06/12/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 15, 2020
JOHN E. COOLIDGE, JR. v. ELIZABETH M. KEENE, ET AL.
Appeal from the Chancery Court for Hamilton County
No. 18-0732 Jeffrey M. Atherton, Chancellor
No. E2019-01278-COA-R3-CV
This appeal concerns whether certain easements were abandoned. John E. Coolidge, Jr.
(“Mr. Coolidge”) is a neighbor of Elizabeth M. Keene (“Ms. Keene”) and Christopher P.
Keene, II (“Mr. Keene”) (“the Keenes,” collectively). Pursuant to recorded easements,
the Keenes may use a driveway to access an old garage encroaching on Mr. Coolidge’s
property. However, the garage was damaged by fire many years ago and never repaired
or rebuilt by the Keenes’ predecessors. When the Keenes sought to repair or rebuild the
garage, Mr. Coolidge sued them in the Chancery Court for Hamilton County (“the Trial
Court”). Mr. Coolidge argued that both the driveway and encroachment easements had
been abandoned, largely because the garage was in ruins for such a long time. A bench
trial was held. The Trial Court found that, notwithstanding the passage of time, the
easements had not been abandoned, and the Keenes could proceed with their plans. Mr.
Coolidge appeals, and the Keenes raise their own issues as well. Discerning no reversible
error, we affirm the judgment of the Trial Court in all respects.
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 ANDY D.
BENNETT and CARMA DENNIS MCGEE, JJ., joined.
Adam U. Holland and Chanse J. Hayes, Chattanooga, Tennessee, for the appellant, John
E. Coolidge, Jr.
William H. Horton, Chattanooga, Tennessee, for the appellees, Elizabeth M. Keene and
Christopher P. Keene, II.
OPINION
Background
Mr. Coolidge owns the property located at 1113 Hanover Street, Chattanooga,
Tennessee (“1113 Hanover”). The Keenes’ property, 1115 Hanover Street, Chattanooga,
Tennessee (“1115 Hanover”), borders Mr. Coolidge’s property. Located partially on
1115 Hanover and partially on 1113 Hanover are the ruins of an old block garage that had
been damaged by fire in 1992, at the latest. A driveway on 1113 Hanover leads up to the
garage ruins.
Before 1975, both 1113 Hanover and 1115 Hanover were owned by the Coolidge
family. In January 1975, the owners of the Coolidge property granted an easement to
Richard E. Hudson and Marcia S. Hudson titled “Driveway Easement and Easement for
Encroachment of Garage.” In April 1975, 1115 Hanover was sold to the Hudsons. The
deed referred to the easement thusly: “TOGETHER WITH driveway easement and
easement for encroachment of garage. . .” The easement provided, in part:
WHEREAS, the grantee herein is purchasing Lot 9 [1115 Hanover],
Block 6, said Subdivision and appurtenant to said lot is a garage
encroaching onto said Lot 8 [1113 Hanover], and access to said garage is
over an existing concrete drive located on said Lot 8; and
WHEREAS, it is the purpose of this instrument to grant unto said
grantees an easement over said Lot 8, and an easement for the
encroachment of the garage onto said Lot 8.
NOW, THEREFORE, IN CONSIDERATION of One ($1.00) Dollar
and other good and valuable considerations paid, the receipt of all of which
is hereby acknowledged, We, CHARLES E. COOLIDGE, WALTER P.
COOLIDGE, JR., and MARY COOLIDGE CISSNA, Devisees under the
Will of Walter P. Coolidge, Sr., Deceased, do hereby sell, transfer and
convey unto RICHARD E. HUDSON and wife, MARCIA S. HUDSON, a
perpetual easement for purposes of egress and ingress over and along an
existing driveway along the East line of said Lot 8, from the Northeast line
of Hanover St. to the garage now located partially on said Lot 8 and
partially on said Lot 9.
ALSO CONVEYED HEREIN is a perpetual easement over that part
of Lot 8 upon which a block garage is now located, said easement to be 13
feet by 45.5 feet, as shown by survey of Hopkins-Morton Engineering
Company, Inc., dated December 26, 1974.
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1115 Hanover has changed ownership multiple times. In November 2017, the
Keenes—the current owners—bought 1115 Hanover. By the time the Keenes moved in,
the garage had been in ruins for many years. Meanwhile, 1113 Hanover was sold to Mr.
Coolidge by his grandfather in December 2015. Mr. Coolidge’s deed contained the
following language: “SUBJECT TO Driveway Easement and Easement for
Encroachment of Garage.”
When Mr. Coolidge found out that the Keenes were planning to repair or rebuild
the garage, Mr. Coolidge tried to obtain a permit to demolish what was left of the garage.
He was unsuccessful. The parties thereafter received notice of the garage’s
condemnation. The Keenes then obtained a permit to repair or rebuild the garage. Mr.
Coolidge was, as he is now, opposed implacably to any attempts to restore the garage. In
November 2018, Mr. Coolidge commenced this lawsuit by filing his Verified Complaint
for Declaratory Judgement to Quiet Title and for Restraining Order against the Keenes in
the Trial Court. In December 2018, the Keenes filed an answer and counterclaim. This
matter was tried in May 2019. We next summarize the pertinent testimony from trial.
Timothy Dodd (“Mr. Dodd”), a licensed civil engineer, testified as an expert
witness for Mr. Coolidge. Mr. Dodd evaluated the abandoned garage structure and
prepared a report on it. Mr. Dodd testified to what was left of the garage:
Masonry walls that are failing and failed footings. That’s basically it. It
appears that whatever masonry was above the level that remains was tossed
into the center. You can see a lot of rubble and blocks thrown in there. I
assume the wood frame structure burned completely out and was removed
at some point in the last 20 or 30 years.
In Mr. Dodd’s view, if one wished to rebuild the garage, “[y]ou would have to
completely tear that out and place new footings and start from scratch.”
Ben Hagaman (“Mr. Hagaman”), a licensed contractor, testified for the Keenes.
Mr. Hagaman stated that he could restore the garage. Mr. Hagaman testified that one
option was to “put rebar down in the CMU cells, fill them with concrete” and “dig a
footing or a slab on the inside of that structure, clean out what’s in there, and dig a
footing or a slab on the inside of that and then build, basically, off the inside of those
walls.” However, Mr. Hagaman testified that the better option would be to start over
from scratch. Mr. Hagaman estimated the cost of rebuilding the garage to be somewhere
in the vicinity of $50,000 to $80,000.
Recalled to the stand on rebuttal, Mr. Dodd stated that Mr. Hagaman’s restoration
plan was a “very poor approach.” Mr. Dodd emphasized, again, the great difficulty
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involved in attempting to restore the garage. Mr. Dodd testified: “[A]t some point,
you’re going to cast concrete against an already failing and laterally moved wall; so
you’re going to have to shore that up. Well, to shore it up, you’re going to be 10 feet
over into Mr. Coolidge’s property to do that.”
Mr. Coolidge testified, also. Mr. Coolidge used the driveway to access the back of
his property. In late 2017, he began having issues with the Keenes parking vehicles in
the driveway. Mr. Coolidge testified to his view that the garage and driveway easements
were long abandoned:
Q. Are you agreeable for the Keenes to come upon your property outside
the easement area to rebuild the garage?
A. No.
Q. What are you asking [the] Court to do for you today?
A. Well, I’m asking the Court to remove the cloud over my title. This
garage easement document is not -- the driveway easement and the
easement for the encroachment of the garage is not what -- the way it’s
been used for the last 30 years is not what the original agreement was
about. The building of the new structure, poured-concrete foundation, all
of that is not what the original bargainers -- when they came to this
agreement, that’s not what the original bargain was about. So I’m asking
the Court to clear my title and do away with this abandoned easement.
The deposition of Marcia Butler (the former Marcia S. Hudson) (“Ms. Butler”), a
previous owner of 1115 Hanover, was entered into evidence. The garage had caught on
fire when she and her husband lived at 1115 Hanover. Ms. Butler testified: “[O]ur
insurance paid us for the garage. But it was not enough money to build the garage back.
And they didn’t give us the money. The money went to the mortgage company because
the garage secured the loan for the house.” Ms. Butler and her then-husband continued to
use the driveway after the garage burned. However, they never rebuilt the garage during
their time at 1115 Hanover.
Another deposition was entered into evidence, this time of Aaron Gustafson (“Mr.
Gustafson”). Mr. Gustafson bought 1115 Hanover in 2009 and later sold it to the Keenes.
Mr. Gustafson testified to the measures he took to “shore up” the garage and reclaim the
driveway during his period of ownership:
Q. But apart from consulting with an architect, again, you would agree that
you did not rebuild the garage?
A. Yes, we did not rebuild the garage.
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Q. And so at the time that you sold -- other than the shoring up that you
discussed earlier, at the time that you sold 1115 -- or conveyed 1115
Hanover Street to the Keenes, the garage foundation and remains were
essentially as they were at the time that you had purchased the property?
A. Yes, apart from the shoring up, yes.
Q. When you talk about shoring up, you’re talking about the support -- I’ll
just characterize them as support rods that were propped up against the
foundation to prevent a portion of the foundation from collapsing?
A. Yes, we did that. And then I believe at least two times over the course
of owning the property we sent in landscaping crews to clear the trees that
had grown inside, with the underside of the foundation. So I don’t know if
that would be considered additional work to shore up or protect the
property, but we did do that at least twice over the course of owning the
property.
***
Q. Now, I understand you didn’t do anything as far as shoring up -- other
than the shoring up of the wall, you didn’t do anything back behind the
garage on the sloping hillside, did you?
A. No. Everything was either inside of the garage and -- and then the only
other thing we kind of did is I actively worked over the course of, gosh,
three years to reclaim the driveway from grasses and weeds and such, so
that included, you know, a lot of weed whacking and mowing and bringing
back the grass strip in the middle. The entire pad had been overgrown and
had started cracking because plants were growing down into the cracks that
had started. I reclaimed all of that kind of as I went. I think we had
occasional landscapers that I elicited to help with that. . . .
Mr. Gustafson stated that he sometimes parked in the driveway, although it was rare. Mr.
Gustafson stated that he never used what remained of the garage.
Returning to our review of the live testimony from trial, Ms. Keene took the stand.
Ms. Keene testified to a meeting she and her husband had with Mr. Coolidge following
some issues that arose between them over use of the driveway. Ms. Keene stated:
Q. And what was his reaction when you showed him the easement? What
did he say?
A. When we showed Mr. Coolidge the easement, he -- I remember
specifically he said that we should go to court and have the easement
changed, saying that the easement was shared on our driveway.
-5-
Q. That’s what he said when he read it?
A. Yes.
Q. And did he read the entire document?
A. I believe he did.
Q. Okay. Was anything else said at that meeting, at that point, that you can
recall?
A. I remember us -- I mean, afterward I remember my husband and I
saying, “I can’t believe that he wants us to go and have this easement
completely changed.” I mean, we thought that it was strange and alarming.
Q. What’s the size of that driveway? How narrow is it?
A. One size. I mean, like, one size, like, one car width.
Q. Is there any way two cars can pass each other on the driveway?
A. No, sir.
Q. Did you have any particular reason why this driveway’s important to
you from a safety standpoint?
A. Yeah. The street that we live on is Hanover Street. It comes right off of
Hixson Pike. So people drive pretty fast on it. And as it is right now, we
park on the street in front of our own house, typically, unless someone else
is parked there. And I have to get my children out of the car and into the
car on this busy street. It’s just not ideal from a safety standpoint. We
would prefer to pull into the driveway and be able to park in the driveway
and load and unload the children.
Mr. Keene testified, as well. As to his understanding of the easements and his
stance on Mr. Coolidge using the driveway, Mr. Keene stated:
Q. Is it your desire to build a garage within whatever parameters are set by
the Court?
A. Whatever the Court says I can build is what I’ll build.
Q. Okay. And what about the driveway? Tell the Court about what you
think the logical solution is to the driveway.
A. I believe the driveway easement and the garage easement are two
separate easements. My dictionary defines “perpetual” as forever and
unchanging; so I don’t understand why it’s brought in question so much. I
don’t understand how one car could ever use the driveway while another
one is. It’s just simply not large enough to accommodate two cars. There’s
no way. Exclusivity would be implied just because of the way it’s being
used. There’s no way for two cars to use it.
Q. Would you have any objection to Mr. Coolidge using the driveway to
access the back of his property as long as he didn’t block the driveway?
A. Absolutely not.
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In June 2019, the Trial Court entered its memorandum opinion and order. The
Trial Court found and held that the rights of the parties under the 1975 easement
agreement continued to be dictated by the terms of that agreement; that the easements
were not abandoned; and that, while the encroachment easement is exclusive to 1115
Hanover, the driveway egress and ingress easement is not. The Trial Court stated, in
pertinent part:
[declaratory judgment]
The Easement Agreement creates a perpetual egress and ingress
easement over and along an existing driveway. The Court finds that the
further description of the driveway being from Hanover Street to the garage
is an effort to clarify the location of the driveway. Therefore, the easement
for egress and ingress is not limited strictly to accessing the garage present
at the drafting of the Easement Agreement. The egress and ingress
easement applies to the driveway located as described and is not terminated
by the destruction of the garage.
***
The Easement Agreement creates a perpetual encroachment
easement over that part of Lot 8 upon which a block garage is now located,
further defined by the measurements of the garage at the time the Easement
Agreement was drafted. The Court finds that the encroachment easement is
exclusive to 1115 Hanover Street for the area described in the Easement
Agreement and further defined by the February 2018 Hopkins Boundary
Survey (“Hopkins Survey”). The encroachment easement is not limited to
the garage that was standing at the time of the Easement Agreement
drafting. In fact, the easement is not strictly limited to a garage being within
that space. The pure language of the Easement Agreement is exclusive
only in the defined measurements of encroachment into Lot 8 or 1113
Hanover Street.
***
[regarding Mr. Coolidge’s request for injunctive relief]
[Mr. Coolidge] requests that [the Keenes] be immediately and
permanently restrained or enjoined from coming onto 1113 Hanover Street
for any purpose including use of the driveway and any efforts to rebuild the
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garage. [Mr. Coolidge] also requests that [the Keenes] demolish the
remains of the garage.
Among the factors considered when granting the relief requested are
whether the Plaintiff showed with clear and convincing evidence that his
rights would be violated or that he would suffer immediate and irreparable
injury. As described herein, simply stated, they are not. The Court
declines to grant injunctive relief against [the Keenes]. Owners of 1115
Hanover Street have the right to utilize the egress and ingress easement that
exists along the driveway. Additionally, they have the right to demolish
and rebuild the garage which exists on the encroachment easement.
***
[whether the easements were abandoned]
The first Hall factor requires that the easement holder has
acknowledged the easement and then disavowed its use. The evidence
presented at trial was not persuasive that any owner of 1115 Hanover Street
ever disavowed the use of either the egress and ingress easement or the
encroachment easement. [Mr. Coolidge] asserts that by not repairing the
garage after it burned and by paying no taxes or insurance on the garage,
the encroachment easement has been “disavowed”. [The Keenes] believe
that the continued use of the driveway, even if intermittent, proves that the
egress and ingress easement has not been disavowed. Additionally, activity
by prior owners such as supporting the remaining garage walls and seeking
advice from contractors regarding repairing or replacing the garage indicate
that the encroachment easement was not disavowed. Finally, the deeds of
both [Mr. Coolidge] and [the Keenes] identify the continued existence of
the easement.
The Court finds that neither easement was disavowed. Although the
garage was not repaired, the space upon which the garage sits is still
occupied by the remains. This is use of the encroachment easement based
on the literal reading of the Easement Agreement. The fact that the garage
is currently in ruins does not cause the driveway easement to cease. The
egress and ingress easement is for the purpose of accessing the 13 feet by
45.5 feet area behind both 1113 and 1115 Hanover Street. This area has
been accessed as evidenced by landscaping and prior shoring of the garage
walls. Also, the Court notes the continuous easement language in deeds for
both 1115 Hanover Street and 1113 Hanover Street. Therefore, the egress
and ingress easement is not disavowed.
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Second, the easement holder’s failure to maintain the easement is
considered. [Mr. Coolidge] argues that the driveway became overgrown
and the garage developed into a “compost pit” as stated in Aaron
Gustafson’s deposition. It is Mr. Coolidge’s position that these facts
indicate a failure to maintain both easements. However, [the Keenes] point
out that the prior owner of 1115 Hanover Street, Aaron Gustafson, made
efforts to shore up the remaining walls of the garage which is indicative of
easement maintenance. Mr. Gustafson also explained in his deposition that
the driveway was in “somewhat of a disarray” when he moved into the
house and that he worked to improve its condition.
Looking again to the specific language of the Easement Agreement,
the encroachment easement is clearly indicated by the remaining block
walls of the garage. Additionally, despite prior evidence of overgrowth in
the driveway, the egress and ingress easement is now maintained. The
Court, therefore, finds that the degree of maintenance in this case, albeit
minimal, resulted in [Mr. Coolidge’s] failure to meet his clear and
unequivocal burden of proof.
Next, the Court will contemplate whether the easement holder
acquiesced in acts of others that may have reduced the utility of the
easement. The parties offer little proof or argument on this point. The only
applicable evidence is [Mr. Coolidge’s] mention of the continued lack of
garage repair through multiple owners of 1115 Hanover Street.
The Court finds in this case that each successive purchase of 1115
Hanover Street is not indicative of acquiescence to lack of repair efforts of
a prior owner. For there to be acquiescence by an easement holder as in the
meaning of Hall v. Pippin there must be acts by others during the time of
that easement holder’s grant. The purchase of property is not a form of
acquiescing.
The fourth Hall factor is the placement of a permanent obstruction.
There is no evidence in this case that there was a permanent obstruction
placed across the driveway. [Mr. Coolidge’s] best argument was the
development of overgrowth. The Court finds that this is not a permanent
obstruction because overgrowth does not meet the threshold of permanent,
and the overgrowth has been removed.
Finally, the Court is asked to consider whether alternative access
was developed by the easement holder. There was no evidence put forth
that indicated any alternative access to the area defined in the encroachment
easement.
The five Hall factors cover the considerations outlined in Cottrell v.
Daniel with greater specificity. Through analyzing the five factors in Hall
v. Pippin it is clear that there was not an intent to abandon the easement,
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there was no positive showing of intent to abandon, there were no external
acts by which intention was carried into effect, and there was no clear and
unmistakable affirmative act indicating repudiation.
***
[whether the driveway easement is exclusive to 1115 Hanover]
The Court disagrees with [the Keenes’] proposition that the driveway
egress and ingress easement is exclusive. Mr. Coolidge and any future
inhabitants of 1113 Hanover Street can use the easement to access the back
of their house without interfering with the easement use of those living in
1115 Hanover Street. However, the Court does agree that the
encroachment easement is exclusive to 1115 Hanover Street, as both
property owners cannot occupy the same space at the same time. While the
egress and ingress easement accommodates mutual use, the encroachment
easement for a structure does not.
***
[what may be built on the encroachment easement]
Finally, [Mr. Coolidge] asserts that because there is interest on the
part of [the Keenes] to rebuild a garage with the possibility of other
functions, namely a mother-in-law suite, that this is a forfeiture of the
easement. Also, Mize v. Owenby, 189 Tenn. 207, 225 S.W.2d 33 (1949) is
cited in support of a limitation as to changes which may increase the burden
upon an easement.
As stated before, the encroachment easement is not written to be
exclusively for a garage, but is for the purpose of the use of a 13 feet by
45.5 feet area. The Court does not venture to assume what Mr. and Mrs.
Keene can obtain a building permit for. The announced representation of
[the Keenes’] counsel at trial was that to avoid the risk of changing the
apparent nature and use of the easement, only a garage would be rebuilt.
For the benefit of improving the relationship between the parties, the court
recommends this decision. However, there is no specific restriction within
the easement itself as to what structure may occupy the space described in
the future. It simply identifies the structure that was present when the
easement was conveyed. The Court does agree with [Mr. Coolidge’s]
concern regarding the increased burden upon the egress and ingress
easement. The Easement Agreement implies, if not expressly states, that
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use will involve traffic equivalent to the egress and ingress of vehicles to a
garage. Therefore, regardless of what [the Keenes] choose to build on the
area of the encroachment easement, it must not increase the burden upon
the driveway easement beyond what would be expected of egress and
ingress to a garage.
(Internal citations and footnotes omitted). Mr. Coolidge timely appealed to this Court.
Discussion
Although not stated exactly as such, Mr. Coolidge raises the following three issues
on appeal: 1) whether the Trial Court erred in declining to find that the easements were
abandoned; 2) whether the Trial Court erred in not defining the scope of the
encroachment easement as being limited to a block garage within the designated
encroachment area; and, 3) whether the Trial Court erred in declining to grant Mr.
Coolidge’s request for injunctive relief preventing the Keenes from trespassing on his
property in the future to rebuild the garage. The Keenes raise two separate issues,
restated slightly as follows: 1) whether the Trial Court erred in finding that the driveway
portion of the easement is for mutual use; and, 2) whether the Keenes should be awarded
attorney’s fees incurred in this appeal, which they contend is frivolous.
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). To the extent the abuse of discretion standard is
implicated in this appeal, “[a]n abuse of discretion occurs when the trial court causes an
injustice by applying an incorrect legal standard, reaches an illogical result, resolves the
case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes
an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).
Beginning with Mr. Coolidge’s issues, we first address whether the Trial Court
erred in declining to find that the easements were abandoned. “An easement is a right an
owner has to some lawful use of the real property of another.” Pevear v. Hunt, 924
S.W.2d 114, 115 (Tenn. Ct. App. 1996) (citing Brew v. Van Deman, 53 Tenn. (6 Heisk)
433 (1871)). There are a number of ways an easement can be created in Tennessee,
including by these methods: (1) express grant, (2) reservation, (3) implication, (4)
prescription, (5) estoppel, and (6) eminent domain. Id. at 115-16. The easements in this
case were created by express grant.
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Mr. Coolidge argues that the easements were abandoned. Tennessee law provides
that “[t]he party asserting abandonment of an easement must prove it by clear,
unequivocal evidence.” Hall v. Pippin, 984 S.W.2d 617, 620 (Tenn. Ct. App. 1998).
Thus, the proper standard in an abandonment of an easement case is clear and
unequivocal. Clear and convincing evidence and clear and unequivocal evidence are one
and the same. See Gambill v. Hogan, 207 S.W.2d 356, 360-61 (Tenn. Ct. App. 1947)
(equating “clear and convincing evidence” to “clear and unequivocal evidence” and
“clear, cogent and convincing evidence”). “Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
n. 3 (Tenn. 1992).
Tennessee law is well-settled regarding abandonment of an easement. An
easement may be abandoned, but the party attempting to prove abandonment must show
both “an intention to abandon the easement [and] also external acts carrying that intention
into effect.” Hall, 984 S.W.2d at 620. Mere nonuse of the easement “is not sufficient, by
itself, to prove abandonment. Nonuse must be coupled with proof that the easement
holder or holders intended to abandon the easement.” Hall, 984 S.W.2d at 620-21. The
required external acts necessary to prove abandonment may be “either a single act or a
series of acts.” Hall, 984 S.W.2d at 621. Courts may consider several factors in making
a determination of whether an easement has been abandoned, including:
(1) statements by the easement holder acknowledging the easement’s
existence and disavowing its use, (2) the easement holder’s failure to
maintain the easement in a condition permitting it to be used for access, (3)
the easement holder’s acquiescence in the acts of others that reduce the
utility of the easement, (4) the easement holder’s placement of a permanent
obstruction across the easement, or (5) the easement holder’s development
of alternative access in lieu of the easement.
Id.1
In support of his contention that the easements were abandoned, Mr. Coolidge
points to the following actions taken by the Keenes’ predecessors: (1) accepting
insurance proceeds after the garage burned down but not using those funds to rebuild the
garage; (2) not paying property taxes on the garage since 1993; (3) failing to rebuild the
garage for over thirty years; and, (4) leaving the encroachment area in such a state that it
1
While these factors were applied to an unrecorded easement in Hall, we regard them as relevant for
consideration of a recorded easement, also. See Porter v. Freedle, No. M2001-01892-COA-R3-CV, 2002
WL 1315555, at *3 n. 2 (Tenn. Ct. App. June 18, 2002), Rule 11 appl. perm. appeal denied Dec. 2, 2002.
The parties and the Trial Court applied these factors, as well.
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was used as a compost pile. The Keenes, on the other hand, point to the following
evidence in support of their view that the Trial Court was correct in finding that the
easements were not abandoned: (1) the easements were documented in the multiple deeds
for 1115 Hanover over the years; (2) there was no hint that any owner of 1115 Hanover
ever disavowed the easements; (3) the original easement owners, the Hudsons, continued
to use the driveway even after the garage burned; and, (4) the Gustafsons shored up the
garage walls, kept the driveway cleared, and occasionally used the driveway for parking
and access. The Keenes also observe, correctly, that non-use alone is insufficient to
prove abandonment of an easement.
Mr. Coolidge’s evidentiary burden for abandonment is that of clear and
convincing evidence. Mr. Coolidge’s argument appears to boil down to this: the garage
was the very point of both the driveway and encroachment easements, and once it burned
down, the easements terminated, especially after the passage of so many years without
the garage being repaired or rebuilt. While Mr. Coolidge argues that he really is not just
resting on non-use to prove abandonment, that is what his argument amounts to in
substance. An easement holder’s mere non-use of an easement does not, on its own,
prove abandonment. This is true even after the passage of many years. The Trial Court
made detailed factual findings, and the evidence does not preponderate against any of
those findings. In our judgment, the combined facts do not rise to the level of clear and
convincing necessary to prove abandonment. We affirm the Trial Court as to its
conclusion that the easements were never abandoned.
We next address whether the Trial Court erred in not defining the scope of the
encroachment easement as being limited to a block garage within the designated
encroachment area. Regarding the scope and purpose of an express easement, this Court
has stated:
An easement created in a deed, such as the easement at issue in this
case, is an express easement. Shell, 2014 WL 118376, at *4. In construing
an instrument creating an easement, the court must “‘ascertain and give
effect to the intention of the parties.’” Id. (quoting Burchfiel v. Gatlinburg
Airport Auth., No. E2005-02023-COA-R3-CV, 2006 WL 3421282, at *3
(Tenn. Ct. App. Nov. 28, 2006)). The intention of the parties regarding the
purpose and scope of an express easement is determined by the language of
the deed. Id. The dominant estate’s “use of the easement must be confined
to the purpose stated in the grant of the easement.” Columbia Gulf
Transmission Co. v. The Governor’s Club Prop. Owners Ass’n, No.
M2005-01193-COA-R3-CV, 2006 WL 2449909, at *3 (Tenn. Ct. App.
Aug. 21, 2006).
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Halbrooks v. Durieux, No. M2013-00958-COA-R3-CV, 2014 WL 2999580, at *9 (Tenn.
Ct. App. June 30, 2014), no appl. perm. appeal filed.
The easement in this case does not specify what sort of structure must be built in
the encroachment area. The easement referred to the garage, but it did not limit the
encroachment area to use for a garage. However, any structure other than a garage would
need to comport with the same level of burden on the driveway associated with a garage.
Thus, while the Keenes may not enlarge the scope of the easement, neither are they
limited to building a garage. We affirm the Trial Court in its conclusion that the
easement does not dictate that a garage is the only structure that may be built in the
encroachment area.
The third and final issue of Mr. Coolidge’s that we address is whether the Trial
Court erred in declining to grant Mr. Coolidge’s request for injunctive relief preventing
the Keenes from trespassing on his property in the future to rebuild the garage. “A trial
court’s decision regarding whether to grant injunctive relief is reviewed under an abuse
of discretion standard.” Vintage Health Res., Inc. v. Guiangan, 309 S.W.3d 448, 466
(Tenn. Ct. App. 2009) (citing Bd. of Comm’rs of Roane County v. Parker, 88 S.W.3d
916, 919 (Tenn. Ct. App. 2002)). With respect to those measures an easement holder
may take to repair or keep up his or her easement, this Court has discussed:
Absent an agreement to the contrary, an easement holder “has both a
right and the duty to maintain an easement so that it can be used for its
granted purpose[.]” 28A C.J.S. Easements § 227; see also 25 Am. Jur. 2d
Easements and Licenses § 72. “The owner of the dominant estate may do
whatever is reasonably necessary to the enjoyment of the easement and to
keep it in a proper state of repair. . . .” Hager v. George, No. M2013-
02049-COA-R3-CV, 2014 WL 3371680, at *5 (Tenn. Ct. App., filed July
8, 2014) (quoting 28A C.J.S. Easements § 227). The easement holder may
even “enter the servient estate in order to maintain, repair or protect the
easement” as long as such maintenance is “necessary” and performed “in a
reasonable manner as not to increase needlessly the burden of the servient
estate.” Id. On the other hand, “[t]he owner of a servient estate generally
has no duty to maintain or repair an easement for the benefit of the
dominant tenant in the absence of an agreement requiring it.” 28A C.J.S.
Easements § 227; see also 25 Am. Jur. 2d Easements and Licenses § 72.
Instead, the owner of the servient estate must simply “abstain from acts that
are inconsistent with the easement.” 28A C.J.S. Easements § 191.
Hixson v. American Towers, LLC, 593 S.W.3d 699, 710 (Tenn. Ct. App. 2019).
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Mr. Coolidge acknowledges that easement holders may, when reasonably
necessary, enter the servient estate to make repairs. However, he states that “[the
Keenes’] proposed course of action regarding the easement will needlessly increase the
burden of the servient estate of 1113 Hanover.” For their part, the Keenes point out that
they have not even submitted plans for rebuilding the garage because of this litigation, let
alone imposed any sort of unreasonable burden on Mr. Coolidge. This being so, the issue
of whether the Keenes’ possible future entry onto Mr. Coolidge’s property for purposes
of repairing or rebuilding the garage is reasonable or not is a hypothetical question we
need not address herein. We decline Mr. Coolidge’s request to bar the Keenes in advance
from setting foot on his property to undertake work on their easement, which the law
allows under the proper circumstances.
We next address the Keenes’ separate issues, beginning with whether the Trial
Court erred in finding that the driveway portion of the easement is for mutual use. 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 WL 220576, at *10
(Tenn. Ct. App. Nov. 1, 1991), no appl. perm. appeal filed.
The Keenes argue that “[t]he driveway was only wide enough between the two
houses to accommodate one car and thus could not physically or practically be a mutual
easement.” The Keenes state further that “[t]he [Trial Court’s] ruling created issues
about whether the Keenes can park their vehicles on the driveway.” The driveway
easement, however, is not a parking easement. It is for egress and ingress. If, for
instance, Mr. Coolidge wishes to use the driveway to access the back of his property, that
is consistent with the Keenes’ rights under the driveway easement, as well as Mr.
Coolidge’s own rights retained as owner of the servient estate. Neither party may block
the other party’s use of the driveway. If or when the Keenes repair or rebuild the garage,
they may park inside it, but they may not park in the driveway if doing so blocks Mr.
Coolidge from accessing the back of his property. Going forward, the parties should
cooperate in using the shared driveway and respect each other’s rights. We affirm the
Trial Court in its conclusion that the driveway easement is for mutual use.
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The final issue we address is whether the Keenes should be awarded attorney’s
fees incurred in this appeal, which they contend is frivolous. “‘A frivolous appeal is one
that is ‘devoid of merit,’ or one in which there is little prospect that [an appeal] can ever
succeed.’” Morton v. Morton, 182 S.W.3d 821, 838 (Tenn. Ct. App. 2005) (quoting
Industrial Dev. Bd. of the City of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct.
App. 1995)). Tenn. Code Ann. § 27-1-122 addresses damages for frivolous appeals:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the
appeal.
Tenn. Code Ann. § 27-1-122 (2017).
Mr. Coolidge made legitimate arguments and cited to relevant law and facts. His
appeal was unsuccessful, but not frivolous. The Keenes lost on an issue they raised, as
well. We decline to award the Keenes their attorney’s fees incurred on appeal. We
affirm the judgment of the Trial Court in all respects.
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 one-half
against the Appellant, John E. Coolidge, Jr., and his surety, if any, and one-half against
the Appellees, Elizabeth M. Keene and Christopher P. Keene, II.
_____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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