Friday, May 29, 2009

Court finds that pernanent, non-exclusive easement did not carry with it rights for use of right-of-way

(Tenn. Ct. App. February 23, 2009).

In this dispute over the use of a driveway, the Trial Court rejected plaintiffs' claim to an easement and held that plaintiffs were only entitled to the express easement granted in their deed. Plaintiffs appealed and we affirm the Judgment of the Trial Court.

Opinion may be found at the TBA website:

"While the proof is not clear regarding the exact placement of the granted easement, it is not disputed that it only goes so far up the existing driveway to the front of plaintiffs’ property, and does not include the “turn” into the side of plaintiffs’ home, which defendants sought to fence. While plaintiffs clearly have an easement that gives them access to their property from Kanott Lane, it does not follow the exact path of the existing driveway." Id.

"The easement gives plaintiffs access to their property from a public road, and give them the right to use a portion of the existing driveway, but it simply does not follow the entire path of the existing driveway, which is factually distinct from the Gammo case. Accordingly, we cannot imply a greater easement than what was expressly granted under the evidence in this case." Id.

"The case law explains that the term “non-exclusive” is generally used to refer to the type of rights that are maintained by the servient estate, and does not confer rights upon other property owners to use the easement to access their own property, otherwise, it would be designated as a public easement, and/or would not be designated as “access” to the subject property only." Id.