Perry v. Niles

• Decision Date: 26 September 2018
• Docket Number: No. E2017-01891-COA-R3-CV,E2017-01891-COA-R3-CV
• Parties: CHARLES STEPHEN PERRY, ET AL. v. WINFIELD SCOTT NILES, ET AL.
• Court: Court of Appeals of Tennessee

CHARLES STEPHEN PERRY, ET AL. v. WINFIELD SCOTT NILES, ET AL.

No. E2017-01891-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

May 31, 2018 Session

September 26, 2018

Appeal from the Chancery Court for Greene County

Nos. 20150231, 20150221, 20150042

Douglas T. Jenkins, Chancellor

Winfield Scott Niles ("Niles") and Nancy Niles¹ appeal the judgment of the Chancery Court for Greene County ("the Trial Court") in this suit involving disputes regarding easements across real property owned by Niles located in Greene County, Tennessee. Niles raises issues regarding the Trial Court's findings regarding the width and the permitted uses of the easements and the Trial Court's finding that Niles was in contempt of court. We find and hold that the Trial Court did not err in determining the width and permitted uses of the easements. We further find and hold that the Trial Court did not err in finding Niles in contempt of court. Finding no error, we affirm the Trial Court's February 28, 2017 Judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

Jeffrey A. Cobble, Greeneville, Tennessee, for the appellants, Winfield Scott Niles and Nancy Niles.

Jerry W. Laughlin, Greeneville, Tennessee, for the appellees, Charles Stephen Perry, Charles A. Montgomery, and 612 Trust Under Amendment and Restated Declaration of Trust Dated May 21, 2014.

OPINION

Background

Since purchasing real property adjacent to property currently owned by Niles in March of 2000, Charles A. Montgomery ("Montgomery") and his family have used an easement ("Easement 1")² across the Niles property as the only means of access to the Montgomery property. Easement 1 adjoins Whirlwind Road and is an express written easement created in the 1996 deed from Tony Hagwood and Joy Hagwood to J.C. Dollar and Carolyn Dollar. In pertinent part, this deed provides:

THERE IS FURTHER CONVEYED HEREBY an easement, for residential purposes only for the benefit of J.C. Dollar and wife, and for their successors, assigns and invitees, the right to access the 9.15 acre property over an existing private road which extends from the Clyde Austin Road, over property of Austin and the remaining property of Hagwood, which said right of way shall be permanent.

The right to use Easement 1 passed to Montgomery when he and his wife purchased their real property from the Dollars in March of 2000.

Charles Stephen Perry ("Perry") and his wife purchased real property adjoining the Niles property from Tony Hagwood in May of 2003. In conjunction with the sale and purchase of the Perry property, Perry and Tony Hagwood entered into a written Easement Agreement providing Perry with the right to use Easement 1 and the right to create another easement across the Niles property ("Easement 2"), which would connect Easement 1 with the Perry property. Without Easement 2, Easement 1 does not lead to the Perry property, making Easement 1 alone useless to Perry. This Easement Agreement provides:

WHEREAS, Tony D. Hagwood has entered into an agreement to sell to Charles Stephen Perry and wife, Marie S. Perry, five (5) parcels of real estate situated in the 9th Civil District of Greene County, Tennessee, which consists of a 3.44 house tract, a 5.71 acre tract, a 0.08 acre parcel, a 1.39 acre tract and a 0.49 acre tract as evidenced by a warranty deed of even date herewith;

WHEREAS, following the execution of the deed, Hagwood shall retain approximately 23 acres of real estate upon which is situated a road which provides a means of access into the remaining property of Hagwood and also provides a means of access into approximately 16 acres owned by Dr. Charles Montgomery and wife;

WHEREAS, the private road is presently used as a means of access into the properties of Hagwood and Montgomery by Hagwood and the Montgomery's [sic] and their invitees;

WHEREAS, Hagwood has further agreed to grant unto the Perrys an easement over a portion of the said road, and an additional easement over certain other remaining property of Hagwood, to provide the Perrys an additional means of access to the property which they have purchased from Hagwood; and

WHEREAS, Hagwood and the Perrys which [sic] to reduce the agreement to writing;

1. Grant of Easement Over Existing Road. Hagwood does hereby grant unto the Perrys a non-exclusive personal easement, to be shared between Hagwood, the Montgomerys, and the Perrys, and their successors in title, over the existing road from the point where same leaves the Whirlwind Road, proceeds in a northwesterly direction for approximately 500 feet, and then turns in a southwesterly direction, and extends into and through the remaining 23 acres of Hagwood to a point where same is within 50 feet of an existing pond to the south of the said existing road. The grant of this non-exclusive personal easement shall be conditioned upon the duty of Hagwood, the Montgomerys, and the Perrys, and their heirs, successors and assigns, to share the cost and duty of maintaining same, provided that the Perrys [sic] share of the cost of the maintenance of same shall be 25%. The width of the easement granted hereby shall be the width of the existing road bed along the road described in this paragraph.

2. Grant of Second Easement. Hagwood does further grant to the Perrys an additional personal easement, 15 feet in width, the location of which is generally described as follows:

BEGINNING at a point in the southern edge of the existing private road described in the foregoing paragraph, which said point is 50 feet from the northeastern edge of an existing pond, and running thence in a southerly direction for approximately 240 feet to a point where same enters into the property this day purchased by the Perrys from Hagwood.

The parties mutually acknowledge that there is no existing road upon the site of the location of the second easement. The parties mutually agree that in the event the Perrys wish to exercise the second easement granted hereby as a means of additional ingress and egress, that they shall cause to be constructed a road, not wider than 15 feet, at their sole cost, and shall be solely responsible for the cost of maintaining same.

3. Exclusivity of Easement. The grant of both of these easements shall be for the sole and and [sic] exclusive use of the Perrys and their immediate family members and their guests, but shall not be assignable or transferable to any third party without the written consent of Hagwood.

4. Relocation of Easement. No term herein shall preclude the parties hereto from relocating the second easement or from changing the length of the first easement by mutual agreement.

5. Binding Effect. The terms and conditions of this Easement Agreement shall be binding upon the parties hereto and their heirs, successors and assigns.

Niles purchased the real property upon which the two easements sit from Tony Hagwood in March of 2005. The deed to Niles provided, in pertinent part:

THERE IS EXCEPTED from the foregoing described premises an existing right of way or easement for the Clyde Austin Road, a public road, which crosses a portion thereof.

In early 2014, Perry decided to exercise his right to create Easement 2 and constructed a road linking Easement 1 to the Perry property. Perry then began using Easement 1 and Easement 2 to access his property.

In September of 2014, a parcel of real property adjoining the Niles property was deeded to the Trustees of the 612 Trust under the Amended and Restated Declaration of Trust for 612 Trust Agreement, dated May 21, 2014 ("612 Trust"). Perry is one of the trustees of the 612 Trust. The 612 Trust also has used Easement 1 to access its property.

In 2015, Niles placed T-posts, which blocked the use of Easement 1. Montgomery then filed suit against Niles. Perry filed a separate suit against Niles, and the 612 Trust filed a third suit against Niles. The cases were consolidated and proceeded to trial without a jury.

Montgomery testified at trial that he resides on Whirlwind Road which is a paved road in Greeneville, Tennessee. Montgomery explained it is a little over three tenths of a mile from the Montgomery property line to Whirlwind Road. Montgomery acquired his property in March of 2000 from the Dollars who had purchased the property from the Hagwoods. At the time that Montgomery purchased his property, Tony Hagwood owned other property located between the Montgomery residence and Montgomery's mailbox on Whirlwind Road. Niles now owns this other property.

Montgomery testified that his deed conveyed to him a right to use Easement 1 for residential purposes. Part of Easement 1 consists of gravel. Montgomery testified that at different times he has put gravel on Easement 1, Perry has put gravel on Easement 1, and Perry's son-in-law and daughter have put gravel on Easement 1. Montgomery explained that they have not put gravel on the entire width of Easement 1 because it would cost too much. Montgomery has had the gravel graded at times.

Montgomery testified that there is no other road to the Montgomery residence and that when he first began residing on his property, the Hagwoods also used Easement 1. Montgomery explained that the Hagwoods built another residence that connects with Easement 1, and this is the residence where Niles now lives. Niles purchased his land from Hagwood in March of 2005.

During the five years before Niles purchased his property, Montgomery and his wife traveled from their residence to Whirlwind Road on a daily basis using Easement 1. They sometimes traveled Easement 1 two or three times a day. Montgomery testified that occasionally he would meet another vehicle traveling in the opposition direction. Montgomery testified that when this happened, the vehicles never had to back up but would pull off to the side of Easement 1 to allow the vehicles to pass one another.Montgomery stated: "We never...