Easements: Some Basic Tennessee Law

By J. Ross Pepper on July 19, 2011 12:52 PM

In Tennessee, easement rights are a fairly frequent source of conflict and disagreement. What is an easement? How does someone obtain easement rights? How does an easement affect the person upon whose land the easement is located?

Generally speaking, an easement is a right to use a part of the land owned by someone else. In Tennessee, there are many easements that give easement holders the right to use part of the lands owned by others to access other lands, frequently, lands owned by the easement holders. Some easements confer rights other than just the rights to go across someone else's land. There are a multitude of easements in Tennessee that allow one landowner to use land owned by someone else to lay pipe, utility lines, or connect to a sewer.

Easement rights are often created by written documents. Sometimes, such documents are titled "Easement" or "Grant of Easement," but a valid, enforceable easement can be created without specifically being referred to as an "easement." For example, an easement can be created by a document that describes a "right to access," "right of way," or "right to ingress and egress."

Someone can have easement rights upon someone else's land even where there has never been any written grant of easement rights to that person or to any person in that person's chain of title. Easement rights might be created by a Tennessee court because, for example, the owners of a certain parcel of land have always used a driveway that is not on their parcel of land, but is on another party's parcel. Such easements are generally referred to as easements based on prior use.

Easement rights may be created by implication from plats recorded by land developers or others. They may also be created out of necessity. For example, if a parcel of land would be landlocked because the owners of that land would be unable to access any public roadway unless they have the ability to go across someone else's land, a Tennessee court would most likely create an easement for the landlocked party.

If an easement is created by a written document, then the first place to look to determine what rights the easement holder has is that written document. Unfortunately, many written easements that affect property in Tennessee are not clear or detailed enough. Two frequent issues that seem to arise in real estate litigation involving easements concern fences and gates. Who can put up a gate or a fence on an easement?

In Tennessee, if the written grant of the easement does not mention fences or gates, which often seems to be the case, then these are the general rules:

• The owner of the land on which the easement is located can generally erect a gate across the easement or a fence along the easement, but must not unreasonably restrict the easement holder's right to use the easement, which means that, if the owner of the land uses a lock on the gate, he or she must provide the key or the code to the easement holder
• The owner of the easement generally cannot erect either a gate across the easement or a fence along the easement, but may improve and maintain the easement by, for example, repairing potholes, putting down gravel, or even paving the easement


An interesting issue arose in the Tennessee case of Mize v. Owenby. In that case, the easement holder, who had the right to go across the land of the person who owned the land, wanted the owner of the land to take down the gates at the entrance to the easement, and to replace them with cattle guards. The Tennessee Supreme Court agreed with the easement holder, and required the landowner to replace the gates with cattle guards so that there was less of a burden upon the easement holder (who had obviously grown tired of getting in and out of his car to open and to close the gates).