Keebler v. Street

• Decision Date: 06 March 1984
• Citation: 673 S.W.2d 154
• Parties: Stanley R. KEEBLER, Plaintiff-Appellant, v. Willie Clay STREET, Marsha Street and J.D. Street, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 154

673 S.W.2d 154

Stanley R. KEEBLER, Plaintiff-Appellant, v. Willie Clay STREET, Marsha Street and J.D. Street Defendants-Appellees.

Court of Appeals of Tennessee,

Eastern Section.

March 6, 1984.

Permission to Appeal Denied by

Supreme Court May 29, 1984.

Ferdinand Powell, Jr., of Powell & Epps, Johnson City, for plaintiff-appellant.

John D. Goodin, Johnson City, for defendants-appellees.

OPINION

SANDERS, Judge.

The Plaintiff has appealed from a decree of the chancery court holding the Defendants had acquired a prescriptive easement across his property.

The pertinent facts in this case are not in dispute. Plaintiff-Appellant, Stanley R. Keebler, and the Defendant-Appellee, Willie Clay Street, are owners of adjoining lots in Block 37 of the Southwest Addition in Johnson City. The Plaintiff is the owner of Lot 26 and the westerly half of Lot 25 and the Defendant owns Lot 27 and the easterly half of Lot 28. The lots all face on the southerly side of Pine Street and extend back in a southerly direction 141.4 feet to an alley. The divisional line between the parties extends along Lots 26 and 27. The Plaintiff purchased his property in October, 1969, from Sarah McArthur Martin who had inherited the property from her mother, Sarah P. McArthur, who acquired the property in 1923. The Defendant purchased his property in September, 1961, from Adeline M. Richardson. Mrs. Richardson retained a life estate in the property but died in 1973. Mrs. Richardson acquired the property from Glenn H. Brown in 1927 and made it her home until about a year before her death. Mrs. Richardson was the sister of Sarah McArthur's husband.

Some time in 1925 or 1926 a driveway approximately seven feet in width leading from Pine Street to the back of the properties was constructed together with a three-bay garage on the back of the properties. The driveway is located between the residence located on Lot 26 and the residence on Lot 27. For approximately 75 feet from Pine Street the driveway is located entirely on the Plaintiff's property. As the driveway passes the two houses it fans out to form an apron in front of the garages, which sit back about two feet from the alley, and is located partly upon the Plaintiff's property and partly on the Defendant's property. The garage consists of three bays separated by partitions in one contiguous building which is 34.4 feet long and 21 feet deep. Approximately 25 feet of the garage building is located on the Plaintiff's property and 5.4 feet is located on Defendant's property. From the time the driveway and garages were constructed until this litigation started in 1977 the occupants of the respective properties jointly used the driveway and garages without dispute. It appears that the Plaintiff and his predecessors used two bays of the garage, the one in the center and the one on the west end. The Defendant and his predecessors used the garage on the easterly end. The proof shows that about 1961 the driveway was resurfaced and perhaps widened a little and this expense was shared by those who were then the owners of the respective properties, Mrs. McArthur and Mrs. Richardson. Also, new guttering was placed on the garages about the same time and the cost of that was shared between them.

In 1977 the Plaintiff filed suit seeking to enjoin the Defendant from using the portion of the driveway located upon his property. Upon the trial of the case the court found the Defendant had a prescriptive easement on the property. The Plaintiff has appealed, presenting the single issue for review of "whether the chancellor erred in finding a prescriptive right in the Defendant when the record clearly shows use of the driveway was by permission."

In his findings of fact and determination of the case the chancellor said:

"While the exact calendar years are not established clearly by the proof, it is shown that for more than thirty years Mrs. Richardson and Mrs. McArthur lived in these properties, that both of them and their guests used the driveway in question and that both of them used the garage in the rear. Mrs. Richardson was the sister of M.T. McArthur, husband of Sarah P. McArthur, thus, the two property owners were sisters-in-law. Certainly the proof shows that from 1929 to 1959 and even longer, this driveway was used without interruption or dispute by both property owners. It was treated as a common way, and, it can be assumed, that neither worried about the other's use of it.

"In the rear the driveway spreads out onto the property now owned by Street, and part of the garage building is on the Street property. The proof shows that this condition has prevailed since the driveway and garage were built in 1925 or 1926. It was so when Mr. Street bought his lot in 1961 and when Mr. Keebler bought his property in 1969, and it is in that condition today, or at least it was when this case was heard.

"Upon consideration of all of the proof, the Court finds that this driveway, the garage and the apron in front of the garage, are part of each of the two lots; and that because of the long use by the owners of both lots for the prescriptive period the owners of each lot acquired an easement in the driveway easement which was acquired by prescription was appurtenant to the lots for which it provides access, and passed with conveyance of the lots."

The Plaintiff insists that the chancellor was in error in finding the Defendant and his predecessor had acquired a prescriptive easement in the property because their use of the driveway was always permissive. He insists that in order to...