Cottrell v. Daniel

• Decision Date: 12 August 1947
• Parties: COTTRELL v. DANIEL et al.
• Court: Tennessee Court of Appeals

205 S.W.2d 973

30 Tenn.App. 339

COTTRELL v. DANIEL et al.

Court of Appeals of Tennessee, Eastern Section.

August 12, 1947

Certiorari Denied by Supreme Court October 18, 1947.

Appeal from Claiborne County Equity Court; Wm. I. Davis, Jr. Circuit Judge, by Interchange.

Suit in equity by Lizzie Cottrell against J. C. Daniel and others to enjoin obstruction of an easement in an abandoned public road. From a decree dismissing the bill, complainant appeals.

Reversed and decree for complainant entered.

J. R. Ketron, of Tazewell, for appellant.

John P Davis, of Tazewell, for appellees.

HALE Judge.

This is a suit to enjoin the obstruction of an easement claimed by the owner of lands abutting upon an abandoned public road. Defendants seem to concede that such an easement once existed, but insist it had been abandoned in that complainant had erected obstructions across it and is now estopped from asserting a claim thereto. The Chancellor found:

'That the complainant, Lizzie Cottrell, by her failure to keep in repair and by placing or permitting the placing of obstructions across the road sought to be opened indicated an intention on her part to abandon her easement in said road, and that such acts of obstruction and failure to keep in repair constitute an abandonment of said road, or her easement over and along the same.

'It appears to the court that the road involved in this cause was at one time a public highway, maintained by the county, but many years ago the county changed said road and abandoned the one adjacent to complainant's property, along Station Creek, as a public highway, but the complainant and her predecessors in title, by virtue of their ownership of the farm now owned by complainant, acquired a special right or easement to said road as an appurtenance to said property, and that the same was not lost by the abandonment of said road by the county authorities, and the complainant and her predecessors in title were the owners of said private easement or right of way until the same was lost by complainant as a result of her failure to keep said road in repair, and placing obstructions or permitting said obstructions placed across the same.'

The bill was dismissed and complainant has appealed and assigns error to this finding and decree.

C. B. Cottrell, father of the complainant and her predecessor in title, owned a tract of some 400 acres, which was adjoined on the south by the road in question and Station Creek. This land has a steep slope down to the road. It appears that the creek and road run down a narrow defile, and it is sometimes difficult to determine which is road and which is creek. The road crosses the creek, or the creek crosses the road, some five times in their course through the C. B. Cottrell lands. This was an old, old road and at one time was a mail route, running from Shawanee to the Fork Ridge section.

In or about 1925, a new and better road was built to the south of the road in question and diverted from it the travel of the general public and mail route. Public support of the old road was withdrawn, altho at one time since then an effort was made to work it with 'free' labor under the old road law requiring male citizens of certain ages to do work on the road. However, there were no males of this age on this stretch of road and nothing was done. For all practical purposes, the result was that the only persons in interest were the abutting owners who thus had an easement of ingress and egress to and from their premises over the old road. Current v. Stevenson, 173 Tenn. 250, 116 S.W.2d 1026; Jackson v. Hutton, 15 Tenn.App. 281.

The lands of C. B. Cottrell were partitioned in 1922, and the complainant (by inheritance and purchase from other heirs) acquired lands which abut on this old road. Altho she was given an easement across other lands so partitioned to reach a public road on the north, her lands do not adjoin a public road unless the road in question be termed a public road. The southern end of her lands is timbered and it appears that the only feasible way to remove this timber is over the road in dispute. Likewise, if she were to sell or build upon this southern end of the place, the road in question would be the most practical means of access.

And it might be added that, as bad as the road was when the new road was constructed, it has become much worse since then. It has been used on rare occasions. It was needed but little and used but little.

Did the complainant by failure to keep in repair, or by the placing of obstructions across the road, evidence an intention to abandon it and estop her from making a claim thereto?

In Smelcer v. Rippetoe, 24 Tenn.App. 516, at pages 521, 522, 147 S.W.2d 109, 113, it is said:

"Divestiture of a vested legal title by 'abandonment' is unknown at common law, unless it result from some estoppel or adverse possession.' Southern Coal & Iron Co. v. Schwoon, 145 Tenn. 191, 225, 239 S.W. 398, 409.

"The primary elements of abandonment are the intention to abandon and the external act by which the intention is carried into effect. The intention to abandon is considered the first and paramount inquiry. Abandonment may arise from a single act or from a series of acts. Time is not an essential element of abandonment, and is of no importance except as indicative of intention.' 1 Am.Jur. p. 6 and 7, sec. 8.

'The Supreme Court of this State speaking on this question said: 'Indeed, in order to justify the conclusion that there has been an abandonment, there must be some clear and unmistakable affirmative act indicating a purpose to repudiate the ownership. This was the

...