Cole v. Dych

• Decision Date: 17 February 1976
• Citation: 535 S.W.2d 315
• Parties: Homer COLE et al., Petitioners, v. David W. DYCH et al., Respondents.
• Court: Tennessee Supreme Court

Page 315

535 S.W.2d 315

Homer COLE et al., Petitioners, v. David W. DYCH et al., Respondents.

Supreme Court of Tennessee.

Feb. 17, 1976.

Frank B. Bird, Bird, Navratil, Tate & Bird, Maryville, William R. Holt, Jr., Holt, Gilreath & Brooks, Sevierville, for petitioners.

R. B. Hailey, Hailey, Water, Jarvis & Sykes, Gatlinburg, for City of Gatlinburg.

William P. Newkirk, Donald F. Paine, Egerton, McAfee, Armistead, Davis & McCord, Knoxville, for respondents.

OPINION

HENRY, Justice.

This suit in chancery, brought and sustained as a class action, seeks to preserve an easement of ingress and egress by the issuance of a mandatory injunction commanding respondents to restore it to its former condition. Involved is a roadway to the Gatlinburg Cemetery. The Chancellor found the issues in favor of petitioners and granted the injunction. The Court of Appeals concurred in the finding of the Chancellor that there had been a dedication by implication for cemetery purposes but reversed as to the injunctive relief.

We reverse the judgment of the Court of Appeals and sustain that of the Chancellor, with modifications.

I.

The Gatlinburg Cemetery, which has been in use for more than a century, is located in the center of downtown Gatlinburg. It is deeply rooted in the history and tradition of that fabulous and fascinating resort area. There the 'forefathers of the hamlet sleep' and this suit is prompted to a significant extent by sentiment. It represents an unfortunate collision between the expansion and development of an area whose growth has been phenomenal and the preservation of the last resting place of the mortal remains of the pioneers of the area and their progeny.

The respondents are the owners and operators of 'The Village', a most unique and delightful shopping center located on the Parkway, Gatlinburg's main thoroughfare and generally in front of the cemetery. In process of adding additional units to The Village, respondents considered it necessary and desirable to excavate and level the rear of their property which is adjacent to the cemetery. In so doing they excavated to a considerable depth some seventy-five feet of the road leading to the cemetery, rendering it impassable and unusable. This suit ensued.

The origin of the roadway is sketchy. The record fairly establishes that the cemetery was in existence as early as 1865, long before anyone had any reason to believe that Gatlinburg would ever be more than a mere hamlet nestled in a picturesque valley in the great Smoky Mountains. At this time and for many years thereafter, the property was used for general farming purposes.

The eastern boundary of respondent's property, and other property contiguous thereto, is Baskin Creek Road. At its intersection with the Parkway (U.S. Highway 441) there has stood for many years a Baptist Church. The cemetery is on a hill located southwest of the church. It is apparent from the testimony of some of the 'old-timers' that for many years there was no well-defined route from the church to the cemetery. Funeral processions, led in the old days by wagons or other horse-drawn vehicles, simply made their way across the open field by the most convenient route. Later commercial expansion apparently forced the roadway up the hill, and nearer the cemetery, and gradually it became better defined.

It was not, however, until around 1952, after R. L. Maples inherited the property from his mother, Cora L. Maples, and after what is known in the record as the 'Stone House' was built, that the roadway took its present form. For a number of years prior to that the road had been in existence over a well-defined route. The construction of the 'Stone House' necessitated a change of a portion of roadway. The road, in its present form, was constructed or improved by Maples and was subsequently graveled by Sevier County. Later the City of Gatlinburg placed oil on it.

R. L. Maples, respondents' predecessor in title, was fifty-seven years old at the time of his testimony. His father, mother, grandfather and other members of his family are buried there. He testified to a recollection of the road for fifty years, and said:

I considered the road was for the use of the people that were interested in using the cemetery for any purpose . . . I felt like the road had always been there and always would be. It did not dawn on me that there would ever be any question coming up about moving or closing the road or anything.

At all times the Baskin Creek Road entrance was blocked off by removable bars, or a gate, or a chain, or a spiked treadle. These obstructions served various purposes. In earlier times they served to contain grazing cattle. In more modern times Mr. Maples operated an amusement park, or a miniature train system, and still later he and/or respondents used a portion of the area as a parking lot to which admission was charged. It is further suggested in the record that these and other obstructions served to keep intruders and joyriders from entering in the night-time. Regardless of the reason it apparently was blocked off at all times and much of the time was locked.

On occasions when burials were conducted, the Church or its minister, or the janitor, or the funeral home, or some member of the family picked up the key as a matter of course. The proof shows conclusively that no one has ever been denied access to the roadway. There is a sharp dispute over whether those using cemetery for burials, decorations and other normal cemetery purposes had to get permission or used the road as a matter of right. We regard this as being largely semantic and, in the view we take of the matter, of no consequence. The indisputable fact remains that the general public used the roadway as a matter of custom and practice and without let or hindrance.

This roadway is approximately ten feet wide--just wide enough for a single line of vehicular traffic. There is no vehicular entrance to the cemetery proper and the turnaround is on the property of an adjoining property owner. See Infra. Respondents knew of the existence of this road before they purchased their property in 1965. ¹

The Chancellor's decree recites his finding of fact as follows:

1. The public had an easement for cemetery purposes only . . .

2. The public's said right to use said road is declared to be for any and all reasonable cemetery purposes . . .

3. The defendants and their successors in interest may use the easement for any purpose so long as said use does not interfere with the use of the roadway by the public for cemetery purposes . . .

4. (Relates to relief)

5. The Court finds that there was an implied dedication of the road for public use for cemetery purposes.

The record fully supports the Chancellor in these findings and we concur therein.

The Chancellor, among other things, ordered and decreed that the respondents restore the roadway to its former condition and that they maintain and repair it after restoration.

The Court of Appeals concurred generally in the Chancellor's findings of fact. It specifically affirmed 'his finding of a dedication by implication for the public to use the roadway for cemetery purposes only.' That court, however, held that the equitable remedy of mandatory injunction was not available, reversed the Chancellor and dismissed the lawsuit. It is our disagreement with this latter conclusion that prompted this Court to grant certiorari and that now prompts us to reverse the Court of Appeals.

II.

We first address the issue of dedication. Distinguished counsel for the respective parties ably, earnestly and violently differ as to this issue. Notwithstanding the concurrence of the Court of Appeals with the conclusion of the Chancellor, we feel that this case is of sufficient importance to justify a full discussion of this issue, particularly in view of the sharp dispute among counsel.

As we narrow the issues, we point out that we are not dealing with a conventional public road and that the cases involving such roads are not necessarily controlling. A public road has generally been defined to be a way open to all people, without distinction, for passage and repassage at their pleasure. Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W. 412 (1918). ² This is not such a road.

Nor do we deal with a way of necessity or easement by implication. It is the policy of our law to restrict the doctrine of implied easements as they are not favored in the law. Such easements basically are founded on conveyances and are premised upon the presumption that they were within the contemplation of the parties, and must be supported by a unity of title. Line v. Miller, 43 Tenn.App. 349, 309 S.W.2d 376 (1957). As is more fully discussed hereinafter, it was the failure to recognize these principles that prompted the Court of Appeals to reach the ambivalent conclusion that petitioners had acquired a right-of-way by dedication but that respondents were not required to reopen and restore it.

There also lurks in this record the suggestion that petitioners and the general public have another access to the cemetery and, therefore, they have no right to the continued use of the one in controversy. Again, we do not deal with a way of necessity which terminates when the reason for the servitude no longer exists. McGiffin v. City of Gatlinburg, 195 Tenn. 396, 260 S.W.2d 152 (1953). Where an easement exists, its continuation is not dependent upon the necessity for its use. Cottrell v. Daniel, 30 Tenn.App. 339, 205 S.W.2d 973 (1947).

We are dealing with an easement acquired by dedication as found by the Chancellor and the Court of Appeals. ³

A bench mark in the law dealing with the dedication of easements is McKinney v. Duncan, 121 Tenn. 265 118 S.W. 683 (1908) wherein Justice John K. Shields, subsequently Chief Justice and United States Senator from Tennessee declared:

. . . Dedication is the appropriation or gift by the owner of land, or an easement therein, for the...