LAWRENCE D. SELLICK ET AL. v. GENE S. MILLER ET AL. (Tenn. Ct. App. February 27, 2009).

Landowners Lawrence D. Sellick and Sheri A. Sellick (“the Sellicks”), who own the Archie Tate Farm Road (“the farm road”), brought this action for a declaration that their neighbors, Gene S. Miller and Lois J. Miller (“the Millers”), do not have a right to use the farm road for ingress and egress from property owned by the Millers and designated as Map 85, Parcel 5.07 (“Parcel 5.07”). The deed to Parcel 5.07 contains no language concerning an easement, and the property fronts on a paved county road. The Millers own a second piece of property designated as Map 85, Parcel 5.02 (“Parcel 5.02”). The deed to Parcel 5.02 contains an easement over the farm road. The Millers filed a motion for partial judgment on the pleadings, claiming they have the right to transfer the easement for Parcel 5.02 to Parcel 5.07 because the deed to Parcel 5.02 states, “This easement shall be freely transferable and shall pass with the title to the above property.” They also claim that the recitation in the deed to Parcel 5.07 that “a new 50 foot ROW road” is a boundary, creates an easement in the farm road for the use and benefit of Parcel 5.07. The trial court refused to grant the Millers’ motion on the “transferability” issue, holding that the language in the deed to Parcel 5.02 “is at best ambiguous and possibly such that further proof may be proper to ascertain its meaning.” The court granted the Millers’ motion, however, on its second basis, i.e., the recitation in the deed to Parcel 5.07 that “a new 50 foot ROW road” is a boundary created an easement in the farm road benefitting Parcel 5.07. We hold that the deed to Parcel 5.02 is not ambiguous and, furthermore, that the Millers do not have an easement in the farm road on any of the bases asserted. We vacate the judgment and remand for further proceedings.

Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/sellickl_022709.pdf

“The Millers assert that the deed’s “freely transferable” language not only gives them the right to transfer the easement rights of Parcel 5.02 to another piece of nearby property owned by them, i.e., Parcel 5.07, but also that the language “creates an easement with rights of use at [their] discretion.” Id.

“The rules concerning the interpretation of deeds are well-settled and are for the purpose of enabling the courts to ascertain the intention of the parties to the deed... The courts should first seek to determine the parties’ intentions by examining the words of the deed. Id... The words of the deed should be considered in the context of the whole deed. Id. (citations omitted).” Id.
“The trial court found the words “This easement shall be freely transferable and shall pass with the title to the above realty” to be ambiguous. We do not. By use of the conjunctive “and,” the drafter of the deed tied transferability to “the title to the above reality.” The “above realty” can only refer to the land conveyed by the deed, which is Parcel 5.02. Thus, the easement is freely transferable with the title to Parcel 5.02. To hold otherwise would defeat fundamental principles of property law.” Id.

“The record does not support the Millers’ claim that the recitation of the boundary creates an estoppel. In addition, they have failed to show an easement by estoppel. To prevail under a theory of easement by estoppel, the party claiming the estoppel must show that the owner of the servient estate made some misrepresentation, the party believed the communication, and the party relied on the communication. Adcock v. Witcher, No. 01-A-01-9505-CH00220, !995 WL 675852, at *5 (Tenn. Ct. App. M.S., filed November 15, 1995) (citations omitted). As we noted,
“‘[t]he principle of an estoppel of this character is that the party who is to be [affected] by it has, by his own word or conduct, misled another into a course of action that, if the estoppel is not enforced, will work an injury to him who is thus misled.’” Id. (quoting Moses v. Sanford, 70 Tenn. 655, 659 (Tenn. 1879)). There are no facts to this effect in the record.” Id.