(concurring in part and dissenting in part).
The principal issue was correctly decided by the Chancellor. That is, the Ogles have no right to enter the easement from their residence property to which the easement is not appurtenant, but must enter the easement from Lot 3 to which the easement is appurtenant. With this portion of the majority opinion, I concur subject only to emphasis upon the “relatively trifling” burden to be imposed and the right of the owner of the subservient to resist if the burden should become more than “relatively trifling.”
As to the remainder of the majority opinion, I must respectfully dissent.
The first Trotter assignment of error should be sustained. The law is clear that the owner of property has the right to fence it along its borders. 36A C.J.S. *568Fences §§ 2, 5, pp. 260, 263 ; 35 Am.Jur.2d, Fences, § 2, p. 407.
The owner of the subservient estate has the right to erect fences along the sides of an easement, so long as there is no obstruction of the way. 28 C.J.S. Easements § 98, pp. 780, 781; 25 Am.Jur.2d, Easements and Licenses, §§ 69, 70, 89, pp. 476, 477, 495, 496.
The mere fact that the thickness of a fence (whether a fraction of an inch or several inches) may technically encroach upon the location of the easement is inadequate grounds for denying a fundamental property right to the owner of the fee. To enforce such a doctrine might effectively deprive the owner of the subservient estate of all the usefulness thereof except that of free passage — equal only to an easement. By the same reasoning, one who grants an easement along the edge of his property could be required to remove a fence bordering his property because its thickness encroached upon and obstructed the easement. Such a tedious and technical doctrine should not be established or followed.
Of course, the holder of the easement has the right to a full and unobstructed width of passage; so that, if a fence exists or is constructed on one or both sides of the easement, there must remain the full required width of free passage.
If, as in the present case, the owner of the subservient estate should exercise his privilege of fencing his property, the full 10 feet of clear passage must remain available along the fence. The practical result of building a fence would be a trivial lateral movement of the location of the easement, which is permissible. Terry v. Boston, 246 Ky. 222, 54 S.W.2d 909, 28 C.J.S. Easements § 84, p. 763, note 19.
The first Trotter assignment of error should be sustained and the decree of the Chancellor should be modified accordingly.
The third Trotter assignment should be sustained.
In Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721 (1948), the Supreme Court dismissed a suit to abate overhanging vegetation on the ground that the right and power to abate the intrusion was inherent in the owner of the property invaded and he needed no assistance from the courts to do so. The Supreme Court said:
“There can be no question but that this appellee had the legal right to cut any branches or foliage which to any extent hung over .his soil from the hedge growing upon the adjoining land.
“It is stated by the text in 1 American Jurisprudence, 539, that ‘it has been held that no landowner has a cause of action from the mere fact that the branches of an innoxious tree, belonging to an adjoining landowner, overhang his premises, his right to cut off the overhanging branches being a sufficient remedy.’ This seems to be the common law rule, (citing cases) . . .
“ ‘His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself . . . 188 Tenn. 55, 216 S.W.2d 722.
Despite the commendable motive to monitor the ethics of the relations between these parties, the law simply does not authorize such close judicial supervision of the exercise of a property right which is absolute.
The third Trotter assignment should be sustained and the Chancellor’s decree should be modified accordingly.
This dissent would not be complete without an urgent appeal to both parties to allow their nobler instincts to prevail and to arrive at an amicable settlement of this “neighbors quarrel.”
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