Fielding, Franzese, Frontier
Attorneys at Law
MEMORANDUM
TO:
Scott Fielding
FROM:
Jennifer McDonnell
DATE:
Thursday, March 16, 2023
RE:
Betty Buyer; Prescriptive Easement, Scope of Easement, Statutory Remedy
We are potentially representing Betty Buyer in an action against Neighbor Notnice for a
prescriptive easement of the gravel road they each use to access the nearest highway. Ms. Buyer
expects Mr. Notnice to contest this action. You have asked me to determine whether Ms. Buyer
has any legal rights in Tennessee property law.
Statement of Facts
In 2016 Betty Buyer purchased from Sam Seller three acres of land, “Whiteacre”, at the
foot of Signal Mountain. The topography of the land is extremely hilly and at present the only
access to this land is a gravel road connecting the property to the nearest highway. This gravel
road at some point crosses through Neighbor Notnice’s property, “Blackacre”. While living on
the property for the 16 years prior to Betty, Sam also used the gravel road to access Whiteacre,
excepting the 18 months he served in the military in 2001 and 2002. Although Betty had never
asked permission from Neighbor to cross Blackacre, Neighbor frequently waves and smiles at
Betty when she drives across it. Betty and Sam have used the road for a combined 25 years.
Recently Betty informed Neighbor that she had been granted a variance by the zoning
board to use her home as a bed and breakfast hotel. Upset by this news, Neighbor placed a fence
across the gravel road, blocking Betty’s access to her property. She obtained a quote to build an
alternate access road with a cost of $500,000, which she is unable to afford. Betty has provided a
copy of Mr. Notnice’s deed which does not contain an easement or mention a right of way.
Issue
The issues are (1) whether the use of the gravel road by Betty and Sam might fall under
an affirmative easement appurtenant, likely a prescriptive easement if any; and (2) if so, does the
scope of the easement permit Betty to allow her bed and breakfast guest’s to use the road as well;
or (3) does Tennessee property law afford Ms. Whiteacre any other remedies to access her
landlocked property. It should be noted there are a number of facts remaining unknown which
could impact the determination of these issues. Those will be mentioned below with the issue
they affect. Most significantly it will be critical to determine the contents of both Sam and
Betty’s deed of Whiteacre.
Brief Answer
It is probable that the court will find Betty to have an affirmative easement appurtenant
by prescription. Betty appears to meet all of the required elements of adverse use, and while Mr.
Notnice may have arguments against this claim, Betty additionally has valid counter-arguments
to defeat Mr. Notnice. Thus, it is likely that Betty will be able to continue her use of the gravel
road via a prescriptive easement. However, the court will likely not permit the scope of the
easement to include Betty’s guests of a bed and breakfast using the gravel road. This would
likely amount to abnormal development of the property and not reasonably necessary in use of
the easement. The court will likely acknowledge Betty’s statutory right to pursue condemnation
permitted to landlocked owners in Tennessee for a right of way to access her property from the
highway. It is unlikely a court will allow Betty to use a right of way obtained by statutory
condemnation for guests of her bed and breakfast, as it is clearly stated to be a private easement.
We have two, likely successful, paths to pursue a valid right of way for Betty to Whiteacre.
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Discussion
In the absence of a written agreement expressly granting an affirmative easement,
satisfying the Statute of Frauds, property law offers a few exceptions by which a party may gain
access to another’s property via an easement. The paths to gaining an affirmative easement
include by grant, by necessity, by implication, or by prescription. With the facts given, a
prescriptive easement is the only exception currently available to Betty. Tennessee law does
provide for the scope of the easement to accommodate normal development of the property.
Betty may also have a route to a remedy via Tennessee statute that gives landlocked properties a
judicial option of condemnation for a right of way.
A. Affirmative Easement Appurtenant
First, an easement by grant is not available as there is not an expressly written agreement.
Therefore, one of the exceptions to the Statute of Frauds requirement must be considered to
possibly gain an affirmative easement.
Second, the easement of necessity is not applicable here as the grantor, Sam, did not
convey landlocked property to the grantee, Betty, while retaining the remaining land, Blackacre.
An important question to determine is if Mr. Notnice, or a prior owner, had conveyed Whiteacre
to Sam, or another prior owner at some point. If so, then an affirmative easement by necessity
may have been applicable to a prior owner of Whiteacre. This is significant because an
affirmative easement is transferred automatically with the dominant tenement, regardless of
whether it is mentioned in the transfer. Additionally, it is also transferred automatically with the
servient tenement, but can be defeated if a prior owner was a bona fide purchaser without notice
of the easement. Tennessee, following the minority rule, does not require the existence of strict
necessity and may find the existence of an easement by necessity where such a right of way is
“of such reasonable necessity to the full enjoyment of the dominant tenement.” LaRue v. Green
County Bank, 166 S.W. 2d 1044, 1050 (Tenn. 1942). The $500,000 expense of building an
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additional road will not likely be considered as a reasonable or practicable alternate mode of
ingress and egress. An easement by necessity is not currently an option without further
development of facts.
Third, the easement by implication, or commonly known as prior or pre-existing use, is
not available under the current facts. This exception can create an affirmative easement if there is
a particular use on a property that is subsequently divided. The prior use must have been
apparent at the time of division, with the parties expecting the pre-existing use would survive
division due to it being reasonably necessary to the landlocked owner’s use and enjoyment. The
current facts do not indicate that Whiteacre was ever divided from Blackacre. As above, this is
an important question to determine because if Whiteacre had been divided from Blackacre at
some point in the past, the easement would transfer to each successive owner, unless a servient
tenement owner was a bona fide purchaser without notice of the easement. A prior use easement
is not currently an option without further information.
Fourth, the final option creating an easement is by prescription, which requires satisfying
the elements of adverse possession. This easement is acquired by a use that is continuous for the
statutory period, open and notorious, and actual and hostile.
Continuous. This requirement means the use was uninterrupted, even if not frequent, the
key is for the use to be as expected of a typical owner would use. The possession or use must
only be the kind of occupancy or activity that a true owner would use. An important fact to be
aware of is Sam’s absence from the property during 2001 and 2002 while he was overseas
serving in the military. Opposing counsel may argue that this constitutes abandonment; however,
an abandonment must be shown that the adverse user leaves with no intention to return. Sam
most certainly intended to return and in fact upon his return resumed the adverse use of the road.
Statutory period. The statutory period in Tennessee for use to ripen into a prescriptive
easement is an adverse use for 20 years. Betty has used the gravel road since her purchase in
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2014, making her adverse use for nine years. Her deed to Whiteacre from Sam gives her the
privilege of privity, and therefore tacks on his adverse use that occurred during his ownership.
Sam has lived continuously on the property for 16 years, making their combined hostile use a
period of 25 years. It should be noted that Sam spent 18 years away from the property while
serving in the military in 2001 and 2002. While it is unlikely, should a court deem that time away
to have broken the continuity, Sam returned the property and resumed his adverse use in 2002.
This makes Sam and Betty’s combined hostile use for a period of roughly 22 to 23 years, still
exceeding the required statutory period.
Open and notorious. Here the use must be of a visible and obvious nature that would put
a reasonable owner of notice of the use. This requirement is to offer the true owner knowledge
that another is using or possessing their property. It gives the true owner an opportunity to assert
their superior ownership and terminate an adverse use. Courts generally agree that the possessory
acts must be sufficiently visible and obvious to put a reasonable owner on notice that their
property is being occupied or used by a non-owner. Lawrence v. Town of Concord, 788 N.E. 2d
546, 551-552 (Mass. 2003); Grappo v. Blanks, 400 S.E. 2d 168 (Va. 1991). Furthermore, the
adverse user need not demonstrate that the true owner physically observed or knew about the
adverse possessor’s use of the property; rather, the true owner is “charged with seeing what
reasonable inspection would disclose.” William B. Stoebuck & Dale A. Whitman, The Law of
Property §11.7, at 856 (3d ed. 2000). It is undisputed that Neighbor was actually aware of Sam
and Betty’s use of the gravel road. Mr. Notnice is known to have acknowledged his neighbor’s
use by waving to them as they passed by on the road crossing his property.
Actual and hostile. This element requires the use be a literal, physical use of the property,
not merely a threat of use. The element of hostility means the use is adverse and under a claim of
right, being done without permission or consent of the property owner. “The majority
presumption is that an unexplained, open, or notorious use of land, continued for the prescriptive
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period, is non-permissive; i.e., adverse.” Restatement (Third) of Property, Servitudes §2.16
comment g (2000). Mr. Notnice may try to defeat Betty’s requirement of hostility by claiming he
gave permission by noninterference. “In many cases, however, the title holder has said nothing at
all about whether the use is permissive; she has simply allowed it to occur without interference.
The courts uniformly hold that possession of another’s property without either explicit objection
or explicit permission is presumptively nonpermissive. Thus to defeat the presumption that the
use is nonpermissive, the title holder must come up with evidence to show that she granted
permission, in either written or oral form.” Joseph W. Singer, Property (5th Edition). Without
such evidence being presented by Mr. Notnice the court will likely find Sam and Betty’s use to
be actual and hostile. Additionally, Tennessee follows the majority rule ignoring the state of
mind of an adverse possessor or user. It does not matter whether the possessor believes they are
on their own land, knows they are trespassing on someone else’s land, or has no idea who owns
the land. In the stated fact pattern, both Sam and Betty did actually use the gravel road crossing
Mr. Notnice’s property. While it is undetermined if Sam had express permission, it is undisputed
that Betty had never asked for permission from Mr. Notnice nor had received an oral or written
grant of permission. A question remaining is if Sam had been given permission by a true owner
of Blackacre. If so, this may defeat hostile use, thus removing the automatic transfer of an
easement between Sam and Betty, and create permission by license to Sam, which can be
revoked by the owner at any time. Without further development of facts, the court will likely
follow the majority rule that the use is presumptively nonpermissive and therefore deemed to be
hostile.
B. Scope of Easement
In enforcing easements courts are frequently required to determine the permissible scope
and intended beneficiaries of the use. The key to interpreting these arrangements is uncovering
the reasonable intent of the original parties.
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The holder of an easement…is entitled to use the servient estate in a manner that is
reasonably necessary for the convenient enjoyment of the servitude. The manner,
frequency, and intensity of the use may change over time to take advantage of
developments in technology and to accommodate normal development of the dominant
estate or enterprise benefited by the servitude. Unless authorized by the terms of the
servitude, the holder is not entitled to cause unreasonable damage to the servient estate or
interfere unreasonably with its enjoyment.
Restatement (Third) of Property
In applying a standard of reasonableness, it is likely that a court will find the use by the
bed and breakfast guests to impose a substantially greater burden on Blackacre. Thus, the court
will probably find against this use on the grounds that it was outside the reasonable
contemplation of the property owners. Cameron v. Barton, 272 S.W. 2d 40 (Ky 1954). The scope
of easements is considered to include the reasonable development of property. As Betty had to be
granted a variance from the zoning board, her hope to use the easement for hotel guests will
likely not be deemed as reasonable development of residential property. If Betty were to allow
her guests this access, Neighbor has a right to seek an injunction for the excess use. Note, should
Mr. Notnice be granted that injunction to prevent the excess use it would not terminate a
prescriptive easement for Betty’s personal use.
C. Additional Remedies for Landlocked Property
Our client may have a route to a remedy through Tennessee statute permitting
condemnation of private roads.
Condemnation to secure way of ingress and egress – Jurisdiction: (a) A person owning any
land, where ingress or egress to and from which is cut off or obstructed entirely from a
public road or highway by the intervening land of another, or who has no outlet from the
land to a public road in the state, by reason of the intervening land of another, is given the
right to have a private easement or right-of-way not exceeding twenty-five feet (25′)
condemned and set aside for the benefit of the land over and across the intervening land
for the purpose of ingress and egress.
Tenn. Code Ann. § 54-14-102(a) (2020).
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This statute gives Betty the right to petition the court to secure an easement or right of
way from Whiteacre to the nearest highway. It should be noted that this procedure means the
court will select a jury who will determine where the easement and roadway may be located.
Thus, Betty’s use of the existing gravel road specifically may cease, but the court will most
likely grant this private easement, at least providing her ingress and egress to her property.
Conclusion
Having met the elements of adverse use, a court will likely find Betty to have an
affirmative easement appurtenant by prescription. Thus, it is likely that Betty will be able to
continue her use of the gravel road via a prescriptive easement. However, it is unlikely the court
would permit Betty’s guests of a bed and breakfast to expand the scope of the easement. This
would likely amount to abnormal development of the property and not reasonably necessary in
use of the easement. Additionally, under Tennessee statutory law, Betty does have another route
to a remedy by petitioning the court for a private easement from Whiteacre to the nearest
highway. The court will likely acknowledge Betty’s statutory right to pursue condemnation
permitted to landlocked owners in Tennessee for a right of way to access her property from the
highway. It is unlikely a court will allow Betty to use a right of way obtained by statutory
condemnation for guests of her bed and breakfast, as it is clearly stated to be a private easement.
Thus, Betty does have viable options to pursue an easement, either by prescription of the
existing gravel road or statutory condemnation. We have two, likely successful, paths to pursue a
valid right of way for Betty to Whiteacre.
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