Jones v. Ross

• Decision Date: 02 October 1963
• Citation: 54 Tenn.App. 136,388 S.W.2d 640
• Court: Tennessee Court of Appeals
• Parties: Dorothy E. JONES, Complainant-Appellee, v. Harry ROSS and Wife, Virginia D. Ross, Defendants-Appellants. 54 Tenn.App. 136, 388 S.W.2d 640

Page 640

388 S.W.2d 640

Dorothy E. JONES, Complainant-Appellee, v. Harry ROSS and Wife, Virginia D. Ross Defendants-Appellants.

54 Tenn.App. 136, 388 S.W.2d 640

Court of Appeals of Tennessee, Western Section.

Oct. 2, 1963 Certiorari Denied by Supreme Court March 5, 1964.

[54 TENNAPP 137]

Wils Davis, Earl P. Davis and H. C. Tanner Davis, Memphis, for defendants-appellants.

Hanover, Hanover, Hanover & Walsh, Memphis, for complainant-appellee.

CARNEY, Judge.

The defendants below, Harry Ross and wife, Virginia D. Ross, have appealed from a decree of the Chancery Court ordering them to remove a brick wall. The wall had been erected by defendants, Ross and wife, down the concrete driveway situated between their home and that of the complainant, Mrs. Dorothy Jones, for the express purposes of excluding the complainant, Mrs. Jones, from use of the driveway. The homes are located on the north side of Peabody Avenue in Memphis, Tennessee.

The complainant Jones is the owner of the lot known as 1264 Peabody Avenue and the defendants, Ross and wife, are the owners of the lot known as 1258 Peabody. The Ross lot lies immediately west of the Jones lot. On October 5, 1954, Mr. and Mrs. Ross purchased their house [54 TENNAPP 138] and lot from the heirs of Leon Sternberger. At the time of the purchase in 1954 the lot now owned by Mrs. Dorothy Jones was owned by a Mrs. Baker. The complainant, Mrs. Dorothy Jones, purchased her lot from Mrs. Baker on July 7, 1962. None of the deeds in either chain of title mentions the driveway.

At the time Mr. and Mrs. Ross purchased their house and lot on October 5, 1954, there was an eight foot concrete driveway leading northward from Peabody Avenue back approximately even with the back or north walls of the two houses. At this point the driveway entered into a 'Y' with the right or east prong turning eastward behind the Baker house now owned by Jones and the left or west prong turning westward behind the house of Mr. and Mrs. Ross, the appellants. While Mrs. Baker did not own an automobile, yet her guests customarily used the driveway to and from her home. Taxicabs called by Mrs. Baker were accustomed to using the driveway and delivery trucks used the driveway to make delivery of articles to the home of Mrs. Baker.

In 1904 Mr. Leon Sternberger purchased the west lot at 1258 Peabody which is the property now owned by the appellants, Mr. and Mrs. Ross. About the same time Mrs. J. D. Levy, mother of Mrs. Sternberger, purchased the east lot now owned by Jones. Each constructed homes on these two lots. The homes are almost identical. There was no driveway leading from Peabody Avenue at the time of the construction of these two homes. Horses and buggies were the means of conveyance and access to the two lots was obtained from an alley which runs parallel with Peabody Avenue along the north side of the two lots.

In 1914 Mr. Sternberger bought an automobile, disposed of his horse and buggy and constructed the eight [54 TENNAPP 139] foot concrete driveway between the two homes running northward from Peabody. He converted the stable at the back of his lot into a garage. Mr. Sternberger and his family continued in the ownership of this property until October 5, 1954, when it was sold to Mr. and Mrs. Ross as above set out.

Mrs. Levy never owned an automobile. The coal bins for the home were on the northwest side of her home and coal was delivered to the home of Mrs. Levy by trucks over this driveway between the two homes. After the property passed from the ownership of the Levys, first into Sanders in 1942 and later into Baker and finally into the complainant, Dorothy Jones, all of the owners of the east lot and their visitors and friends used the driveway without any objection on the part of the owners of the west lot continuously until the fall of 1962.

The complainant, Dorothy Jones, bought the property in July, 1962. She converted the Levy home into a boarding house and had some seven or eight men boarders. She advertised off-street parking for her boarders and several of the boarders had automobiles which they parked in the back yard of the Jones property. They used the concrete driveway between the two houses for access to and from the parking area in the back of the Jones home.

These two lots are located just south of Crump Stadium in Memphis, Tennessee, and during the 1962 football season a great deal of congestion occurred all around this property. The record indicates some disagreement between Mrs. Jones and Mr. and Mrs. Ross over the use of the driveway by the respective parties in offering off-street parking to patrons of Crump Stadium in their [54 TENNAPP 140] respective back yards. As a direct result of this disagreement Mr. and Mrs. Ross had their property surveyed.

Their survey showed that 1.3 feet of the concrete driveway was on Mrs. Jones' property and that 6.7 feet of the concrete driveway was over on the Ross side of the line. In order to prevent Mrs. Jones and her boarders from using the back yard Mr. and Mrs. Ross built a brick fence down the driveway within their property line so as to obstruct the passage by Mrs. Jones and her boarders along the driveway into her back yard. Mrs. Jones brought the suit in the present case seeking a mandatory injunction requiring Mr. and Mrs. Ross to remove the obstruction.

It is clear that there is insufficient width between the west side of Mrs. Jones' property and her west property line to construct a driveway and admit the passage of automobiles from Peabody Avenue to her back yard. The defendants, Mr. and Mrs. Ross, had to remove a porch from the east side of their residence in order to obtain access for automobiles from Peabody Avenue along the concrete driveway on their side of the fence to their back yard and garage. It is the contention of the defendants, Mr. and Mrs. Ross, that Mrs. Jones has convenient access for automobiles to her back yard by way of the alley running parallel with Peabody Avenue along the north side of her lot.

It was further the contention of the defendants, Mr. and Mrs. Ross, in the court below and it is their contention in this court that the use of the driveway by predecessors in title of the complainant, Mrs. Jones, for a period of nearly fifty years was by permission only and that neither Mrs. Jones nor her predecessors in title obtained any proprietary right to the use of that portion [54 TENNAPP 141] of the driveway located on the defendants' property. They cite and rely upon the following cases:

Pyron v. Colbert, 46 Tenn.App. 287, 328 S.W.2d 825; Line v. Miller, 43 Tenn.App. 349, 309 S.W.2d 376; Blakemore v. Matthews, 154 Tenn. 334, 285 S.W. 567; Bowles v. Chapman, 180 Tenn. 321, 175 S.W.2d 313.

His Honor the Chancellor took a contrary view, sustained the bill of the complainant and ordered the fence removed. Defendants, Mr. and Mrs. Ross, have appealed and assigned error. Assignments I, II and III challenge the correctness of His Honor's decision sustaining the original bill. Assignments of error IV and V complain of the admissibility of evidence.

Appellee relied upon Jones v. Whitaker, 12 Tenn.App. 551. His Honor the Chancellor quite correctly differentiated Jones v. Whitaker from the case at bar. In the Jones case the owner of two lots on McLean Avenue in Memphis, Tennessee, erected houses and made a joint driveway between them. The driveway was located partly on one lot and partly on another. These houses were subsequently sold to different parties and their successors in title had a dispute about the driveway and one of them attempted to block the use of the driveway by the other. The joint driveway had been used by the occupants of each lot for a period of about twenty years.

This section of the Court of Appeals held that the respective purchasers of the lots bought them with knowledge of the easements in so much of the respective lots as was occupied by the driveway; that said easements were apparent, had been continuous and were necessary to the reasonable use and enjoyment of each [54 TENNAPP 142] lot and the defendant was required to remove the obstruction. As said by the Chancellor Jones v. Whitaker would be entirely applicable to the case at bar except for the fact that there was no unity of title of the two lots at the time the joint driveway was constructed.

However, the court cited LaRue v. Greene County Bank, 179 Tenn. 394, 166 S.W.2d 1044, and Heiskell v. Cobb, 58 Tenn. 638, as recognizing the rule that easements of water rights, party walls, etc. could be ereated even though there is not the common ownership. From the opinion of the Chancellor we quote as follows:

'The proof reflects that before Ross bought the property in question, there was made a survey by the firm of Ferguson & Crabb, and the sketch reflects this concrete party driveway of the type and character as it presently exists, and so the question is whether or not, there being no original unity of title, but the Rosses having acquired the property with knowledge of this joint use, whether or not they are estopped now to deny to the complainant the joint privilege of using that driveway.

'The Court has been unable to find any case in Tennessee involving the lack of unity as in Jones v. Whitaker. However, in the 155 ALR, page 543, 24 N.C., page 480, 31 S.E.2d 517, Packard v. Smart, the Annotator commenting on this case says:

"The number of cases dealing with this particular question, either expressly or by necessary implication, is relatively small. Insofar as it is permissible to attempt to deduce a general rule from such a small number of decisions, none of which contains a thorough discussion of the problem, it seems that by the [54 TENNAPP 143] majority of decisions the visible easement rule is held applicable to reciprocal easements resulting from common development and use of adjoining properties regardless of the fact that title to the properties was not vested in a common owner at the time of...