Cellco Partnership v. Shelby County
| Decision Date | 29 August 2005 |
| Docket Number | September 21, 2004 Session. |
| Citation | 172 S.W.3d 574 |
| Parties | CELLCO PARTNERSHIP d/b/a Verizon Wireless, et al. v. SHELBY COUNTY, Tennessee, et al. |
| Court | Tennessee Supreme Court |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Edward M. Bearman, Memphis, TN, for Appellant, Highway 64 Partners, LLP.
Shelby R. Grubbs, Ryan A. Kurtz, Chattanooga, for Appellee Cellco Partnership d/b/a Verizon Wireless.
Gordon B. Olswing, Memphis, TN, for Appellees, Shelby County, Tennessee and the Light, Gas And Water Division of the City of Memphis, TN.
ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.
In this case we are asked to construe several instruments related to a parcel of real property. In 1976, Shelby County obtained title to a parcel of property conveyed out of a larger tract and proceeded to construct a water tower on the property. From 1976 to 1982, Shelby County used a gravel road traversing the adjacent lot retained by the original grantor to gain access to the water tower. In 1982, the original grantor proceeded to execute a document purporting to grant Shelby County an easement over the gravel road. The original grantor subsequently conveyed the adjacent parcel to a third party, Highway 64 Partners. In 1995, Shelby County entered into a lease agreement with Verizon, allowing Verizon to install a cellular communications antenna on the water tower and granted Verizon an easement over the gravel road. Highway 64 Partners protested Verizon's use of the gravel road. Verizon filed a declaratory judgment action seeking a declaration of the parties' rights regarding the gravel road. The trial court granted summary judgment to Verizon and Shelby County, and denied summary judgment to Highway 64 Partners. We affirm.
This appeal involves certain real property originally owned by Stonebridge Venture, Limited ("Stonebridge"), located in Shelby County, Tennessee. On September 16, 1976, Stonebridge conveyed, by warranty deed (hereinafter referred to as the "1976 Deed") properly recorded in the Shelby County Register's Office under number L6 5076, a portion of a larger parcel of land to Shelby County. The 1976 Deed provided, in relevant part, as follows:
TO HAVE AND TO HOLD the aforesaid real estate together with all the appurtenances and hereditaments thereunto belonging or in any wise appertaining unto the said party of the second part, its heirs, successors and assigns, in fee simple forever, as long as said premises is used as a water storage tank or for public utilities, in the event that said property shall be abandoned for said purposes, it shall revert to the grantor, and this deed shall become forfeited and the premises herein described and all the rights herein conveyed shall at once revert to and revest in and become the property of grantor, his successors or assign without any declaration of forfeiture or act of re-entry, and without any other act by grantor to be performed. . . .
In addition, the 1976 Deed purported to grant Shelby County what amounted to, in essence, three easements; two "Pipe Line" easements and a "temporary construction easement" set to "expire and terminate upon installation of easement improvements or three (3) years from the date of this instrument whichever comes first." Subsequent to acquiring the land, Shelby County proceeded to build a water tower (hereinafter referred to as the "Stonebridge Water Tower") on the property.1 In addition, the Shelby County Fire Department installed a communications antenna on the tower.
At the time of conveyance, and at all times thereafter, the subject property acquired by Shelby County was landlocked.2 After acquiring the property in 1976, Shelby County gained access to the parcel by utilizing a gravel road (hereinafter referred to as the "Gravel Access Road") which traversed that portion of the Stonebridge property not conveyed in the 1976 Deed.
On September 10, 1982, Stonebridge executed a document entitled "Easement" (hereinafter referred to as the "1982 Easement"), which Stonebridge recorded in the Shelby County Register's Office under number T5 6633. The 1982 Easement contained the following relevant language:
WHEREAS, by warranty deed entered into the 16th day of September, 1976 and recorded as instrument L6 5076 . . . granted to Shelby County, Tennessee certain real estate for the construction of an elevated water storage tank; and
WHEREAS, this deed failed to grant a right-of-way easement giving access to said tank for the purpose of its maintenance;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) cash in hand paid, the receipt of which is hereby acknowledged, Stonebridge hereby grants to Shelby County a perpetual easement over that portion of grantor's land which it is necessary to use as a right-of-way easement for the maintenance and repair of said water tank. ...
....
Which easement shall run with grantor's land and the title thereto, and be binding on the grantor and its heirs and successors and any person who shall hereafter acquire title to grantor's property....
The 1982 Easement went on to describe, in essence, the Gravel Access Road utilized by Shelby County since acquiring the property in 1976. Only the president for Stonebridge signed the 1982 Easement. Shelby County denies ever assenting to the 1982 Easement or being bound by its terms.
On March 26, 1985, Stonebridge conveyed to Highway 64 Partners ("Highway 64"), by warranty deed (hereinafter referred to as the "1995 Deed") recorded in the Shelby County Register's Office under number W4 0979, the property adjacent to the parcel at issue, over which the Gravel Access Road traversed, and which Stonebridge previously conveyed to Shelby County. The 1985 Deed contained the following relevant language:
And the said party of the first part does hereby covenant with the said party of the second part that it is lawfully seized in fee the afore described real estate; that it has a good right to sell and convey the same; that the same is unencumbered, except for ... easements, if any for public utilities serving the Property, easements of record as Instruments Nos. E2 1385, L6 5076 [the 1976 Deed], and T5 6633 [the 1982 Easement] in the Shelby County Register's Office....
On August 22, 1995, Shelby County entered into a Lease Agreement (hereinafter referred to as the "Verizon Lease") with Memphis Cellular Telephone Company (hereinafter referred to as "Verizon")3 which contained the following relevant language:
WHEREAS, Lessor, represents that it is the owner of the real property on which the Stonebridge-area water tower is located in Shelby County, Tennessee, being the tract described in Instrument # L6 5076 [1976 Deed], of record in the Register's Office of Shelby County, Tennessee....
WHEREAS, Lessor has agreed to lease to Lessee the following: (a) the right and license to erect a new radio communications tower located (i) on or near the top of the water tower located on the Land, or (ii) in a circular fashion on the water tower support structure (tube), or (iii) on a separate monopole tower adjacent to the water tower; (b) the Building Site, and (c) a non-exclusive easement (the "Easement") for ingress, egress and utilities as described on "Exhibit A," (the said right and license, Building Site and easement being referred to collectively herein as the "Property"); and
....
NOW, THEREFORE, for valuable consideration, the sufficiency of which is hereby acknowledged, the parties enter into this Lease upon the terms and mutual covenants as set forth herein:
....
4. Warranty of Title: Lessor represents and warrants that it is seized with good and marketable title to the Property, that except as set forth in this section, the same is unencumbered, and that the Lessor has full authority and right to enter into and execute this Lease. Lessor further represents and warrants that there are and will be no encumbrances, liens or impediments of title or clouds upon the title of the Property which would interfere with the Lessee's intended use of the Property generally.
5. Communications Equipment:.... Lessor hereby further grants to Lessee a nonexclusive easement for ingress and egress to the Property, to the extent that such does not unreasonably interfere with Lessor's normal business operations, seven (7) days a week, twenty four (24) hours a day, on foot or by motor vehicle, including trucks, for the installation and maintenance of utility wires, cables, conduits, and pipes over, under or along a right of way reasonably satisfactory for Lessee's use and extending from the nearest public right of way to the Property. Lessor further agrees to execute such instruments or easements for the benefit of the Property at any time during the term hereof which Lessee may reasonably request to provide ingress and egress to and from the Property necessary to construct, maintain or operate the Communications Equipment and, if Lessee deems necessary, for the provision of all necessary utilities to serve the Communications Equipment without additional consideration....
....
7. Liability and Indemnity: Each of Lessee and Lessor agree to use and occupy their respective property at their own respective risk and hereby release the other from all claims for any damage or injury suffered by it....
Attached to the Verizon Lease was "Exhibit A" containing a document entitled "Description of Easement," which purported to set the easement granted to Verizon as follows: "Being a 20 foot wide right-of-way easement across the Highway 64 Partners property as recorded in Instrument Number T5-6633 [the 1982 Easement]...." After...
To continue reading
Request your trial
-
Burlison v. U.S.
...ways, including: express grant, reservation, implication, prescription, estoppel, and eminent domain. Cellco P'ship v. Shelby County, 172 S.W.3d 574, 588 (Tenn.Ct.App. 2005). "An easement is an interest in property that confers on its holder an enforceable right to use another's property fo......
-
Hughes v. New Life Dev. Corp.
...v. Stooksbury, 206 S.W.3d 73, 79 (Tenn.Ct.App.2006); Shew v. Bawgus, 227 S.W.3d 569, 576 (Tenn.Ct.App.2007); Cellco P'ship v. Shelby Cnty., 172 S.W.3d 574, 586 (Tenn.Ct.App.2005). The deed in this case exhibits no different intent from the Purchase and Sale Agreement with respect to Raoul L......
-
Perry v. Niles
...the party's intention should be given the usual, natural and ordinary meaning.' " Cellco P'ship d/b/a Verizon Wireless v. Shelby County, 172 S.W.3d 574, 587 (Tenn. Ct. App. 2005) (quoting Ballard v. N. Am. Life & Cas. Co., 667 S.W.2d 79, 82 (Tenn. Ct. App. 1983)). "Any reference to subseque......
-
Miner v. Jesse & Grace, LLC
...Am.Jur.2d Easements and Licenses § 26 (Nov.2013 Update) (footnotes omitted) (emphasis added); see also Cellco P'ship v. Shelby County, 172 S.W.3d 574, 590 (Tenn.Ct.App.2005) (quoting 28A C.J.S. Easements § 66 (1996)) (“Apparent or obvious use in this connection does not mean actual visibili......