PHILLIP ISAACS, JR., ET AL.
BRENNON FITZPATRICK, ET AL.
Session: May 8, 2019
from the Chancery Court for Perry County No. 5139 Deanna B.
appeal involves a dispute between neighboring landowners over
the use of a driveway that crosses the land of a third
neighbor. Two of these landowners were previously involved in
a separate lawsuit that resulted in an agreed declaratory
judgment establishing an easement for one landowner at the
location of the driveway. In the case at bar, the trial court
found that the prior declaratory judgment is not binding on
the neighboring landowners who were not parties to that
earlier proceeding. After a two-day bench trial and on-site
view of the premises, the trial court found that these
neighbors had established an easement implied from prior use,
and alternatively, an easement implied by necessity, enabling
them to use the driveway as well. The other landowner, who
was granted an easement by the earlier agreed order, has
appealed, insisting that he has the exclusive right to use
the driveway. For the following reasons, we affirm the
decision of the chancery court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
R. Aiello, Franklin, Tennessee, for the appellant, Brennon
Douglas Thompson Bates, III, Centerville, Tennessee, for the
appellees, Phillip Isaacs and Vanessa Isaacs.
Dennis McGee, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Kenny W. Armstrong,
DENNIS McGEE, JUDGE
Facts & Procedural History
case involves parcels of property that border the Buffalo
River in Perry County, Tennessee. All of these parcels were
originally part of a large farm owned by the Cunningham
family since at least the 1930's. The Cunningham family
used an old farm road to drive their cattle and move farm
equipment through the farm. At some point, this old farm road
became commonly known as "Cunningham Lane."
Stofel grew up on the farm and eventually acquired much of
the land from her mother, Mable Cunningham. In 1999, Ms.
Stofel subdivided the farm and sold one of the vacant lots
along the Buffalo River to Mr. and Mrs. Ronald Smith. The
Smiths' property had some road frontage along a gravel
road, but the portion of their property abutting the road was
very steep, and there was no driveway running from the gravel
road directly onto their property. Instead, an old roadbed
extended from the Smiths' property back across land
retained by Ms. Stofel, where it connected to the same gravel
road. According to Mr. Smith, this old roadbed had chert rock
on it and appeared to have existed for a long
time. Before the sale of the property was
completed, Mr. Smith was told by Ms. Stofel that this old
roadway connecting their property to the gravel road would be
their driveway. Notably, Ms. Stofel told Mr. Smith,
"Where the chert is, is the driveway, the
easement." The Smiths' deed from Ms. Stofel
expressly provided that the property would be "accessed
by a 30 foot in width right-of-way from a 50 foot in width
right-of-way north of Cunningham Ridge Road," and Mr.
Smith believed that this language encompassed his driveway
easement. Years later, at least by the time of trial, the
parties discovered that the language in the deed actually
provided for a means of accessing the river, by going farther
down the main gravel road and through the back part of the
property and ending at the river. However, at the time of the
conveyance, the Smiths believed that the language in the deed
provided for an easement at the driveway.
Mrs. Smith bought a cabin and placed it on the property such
that the driveway leads directly to it. The cabin was not the
Smiths' primary residence, but they traveled to the cabin
every weekend and sometimes for week-long vacations. During
this time, Ms. Stofel paid for maintenance of the main gravel
road but not maintenance of the separate driveway to the
Smiths' cabin. Ms. Stofel repeatedly told the Smiths that
it was their driveway and that they were responsible for the
cost of maintaining it. The Smiths hired someone to bring in
a dump truck with seventeen tons of stone to improve the
driveway and adjacent ditch. Every spring, the Smiths had to
add some additional gravel due to the rains washing the
driveway and forming ruts.
property adjacent to the Smiths' property was apparently
a vacant lot with the exception of a fence running along the
property line. There was an old gate at the corner of the
property line fence near the driveway that the Smiths used,
but the gate did not touch the driveway. Grass separated the
driveway and the old gate. Despite the existence of the gate,
from 1999 to 2007, no one used the driveway except for the
2007, the Smiths sold the property to Mr. and Mrs. Isaacs.
Mr. Smith admittedly told Mr. and Mrs. Isaacs that the
driveway "was their drive." Like the Smiths, Mr.
and Mrs. Isaacs used the cabin as a weekend home and traveled
to it on a weekly basis. Mrs. Isaacs is an avid kayaker and
frequently pulls a kayak trailer to the cabin. Mr. and Mrs.
Isaacs added a "drop-down" drive on the very steep
slope of their property abutting the gravel road such that
the drop-down drive runs from the gravel road and connects to
their main driveway "to make a loop." This enables
them to pull their kayak trailer down the drop-down drive
onto the main driveway so that they can exit out their main
driveway when they leave. Without the loop, there is not
enough space on the property to pull in the driveway and turn
around with the trailer. However, according to Ms. Isaacs,
the drop-down drive is simply too steep to use for exiting
the property unless one has a four-wheel drive vehicle.
Instead, Mr. and Mrs. Isaacs use the main driveway to exit
the property and get back to the gravel road.
Mrs. Isaacs used and maintained the driveway regularly and
without incident from 2007 until 2015. In 2015, Brennon
Fitzpatrick bought the adjacent three-acre lot next to Mr.
and Mrs. Isaacs, where the fence and the old gate were
located. Mr. Fitzpatrick had purchased a two-acre lot past
the adjacent three-acre lot several years earlier, and he had
a cabin on the two-acre lot. Mr. Fitzpatrick wanted the
contiguous three-acre lot next to the property owned by Mr.
and Mrs. Isaacs to further complement his existing lot. Mr.
Fitzpatrick was aware of the fact that Mr. and Mrs. Isaacs
regularly used the driveway across Ms. Stofel's land to
access their cabin. However, Mr. Fitzpatrick believed that he
had a right to utilize the same driveway to access the
adjacent three-acre lot at the location of the old gate. The
deed to his property, which was originally sold by the
Cunninghams to his predecessors in title in 1974, included a
"perpetual right-of-way easement over an existing road
known as Cunningham Lane for the purpose of ingress and
egress to the property herein conveyed."
he purchased the adjacent lot, Mr. Fitzpatrick took a
bulldozer onto the driveway, which led to a heated exchange
with Ms. Stofel and Mr. and Mrs. Isaacs. Ms. Stofel told Mr.
Fitzpatrick that the driveway belonged to her and that she
was not going to allow him to use it. Mr. and Mrs. Isaacs
also told Mr. Fitzpatrick that they had always used the
driveway. Thereafter, Mr. and Mrs. Isaacs continued to use
the driveway without incident for several months.
8, 2016, Mr. Fitzpatrick filed suit against Ms. Stofel in the
chancery court of Perry County. The complaint recited that
Mr. Fitzpatrick's predecessor in title was granted an
easement over an existing road known as Cunningham Lane for
the purpose of ingress and egress to the property. Mr.
Fitzpatrick acknowledged his belief that Cunningham Lane, in
its present form, does not touch the tract he now owns, but
Mr. Fitzpatrick alleged that Ms. Stofel had "created a
driveway off of Cunningham Lane which ends at an old wooden
gate on Fitzpatrick's property and appears to have been
designed to allow access onto Fitzpatrick's property
through this gate." The complaint asked the court to
"declare Fitzpatrick's right to access his property
over Cunningham Lane and/or the driveway." Mr. and Mrs.
Isaacs were not named as defendants or mentioned in the
11, 2016, Mr. Fitzpatrick filed a motion for default
judgment, asserting that Ms. Stofel had failed to file an
answer to the June 8 complaint. The hearing on the motion for
default judgment was set for August 8, 2016. On that date,
however, the trial court entered an agreed order with the
following relevant provisions:
TO ESTABLISH A PERPETUAL RIGHT-OF-WAY EASEMENT
It appears to the Court as evidenced by the signatures of
Counsel for the parties that an agreement has been reached to
establish an exclusive perpetual right-of-way easement for
ingress and egress to benefit the Plaintiff, and all persons
who may subsequently take title to Plaintiff's tract of
real property described herein. The perpetual right-of-way
easement shall be exclusive to Plaintiff, his heirs, assigns
. . . .
There is an existing driveway approximately twenty five (25)
feet in width and one hundred fifty (150) feet in length
which runs off of Cunningham Lane across Stofel's
property to the southeastern boundary of Plaintiff's
property. Said driveway is shown on the attached Exhibit A.
By this Order, Betty Stofel hereby conveys to Brennon
Fitzpatrick and his heirs and assigns, an exclusive perpetual
right-of-way easement over and along the existing driveway
being some twenty five (25) feet in width and one hundred
fifty (150) feet in length which leaves Cunningham Lane and
extends to the southeastern boundary of Plaintiff[']s
property. . . .
following drawing was incorporated by reference, depicting
the blackened "Easement Area" with an arrow leading
same day the agreed order was entered, Mr. Fitzpatrick went
to the cabin owned by Mr. and Mrs. Isaacs and told them that
he had obtained "exclusive" rights to the driveway
and that they would only be permitted to use it with his
permission. Mr. and Mrs. Isaacs contacted Ms. Stofel, and she
informed them that she did not intend to grant Mr.
Fitzpatrick exclusive rights to the driveway but meant for
them to share access to it.
September 2, 2016, Ms. Stofel filed a motion to set aside or
alter or amend the August 8 order. Among other things, Ms.
Stofel asserted that the language of the order did not
accurately reflect her understanding of the easement.
According to her attorney, Ms. Stofel intended this
particular easement grant to be exclusive to Mr. Fitzpatrick,
his heirs, assigns, and successors, but she did not intend
for Mr. and Mrs. Isaacs to be denied access to their property
by way of the same driveway.
September 7, 2016, Mr. and Mrs. Isaacs filed a motion to
intervene in the declaratory judgment action between Mr.
Fitzpatrick and Ms. Stofel. Mr. and Mrs. Isaacs asserted that
their property was accessed by the same right-of-way
described in Mr. Fitzpatrick's complaint and the agreed
order, and they sought to intervene in order to file a
counter-action for a declaration of their own rights. Mr. and
Mrs. Isaacs filed a "Proposed Intervening Answer,
Counter-complaint, and Cross-complaint." Mr. Fitzpatrick
opposed the motion to alter or amend filed by Ms. Stofel and
also the motion to intervene filed by Mr. and Mrs. Isaacs.
chancery court held a hearing on both motions on October 18,
2016. At the conclusion of the hearing, the trial judge
announced that he found no basis for granting Ms.
Stofel's motion to alter or amend pursuant to Tennessee
Rule of Civil Procedure 59, "[a]nd based upon that
denial there is no proceeding at this time that will allow
the intervention of the Isaacs." The trial court entered
a written order simply stating that both the motion to alter
or amend and the motion to intervene were "without merit
and must be denied."
January 26, 2017, Mr. and Mrs. Isaacs instituted this
proceeding in the chancery court of Perry County, naming both
Mr. Fitzpatrick and Ms. Stofel as defendants. Mr. and Mrs.
Isaacs argued that the agreed order in the declaratory
judgment action between Mr. Fitzpatrick and Ms. Stofel could
not prejudice the rights of Mr. and Mrs. Isaacs pursuant to
Tennessee Code Annotated section 29-14-107(a) of the
Tennessee Declaratory Judgment Act, which provides:
When declaratory relief is sought, all persons shall be made
parties who have or claim any interest which would be
affected by the declaration, and no declaration shall
prejudice the rights of persons not parties to the
Mrs. Isaacs asserted that they were entitled to an easement
by implication. In summary, Mr. and Mrs. Isaacs asked the
court to hold that their rights were not prejudiced by the
proceeding to which they were not a party, and they further
asked the court to declare that Mr. and Mrs. Isaacs have an
implied easement along the driveway. Ms. Stofel filed an
answer admitting that her interest was "as owner of the
servient tenement with the lawful obligation attached
Fitzpatrick moved to dismiss the complaint on the basis that
the trial court could not grant any relief to Mr. and Mrs.
Isaacs pertaining to the agreed order or reexamine that
ruling. Because the agreed order stated that Mr. Fitzpatrick
was granted an "exclusive" easement, he argued that
Mr. and Mrs. Isaacs could not be granted an easement to use
the same driveway. According to Mr. Fitzpatrick, the
complaint should be dismissed as an impermissible collateral
attack on a valid final judgment.
trial court held a two-day bench trial on April 17 and 18,
2018. The trial court took under advisement the motion to
dismiss filed by Mr. Fitzpatrick. The court heard testimony
from Mrs. Isaacs, Mr. Smith (who owned the property before
Mr. and Mrs. Isaacs), Mr. Fitzpatrick, and Ms. Stofel.
Stofel was 87 years old at the time of trial. She testified
about growing up on the Cunningham farm. Ms. Stofel testified
that when the Smiths purchased their vacant lot from her in
1999, the old roadbed they saw leading from the Smiths'
property across her property to the main gravel road
"was the west portion of the old road that went through
our farm." Ms. Stofel explained that this was "the
farm road" her father had used to move cattle and farm
machinery. She said this was "the only drive into our
farm." As such, Ms. Stofel explained that the driveway
used by the Smiths "didn't have to be built"
when they bought the property because "[t]he road was
already there." According to Ms. Stofel, the Smiths
simply improved the existing roadbed and maintained it. Ms.
Stofel confirmed that the Smiths used and improved the
driveway with her permission, but she also acknowledged that
"[i]t was not written in the deed as an easement."
Smith testified that when he purchased the property, the
existing roadbed looked as if it had been in existence a long
time. He testified that there was already chert rock on the
roadbed when he bought the property. According to Mr. Smith,
the roadbed went onto his property and looked like it was his
driveway. Mr. Smith said Ms. Stofel pointed out the chert
rock and told him this was his easement. Mr. Smith believed
that he had an enforceable easement to use the driveway and
would not have purchased the property if he thought that he
only had mere permission that could be revoked. During the
eight years the Smiths owned the property, no one used the
driveway except Mr. Smith and his wife. When the Smiths sold
the property to Mr. and Mrs. Isaacs, Mr. Smith admittedly
told them that the driveway "was their drive."
Smith was familiar with the river access route described by
the express easement in the deed. At first, he explained, the
location of that easement traveled farther down the gravel
road bordering the steep side of the property, then it left
the gravel road and eventually ended at the river. Mr. Smith
said that "[y]ou could go on down on it if you had a
four-wheel drive pickup," but, he added, there was a
gate along the route to keep the Stofels' cows contained.
He explained that no one ever used that route and that it was
"grown up." As previously noted, when Mr. Smith
read the deeds and ...