only place where it exceeds that width is a little section
right before the culvert and that the width of the culvert is approximately eleven or
twelve feet. Niles stated that, in his opinion, the use of Easement 1 has never indicated
that it is twenty-five feet wide. Niles testified that the width of Easement 1 prior to the
increased traffic after Perry began construction on Easement 2 was “[e]ight feet, eight
and a half, nine feet,” and after the increased traffic has increased to “13 feet where it’s
expanded from the traffic.”
Niles testified that from the time he purchased his property in 2005, until 2014,
Niles experienced no problems with Montgomery. Niles explained that the working
arrangement when one met a vehicle traveling in the opposite direction required that “[i]n
some locations you have to back up because you couldn’t do the culvert.” Niles testified
that the problems that led to the lawsuits were precipitated by “[t]he Perry easement and
612 and the Clyde, so-called Clyde Austin Road.” With regard to Easement 1, Niles
testified:
My layman’s understanding is that deeds refer to existing road.
Existing road is gravel surface plus a little extra whatever, and we’re
talking about eight and half to twelve, thirteen feet total across, I’m not
asking, that’s what it is in my estimation.
Niles admitted that he placed the T-posts to prevent trespassing, but stated that he has no
intention of fencing “along the rest of the driveway or Dr. Montgomery’s easement or
whatever.”
Niles admitted that he was aware of the injunction entered by the Trial Court, and
as a result he removed the first T-posts he had placed. Niles then admitted that after the
Trial Court entered the injunction and told him not to block Easement 2, he put up T-
posts where Easement 2 is located. He stated: “Because I viewed the trespass by Perry as
a violation of the status quo. In other words, they were trespassing. They were going
beyond the deeded measurements, the 15 and whatever the driveway was. . . . I just
9
marked off my line. I gave an extra couple of feet just so that they could understand the .
. . .” When questioned further, Niles again admitted that he did place the T-posts after
entry of the injunction. He was asked if he had placed the T-posts so that people couldn’t
get vehicles on to Easement 2, and he stated: “I very carefully put the T-posts at the outer
side of the gravel area. The result was they couldn’t get in because they were
trespassing.”
After trial, the Trial Court entered its Judgment on February 28, 2017 finding and
holding, inter alia:
2. as it pertains to the contested scope and use of that easement
which is referenced in Tract I of that instrument which is found of record at
Deed Book 178A, page 260, Charles A. Montgomery and wife, Carrie
L. Montgomery, shall have an open and unobstructed residential and
agricultural easement appurtenant, being fifteen (15) feet in width (and with
wider turning aprons at the appropriate places), the center of which shall be
the center of the existing gravel roadway on the Niles’ property as shown
on the survey plats introduced as exhibits, starting at the boundary line of
Montgomery’s 9.15-acre tract and running thence over the Niles’ property
to the edge of Whirlwind Road for the purposes of ingress and egress to the
Montgomery’s property, and Niles shall not in any way obstruct or
otherwise interfere with Montgomery’s use thereof.
3. as it pertains to the contested scope and use of the two easements
which are referenced in the “Easement Agreement found of record at Deed
Book 326A, page 652,:
(a) Charles Stephen Perry and wife, Marie S. Perry, shall have an open
and unobstructed easement fifteen (15) feet in width (and with wider
turning aprons at the appropriate places), the center of which shall be the
center of the existing gravel roadway on the property of Niles as shown on
the survey plats introduced as exhibits;
(b) the location of the Perry Easement No. 2, as described in the recorded
Easement Agreement, shall be deemed abandoned, and the current location
upon which the Perrys have constructed a similar easement shall be
declared to be the new location of Easement No. 2;
(c) the Perry easement shall extend from the new location of Easement No.
2 and shall extend to Whirlwind Road;
(d) the Perry easement shall be for single-family residential and
noncommercial agricultural ingress and egress to the Perry’s property, and
Niles shall not in any way obstruct or otherwise interfere with the Perry’s
use thereof; and
10
(e) Except as otherwise explicitly modified in this Order, the express terms
and limitations of the said Easement Agreement are still in effect and
binding upon all parties.
4. “612 Trust Under Amended and Restated Declaration of
Trust dated May 21, 2014,” shall have an open and unobstructed
easement fifteen (15) feet in width (and with wider turning aprons at the
appropriate places), the center of which shall be an existing gravel roadway
on the Niles’ property and as shown on the survey plats introduced as
exhibits, extending from the boundary of the 612 Trust property and
running over the Niles’ property to Whirlwind Road, for the purpose of
single-family residential and non-commercial agricultural ingress and
egress to the 612 Trust’s property, and Niles shall not in any way obstruct
or otherwise interfere with the 612 Trust’s use thereof.
***
6. all easements described above shall be used only for single-family
residential and non-commercial agricultural easements, but that said use
will permit occasional utility vehicles and temporary construction vehicles.
7. any party may mow, maintain and do things to keep up the
roadway within the aforesaid easement in order to keep it looking good and
passable and keep their right to use and enjoy it intact, and all other parties
be and are hereby enjoined from preventing them from doing so.
***
11. by reason of conduct of Niles, for which the Court has found him
to be in willful contempt of a previous Order of the Court to maintain the
status quo, he shall pay to Plaintiffs the sum of $1,000.00, as partial
reimbursement for some of the attorney’s fees incurred on behalf of the
Plaintiffs by reason of the additional work that he did because of that
conduct.
Niles appeals to this Court.
Discussion
Although not stated exactly as such, Niles raises six issues on appeal: 1) whether
the Trial Court erred in finding that the width of Easement 1 was 15 feet; 2) whether the
Trial Court erred in defining the term ‘guests’ as that term appears in the Easement
Agreement; 3) whether the Trial Court erred in finding that Montgomery may use
11
Easement 1 for agricultural purposes in addition to residential purposes; 4) whether the
Trial Court erred in finding that the 612 Trust could use their easement for residential and
agricultural uses; 5) whether the Trial Court erred in failing to specify whether more than
one single-family dwelling could be constructed on the 612 Trust property; and, 6)
whether the Trial Court erred in finding that Niles was in contempt of court.
Montgomery raises a separate issue, which we restate as whether the Trial Court erred in
failing to declare the width of Easement 1 to be at least 18 feet.
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); Kelly v. Kelly, 445 S.W.3d 685, 692
(Tenn. 2014). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. Kelly v. Kelly, 445 S.W.3d at 692.
We first address the issue raised by Niles regarding whether the Trial Court erred
in finding that the width of Easement 1 was 15 feet. In addressing this first issue, we also
address the issue raised by Montgomery of whether the Trial Court erred in failing to
declare the width of Easement 1 to be at least 18 feet.
In Shew v. Bawgus, this Court addressed an issue regarding the width of an
easement granted by deed and explained:
As our Supreme Court 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 construing the language in a written instrument, ‘the words
expressing the party’s intention should be given the usual, natural and
ordinary meaning.’ ” Cellco P’ship d/b/a Verizon Wireless v. Shelby
County, 172 S.W.3d 574, 587 (Tenn. Ct. App. 2005) (quoting Ballard v. N.
Am. Life & Cas. Co., 667 S.W.2d 79, 82 (Tenn. Ct. App. 1983)). “Any
reference to subsequently executed instruments in order to glean the
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grantor’s intent at the time of conveyancing was in error.” Id. at 590
(discussing the requirements for establishment of an easement by
implication.).
In Cellco P’ship d/b/a Verizon Wireless, this Court stated:
“[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). Our case law adopts this general proposition,
providing that:
“The use of an easement must be
confined strictly to the purposes for which it
was granted or reserved. A principle which
underlies 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.” 17 Am. Jur. 996, sec. 98 . . . .
“In other words, an easement
appurtenant to a dominant tenement can be used
only for the purposes of that tenement; it is not
a personal right, and cannot be used, even by
the dominant owner, for any purpose
unconnected with the enjoyment of his estate.
The purpose of this rule is to prevent an
increase of the burden upon the servient estate,
and it applies whether the easement is created
by grant, reservation, prescription, or
implication.” 9 R.C.L., 786, sec. 43; Jones on
Easements, secs. 99 and 100.
“A principle which underlies the use of
all easements is that the owner thereof cannot
materially increase the burden of it upon the
servient estate, nor impose a new and additional
burden thereon. . . . It may be said in general
that if an easement is put to any use inconsistent
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with the purpose for which it was granted, the
grantee becomes a trespasser to the extent of the
unauthorized use.” 9 R.C.L., 790, sec. 47;
Jones on Easements, secs. 99 and 100.
Adams v. Winnett, 25 Tenn. App. 276, 156 S.W.2d 353, 357
(1941); see also McCammon v. Meredith, 830 S.W.2d 577,
580 (Tenn. Ct. App. 1991).
Cellco P’ship d/b/a Verizon Wireless, 172 S.W.3d at 595–96. “ ‘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 v. Gatlinburg Airport Auth., Inc., No. E2005–02023–
COA–R3–CV, 2006 Tenn. App. LEXIS 747, at *9, 2006 WL 3421282, at
*3 (Tenn. Ct. App. Nov .28, 2006), no appl. perm. appeal filed, (quoting
Adams v. Winnett, 25 Tenn. App. 276, 156 S.W.2d 353, 358 (Tenn. Ct.
App. 1941)).
In Fanning v. Wallen, this Court explained:
If the location of an easement cannot be ascertained by
the language of the instrument or the surrounding
circumstances, the use of the way fixes the location. See Hill
v. U.S. Life Title Ins. Co. of N.Y., 731 S.W.2d 910, 913 (Tenn.
Ct. App. 1986) (“If a right of way is decreed over the lands of
another, it is not necessary for the parties expressly to
designate its location, but it is sufficient if a right-of-way is
used and acquiesced in. The use fixes the location.”) (quoting
Richardson v. Bristol Land & Improvement Co., 1 Tenn. App.
671, 690 (1929)).
Fanning v. Wallen, No. E2001–00228–COA–R3–CV, 2001 Tenn. App.
LEXIS 620, at *15, 2001 WL 950001, at *6 (Tenn. Ct. App. Aug. 21,
2001), no appl. perm. appeal filed.
Shew v. Bawgus, 227 S.W.3d 569, 576-77 (Tenn. Ct. App. 2007).
As is the situation with Easement 1 in the case now before us, the easement at
issue in Shew was created by deed, but the deed did not provide a width for the easement.
Shew, 227 S.W.3d at 577. Also, as is similar to the situation in the case now before us,
the easement at issue in Shew had been used as a driveway for years. Id. The holders of
14
the dominant estate in Shew sought to have the easement declared to be 30 feet in width,
which would have increased the width of the area that had been in use for many years.
Id. at 572. The Shew plaintiffs based their argument, in part, upon proof presented at trial
that a width of 30 feet was necessary to accommodate fire-fighting apparatus. Id. at 573.
In the case now before us on appeal, the plaintiffs made a similar argument at trial. In
Shew, this Court held that to increase the width of the easement at issue to 30 feet would
materially increase the burden upon the servient estate and cause an undue burden. Id. at
578. We stated: “As the Driveway has been used pursuant to the purpose for which it
was created and its width has not changed in over fifty years, ‘the use of the way fixes the
location.’” Id. at 577 (quoting Fanning v. Wallen, No. E2001-00228-COA-R3-CV, 2001
WL 950001, at *6 (Tenn. Ct. App. Aug. 21, 2001), no appl. perm. appeal filed).
In its memorandum opinion incorporated into the judgment by reference, with
regard to this issue the Trial Court specifically found and held:
The proof shows in the opinion of the Court that the road that we’ve
been referring to as Clyde Austin Road is a private right-of-way, that it
provides ingress and egress to and from Whirlwind Road to both the trust
property and also the Perry and Montgomery property as those roads are
shown on the survey plats that are the numerous exhibits. The one that
comes to mind specifically is Exhibit Number 9, but it would be all the
maps that are consistent with Map Number 9, they show the road, the road
is a private right-of-way. I find that the road from the terminus of
Whirlwind Road all the way to where that same road strikes the, the
property boundary of the trust property and then the other fork which
follows through and strikes the boundary of the Montgomery property is
fifteen (15) feet in width. The reason the Court is deciding that width is
because there’s one exhibit, I think it’s Exhibit Number 11, there’s two
pylons set out on the edge of the gravel and Mr. Niles, I think, testified that
they were thirteen feet apart. But the Court believes that that entire
roadbed, the flat place is considered the roadbed and it appears to me to be
another two feet, arguably four, but I'm deciding it’s two, and I’m saying
that the road is fifteen feet in width at all places that are at issue in this case.
Of course, there’s also this private driveway that’s at issue that runs
from what we’ve been calling the Clyde Austin Road all the way up to the
Montgomery property boundary. The Court finds the deed references are
replete, it’s a right-of-way. No question about it. The width is fifteen feet
as I’ve already said. It was created and has always been used as an open
and unobstructed right-of-way. The Court finds that it should remain open,
15
it should remain unobstructed and there should be no interference with the
use of it from anybody against anybody else involved in this case.
***
The Court finds that as an appurtenance to these specifically granted
right-of-ways, commonsensically, what we have to know and look at is that
if there’s a place in that right-of-way where a turn is required, then there
would be a little turning apron or something like that that might exceed the
fifteen foot width, specifically where they’re coming in or out with a trailer.
If you, if you go home tonight and you drove posts right down the road
fifteen feet where it T-d right into Whirlwind Road, I, I don’t think that
would be right. I think you would need to give them room, I hope you don’t
drive posts, but you need to give them room to swing in with a trailer or
swing in with a vehicle that’s a little longer than normal; I think I heard
something about buses or something like that, but it’s just a, it’s just a
common sense thing. It, it just -- if you -- if somebody’s got a road across
your property then they’re going to have to turn in off the public road or
they might have to make a turn out there where he goes in his gate, and
when he makes that turn there’s necessarily going to be a bit of a curve or,
I call it a turning apron, whatever you want to call it, but if you have the
center line on this thing surveyed and you do any further markings, have
your surveyors take into account a turning apron at the appropriate places
’cause I think that goes along with the grant of a right-of-way.
In their respective briefs on appeal both appellants and appellees argue that the
evidence preponderates against the Trial Court’s finding that the width of Easement 1 is
15 feet. Niles argues that this finding increases the width of Easement 1, which he
contends should be confined to the dimensions of the graveled section of Easement 1.
Montgomery, in his brief on appeal, argues that Easement 1 has always been treated as
being wide enough for two vehicles traveling in opposite directions to pass one another
and that the Trial Court’s finding of 15 feet in width is not sufficient to allow two
vehicles to pass one another. Thus, both Niles and Montgomery assert that the evidence
preponderates against the Trial Court’s finding. We disagree with both.
The evidence in the record on appeal shows that the deed that created Easement 1
stated that this easement was over an “existing private road.” The evidence further shows
that this existing road is graveled and has historically been used for ingress and egress by
Niles, Montgomery, the 612 Trust, and their respective predecessors in title, and that
since Perry constructed Easement 2 also has been used by Perry. At trial, Coffey, a
registered land surveyor and professional engineer who was hired to measure the width of
16
the gravel, testified that the width of the gravel on Easement 1 varies from approximately
twenty-four feet where the easement meets Whirlwind Drive to approximately ten to
twelve feet in other areas along Easement 1. The parties agree that there is at least one
culvert located along Easement 1 and that this culvert limits the width of Easement 1
where the culvert lies. The evidence in the record on appeal shows that over the years
when two vehicles traveling in opposite directions met on Easement 1 they would pull to
the side to allow the vehicles to pass one another.
The evidence in the record on appeal does not preponderate against the Trial
Court’s finding that the width of Easement 1 is slightly greater than the width of the
graveled section, but not as wide as Montgomery requests. Enlarging Easement 1 to the
width requested by Montgomery would materially increase the burden on the servient
estate, which in this case belongs to Niles. This would be contrary to Tennessee law. We
also note that Easement 2, which can be accessed only over Easement 1, is specified in
the Easement Agreement to be 15 feet wide. Both easements had the same grantor, Tony
Hagwood. If Easement 1 is less than the 15 foot width of Easement 2, Easement 2
effectively would be limited not to the 15 feet specified in the Easement Agreement
creating it but instead to the lesser width of Easement 1. The evidence in the record on
appeal does not preponderate against the Trial Court’s finding that the width of Easement
1 is fifteen feet “with wider turning aprons at the appropriate places . . . .”
We next consider whether the Trial Court erred in defining the term ‘guests’ as
that term appears in the Easement Agreement. With regard to this issue, the Trial Court
specifically found and held: “all easements described above shall be used only for single-
family residential and non-commercial agricultural easements, but that said use will
permit occasional utility vehicles and temporary construction vehicles.”
In its memorandum opinion incorporated into the judgment by reference, the Trial
Court specifically found and held, with regard to this issue:
And let me, let me comment on that for just a minute because the
word guests, in my opinion, is someone who’s invited there, okay? That’s
how I’m construing the word guest. So he had people working there, they
were there at his behest and I think that -- I don’t think there’s anything
about that offends residential or agricultural use, so -- but, you know, let’s
take, for instance, the trust property, okay? I don’t think that he can make a
subdivision up there and put in forty houses and use the right-of-way that
he’s got. I think that is a, that would be a gross overuse of the right-of-way.
And I don’t -- I think there are other commonsensical limitations to it. If
he has some business or something with John Deere in some commercial
way that’s behind them coming out to do a little bush hogging or test a bush
17
hog or something like that, I think that could become an overuse of the
right-of-way, okay? But just, I mean, like that gas truck that was coming in
to fill his tank up, I’m assuming, just a propane truck running in, filling up
a tank, going back out, that’s residential use. I mean, that’s perfectly
consistent with a residence being up there. So I don’t, I don't want to limit
the word guest to what, to those dictionary definitions. I think it’s got a
more common and ordinary definition that I, I would use in this matter,
okay?
In his brief on appeal, Niles argues that the term ‘guests’ should be limited to
people “being entertained or lodged at the residence.” We find, as did the Trial Court,
this proposed definition to be too restrictive given the evidence in the record now before
us on appeal. Niles asserts in his brief on appeal that “Perrys [sic] presented no authority
for a definition of ‘guest’ which would encompass the daily passage of commercial
vehicles as were being conducted upon Perry’s property for their large construction
project.” We agree with this assertion. We note, however, that the Trial Court did not
hold that the term ‘guest’ included “the daily passage of commercial vehicles . . . [for a]
large construction project.” Instead, the Trial Court held that “occasional utility vehicles
and temporary construction vehicles” were permitted (emphasis added). This definition
comports with the evidence in the record showing the purpose intended by the parties to
the Easement Agreement when they negotiated that agreement. We find no error in the
Trial Court’s definition of the term ‘guests’ as that term appears in the Easement
Agreement.
Next, we consider whether the Trial Court erred in finding that Montgomery may
use Easement 1 for agricultural purposes in addition to residential purposes. With regard
to this issue, in his brief on appeal Niles cites only to the deed, which provides, in
pertinent part, that the easement is “for residential purposes only . . . .” We agree that
this is what the deed creating the easement provides and acknowledge that: “The use of
an easement must be confined strictly to the purposes for which it was granted or
reserved.” Shew, 227 S.W.3d at 576 (quoting Cellco P’ship d/b/a Verizon Wireless v.
Shelby Cty., 172 S.W.3d 574, 596 (Tenn. Ct. App. 2005)).
It appears, however, that the use about which Niles actually is complaining
concerns Montgomery’s use of Easement 1 to remove hay from the Montgomery
property. The proof in the record on appeal shows that Montgomery has over the years
had someone cut hay on the Montgomery property and remove that hay. The use of
Easement 1 for such a purpose does not offend the restriction provided in the deed that
the easement be used “for residential purposes only . . . .” We caution, however, that if
Montgomery is selling the hay or receiving any other compensation related to the
growing, cutting, and removing the hay, that action would constitute a commercial
18
venture and would offend the deed restriction. We find that the action of clearing,
mowing, or cutting vegetation from one’s property, even hay, falls within the category of
keeping the property maintained and can be considered a residential purpose absent, of
course, an added commercial venture.
As a related issue, Niles raises the question of whether the Trial Court erred in
finding that the 612 Trust could use their easement for residential and agricultural uses.
The Trial Court found and held that the 612 Trust had a prescriptive easement to their
property. Niles does not argue in his brief on appeal that the Trial Court erred in finding
that a prescriptive easement in favor of the 612 Trust existed. Rather, Niles asserts that
while there is proof that the 612 Trust property has been used for agricultural purposes,
there is no proof that the property has been used for residential purposes and, therefore, to
hold that it may be used for residential purposes would improperly enlarge the easement.
Niles is mistaken.
In its brief on appeal, the 612 Trust points out that its Amended Complaint alleged
that there is a residence on the property. It further asserts that Niles filed no “responsive
pleading contesting those allegations.”3 Furthermore, Perry testified at trial that there are
improvements on the 612 Trust property. We find no error in the Trial Court’s holding
that the 612 Trust has a prescriptive easement “for single-family residential and non-
commercial agricultural . . .” use.
We next consider the issue of whether the Trial Court erred in failing to specify
whether more than one single-family dwelling could be constructed on the 612 Trust
property. We note that this issue was raised for the first time in the motion to alter or
amend the judgment filed by Niles. By order entered August 30, 2017 the Trial Court
denied the motion to alter or amend filed by Niles without specifically addressing this
issue. Niles is asking this Court to make a finding on an issue not presented at trial and
not determined by the Trial Court. We decline to do so. See Crossley Const. Corp. v.
Nat. Fire Ins. Co. of Hartford wherein we stated:
Except for some limited exceptions not applicable here, we will not
consider issues, let alone claims, raised for the first time on appeal. See
City of Cookeville ex rel. Cookeville Reg’l Med. Ctr. v. Humphrey, 126
S.W.3d 897, 905–06 (Tenn. 2004) (noting the general rule that “questions
not raised in the trial court will not be entertained on appeal.” (quoting
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.1983))).
3
A careful and thorough review of the record on appeal reveals that the 612 Trust did plead this fact in its
Amended Complaint. The record on appeal contains no responsive pleading to this complaint.
19
Crossley Const. Corp. v. Nat. Fire Ins. Co. of Hartford, 237 S.W.3d 652, 656 (Tenn. Ct.
App. 2007).
Finally, we consider whether the Trial Court erred in finding that Niles was in
contempt of court. With regard to civil contempt, our Supreme Court has instructed:
Civil contempt claims based upon an alleged disobedience of a court
order have four essential elements. First, the order alleged to have been
violated must be “lawful.” Second, the order alleged to have been violated
must be clear, specific, and unambiguous. Third, the person alleged to have
violated the order must have actually disobeyed or otherwise resisted the
order. Fourth, the person's violation of the order must be “willful.”
The threshold issue in any contempt proceeding is whether the order
alleged to have been violated is “lawful.” A lawful order is one issued by a
court with jurisdiction over both the subject matter of the case and the
parties. Vanvabry v. Staton, 88 Tenn. 334, 351–52, 12 S.W. 786, 791
(1890); Churchwell v. Callens, 36 Tenn. App. 119, 131, 252 S.W.2d 131,
136–37 (1952). An order is not rendered void or unlawful simply because
it is erroneous or subject to reversal on appeal. Vanvabry v. Staton, 88
Tenn. at 351, 12 S.W. at 791; Churchwell v. Callens, 36 Tenn. App. at 131,
252 S.W.2d at 137. Erroneous orders must be followed until they are
reversed. Blair v. Nelson, 67 Tenn. (8 Baxt.) 1, 5 (1874). However, an
order entered without either subject matter jurisdiction or jurisdiction over
the parties is void and cannot provide the basis for a finding of contempt.
Brown v. Brown, 198 Tenn. 600, 610, 281 S.W.2d 492, 497 (1955); Howell
v. Thompson, 130 Tenn. 311, 323–24, 170 S.W. 253, 256 (1914).
Naturally, the determination of whether a particular order is lawful is a
question of law.
The second issue involves the clarity of the order alleged to have
been violated. A person may not be held in civil contempt for violating an
order unless the order expressly and precisely spells out the details of
compliance in a way that will enable reasonable persons to know exactly
what actions are required or forbidden. Sanders v. Air Line Pilots Ass’n
Int’l, 473 F.2d 244, 247 (2d Cir. 1972); Hall v. Nelson, 282 Ga. 441, 651
S.E.2d 72, 75 (2007); Marquis v. Marquis, 175 Md. App. 734, 931 A.2d
1164, 1171 (2007); Cunningham v. Eighth Judicial Dist. Ct. of Nev., 102
Nev. 551, 729 P.2d 1328, 1333–34 (1986); Petrosinelli v. People for the
Ethical Treatment of Animals, Inc., 273 Va. 700, 643 S.E.2d 151, 154–55
(2007). The order must, therefore, be clear, specific, and unambiguous.
20
See Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d [465] at 471 [
(Tenn.2003) ]; Long v. McAllister–Long, 221 S.W.3d [1] at 14 [
(Tenn.App.2006) ].
Vague or ambiguous orders that are susceptible to more than one
reasonable interpretation cannot support a finding of civil contempt. City of
Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005); Judge Rotenberg Educ.
Ctr., Inc. v. Comm’r of Dep’t of Mental Retardation, 424 Mass. 430, 677
N.E.2d 127, 137 (1997); Ex parte Slavin, 412 S.W.2d [43] at 45 [ (Tex.
1967) ]. Orders need not be “full of superfluous terms and specifications
adequate to counter any flight of fancy a contemner may imagine in order
to declare it vague.” Ex parte Blasingame, 748 S.W.2d 444, 446 (Tex.
1988) (quoting Ex parte McManus, 589 S.W.2d 790, 793 (Tex. Civ. App.
Dallas 1979)). They must, however, leave no reasonable basis for doubt
regarding their meaning. Int'l Longshoremen’s Ass’n, Local No. 1291 v.
Phila. Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236
(1967); Salt Lake City v. Dorman–Ligh, 912 P.2d 452, 455 (Utah Ct. App.
1996).
Orders alleged to have been violated should be construed using an
objective standard that takes into account both the language of the order
and the circumstances surrounding the issuance of the order, including the
audience to whom the order is addressed. United States v. Bernardine, 237
F.3d 1279, 1282 (11th Cir. 2001); United States v. Young, 107 F.3d 903,
907–08 (D.C. Cir. 1997). Ambiguities in an order alleged to have been
violated should be interpreted in favor of the person facing the contempt
charge. Liberte Capital Group, LLC v. Capwill, 462 F.3d 543, 551 (6th
Cir. 2006); Levin v. Tiber Holding Corp., 277 F.3d 243, 251 (2d Cir. 2002);
Town of Virgil v. Ford, 184 A.D.2d 901, 585 N.Y.S.2d 559, 560 (1992);
Greene v. Finn, 153 P.3d [945] at 951 [ (Wyo. 2007) ]. Determining
whether an order is sufficiently free from ambiguity to be enforced in a
contempt proceeding is a legal inquiry that is subject to de novo review.
Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir.
1991); In re Leah S., 284 Conn. 685, 935 A.2d 1021, 1027 (2007); City of
Wisconsin Dells v. Dells Fireworks, Inc., 197 Wis.2d 1, 539 N.W.2d 916,
924 (1995).
The third issue focuses on whether the party facing the civil
contempt charge actually violated the order. This issue is a factual one to
be decided by the court without a jury. See Pass v. State, 181 Tenn. 613,
620, 184 S.W.2d 1, 4 (1944); Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn.
21
Ct. App. 1992). The quantum of proof needed to find that a person has
actually violated a court order is a preponderance of the evidence. Doe v.
Bd. of Prof’l Responsibility, 104 S.W.3d at 474. Thus, decisions regarding
whether a person actually violated a court order should be reviewed in
accordance with the standards in Tenn. R. App. P. 13(d).
The fourth issue focuses on the willfulness of the person alleged to
have violated the order. The word “willfully” has been characterized as a
word of many meanings whose construction depends on the context in
which it appears. Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364,
87 L.Ed. 418 (1943); United States v. Phillips, 19 F.3d 1565, 1576–77
(11th Cir. 1994). Most obviously, it differentiates between deliberate and
unintended conduct. State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins.
Group Trust, 209 S.W.3d [602] at 612 [ (Tenn. App. 2006) ]. However, in
criminal law, “willfully” connotes a culpable state of mind. In the criminal
context, a willful act is one undertaken for a bad purpose. Bryan v. United
States, 524 U.S. 184, 191, 118 S. Ct. 1939, 141 L.Ed.2d 197 (1998); State
v. Braden, 867 S.W.2d 750, 761 (Tenn. Crim. App. 1993) (upholding an
instruction stating that “[a]n act is done willfully if done voluntarily and
intentionally and with the specific intent to do something the law forbids”).
In the context of a civil contempt proceeding under Tenn. Code Ann.
§ 29–9–102(3), acting willfully does not require the same standard of
culpability that is required in the criminal context. State ex rel. Flowers v.
Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d at 612. Rather,
willful conduct
consists of acts or failures to act that are intentional or
voluntary rather than accidental or inadvertent. Conduct is
‘willful’ if it is the product of free will rather than coercion.
Thus, a person acts ‘willfully’ if he or she is a free agent,
knows what he or she is doing, and intends to do what he or
she is doing.
State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209
S.W.3d at 612 (citations omitted). Thus, acting contrary to a known duty
may constitute willfulness for the purpose of a civil contempt proceeding.
United States v. Ray, 683 F.2d 1116, 1127 (7th Cir. 1982); City of Dubuque
v. Iowa Dist. Ct. for Dubuque County, 725 N.W.2d 449, 452 (Iowa 2006);
Utah Farm Prod. Credit Ass’n v. Labrum, 762 P.2d 1070, 1074 (Utah
1988). Determining whether the violation of a court order was willful is a
22
factual issue that is uniquely within the province of the finder-of-fact who
will be able to view the witnesses and assess their credibility. Thus,
findings regarding “willfulness” should be reviewed in accordance with the
Tenn. R. App. P. 13(d) standards.
Konvalinka v. Chattanooga–Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354–57 (Tenn.
2008) (footnotes omitted).
In his brief on appeal, Niles does not contest that the order alleged to have been
violated was lawful. Nor does he contest the Trial Court’s finding that he willfully
engaged in the conduct, i.e., placing T-posts, found to be a violation of the Trial Court’s
order. Niles does argue, however, that the order did not clearly and specifically prohibit
him from taking the action of placing the T-posts along Easement 1.
The Trial Court’s March 9, 2015 order which Niles was found to have violated
states, in pertinent part:
IT IS ORDERED, ADJUDGED AND DECREED, subject to the
deposit of a cash bond by [Perry] with the Clerk & Master in the amount of
$2,500.00, [Niles] shall immediately remove the truck obstructing the use
by [Perry] of Easement No. 2 at its present location, and [Niles, his wife]
and their agents be and are hereby enjoined and restrained from any
obstruction of said easement by [Perry], his family members and guests,
until the trial of this case can be heard, in order to preserve the status quo
and until such time as the Court can determine from a trial on the merits the
precise place where Easement 2 is to be physically located in the future.
The evidence in the record on appeal shows that Niles admitted at trial that after
the Trial Court entered the injunction and told him not to block Easement 2, he put up T-
posts in Easement 1 where Easement 2 is located, thereby obstructing Perry’s ability to
use Easement 2. Although the Trial Court’s order did not specifically state that Niles
could not place T-posts in Easement 1, it did specifically and clearly state that Niles was
“enjoined and restrained from any obstruction of said [Easement 2] by [Perry], his family
members and guests . . . .” (emphasis added). Niles admitted at trial that his action of
placing the T-posts in Easement 1 after entry of the injunction obstructed Perry’s use of
Easement 2. We find the argument made by Niles that the Trial Court’s order did not
clearly and specifically prohibit him from placing T-posts in Easement 1 to be without
merit. We find no error in the Trial Court’s holding that Niles was in contempt of court.
23
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
appellants, Winfield Scott Niles and Nancy Niles, and their surety.
_____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
24