WILLIAM B. PEVEAR )
and )
REBECCA PEVEAR, )
)
Plaintiffs/Appellants, ) Appeal No.
) 01-A-01-9505-CH-00184
v. )
) Davidson Chancery
EVANS HUNT, ANNIE IRENE HUNT, ) No. 91-2716-II
and METROPOLITAN GOVERNMENT, )
Defendants/Appellees.
)
) FILED
Jan. 24, 1996
Cecil Crowson, Jr.
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE C. ALLEN HIGH, CHANCELLOR
NORMAN E. SOLOMON
209 Tenth Avenue South, Suite 205
Nashville, Tennessee 37203-4101
ATTORNEY FOR PLAINTIFFS/APPELLANTS
LANCE A. BAKER
127 South Third Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANTS/APPELLEES
EVANS HUNT AND ANNIE IRENE HUNT
STEVEN N. NUNN
204 Metro Courthouse
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/APPELLEE
METROPOLITAN GOVERNMENT OF NASHVILLE
REVERSED AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
This appeal involves a boundary line dispute between two
neighbors. The Appellants, William and Rebecca Pevear, and the
Appellees, Evans and Irene Hunt, own real estate which is
separated by an alley which is owned by the Metropolitan
Government of Nashville and Davidson County.
On August 16, 1991, William Pevear and his wife Rebecca
Pevear, brought an action seeking to establish a right, by way of
a prescriptive easement, to utilize a portion of defendant Hunt's
property for driveway and parking purposes. Their contention is
that a small graveled area in the alley has been used for over
twenty years by the plaintiffs and their predecessors in title as
a driveway. This graveled area is located partially on the
public right-of-way, and partially on the property of the
defendant Hunt's. Prior to the filing of the Complaint, the
Appellees Hunt erected posts just inside the boundary line of
their property, effectively rendering the remaining graveled area
too narrow for use as a driveway. The Metropolitan Government
claims it has no objection to either party's use of the alley but
is unwilling to abandon the property.
On March 8, 1994, the Hunts counterclaimed, seeking
damages for trespass by the Pevears onto the property of the
Hunts, and further, for damage to the Hunt's personalty.
On March 18, 1994, the Pevear's filed a Motion for
Summary Judgment seeking a disposition of their case. On May 27,
1994, the Hunt's filed a Motion to Dismiss the action brought by
the Pevears. On August 31, 1994, the trial court entered an
Order granting the Hunt's Motion to Dismiss and denying the
Pevear's Motions for Summary Judgment. On May 10, 1995, the
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trial court designated its decision in granting the Hunt's Motion
to Dismiss and denying the Pevear's Motion for Summary Judgment
as a final judgment from which this Appeal is taken.
We hold that it erred and reverse.
An easement is a right an owner has to some lawful use of
the real property of another. Brew v. Van Deman, 53 Tenn. (6
Heisk) 433 (1871). Easements can be created in several ways in
Tennessee, including: (1) express grant, (2) reservation, (3)
implication, (4) prescription, (5)estoppel, and (6) eminent
domain. Easements can be divided into two broad classes,
easements appurtenant, and easements in gross. In an easement
appurtenant, there are 2 tracts of land, the dominant tenement,
and the servient tenement. The dominant tenement benefits in
some way from the use of the servient tenement. Easements in
gross are simply a personal interest or right to use the land of
another which does not benefit another property, or dominant
estate, thus easements in gross usually involve only one parcel.
An easement appurtenant to land is favored over an easement in
gross in Tennessee. Goetz v. Knoxville Power & Light Co., 290
S.W 409, 154 Tenn. 545 (Tenn. 1926).
To create a prescriptive easement, the use and enjoyment
of the property must be adverse, under a claim of right,
continuous, uninterrupted, open, visible, exclusive, with the
knowledge and acquiescence of the owner of the servient tenement,
and must continue for the full prescriptive period. Keebler v.
Street, 673 S.W.2d 154, (Tenn. App. 1984). In Tennessee the
prescriptive period is 20 years. Callahan v. Town of Middleton,
292 S.W.2d 501 (Tenn. App. 1956).
In this case, if an easement was granted, it would be
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considered an easement appurtenant, as there are two tracts of
land involved, with the Hunt's land benefiting the Pevear's land.
The trial court's final order, while denying the
Appellant's Motion for Summary Judgment and granting the
Appellee's Motion to Dismiss, did not cite any particular
authority for its decision. The Appellee's Motion to Dismiss was
predicated on the physical separation of the two properties, thus
we will infer that the trial court found this fact determinative.
Therefore, we will consider the principal legal issue in this
matter to be whether non-contiguousness bars the establishment of
prescriptive easement rights in Tennessee.
As the parties had indicated in their briefs, there is a
split of authority on this question and Tennessee Court's have
not yet spoken. However, we do so now. To ascertain our
response this Court has reviewed the rulings of other
jurisdictions, and finds that the majority position, as well as
the trend in decisions on this issue, is in favor of a rule which
does not require the servient tenement to be adjacent to the
dominant tenement. Rather, we hold, as the Supreme Court of
Pennsylvania did in 1965, that:
The mere fact that an easement, to be of any
benefit to the dominant tenement, must traverse
land of another does not, of itself, destroy the
easement. Although the existence of a servient
tenement is a prerequisite to the creation of an
easement appurtenant, it is not necessary that the
servient and dominant tenements be contiguous
parcels of land.
Woodlawn Trustees, Inc. v. Michel, 418 Pa. 398, 211 A.2d 454,
455-456 (1965), citing Tidewater Pipe Co. v. Bell, 280 Pa. 104,
124 A. 351 (1924).
We are persuaded that "the use of the easement must be so
related to the use of the dominant tenement that its particular
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connection with the beneficial enjoyment of that tenement is not
merely conjectural, but direct and apparent." Thomas v. Brooks,
188 Ky. 253, 221 S.W. 542, 543 (1920). We do not insist there be
strict, physical, contact between the parcels.
We believe this rule to be less mechanical, and more in
harmony with the modern holdings found in the majority of states
on this issue. See Reiss v. Maynard, 170 A.D. 2d 992, 566 N.Y.S.
2d 808, 809 (N.Y. App. Div. 1991); Northwestern Improvement Co.
v. Lowry, 104 Mont. 289, 66 P.2d 792, 795 (1937); Freightways
Terminal Company v. Industrial and Commercial Construction, Inc.,
381 P.2d 977, 982-983 (Alaska 1963); Kaynor v. Fisch, 230 P.2d
418, 422 (Calif. Ct. App. 1951); Wetmore v. Ladies of Loretto,
Wheaton, 73 Ill. App. 2d 454, 220 N.E. 2d 491, 495 (1966);
Saunders Point Association, Inc. v. Cannon, 1777 Conn. 413, 418
A.2d 70, 72 (Conn. 1979); Wagner v. Fairlamb,379 P.2d 165,169
(Colo. 1963).
We agree with the court in Heard v. Bowen, which when
faced with this division of authority declared,
[a]s the question is an open one in this state, we
feel at liberty to adhere to the more liberal
rule, which is founded upon justice and common
sense in preference to one based upon the shadow
instead of substance.
184 S.W. 234, 238 (Tex. App. 1916).
Therefore the judgment of the trial court is reversed and
the case remanded for further proceedings consistent with this
opinion. Costs on appeal are taxed to the Appellees.
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__________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________
HENRY F. TODD, P.J., M.S.
_________________________________
WILLIAM C. KOCH, JR., J.
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