Moore v. Queener

• Decision Date: 18 November 1970
• Citation: 62 Tenn.App. 490,464 S.W.2d 296
• Parties: John MOORE and wife, Ruth Moore, Appellants, v. L. D. QUEENER and wife, Lila Rose Queener, Appellees.
• Court: Tennessee Court of Appeals

Page 296

464 S.W.2d 296

62 Tenn.App. 490

John MOORE and wife, Ruth Moore, Appellants, v. L. D. QUEENER and wife, Lila Rose Queener, Appellees.

Court of Appeals of Tennessee, Western Section.

Nov. 18, 1970 Certiorari Denied by Supreme Court March 1, 1971.

Edwin H. Arnold, Ben Simpson, Loudon, for appellants.

M. G. Goodwin, Dannel, Winfrey & McMurray, Lenoir City, for appellees.

NEARN, Judge.

Complainants, John Moore and wife, Ruth Moore, have appealed from a Decree denying them injunctive relief, sought to enjoin the defendants, L. D. Queener and wife, Lila R. Queener, from closing a roadway from complainants' home to U.S. Highway 11 in London County.

The Moores and Queeners are adjacent landowners of property purchased at a land auction sale held on August 26, 1967. The auction was conducted by Zirkle- Rainwater Auction Company and the tract of land sought to be sold was known as the Lockett Subdivision, as shown on a proposed plat. The Lockett Subdivision was auctioned off by building lot numbers as shown on the property plat. The auction was held on the site of the Lockett Subdivision located near Philadelphia, Loudon County, Tennessee, with the auctioneer moving about the land on the various lots to be sold, and selling at public outcry to the highest bidder. The sale was conducted according to certain terms and conditions, which will be hereinafter more fully set out. These terms and conditions were announced over a public address system as well as disseminated to the crowd by means of written circulars. Included on the circulars was a reproduction of the subdivision plat, indicating the location of the lots, roadways, and easements.

The original plat of the subdivision was recorded on September 1, 1967, subsequent to the sale of August 26, 1967. For a proper understanding of this Opinion, a copy of that portion of the plat germane to the issues will be found in the Appendix to this Opinion. The reproduction of the plat filed with this Opinion was made from the circular distributed at the auction sale.

The complainants, the auctioneer, and other witnesses testified that, prior to the sale of any of the lots, certain announcements were read aloud. The pertinent portion read aloud is as follows:

'RESTRICTIONS--There shall be no junk yards or the piling and storing of junk or rubbish on any lot or tract.

THE SALE of intoxicating beverages or liquors on any lot or tract is prohibited.

Should the property go as a whole no restrictions will apply.

THE EASEMENT shown and reversed on the west side of Lot No. 6 is reserved across Lot No. 6 for the use and benefit of Lots 4, 6 and 7.

THE ROAD shown running between Lots 8, 9, 10, 11 & 12 will be constructed and a 2 inch water line installed along this road. Should the property sell in lots where the road is necessary and the water necessary. Money has been deposited with the planning commission to guarantee this.

Should the property north of the highway sell as a whole or in such a way to render the road unnecessary, The road will not be constructed and the purchaser or purchasers will get a deed to the road way.

WE RESERVE THE RIGHT to group or re-group any two or more tracts by adding 5% Or a maximum of $1,000.00.

The property is sold subject to all existing easements.

Will start--should it rain us out before finishing sale--then seller shall have the right of accepting the sales or rejecting them.'

The defendants did not deny that the announcements were made, in fact admitted hearing all of them, except that part about the easement being for the benefit of specific lots.

It is undisputed that after the announcements were made, the defendants first purchased Lot No. 4. Then the auctioneer sold Lot Nos. 1, 2 and 3 to other parties. The defendants then purchased Lot Nos. 5 and 6, making separate bids on each lot.

One of the factual disputes in this case arises concerning the circumstances surrounding the bidding on Lot No. 6. The defendant, L. D. Queener, testified that when the bidding reached $2,000.00 on Lot No. 6 he refused to bid further. He further testified that the auctioneer advised him that without Lot No. 6, he would be blocked off; but, if he purchased Lot No. 6, 'the easement went back to the lot.' The defendant further testified that the auctioneer confirmed this fact with Mr. Rainwater and both the auctioneer and Mr. Rainwater yelled back to him, 'Yes, if you get it (meaning Lot No. 6), you get the easement with it.' The defendants stated they raised the bid and bought the lot and ceased and further bidding on any further lots.

The complainant, John Moore, testified that he was at the sale but remembered nothing regarding the actual sale of Lot No. 6, as he had no interest therein. Several witnesses, including a purchaser of other property at the sale, testified that they never heard any such conversations or announcements between defendant and the auctioneer or Rainwater as that testified to by defendants regarding the bidding on Lot No. 6. The only ones who testified they heard or were aware of the negotiations regarding the easement on Lot No. 6 were the defendants and their daughter.

The complainant testified that he had visited the property prior to the sale, having had his 'eye' on it for some time. That he drove over the thirty-foot graveled easement and was desirous of using it, as it was to the front of the house located on Lot No. 7. That this graveled road or drive had existed for some years. He testified that he heard the announcements as read, saw the plat with the easement indicated thereon, and purchased Lot No. 7 with the intent of using the easement granted to him over Lot No. 6, as stated in the announcement and shown on the plat.

The plat exactly as shown on the circular was recorded on September 1, 1967. The Queener deed and the Moore deed were delivered and recorded later in the month. Both the Moore and Queener deeds are silent as to the easement in question. However, the deeds both described the property conveyed by their appropriate Lot Nos. 'as shown by Map of Record in Plat Book 2, Page 87 in the office of the Register of Deeds for Loudon County, Tennessee', followed by a metes and bounds description.

The proof is that Lot Nos. 8 through 12 were sold after Lot No. 7 and, evidently, to separate owners, as the fifty-foot roadway between these lots, which was mentioned in the terms of sale and shown on the plat, was later completed and hardsurfaced. The complainants used the easeway for approximately one year; but, after completion of the fifty-foot hardsurfaced road, the defendants attempted to close the thirty-foot easement, as shown on the plat, to complainants' use. This litigation is the result of that action.

It is the complainants' theory that Lot No. 7 was purchased pursuant to the printed announced conditions of the auction and the printed circular containing thereon the survey of the lots and depicting the thirty-foot easement. That the reference in complainants' deed to the recorded plat, which depicts the easement, is sufficient description of complainants' easement to acquire the use thereof.

It is the defendants' theory first that they did not hear the announced conditions prior to the bidding regarding the thirty-foot easement being for the benefit of specific lots. Second, the terms of the sale were altered when the auctioneer induced him to make a higher bid on Lot No. 6, with the assurance that the easement would be merged and extinguished by the fact of single ownership of Lot Nos. 4, 5, and 6. That such statement was binding on the auctioneer and the vendor. Third, that any easement right that the complainants may have had over Lot No. 6 was one of necesssity only, and was extinguished when the road on the east side of complainants' property was completed.

The Chancellor found in his Memorandum Opinion that the easement was intended to be one of necessity, and the complainants had convenient access to the new hardsurfaced road, thereby extinguishing the thirty-foot easement. The Chancellor further found that complainants' deed constituted the ultimate agreement between the vendor and vendee, and, since the deed did not expressly mention the easement, none was acquired by complainants. The Chancellor also found that there was no dedication of the thirty-foot easement by the recordation of the map or plat of said subdivision because the object and purpose of the thirty-foot easement ceased to exist when the fifty-foot public road along complainants' east line was completed. In the Final Decree, the Chancellor held that 'the complainants' bill is not sustained by the proof and the original bill should be dismissed.'

The complainants have filed eight Assignments of Error and we state them in essence as follows:

The Chancellor erred in holding:

I.

That the complainants' bill is not sustained by the proof and the original bill should be dismissed.

II.

That the thirty-foot easement was a temporary easement or an easement by necessity which was extinguished upon the completion of new roadway at rear of complainants' home.

III.

That the new roadway was convenient to complainants.

IV.

That the complainants were limited to the title and possession of only those premises set forth in the legal description on the deed they accepted.

V.

That the fifty-foot road at the rear of complainants' property was for the use of Lot No. 7.

VI.

That the Queeners' testimony regarding alleged statements of the auctioneer, tending to alter the announced conditions of the sale to obtain a higher bid on Lot No. 6, was admissable in evidence.

VII.

That complainants were not entitled, as purchasers of lots sold from plat spread on record, to right of user in easements materially beneficial and necessary to maintain the value of their lot.

VIII.

That the Queeners were not estopped to deny the existence of the thirty-foot easement.

We deem it unnecessary to discuss each Assignment of Error separately, but all...