IN THE COURT
OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE ______________________________________________ FLORA
SCRUGGS, Plaintiff-Appellee, Rutherford Chancery No. 93CV-464 Vs.
C.A. No. 01A01-9610-CH-00475 GORDON
BELL, Defendant-Appellant. ____________________________________________________________________________
FROM THE RUTHERFORD COUNTY CHANCERY COURT
THE HONORABLE ROBERT E. CORLEW, III, CHANELLOR
Frank M. Fly of Murfreesboro
For Appellant
David W. Kious and Robert O. Bragdon of Murfreesboro
For Appellee
REVERSED AND REMANDED
Opinion filed:
FILED May 9, 1997 Cecil W. Crowson Appellate Court Clerk
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR: ALAN
E. HIGHERS, JUDGE HOLLY
KIRBY LILLARD, JUDGE This case involves a dispute concerning an easement
for ingress and egress. Respondents-Appellants,
Gordon Bell and Sarah T. Bell, appeal from the order of the trial
court granting an easement by estoppel to Petitioner-Appellee, Flora
Pope Scruggs
[1]
, without compensation to the Bells. In 1970, Scruggs purchased 35 acres of unimproved land
in rural Rutherford County.
[2]
The land did not front a public road, but it
had a connection to a public road by Old New Cut Road
[3]
, an old dirt road that crossed the
neighboring property. Scruggs’s deed did not provide for any type
of easement over the other property. In 1981, the Bells purchased 10 acres of land west of
Scruggs’s property with the center line of Old New Cut Road as its
southern boundary, and in 1987, the Bells purchased an additional
23.2 acres on the other side of Old New Cut Road with the center line
of the road as its northern boundary.
Old New Cut Road bisects the Bells’ properties.
Neither of the Bells’ deeds is subject to an easement in favor
of Scruggs. Old New Cut Road is described as a 10-foot wide dirt
road full of potholes with tree branches hanging into the road bed
that would scratch vehicles and break their side mirrors.
Scruggs used Old New Cut Road to haul firewood from her property
even though it would damage her truck.
She and her sons cut the tree limbs back and laid flat rock
in the road bed to try to prevent some of the damage.
Other nearby landowners also used the road to access their
properties. One landowner testified that he thought it was
an old county road and was not owned by anybody. In a 1975 survey, Old New Cut Road was described
as “old dirt road (not used).” The
road has been used since 1970, but was not maintained by the county.
Scruggs moved a house onto her property using Old New
Cut Road. She had to cut down
a few trees to move the house. Scruggs
wanted to complete further improvements to her property, including
electricity, gas, water, and phone service.
Gordon Bell never prevented Scruggs from using the road nor
did he ever restrict her use. However,
in 1991, Scruggs cleared an area along Old New Cut Road with a bulldozer
without Bell’s permission.
[4]
On July 2, 1991, Gordon Bell sued Scruggs for
damages resulting from the bulldozing and for an order to permanently
prohibit Scruggs from entering his land.
The general sessions court entered a judgment for Gordon Bell
against Scruggs for $6,925.00. Scruggs
appealed to the circuit court, but all issues were settled before
trial. On May 17, 1993, Scruggs filed a petition in chancery
court seeking to establish an easement or, in the alternative, to
establish her right to a statutory easement for ingress and egress
pursuant to T.C.A. § 54-14-101 (1993).
[5]
In the petition, Scruggs avers that she has
an existing easement for ingress and egress over Old New Cut Road
and that she is being denied free access by the Bells.
She avers that the Bells are denying her the right to have
utility service to her property unless she pays them a substantial
sum of money. She avers that she should not be restricted
in her use of Old New Cut Road and that the Bells should be enjoined
from interfering with her free access.
The petition prays that the court find an existing right-of-way
over Old New Cut Road that allows Scruggs free access to her land
and an existing easement for ingress and egress over Old New Cut Road. Further, Scruggs prays for a finding of an existing
easement by implication for the extension of utility services along
Old New Cut Road. In the alternative,
Scruggs requests an easement for ingress and egress pursuant to T.C.A.
§ 54-14-101 and for any additional land that would be necessary for
extension of utility service. Finally,
Scruggs demands an injunction against the Bells preventing them from
interfering with her use of Old New Cut Road. On June 20, 1993, Gordon Bell filed an answer to the
petition denying that he was preventing Scruggs from using Old New
Cut Road. He also denied that
an easement or right-of-way already existed.
On October 13, 1994, Sarah T. Bell filed an answer to the petition
denying the material allegations of the petition and asserting an
affirmative defense of res judicata because of the Bells’ 1991 suit
against Scruggs. Gordon Bell filed a motion to dismiss based
on the doctrine of res judicata, but the trial court denied both the
motion and his request for an interlocutory appeal. On June 13, 1995, the case was tried before the chancery
court sitting without a jury. On
August 24, 1995, the trial court entered an order granting Scruggs
a 45-foot wide easement across the Bells’ property consisting of a
15-foot wide easement for ingress and egress and a 30-foot wide easement
for utilities. The court took under advisement the issue of
the easement’s location and the issue of payment to the Bells. On September 15, 1995, the trial court filed
an opinion outlining its decision, and on May 23, 1996, the trial
court entered a final order that incorporated the August 24 order
and the September 15 opinion. The
trial court granted Scruggs an easement by estoppel consisting of
the 15-foot wide ingress and egress easement and the 30-foot wide
utility easement. The ingress
and egress easement was not compensable to the Bells, but the utility
easement was compensable. The
parties agreed to both the location of the easements and the value
of the utility easement. The Bells appeal the order of the trial court and present
two issues for review: 1) whether
the present suit is barred by the doctrines of res judicata and collateral
estoppel; and 2) whether Tennessee law allows the gratuitous conversion
of a permissive use into an easement by estoppel. Since this case was tried by the court sitting without
a jury, we review the case de novo upon the record with
a presumption of correctness of the findings of fact by the trial
court. Unless the evidence preponderates against the
findings, we must affirm, absent error of law.
T.R.A.P. 13(d). In the first issue, the Bells argue that the general
sessions court in the Bells’ 1991 suit against Scruggs impliedly found
that Scruggs did not have an easement because the court awarded damages
to the Bells. They argue that
if she had an easement, then she would have had a right to bulldoze
the trees, and therefore, the court would not have entered a judgment
against her. The Bells claim that Scruggs should have presented
the issue of an easement in a counterclaim in the first suit. Scruggs filed an affidavit of Royce Taylor, her attorney
in the earlier suit, which was apparently considered by the trial
court without objection from the Bells.
The affidavit states that the first suit dealt only with damages
to the Bells’ land and that no ruling was made about an easement because
no ruling was requested by either party.
According to Taylor, the trial court ruled that Scruggs had
damaged the Bells’ property beyond the road and enjoined her from
coming back onto the Bells’ property. However, the ruling did not prevent her from
using the road. A judgment on
the merits exhausts the cause of action on which it was based and
is an absolute bar to a subsequent suit between the same parties and
their privies upon the same cause of action.
Madyun v. Ballard, 783 S.W.2d 946, 948 (Tenn.
App. 1989). Res judicata operates to bar a claim when a
prior judgment in an action between the same parties on the same cause
of action concludes not only the facts actually litigated, but the
facts pertaining to that issue that might have been brought forth
and litigated. Harrogate Corp. v. Systems Sales Corp.,
915 S.W.2d 812, 816 (Tenn. App. 1995). Res judicata bars a second suit between the same parties
and their privies on the same cause of action as to all issues that
were or could have been litigated in the former suit. Collateral estoppel operates to bar a second
suit between the same parties and their privies on a different cause
of action only as to issues that were actually litigated and determined
in the former suit. To support
a plea of res judicata, it must be shown that the judgment in the
prior case was final and concluded the rights of the party against
whom it is asserted. It is also necessary to show that both cases
involved the same cause of action.
To sustain a plea of collateral estoppel it must be shown,
inter alia, that the issue sought to be concluded not only
was litigated in the prior suit but was necessary to the judgment
in that suit. Massengill
v. Scott, 738 S.W.2d 629, 631-32 (Tenn. 1987) (citing 22 Tenn.
Jur. Res Judicata § 4 (1985)). One defending on the basis of res judicata or collateral
estoppel must demonstrate that 1) the judgment in the prior case was
final and concluded the rights of the party against whom the defense
is asserted, and 2) both cases involve the same parties, the same
cause of action, or identical issues.
Richardson v. Tennessee Bd. of Dentistry, 913
S.W.2d 446, 459 (Tenn. 1995). In the case at bar, the Bells have simply failed to
prove that this case and the earlier case involved the same causes
of action or identical issues. This
issue is without merit. In the second issue, the Bells assert that the trial
court misapplied the law and that the grant of an easement by estoppel
was not appropriate under the facts of this case.
The Bells complain only about the easement for ingress and
egress, not the utility easement.
Furthermore, the Bells do not object to an easement for Scruggs.
Their real objection is that Scruggs did not have to pay for
the easement for ingress and egress.
To determine the validity of this objection, we must determine
if Scruggs is entitled to an easement for ingress and egress over
the Bells’ property. In its September 15, 1995 opinion, the trial court examined
each type of easement in light of the facts of this case. The trial court initially found that neither
an express easement nor an easement by dedication existed in this
case. We agree. An
express grant of an easement is an irrevocable license to enter upon
land of another and must be in writing.
Childers v. William H. Coleman Co., 122 Tenn.
109, 126 (1909). A dedication is found where the owner of land
sets apart a portion of his land by agreement, either for compensation
or gratuitously. Smith
v. Black, 547 S.W.2d 947, 950 (Tenn. App. 1976).
It is clear from the record that none of the deeds involved
contained an express grant of an easement in favor of Scruggs and
that the parties never made a separate agreement concerning an easement. The trial court next concluded that an easement by prescription
was not established because Scruggs’s use of Old New Cut Road through
the Bells’ property was permissive.
Twenty years of adverse use is required to establish a prescriptive
easement. Keebler v.
Street, 673 S.W.2d 154, 156 (Tenn. App. 1984).
“The use and enjoyment which will give title by prescription
to an easement . . . must be adverse, under claim of right, continuous,
uninterrupted, open, visible, exclusive, and with the knowledge and
acquiescence of the owner of the servient tenement, and must continue
for the full prescriptive period . . . .”
Id. (quoting House v. Close, 346
S.W.2d 445, 447 (Tenn. App. 1961)).
An easement by prescription may not be obtained where the use
is permissive. City of
Whitwell v. White, 529 S.W.2d 228, 230 (Tenn. App. 1974).
The owner of the servient estate may defeat the claimant’s
right of prescription by testifying that he never objected to the
claimant using the road regardless of for how long a period.
German v. Graham, 497 S.W.2d 245, 248 (Tenn.
App. 1972). In this case, there is a dispute about permission.
Scruggs claims that she asked only permission to cut the trees
along Old New Cut Road because she felt that she was entitled to use
the road itself. However, the
Bells characterize the request for permission as a request to use
and improve the road. Regardless,
Gordon Bell testified that he had never prevented nor objected to
Scruggs using Old New Cut Road. From
our review of the record, we conclude that the evidence does not preponderate
against the trial court’s finding that there is no easement by prescription
in favor of Scruggs. The trial court also found that an easement by prescription
for a public way could not be established. The evidence shows that the public used Old
New Cut Road for many years, but there is no proof that Old New Cut
Road was ever a county maintained road.
The trial court found that the use of the road was not continuous
for a period of 20 years or more and that the use was permissive or
with the permission of the landowners whose land abutted the road.
It is long settled law that a public way may be established
by evidence of adverse use for a long period of time, without any
express dedication, if it is shown that the use is under a claim of
right, and not merely permissive.
Mere permissive use is not sufficient to establish
a dedication. Lewisburg,
Tennessee v. Emerson, 5 Tenn. App. 127, 132 (1927). To establish a dedication by implication, there
must be proof of facts from which it positively and unequivocally
appears that the owner intended to part permanently with his property
and vest it in the public, and there can be no other reasonable explanation
of his conduct. Id. The evidence does not preponderate against the
trial court’s finding that Old New Cut Road is not a public way. The trial court next concluded that Scruggs did not
have an easement by implication because there was no evidence of unity
of title. It is the policy
of our law to restrict the doctrine of implied easements because they
are not favored in the law. Cole
v. Dych, 535 S.W.2d 315, 318 (Tenn. 1976).
Implied easements are founded upon conveyances and are premised
upon the presumption that they were within the contemplation of the
parties and must be supported by unity of title.
Id. We find that the evidence does not preponderate
against the findings of the trial court concerning an implied easement.
We note that the trial court did not specifically consider
an easement by necessity because such an easement is a type of implied
easement that requires unity of title. A way of necessity is dependent upon an implied
grant and cannot exist where there never was any unity of ownership
of the alleged dominant and servient estates, for no one can have
a way of necessity over the land of a stranger. Emerson,
5 Tenn. App. at 134. Finally, the trial court turned to easements by estoppel.
In its opinion, the trial court stated, The Court recognizes that easements by estoppel also
are not favored under the law, and, where the Court is able to do
so, courts even struggle, perhaps, to find an easement by prescription,
rather than easements by estoppel.
See, House v. Close, supra at 449; Jones
v. Ross, 388 S.W.2d 640, 646 (Tenn. Ct. App. 1964) cert.
denied. Generally estoppel is available only to protect
a right that previously existed, but not to create a new right. E.K. Hardison Seed Company v. Continental
Casualty Company, 410 S.W.2d 729, 733 (Tenn. Ct. App. 1966)
cert. denied 1967. It
was on this basis, that at least one court has held that an estoppel
is insufficient to establish the existence of an easement. Charles N. McDowell v. Carol Ratcliff
and Ellen Ratcliff, [unpublished] 1992 W.L. 328707, 92 Lexis
929 (Tenn. 1992)[sic], Appeal No. 03A01-9206CH00225 -- Eastern Section,
November 12, 1992. The trial court then stated that this case was different
from McDowell and that easements by estoppel should
be recognized in order to prevent gross injustice from occurring. The trial court analyzed the facts of this case
using the elements of equitable estoppel as stated in Callahan
v. Town of Middleton, 292 S.W.2d 501 (Tenn. App. 1954), and
concluded that this was “an appropriate case for the recognition of
the existence of an easement.” The
trial court stated, “The easement then being recognized by the Court
under the principle of estoppel, the Court finds the easement to have
previously existed. The easement, then, being in existence prior
to the commencement of the lawsuit, the Court, then, should not assess
damages or compensation in favor of the Defendant for the taking of
the land for the purpose of the easement.” We believe that an easement by estoppel cannot be found
in this case for two reasons. First,
in Callahan, this Court applied the elements of equitable
estoppel to the issue of an easement by estoppel and stated: The essential elements of an equitable estoppel as related
to the party estopped are said to be (1) Conduct which amounts to a false representation
or concealment of material facts, or, at least, which is calculated
to convey the impression that the facts are otherwise than, and inconsistent
with, those which the party subsequently attempts to assert; (2)
Intention, or at least expectation that such conduct shall
be acted upon by the other party; (3) Knowledge, actual or constructive of the real
facts. As related to the party
claiming the estoppel they are (1)
Lack of knowledge and of the means of knowledge of the truth
as to the facts in question; (2) Reliance
upon the conduct of the party estopped; and (3)
Action based thereon of such a character as to change his position
prejudicially. Callahan,
292 S.W.2d at 508 (quoting 19 Am. Jur. Estoppel § 42 at 642‑43). In the case before us, the trial court stated,
“[I]t appears to the Court that a false impression was provided to
the Scruggs.” We believe that
the evidence preponderates against this finding of the trial court. The record does not disclose any false misrepresentations
or conduct that gives rise to a false impression on the part of the
Bells. We believe that the Bells are not estopped from
denying the existence of an easement because Scruggs cannot show that
the elements of an equitable estoppel have been met. Second, the trial court stated that a number of courts
have expressly recognized the existence of the finding of an easement
by estoppel, citing Moore v. Queener, 464 S.W.2d 296
(Tenn. App. 1970). In Moore,
the plaintiffs sued the defendants to keep an easement open across
the defendants’ land. The easement
was recorded in a plat of the subdivision, but the deeds were silent
as to the existence of the easement.
Id. at 299. However, the deeds referenced the recorded plat.
Id. In addition, the easement was an announced condition
to the purchase of the land during the auction of the subdivision’s
lots. The Court stated, “The
fact that an easement, of some sort, over the lands of the defendants
for complainants’ benefit, actually existed at the time of the conveyances,
cannot be and is not controverted.”
Id. at 300. The
Court held that the plaintiffs were entitled to an easement by their
deed and that the defendants were estopped to deny the existence of
the easement because they had notice of the easement from the recorded
plat and the announced conditions. Id. at 302. Reliance on Moore is misplaced. In Moore, the Court did not create
an easement using estoppel, it merely estopped the defendants from
denying that one already existed.
Estoppel is available to protect a right, but never to create
one. E.K. Hardison Seed Co. v. Continental
Cas. Co., 410 S.W.2d 729, 733 (Tenn. App. 1966). In the present case, the trial court carefully
examined each way that an easement could be created and concluded
that Scruggs did not have an easement.
The trial court rejected an express easement, a prescriptive
easement, and an implied easement.
However, the trial court granted Scruggs an easement by estoppel
and said, “[T]he Court finds the easement to have previously existed.” We conclude that the evidence preponderates against
the findings of the trial court that there is an easement by estoppel. Finally, Scruggs argues that abutting landowners have
the right to use abandoned roads touching their property. See Current v. Stevenson, 116
S.W.2d 1026 (Tenn. 1938). This
argument must also fail because there is no proof that the road was
a public way, and the trial court expressly so found.
Thus, there could be no abandonment. Scruggs sought alternatively for the Court to provide
ingress and egress pursuant to T.C.A. § 54-14-101 and 102 (1993). The Bells conceded in the trial court that they
did not object to such an easement if they were properly compensated
as provided by the statute. Accordingly, the order of the trial court granting Scruggs
an easement by estoppel is reversed, and the case is remanded for
further proceedings to establish a way of ingress and egress pursuant
to T.C.A. § 54-14-102 (1993). Costs
of appeal are assessed against the appellee. _________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR: ____________________________________ ALAN
E. HIGHERS, JUDGE ____________________________________ HOLLY
KIRBY LILLARD, JUDGE
[1]
On October 24,
1995, Flora Scruggs transferred the property by quitclaim deed to
her husband, John T. Scruggs, Sr.
On January 23, 1996, the trial court entered an order substituting
John T. Scruggs, Sr. in place of Flora Scruggs as the proper party
in interest. However, because the trial court and the parties
have continued to refer to the petitioner as Flora Scruggs, we will
do likewise.
[2]
Scruggs actually
purchased the land with John T. Scruggs, Sr. In 1982, John T. Scruggs, Sr. conveyed his interest
in the land to Flora Scruggs making her the sole owner until she
conveyed it back to him in 1995.
[3]
Old New Cut
Road is referred to throughout the record as Old New Cut Road, New
Cut Road, Triune, and Salem Road, or old dirt road.
In this opinion, we will call the road “Old New Cut Road.”
[4]
The road bed
is about 12 feet wide, and the cleared swath next to the road is
about 33 feet wide.
[5]
On September
16, 1994, Scruggs filed another petition that merely added Sarah
T. Bell, Gordon Bell’s wife, as a respondent. |