Allison v. Allison

• Decision Date: 27 October 1945
• Parties: ALLISON v. ALLISON et al.
• Court: Tennessee Court of Appeals

193 S.W.2d 476

29 Tenn.App. 99

ALLISON v. ALLISON et al.

Court of Appeals of Tennessee, Middle Section.

October 27, 1945

Certiorari Denied by Supreme Court March 2, 1946.

Appeal from Chancery Court, Davidson County; Thomas A. Shriver Chancellor.

Suit for partition by T. J. Allison against Aleck Allison and others. From a decree denying complainant's claim to an easement over the land allotted to one of the defendants and enjoining complainants from further using the alleged easement, the complainant appeals.

Decree affirmed.

Lewis S. Pope and Whitworth Stokes, both of Nashville, for appellant.

Roberts & Roberts, of Nashville, for appellee.

FELTS Judge.

This is a partition suit in which a tract of about 180 acres of land has been divided in kind among the parties, complainant T. J Allison and defendants, his brother and six sisters. He claimed, as appurtenant to the land allotted to him, an easement of way over the land allotted to his sister, Mrs Eva Lee Archey.

After an oral hearing according to the forms of chancery, the chancellor found that the way over her land was not reasonably necessary to the enjoyment of his land, and entered a decree denying his claim to the easement and enjoining him from further using it. He appealed and has assigned errors.

She has moved to strike the bill of exceptions because not filed in time. The decree appealed from was entered June 12, 1944. It allowed 30 days for filing a bill of exceptions and perfecting the appeal by giving bond or taking the oath. On June 19 the decree was modified so as to require a bond. On June 30 the time for filing a bill of exceptions was extended 30 days additional from July 10, and on August 9 the time was further extended to August 15, 1944. He filed his appeal bond July 5 and his bill of exceptions August 14, 1944.

All these decrees were entered during the term. It was within the chancellor's power to allow a bill of exceptions at any time during the term, and the bill of exceptions was filed within the time extended and within the term. This was within time. Beiler v. State, 158 Tenn. 404, 14 S.W.2d 51; Bankers' Finance Corp. v. Locke & Massey Motor Co., 170 Tenn. 28, 91 S.W.2d 297; Strain v Roddy, 171 Tenn. 181, 101 S.W.2d 475; Buchannon v. State, 177 Tenn. 140, 149, 146 S.W.2d 952, 956; Rundle v. Capitol Chevrolet, Inc., 23 Tenn.App. 151, 154, 129 S.W.2d 217, 219; Mitchell v. Porter, 26 Tenn.App. 498, 173 S.W.2d 443.

Nor did the perfecting of the appeal on July 5 deprive the chancellor of the power thereafter to allow the bill of exceptions at any time during the term. Code section 9047, fixing the time for appealing, does not apply to bills of exceptions; they are controlled by Code section 8820, which empowered the chancellor to allow a bill of exceptions at any time during the term or to grant not exceeding 60 days after the adjournment of the term for filing a bill of exceptions. Beiler v. State, supra; Strain v. Roddy, supra; compare McCanless v. State ex rel. Hamm, 181 Tenn. 308, 181 S.W.2d 154, 153 A.L.R. 832. For these reasons appellee's motion is denied.

The material facts are these. Before the partition appellant, his brother, and his six sisters each owned a one-eighth undivided interest in the 180 acre tract, which had been devised by their grandfather to their father for life with remainder to them, and the father had died in July 1940. About 20 years before his death there had been built on this land a house located back some 400 or 500 feet from the Harding Road, which runs in a north and south direction along the east edge of the tract of land. For some ten years after the building of this house its occupants used a roadway back to the north around the father's residence and out to the road. But during the latter years of his life and until the partition, covering a period of some ten or twelve years, occupants of this house had been using the roadway in dispute to go to and from the Harding Road.

The partition was by agreement, which did not refer to this roadway. Under the direction of the court, the land was surveyed by Z. J. Wilkinson who made a plat of the whole showing the part allotted to each of the parties. The original of this plat has been sent up with the transcript. Appellant's share was a tract of about 85 acres, which included the house above mentioned. Immediately east of his tract was the part allotted to Mrs. Archey, a tract of a little over 7 acres. The roadway in issue runs from his house eastwardly through the center of her tract to the Harding Road. At the southeast corner of her tract the Harding Road is intersected by Highway 100, which runs in a general southwesterly direction. Her tract fronts on the Harding Road and also on Highway 100.

West of her tract Highway 100 runs along the south margin of his tract for a distance of some 1,200 or 1,300 feet. On his tract there is another house near Highway 100. A road has been built from this highway to this house, which house is located south of and about 800 feet from his other house.

The chancellor found that for a comparatively small expenditure appellant could make a road from his northernmost house south to his other house and Highway 100, a distance of some 800 feet, which road would be as good and convenient as the roadway over Mrs. Archey's land. While there is some conflict in the evidence, we think it preponderates in favor of the chancellor's finding, and we concur in that finding.

Appellant however, insists that since this roadway existed and was...