Painting ... (is) a form of magic designed as a mediator between this strange, hostile world and us, a way of seizing the power by giving form to our terrors as well as our desires.
--Pablo Picasso

The best lawyers are very much like painters. Oratory, briefs, and agreements are the canvas, palette, and brush they use to make the things we fear less frightening and the things we aspire to more attainable.
--C. Dewees Berry, IV

ARTICLE BY EDITOR: Litigating About the Road Taken: A Thumbnail Sketch of Tennessee Roadway Law --by C. Dewees Berry, IV (Nashville Bar Journal May 2007)

 

Two roads diverged in a wood, and I - I took the one less traveled by . . . .
Robert Frost, The Road Not Taken (1916)

 

The rural areas of Davidson County and the rest of Middle Tennessee are crosshatched with dirt roads, many of which are of undetermined age and origin. Disputes over these roads are not uncommon. This article is about the law that governs such disputes.

* * *

I suppose every profession has its occupational hazards. But one peculiar to the legal profession is seeing the potential for conflict and litigation in everything. For example, I’m told that nothing but tranquil thoughts arise when a lay person reads Robert Frost's poem The Road Not Taken.  The reader pictures a crisp day, a rural glade, sunlight streaming through the leafy canopy, and small animals peering through the underbrush.  A lawyer - particularly a real estate lawyer – is not so blessed.  Questions like these crowd out tranquil thoughts: Who owns the land? Is the road open to the public? Is there some sort of easement? Is the poet a trespasser?

I must concede that when it comes to roads I am probably even more susceptible to this sort of thinking than other lawyers. Over the years I seem to have handled more than my share of road cases. And as the editor of the Tennessee Real Estate Law Letter for 23 years I've read and written about many more.

Experience has taught me that all road cases are remarkably alike. When someone comes to see me about a road case I'm tempted to say, "Let me tell you what happened." There's always a narrow, overgrown roadway crossing a landowner's property.  A neighbor begins traversing the road by horse, tractor, SUV, or four‑wheeler. The landowner puts up gates with locks. The neighbor cuts the locks. Both sides send scathing letters, and physical confrontation is narrowly averted. The rule of law is believed to be in jeopardy if the evil landowner or the evil neighbor, as the case may be, isn't set straight. Sentiments like, "I don't care what it costs" or " I want you to put the meanest lawyer you have on this" are often expressed.

Yes, road cases, like boundary disputes and child custody matters, are contentious and emotional affairs. The legal issues and principles, however, are straightforward. So that you won't feel you have to refer your next road case to me, I've summarized them for you below.  

HAS THE ROAD BEEN DEDICATED TO THE PUBLIC?


The first inquiry in any road case is whether the road is public? If it is, the neighbor will win.  Anyone can use a public road.

A private road may be converted to a public road if there is a clear intent on the part of the landowner to dedicate it for public use and an express or implied acceptance of the road by the public.1 Dedication “may be express, where the appropriation is formally declared, or by implication arising by operation of law from the conduct of the owner and the facts and circumstances of the case.”2 To establish a dedication by implication, however, the plaintiff must present “proof of facts from which it positively and unequivocally appears that the owner intended to permanently part with his propertyand vest it in the public and that there can be no other reasonable explanation of his conduct.”3    

Some of the things that may support an inference that a landowner intended to dedicate a private road for public use include opening the road to public travel, placing the road on a plat map, and selling lots bounded by the road.4 Although it may be a factor to consider, mere use of a road by the public, regardless of the length of the use, is insufficient.5 Public use must be combined with other factors, such as the maintenance or removal of obstructions by governmental entities, the landowner’s written recognition of the road as a boundary line, or the presence of adjacent public utility lines.6 

EVEN IF THE ROAD WAS ONCE PUBLIC,

HAS THE PUBLIC ABANDONED IT?


That a road was once dedicated to and accepted by the public does not necessarily end the discussion.  A public road can be abandoned, and it need not be formally closed for abandonment to be effective.7  In determining whether an easement held by the public has been abandoned there need only be a positive showing of an intent to abandon.8  Nonuse is a significant factor indicating such intent.9  Other factors include poor physical condition, lack of ongoing maintenance, and absence from government road maps.10 

ARE THERE PRIVATE EASEMENT RIGHTS?


Assuming the road is not public, the next inquiry is whether the neighbor has a private easement.

Even after a public road has been abandoned, abutting landowners continue to have private access easements to their property over the roadway.11  In addition, private easements can arise in other ways.  Of course, they can be expressly granted.  They can also arise by implication, necessity, or prescription. 

In Laurel Valley Property Owners Ass'n v. Hollingsworth,12 the Court of Appeals applied the law relating to easements by implication. That law requires that four elements - separation of title, use prior to separation, reasonable necessity, and continuous servitude - be present.

The plaintiff in Laurel Valley filed a declaratory judgment suit to determine whether the defendants had the right to cross its property. The trial court determined they did not, specifically rejecting the defendants' implied easement theory. In affirming, the Court of Appeals described the four elements as follows:

Implied easements "are not favored in the law. . . ." The party seeking to impose an implied easement bears the burden of proving "the existence of all facts necessary to create by implication an easement appurtenant to his estate. . . ." The following elements must be satisfied in order for an easement by implication to arise: "(1) A separation of the title; (2) [n]ecessity that, before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; . . . (3) [n]ecessity that the easement be essential to the beneficial enjoyment of the land granted or retained; and (4) continuous, as distinguished from temporary or occasional" servitude . . . . Tennessee does not have a rule of "strict" or "absolute" necessity. [Citations Omitted.] 13
 
Easements by necessity, which are similar to, but distinct from, implied easements, are described generally in 4 R. Powell and P. Rowan, Powell on Real Property § 34.07 (1999) as follows:

.  .  .   [U]nless a contrary intent is inescapably manifested, the conveyee is found to have a right-of-way across the retained land of the conveyor for ingress to, and egress from, [a] landlocked parcel. Similarly, an easement by necessity is found when the owner of lands retains the inner portion, conveying to another the balance.

In LaRue v. Greene County Bank,14 the Supreme Court discussed the second aspect of the doctrine. There, the Court noted that when a grantor conveys away part of his or her property, an easement will be deemed retained "where it is of such necessity that it must be presumed to be within the contemplation of the parties." The Court of Appeals applied this rule in Johnson v. Headrick,15 to grant the right of way there requested.

Prescriptive easements are created by long term use.  Exactly what is required to establish such easements was at issue in McCammon v. Meridith.16   In that case, the Court of Appeals held that the burden of proving a right to a prescriptive easement is akin to the burden of proving adverse possession.  Claimants must establish by clear and convincing proof that their use has been "adverse, under a claim of right, continuous, uninterrupted, open, visible, exclusive, with the knowledge and acquiescence of the owner of the servient tenement, and . . . for the full prescriptive period [of 20 years]."17 Prescriptive easements cannot be acquired by intermittent use.18

HAS ANY PRIVATE EASEMENT BEEN ABANDONED?

 
As the Court of Appeals noted in Hall v. Pippin,19 private access easements, like public roads, may be abandoned.  Abandonment of a private access easement is established by showing an intention to abandon coupled with acts that carry out the intention.20 Nonuse alone is insufficient, but "[t]his intention may be proved with evidence of acts clearly indicating that the easement holder desires to lay no further claim to the benefits of the easement . . . ."21   The Hall court listed the factors to be considered in determining whether an easement holder has abandoned the easement:

(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.22

DOES THE LANDOWNER HAVE THE RIGHT TO ERECT GATES?


Generally speaking, the landowner may maintain gates across the kind of road we're dealing with here.  That right, however, is not unqualified.

Under Tenn. Code Ann. § 54-10-108 a county may permit gates across certain public roads:

County legislative bodies are empowered to permit the erection of gates across public roads of the third and fourth class when, in their judgment, it will be manifestly to the advantage of the applicant and not materially to the prejudice of the public.

A third class road is defined as a road having a width of not more than 30 feet or less than 14 feet and a worked roadbed of at least 12 feet.23  A fourth class road is defined as a road having a width of not more than 20 feet or less than 10 feet and a worked roadbed of at least 8 feet.24

Gates across private access easements were discussed in Cole v. Dych.25 There, the Supreme Court held that

[t]he maintenance of gates is not necessarily inconsistent with the existence of an easement. Generally speaking, the owner of land subject to a right-of-way may maintain gates, if necessary to his use and enjoyment and where such obstructions do not unreasonably interfere with the use of the way.

In Luster v. Garner,26 this rule was held to apply to prescriptive easements.  The prescriptive easement at issue in Luster was acquired while the servient estate was primarily woodland. When the servient estate was cleared and used for agricultural purposes, the servient owner erected gates at both ends of the subject roadway. The Supreme Court held that the servient owner had the right to maintain the gates even though there were no gates along the road during the prescriptive period. 

Whether a servient owner's gates may have locks depends on whether locks are reasonably necessary for security and on whether they unreasonably obstruct passage.27  The determination is made on a case by case basis.

MAY AN EASEMENT BE CONDEMNED?


Even if the landowner wins on all of the foregoing issues, the neighbor is not necessarily without remedy.  Public policy does not favor landlocked property.  Thus, if the neighbor has no other adequate or convenient access, the neighbor can condemn a private roadway easement under Tenn. Code Ann. § 54‑14-101, et seq.  The easement, however, will not necessarily be laid out over the road at issue, nor will it be granted without the neighbor's paying adequate compensation. 

To entitle a plaintiff to condemnation, it must appear that the road sought is not only required as a matter of convenience, but also as a matter of necessity.28  Moreover, a plaintiff is not entitled to an easement just so the plaintiff's property can be put to a higher use. In Vincent v. Nashville, C. & St. L. Ry.,29 landowners who already had a 20-foot road were not allowed to condemn an additional right of way, even though the 20-foot road was not adequate to permit their land to be subdivided.

Once the trial court finds that property is landlocked, a five‑person jury of view must be appointed to determine what compensation the servient owner is to receive.  Under Tenn. Code Ann. § 54‑14-109, the plaintiff must compensate the servient owner for what the jury of view concludes is "the cash value of the property taken and any incidental damages [less incidental benefits] . . . ."  As the Supreme Court held in Barge v. Sadler, 30 the jury of view must also designate the location of the easement; it is error for the court to do so. 

Two other points should be mentioned about condemning private roads.  First, a plaintiff must join as defendants all adjoining owners whose lands might realistically serve as the location for the easement.  The plaintiff may not pick and choose which owner or owners to sue.31 Second, if a party is not satisfied with the jury of view's decision concerning either compensation or location that party may have a new trial before a full jury of 12.32

*  *  *

Roadway disputes between landowners and their neighbors usually boil down to just a handful of issues.  Is the road currently public? If not, could there be a private easement?  Such an easement could arise because the road was once public, because of an express grant, by implication, by necessity, or by prescription.  If a private easement is indicated, has that easement been abandoned?   Are gates allowed, and if they are, are they being maintained in a reasonable fashion? And, finally, do grounds exist to condemn a private road?

I hope this article gives you a basic understanding of the law applicable to these issues.  Such an understanding won't make your next road case less contentious or emotional.  Nothing can do that.  But whether your client is seeking to take "the road less traveled by" or to make that road "the road not taken," it should at least make things proceed a little more smoothly. 
 
 C. Dewees Berry, IV is a member of Bass, Berry & Sims PLC.  He is also the editor of the Tennessee Real Estate Law Letter and teaches property at the Nashville School of Law.  Mr. Berry served as NBA president in 2003.

* * *  
 
FOOTNOTES 
  1. McCord v. Hayes, 202 Tenn. 46, 302 S.W.2d 331 (Tenn. 1957). 
  2. McKinney v. Duncan, 121 Tenn. 265, 272 118 S.W. 683, 684 (1909). 
  3. Id.
  4. McCord v. Hayes, 202 Tenn. 46, 302 S.W.2d 331 (1957).
  5. Id.
  6. Id.; Johnson City v. Wolfe, 103 Tenn. 277, 52 S.W. 991 (1899); Jackson v. State, 46 Tenn. 532 (1869); Rogers v. Sain, 679 S.W.2d 450 (Tenn. App. 1984); Nicely v. Nicely, 33 Tenn. App. 589, 232 S.W.2d 421 (1949).   
  7. Harqis v. Collier, 578 S.W.2d 953 (Tenn. App. 1978).
  8. Jacoway v. Palmer, 753 S.W.2d 675 (Tenn. App. 1987).
  9. Id.
  10. See TY Farming Co. v. Belew, 1996 Tenn. App. LEXIS 720; Farr v. Pentecost, 1994 Tenn. App. LEXIS 12.
  11. Knierim v. Leatherwood, 542 S.W.2d 806 (Tenn. 1976).
  12. 2004 Tenn. App. LEXIS 410.
  13. Id. at *20.
  14. 79 Tenn. 394, 407 166 S.W.2d 1044, 1049 (1942).
  15. 34 Tenn. App. 294, 237 S.W.2d 567 (1948).
  16. 830 S.W.2d 577 (Tenn. App. 1991).
  17. Pevear v. Hunt, 924 S.W.2d 114, 116 (Tenn. App. 1996). 
  18. McCammon v. Meridith, 830 S.W.2d 577 (Tenn. App. 1991).
  19. 984 S.W.2d 617 (Tenn. App. 1998).
  20. Id. at 620.
  21. Id. at 621.
  22. Id.
  23. Tenn. Code Ann. §54-10-104(b) and (c). 
  24. Id.
  25. 535 S.W. 2d 315, 320 (Tenn. 1976).
  26. 128 Tenn. 160, 159 S.W. 604 (1913); But see Zumstein v. Smith, 1996 Tenn. App. LEXIS 722. 
  27. Reynaud v. Koehler, 2005 Tenn. App. LEXIS 467.
  28. Towater v. Darby, 15 Tenn. App. 53 (1932).
  29. 45 Tenn. App. 161, 321 S.W.2d 841 (1958).
  30. 70 S.W.3d 683 (Tenn. 2002).
  31. Id.; see also Design Concept Corp. v. Phelps, 2000 Tenn. App. LEXIS 395.
  32. Tenn. Code Ann. § 54-14-114.
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