Deeds

The types of deeds most used in land transactions are the general warranty deed, special

warranty deed, bargain and sale deed, quitclaim deed and trust deed.

General Warranty Deed- A deed in which the grantor warrants the title against defects

arising any time, either before or after the grantor became connected with the land.

Special Warranty Deed- A deed in which the grantor warrants the title against defects

arising after he acquired the land but not against defects arising before that time.

Quitclaim Deed- A form of conveyance whereby whatever interest the grantor possesses in

the property described in the deed is conveyed to the grantee without warranty of title.

Trust Deed- It is an instrument which conveys legal title to property to a trustee and states

his authority and the conditions binding upon him in dealing with the property held in trust.

Frequently trust deeds are used to secure lenders against loss. In this respect they are

similar to mortgages.

Parts of a Deed

Introductory statements and recitals – Usually contains the parcel identification, address to

send tax notices to, source of title and the preparer’s name.

Parties to the transaction – Names of the grantor and grantee.

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Granting Clause – the portion of the deed that contains the words of conveyance and the

interest and rights conveyed. It is the most superior clause in the deed and usually contains

the term “grant, bargain, sell and convey”.

Consideration – Compensation having value that is given for something acquired or

promised.

Description of the Property – The sufficiency of a legal description is determined by the

ability of a surveyor to lay it out on the ground.

Habendum Clause – A clause in the deed that specifies the extent of the interest (as life or

fee) to be conveyed. It can explain, qualify lessen of enlarge, but it cannot totally contradict

or be repugnant to the granting clause. This clause is usually identified by the phrase “to

have and to hold”.

Covenants – all conveyances (except quitclaims) contain some type of covenant. The

covenant usually states that the grantor has good title and the right to sell the described

property.

Types of Legal Descriptions:

Metes and Bounds: Describing the boundaries of a tracts of land by giving the bearing and

length of each successive line. Much of the land in the eastern “colonial” states has been

surveyed and described by this method. This method is also used in the surveys of the public

lands to define the boundaries of irregular tracts, such as claims, grants and reservations, which

are nonconformable to the rectangular system of subdivision.

An example of a Metes and Bounds description for the attached survey is as follows:

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“Commencing at a concrete monument marking the northwest corner of the McConnell tract as

described in deed book 1647 page 810 in the Register’s Office of Bradley County (ROBC), said

monument also located in the southerly line of Bowman Avenue (30’ right-of-way); thence along

the line of Bowman Avenue S61°40’00”E, 50.00 feet to a nail and the Point of Beginning

Thence from the point of beginning and long the southerly line of Bowman Avenue S61°40’00”E,

52.50 feet to an iron rod marking the northwest corner of the Mayfield tract as recorded in deed

book 1015 page 790 in the ROBC;

Thence along the westerly line of the Mayfield tract S26°15’00”W, 158.32 feet to an iron rod at

the southwest corner of Mayfield and the north line of an unopened alley;

Thence S27°53’22”W, 7.80 feet to a point in the center of an unopened alley; said point also

being in the line of a wooden fence;

Thence along the fence line and the center of the unopened alley N62°06’38”W, 47.99 feet to a

point in the center of said alley;

Thence N27°53’22”E, 7.25 feet to a concrete monument marking the southeast corner of the

aforementioned McConnell tract;

Thence along the east line of the McConnell tract N24°38’23”E, 159.47 feet to the Point of

Beginning. The north basis for the herein described land is astronomic as determined by field

survey dated 12/05/2011 by Barry Savage Tennessee PLS 1618”

Points to Remember:

1. The description contains much more than just the measurements, it also contains

calls for adjoining parcels (title identity) and boundary markers.

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2. When a surveyor interprets a metes and bounds description they should use the

measurement data as directive only and as locative as a last resort.

3. A proper metes and bounds description should always contain a statement explaining

the bearing basis (north basis)

Bounds: A type of description that calls for an adjoiner of adjoining parcel (record monument)

on each side of the parcel described. It is a referral description.

An example of a bounds description:

“Bounded on the north side by the Tellico River, bounded on the east by the west line of

Highway 101; bounded on the south by Lot 15 of Magnolia Lea Subdivision as recorded in plat

book 12 page 133 in the Register’s Office of Polk County Tennessee (ROPC) and on the west

by lands of Orr as described in deed book 34 page 445, (ROPC).”

Points to Remember:

1. This kind of description can be expensive to survey because it often requires the

surveyor to survey an adjoining tract.

2. This type of description is best used to describe a senior not junior tract. Juniors

Should refer to seniors not seniors to juniors.

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BOUNDS:

A type of description that calls for an adjoiner of adjoining parcel (record monument) on each side of the parcel described. It is a referral description

ORR34/445

TELLICO RIVER

LOT 15MAGNOLIA LEA

HW

Y. 1

01

SUBJECT TRACT

Aliquot Parts: Describing land by section, quarter section and quarter-quarter section.

The Land Ordinance of 1785 provided for the sale of all lands of the United States in the

western territories. Land was to be divided into sections one mile square. The sections were

further divided into quarter sections. Land was then sold by referring to the portion of the section

being sold. This form of description is concise, unambiguous, and there is no duplication

elsewhere because each description depends on a unique principal meridian.

Here is an example of an Aliquot description:

“Being in Township 3 South Range 7 West of the Huntsville Principal Meridian and being the

northeast quarter of the northwest quarter of the northwest quarter of section 27.”

Points to Remember:

1. This type of description is dependent on a correct breakdown of the section.

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2. Complicated descriptions are best analyzed by reading them backwards.

ALIQUOT PARTS:

Describing land by section, quarter section and quarter-quarter section.

NE ¼

SE ¼SW ¼

NW ¼

Lot and Block Descriptions: These types of descriptions are based on a drawing or plat and

reference to that plat usually recorded in the public record.

Here is an example of a Lot and Block description:

Being Lot 7 of Block "D" as shown on the plat of Brown Acres recorded in plat book 17 page 33

in the Registers Office of Polk County

1. This type of description includes all the evidence that is on the face of the plat.

2. Trying to describe land both by lot and block and metes and bounds can and often

does cause conflicts and confusion.

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LOT AND BLOCK DESCRIPTIONS:

These types of descriptions are based on a drawing or plat and reference to that plat usually recorded in the public record.

BROWN ROAD

1 2 3 4 5 6 7

891011121314

7

"Of" Descriptions: Land described as part of another larger parcel of land.

Here are some examples of "Of" descriptions:

"The westerly 50 feet of lot 2", The south 3 acres of lot 7", "The east half of lot 10"

Point to Remember:

1. These descriptions are often used when no survey is done and no monuments are set

and can lead to confusion.

2. Disputes often arise when the meaning of the portion described is being determined.

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"OF" DESCRIPTIONS:

Land described as part of another larger parcel of land.

LOT 2

50’

LOT 7

3 ACRES

Strip descriptions: Describing land, usually a road or utility line, by describing the center line of

the strip of land.

Here are some examples:

"A right of way for a road easement over and across a strip of land lying 30 feet on each side of

the following described center line:"

Points to remember:

1. The line is often stationed from the beginning point called 0+00.

2. Care should be taken when the strip ends on a diagonal. When this happens the

verbiage for the side lines should be included to eliminate gores and overlaps.

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STRIP DESCRIPTIONS:

Describing land, usually a road or utility line, by describing the center line of the strip of land.

30’

30’

DESCRIBED LINE

 

 

Writing legal descriptions When writing a legal description the scrivener needs to have some basic competencies in order

to preform their job.

1. A working knowledge of the mathematics of surveying

2. A good understanding of the legal meaning of the words and phrases used in a

description

3. Understand how courts and surveyors deal with conflicts in descriptions

4. Understand the limitations of measurements and the difference in accuracy and

precision

5. Understand local history and customs and prior survey methods.

When preparing a legal description the scrivener needs to be clear, concise and complete. Here

is a portion of a description that could benefit from these simply rules. Some problem spots

have been underlined.

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“ thence leaving the said road right-of-way line and the said property line and with the

said southwest right-of-way line of the location N70°25'59"W, 166.64 feet to a point

diametrically opposite an angle point in the centerline of the location at survey station

93+86.11; thence with the south right-of-way line of the location N79°07'14"W, 38.11

feet to a point on the property line between William Cothran and Frances Diane Henry

Shurley Carr; thence leaving the said south right-of-way line of the location and with the

said property line N38°13'00"E, 48.78 feet to a point, the said point being 6.67 feet right

of the centerline of the location at survey station 93+66.60; thence continuing with the

said property line N42°24'00"W, 94.78 feet, crossing the centerline of the location at

survey station 93+57.7 (11.16 feet), to a point on the north right-of-way line of the

location;”

The use of the term “said” is fine but is a little overused and tedious here. The description here

is of a transmission line easement and using the term “location” as a description of the entire

right-of-way obtained and adds verbiage that really doesn’t mean anything. What exactly does

the word “diametrically” mean here? How do two points located diametrically from one another

relate? Look at the call for the common property line between Cothran, Henry and Carr. Adding

title identity (calls for adjoiners) is always a good thing but the deed that describes that line need

to be included. This gives a future surveyor the advantage of know exactly what line and at what

time the scrivener was referring to. What does the parenthetical distance of 11.16 feet mean? It

can be assumed but that’s not how a good description should be constructed.

The test of the sufficiency of a description has been well recognized by many courts.

"[t]he test is whether a surveyor with the deed before him and with or without the aid of extrinsic

evidence can locate the land and establish the boundaries." Wallace v. McPherson, 187 Tenn.

333, 340, 214 S.W.2d 50 (1947)

In 26A C.J.S. Deeds § 51 (2011) we find the following:

“Generally, any description in a conveyance of the property is sufficient if it identifies the

property, or if it affords the means of identification, as by extrinsic evidence.

Courts are reluctant to declare instruments void for an uncertain description and will look

to attendant facts to make them certain. The sufficiency of a description in a deed is not

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to be measured by any inflexible rule or sets of rules. While it has been held that the

function of a description of the property in conveyances is to identify the land covered by

the conveyance, it has also been stated that the office of a description is not to identify

the land, but to afford a means of identification.

Generally, therefore, any description is sufficient by which the identity of the premises

can be established, or which furnishes the means of identification, of the property

covered by the deed or which it was intended to convey thereby with reasonable

certainty, and without the exercise of arbitrary discretion. A conveyance is also good, if

the description can be made certain within the terms of the instrument. A description

from which a surveyor can locate the land and by means of which the surveyor is able to

establish its boundaries, or by which a party familiar with the locality is enabled to

identify the premises intended to be conveyed with reasonable certainty, is sufficient. A

deed will not be held void for uncertainty of description if by any reasonable construction

it can be made available. A court will declare a deed void for uncertainty of description

only where, after resorting to oral proof or after relying upon other extrinsic or external

proof or evidence, that which was intended by the instrument remains a mere matter of

conjecture, or where the description cannot be made applicable to but one definite tract.

The description of property need not be determined by reference to the deed alone.

Extrinsic facts pointed out in the description may be resorted to in order to ascertain the

land conveyed, and the property may be identified by extrinsic evidence. Although such

extrinsic evidence must be sufficient to establish the identity of the land sought to be

conveyed, it must not add to, enlarge, or in any way change the description contained in

the conveyance, and the writing itself must furnish the hinge or hook on which to hang

the aid thus afforded, without resorting to any secret or undisclosed intention of the

parties thereto.

If part of the description is proved inconsistent on being applied to the premises, it does

not vitiate the deed if a sufficient part of the description remains for purposes of

identification or where the grantor's intent is apparent. However, if the deed contains

inconsistent descriptions either of which is sufficient to identify different parcels of

property, and there is nothing to show the grantor's intention, the deed is void for

uncertainty. Where all the particulars in a description are essential, the description in the

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deed must agree with every particular, or nothing will pass, but where they are not all

essential, and it does not so agree, if it is sufficient to identify the estate granted, the

deed is good.” (See also ABN AMRO Mortgage Group, Inc. v. Southern Security Federal

Credit Union 372 S.W. 3d 121 2011).

The scrivener needs to keep in mind that the document needs to be constructed by the “four

corners rule” and that extrinsic evidence is only allowed to clear up latent ambiguities. Evidence

outside the deed can only be applied to clear up problems and can not supply the description.

The Kentucky courts have said:

“Where the language employed in a deed is uncertain in its meaning, it is proper to

consider the nature of the instrument, the situation of the parties executing it, and the

objects which they had in view. Davis v. Hardin, 80 Ky. 672; Tanner v. Ellis, Ky., 127

S.W. 995. Furthermore, the subsequent acts of the parties, showing the construction

they have put upon the agreement, may be looked to, and are entitled to great weight in

determining what the parties intended. Jacoby v. Nichols, 23 Ky.Law Rep. 205, 62 S.W.

734; District of Columbia v. Gallaher, 124 U.S. 505, 8 S.Ct. 585, 31 L.Ed. 526; Wilson v.

Marsee, 166 Ky. 487, 179 S.W. 410. However, in the instant case we can find no

ambiguity in the deed. The words "that that one-fifth of the mineral" clearly refer to the

coal. As stated in Volume 3 of the American Law of Property, page 384:

"Where the language of a deed is plain and unambiguous, evidence of surrounding

circumstances, although proper in an action to set aside a deed, will not be considered

for the purpose of construction. But as a means of solving ambiguities, the courts will

consider all the attendant circumstances as to situation of parties, relationship, object of

conveyance, person who drew the deed, and all surrounding situations which may throw

light on the meaning which the parties attach to ambiguous or inconsistent portions of

the instrument." Sword et al v. Sword et al 252 S.W.2d 869 (1952)

In the case of Hoheimer v. Hoheimer 30 S.W. 3d 176 (2000) the Kentucky courts further said:

“Extrinsic Evidence

The trial judge was clearly erroneous in admitting extrinsic evidence to vary the terms of

a series of unambiguous deeds of conveyance. An examination of the deeds in question

does not indicate any intent other than to convey a fee simple interest. There is nothing

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in any of the deeds that could be considered ambiguous. Extrinsic evidence cannot be

admitted to vary the terms of a written instrument in the absence of an ambiguous deed.

Sword v. Sword, Ky., 252 S.W.2d 869 (1952). Thus, it was improper for the trial judge to

consider any evidence to vary the clear language of the deeds.

There is no language in the deeds indicating the reservation of a life estate. Clearly,

there is nothing in any of the deeds to suggest any intention other than the conveyance

of a fee simple interest. The intention of parties to a written instrument must be gathered

from the four corners of that instrument. Cf. Riley v. Riley, Ky., 266 S.W.2d 109 (1954).

The interpretation by the trial judge of the intention of the parents/grantors is not

supported by any competent evidence.”

So how best can a description be fashioned that is clear, concise and complete? The first step

is to understand that courts and experienced surveyors will look to measurements as a last

resort when defining boundaries. As a general rule courts will look first to senior rights then

monuments and lastly to measurements. The monuments the court will look at, in descending

orders are natural monuments, artificial monuments and then record monuments (adjoiners).

Calling for adjoiners can eliminate gaps in property and provide for a way to reconcile

inconsistences in measurements.

When writing a description it is best to first describe the property without measurements then

insert measurements only after the qualitative portion is complete.

Public Easements

Public easements for utilities and roads are usually easements in gross and are created by

express grant. Due to the fact most public easements are for roads, sewers, transmission and

utility lines the vast majority of these description are strip descriptions. These descriptions are

often prepared by local agencies and design firms that may or may not have land surveyors on

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staff. This can often lead to some descriptions that are difficult to lay out in the field.

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These two drainage easements are meant to be side by side and are bounded on the north by a

major road and on the south by an alley way. The descriptions only show the bearings and

distances and the common line between the two don’t match either of these. In order to know

the two descriptions tie and that the common line exists will take extra research and work on the

part of the surveyor tasked with establishing this in the field. Compare that to the following

easement drawing and description.

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Tract A

Commencing at a concrete monument at the southeast corner of the McConnell tract as

described in deed book 1647 page 810, thence along the McConnell tract N62⁰00’47”W, 48.16

feet to the southwest corner of the McConnell tract and the point of beginning.

Thence leaving the point of beginning and normal to the center line of an unopened alley,

S27⁰53’22”W, 7.33 feet to a point; thence along the center of the unopened alley N62⁰06’38”W,

52.50 feet to a point in the east line of land conveyed to Smithers (now Chastain) in deed book

106 page 333; thence N23⁰59’41”E, 7.44 feet to the southwest corner of the Finnell tract as

described in deed book 361 page 406; thence along the line of Finnell S62⁰00’47”E, 53.00 feet

to the point of beginning and containing 389.16 square feet, more or less.

Tract B

Beginning at a concrete monument at the southeast corner of the McConnell tract as described

in deed book 1647 page 810; thence normal to the center line of an unopened alley,

S27⁰53’22”W, 7.25 feet to an iron rod; thence along the center of the unopened alley

N62⁰06’38”W, 48.16 feet to a point; thence N27⁰53’22”E, 7.33 feet to the southwest corner of

the McConnell tract as described in deed book 1647 page 810; thence along the line of

McConnell S62⁰00’47”E, 48.16 feet to the point of beginning and containing 351.15 square feet,

more or less.

Tract C

Commencing at an iron rod at the northwest corner of the Murray tract as described in deed

book 1654 page 64, thence along the north line of Murray S62⁰23’24”E, 50.23 feet to the

northeast corner of the Murray tract and the point of beginning.

Thence leaving the point of beginning and normal to the center line of an unopened alley,

N27⁰53’22”E, 7.99 feet to a point; thence along the center of the unopened alley S62⁰06’38”E,

45.85 feet to an iron rod; thence continuing along the center of the aforementioned alley

S62⁰06’38”E, 4.76 feet to a point; thence S28⁰47’10”W, 7.75 feet to a point in the north line of

the Maize tract as described in deed book 390 page 758; thence along the line of Maize

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N62⁰23’24”W, 50.49 feet to the point of beginning and containing 397.93 square feet, more or

less.

Tract D

Beginning at an iron rod at the northwest corner of the Murray tract as described in deed book

1654 page 64; thence normal to the center line of an unopened alley, N27⁰53’22”E, 8.24 feet to

a point; thence along the center of the unopened alley S62⁰06’38”E, 50.24 feet to a point;

thence S27⁰53’22”W, 7.99 feet to the northeast corner of the Murray tract; thence along the line

of Murray N62⁰23’24”W, 50.23 feet to the point of beginning and containing 407.78 square feet,

more or less.

Tract E

Beginning at an iron rod at the northwest corner of the Murray tract as described in deed book

1654 page 64; thence along the Hall tract as described in deed book 376 page 343

N51⁰50’45”W, 4.13 feet to an iron rod; thence along the east of land conveyed to Smithers (now

Chastain) in deed book 106 page 333, N23⁰59’41”E, 7.52 feet to the center line of an unopened

alley; thence along the center of the unopened alley S62⁰06’38”E, 4.57 feet to a point; thence

S27⁰53’22”W, 8.24 feet to the point of beginning and containing 33.90 square feet, more or less.

The basis of bearing for the tracts described herein is the record bearings as recorded in deed

book 92 page 66.

This set of easements have ties to monuments and establishing the title identity of the described

easements.

When a public entity has to obtain easements it is often for a large project that stretches across

several tracts and the focus is generally on the design and construction of the facilities itself.

Because of this obtaining easements and descriptions are often viewed as another engineering

function and are treated that way. This can lead to a unique set of problems that may not

become apparent until years after the project is complete. This can be avoided by proper

research, reconnaissance and field ties.

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In 1912 A.C. Mulford put measurements in perspective in his book “Boundaries and

Landmarks”:

“…when it comes to a question of the stability of property and the peace of the community, it is far more important to have a somewhat faulty measurement of the

spot where the line truly exists than it is to have an extremely accurate measurement of the place where the line does not exist at all.”

DO

Be Clear – Using legal words in a description is an excellent practice but make sure the

description doesn’t sound like the IRS tax code. The description should flow, be concise and

easy to follow.

Check Maps – Review the maps that are used prior to starting the description. If something that

is needed is missing call the surveyor. Often the needed data is a quantity that a surveyor can

easily derive from the map provided.

Know the legal meaning of words – At the very least any words that may have a questionable

meaning should be checked with a dictionary such as Black’s. It is also wise to understand

some basic geometry. Here is an example of words that are often used that are thought to be

synonymous but may not be:

Adjacent vs adjoining - Lying near or close to; contiguous. The difference between

adjacent and adjoining seems to be that the former implies that the two objects are not

widely separated, though they may not actually touch, while adjoining imports that they

are so joined or united to each other that no third object intervenes. People v. Keechler,

194 111. 235. 62 N. E. 525; Ilanifen v. Armitage (C. C.) 117 Fed. &45; McDonald v.

Wilson. 59 Ind. 54; Wormley v. Wright County, 108 Iowa, 232, 78 N. W. 824; Hennessy

v. Douglas County, 90 Wis. 129, 74 N. W. 9S3; Yard v. Ocean Beach Ass’n, 49 N. J. Eq.

300, 24 Atl. 729; Henderson v. Long, 11 Fed. Cas. 10S4; Yuba County v. Kate Hayes

Min. Co., 141 Cal. 3G0, 74 Pac. 1049; United States v. St. Anthony It. Co.. 192 U. S.

524, 24 Sup. Ct. 333, 48 L. Ed. 54S. But see Miller v. Cabell, 81 Ky. 184; In re Sadler,

142 Pa. 511, 21 Atl. 978.

Know what controls – The ultimate goal of a description is to express the intent of the grantor

and to a lesser extent the grantee. Measurements are just one form of evidence that can

express this and often not the best. When a conflict arises measurements are most often used

as a last resort to determine intent. This will be covered further later on.

Note the bearing basis – There are several ways to define north. The method used should

always be noted in a description to make it complete and useful for future surveyors.

Include deed references for adjoiners – This allows for future boundary research to be done

quickly and ties the description to a specific time period. Surveys are done in four dimensions-

X,Y,Z, and time.

Tie to monuments of record – Tying a description to a “point” or an object not of record will only

lead to future disputes.

Include title identity – This goes hand in hand with including deed references. Calls for adjoiners

are calls to record monuments.

Write the qualitative portion first – This is perhaps the most important. The property should be

described first without measurements. Only after the property is described as a unique parcel in

qualitative terms should measurements be added. Experienced scriveners know this and can do

this all in one step.

Proof the description – Always have someone read the description to make sure the correct

intent has been communicated.

Check tangency of curves – A tangent curve can be described using only two elements. A non-

tangent curve requires at least three curve elements. Including a chord bearing and distance is

good practice it the scrivener is unsure of the tangency of curves.

Don’t

Mix figures and lot numbers – Be careful how numbers are grouped. Bearings, distances and lot

numbers can be confusing if they are listed in a confusing or inconsistent manner.

Use excess words- As in any good writing less is more. Proof read the description and cut out

unnecessary words.

Use multiple incompatible ties – If more than one tie to external monuments is used make sure

they do not conflict.

Use reference to quasi-public records – If a reference to a document is used it should be

available in the public record.

Create conflicting conditions- This is an extension of using multiple incompatible ties. A good

example is don’t describe a tract by reference to a lot number on a recorded plat then provide a

metes and bounds description also.

Rewrite a functioning description – Every time a tract is surveyed the measurements will differ

somewhat. This is not a valid reason to rewrite the description. Measurement exist in a deed to

aid in finding the evidence on the ground. If the physical evidence doesn’t change don’t rewrite

the description except in the case of a gross discrepancy between the found and written

evidence. A new description can also be prepared to correct an error in the record or to clear up

ambiguities in poorly written or vague documents.

Use the word “either” in a strip description- When describing a strip around a center line it is

correct to say “A strip of land lying 25’ each side of the herein described center line”. Another

good way is to describe the line as located “symmetrically” about the center line. Another

common mistake is to describe a line as “parallel to” another line, it is “parallel with” not “to”.

Use the word “due”- Due north is often used but what is “due north”? Is it magnetic, astronomic,

grid? The term as various meanings.

Use “front” or “rear” – This is relative to the observer’s point of view. Descriptions should be

written with the thought in mind someone fifty years from now will be reading it and terms that

depend on the viewpoint of the observer should be avoided.

When writing a description it is best to first describe the property without measurements then

insert measurements only after the qualitative portion is complete.

 

 

Parol evidence is often overlooked and even misapplied. It cannot change the intent of a deed, just clarify ambiguities. This type of evidence is often missed as we will see in the case of U.S. V. Citko. Parol evidence is applied to the description but cannot supply the description. When reading a description intent is king.

 

The land being surveyed exists on the ground, the description is just evidence. It points to items and evidence the surveyor must dig for to make a proper retracement.

 

 

 

Justice Cooley gave this lecture at a meetng of engineers and surveyors in Michigan about twenty years after the GLO had finished their work in the area. Notice he points out that formal education alone doesn’t make someone a surveyor. Education may teach someone “how” to measure but not “what” to measure. Just knowing how to measure doesn’t make someone a surveyor, especially in today’s high tech world. Only experience can teach an aspiring surveyor what to measure. Note also he actually seems to scold the gathering of surveyors for not knowing what their true responsibilities are in relation to retracements and evidence.

 

 

In 1912 A.C. Mulford wrote “Boundaries and Landmarks, A Practical Manual”. This classic text is so important it has been used at many firms as a primer for young surveyors, including my own business. Here he points out what many surveyors fail to grasp, measuring the wrong line

with great precision is of no use whatsoever. Once again knowing how to measure but not what to measure is the root cause of most faulty surveys. Surveying the wrong lot to a precision of say 1’:500,000’ may be impressive measuring but says little for ones ability to gather and analyze evidence.

 

 

Plato was no surveyor but this is excellent advice. A true professional understands the subletities of their profession. A true practitioner of any profession understands the relationships between the quantative and qualitiative aspects of their vocation and how it relates to the rest of society. This is one difference between a professional and a technician.

 

Henry David Thoreau worked as a surveyor for a significant portion of his life. He was better known for his surveying than his writings during his lifetime. He understood what Plato taught, that simply placing measurements on the ground was not the true calling of a surveyor. A

surveyor is at his or her core an analyst. He points out why society needs us and needs us to do our job. Owners want what gives them the most land, we as surveyors understand what the law requires.

 

 

Boundaries exist outside measurements. Measurements in a deed are there primarily to aid in the search for evidence on the ground. Measurements are primarily directive in nature and only become locative as a last resort. A good friend once said “If I have to resort to the measurments in a deed to replace a boundary I feel as if I have failed as a surveyor”.

 

We are to be experts in measurement. This means knowing what measurements are and what their limitations are when applied to the boundary being retraced. Please don’t think I believe in sloppy measurement technique, I don’t. Nothing is more aggravating that sloppy work or a surveyor that can’t function in the field without a laptop or data collector. Keep in mind also that

we survey in four dimensions, the fourth being time. This is a theme that we will study later. To be a surveyor is to be an analyst of both quantative and qualitative data. To be just an “expert measurer” is to just be be a partial surveyor.

 

Notice numbers one through three. This is where the professional surveyor must apply his knowledge. Remember what Plato said, good decisions are based on knowledge not numbers.

 

The first three are evidence driven. It would appear the new ALTA standards are saying a surveyor’s knowledge of evidence and its evaluation are 75% of the battle when retracing boundaries.

 

Here on the final slide concerning the ALTA standards look at the statement that I have made bold, this is exactly what Mulford said over one hundred years ago. This is what Cooley, Plato and Thoreau also eluded to.

 

Here is a statement from a recent article in P.O.B.. Measurements are just one type of evidence and as we will see the courts consider them the least reliable

 

Here are some comments the public made after a recent highly publisized allged survey error. Notice the “fence builder” is seen as an expert measurer by the public. With today’s technology soon anyone can be an expert measurer. If that’s all we can offer the public we will soon be out of business. Do you think the writer would consider the surveyors primitive if they showed up with a knotted rope and Boy Scout compass? Notice the second writer asks about why a surveyor would look for landmarks like trees. Yet another reason the public needs our skills.

 

The second writer thinks a surveyor needs no evidence whatsoever. Perhaps the profession has fostered this attitude. This is why society needs us to be surveyors and not just measurers. We should be much more than just measurers, we should be experts at evidence analysis.

 

 

 

 

885 F.Supp. 727 (1995)

NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff,

v. Irvin A. SEWER, Cedric Lewis, Lucinda Anthony, Earle Sewer, Violet

Sewer, Jasmine Sewer, Lorel Sewer, Judith Callwood, Leon Callwood, Lorne Callwood, and Persons Unknown Who Have Attempted to

Obstruct Construction Work on Plaintiff's Land, Defendants.

Civ. No. 91-315.

District Court, Virgin Islands, Division of St. Thomas and St. John.

March 27, 1995.

I. GENERAL SURVEYING PRACTICES

A. Background Research

The court will first set forth basic principles of surveying based on its review of relevant treatises and case law as well as the expert testimony offered at trial by the parties.[21] A surveyor should strive first to locate and examine all historical records, deeds, prior surveys, maps and drawings in preparation for conducting an original survey. See, generally, CURTIS BROWN ET AL., BOUNDARY CONTROL AND LEGAL PRINCIPLES 371-74 (3rd ed. 1986) [hereinafter "BOUNDARY CONTROL"]; WALTER G. ROBILLARD & LANE J. BOUMAN, CLARK ON SURVEYING AND BOUNDARIES § 4 (5th ed. 1987) (hereinafter CLARK ON SURVEYING) If the surveyor is not performing an original survey then the surveyor must also carefully review the original survey, as well as subsequent surveys or drawings.[22] The purpose of thoroughly researching the history of a parcel of land is to ensure that the surveyor will be able to incorporate the most complete and accurate data into his or her survey. If a surveyor does not complete such research, the surveyor might perform the survey without having the benefit of essential information. For instance, the surveyor might not adequately search for crucial monuments or might misinterpret other field or documentary evidence. BROWN, BOUNDARY CONTROL at 371. In addition, if a surveyor knows that his or her survey will be used in a particular manner, a surveyor should review relevant documents and field surveys of adjacent parcels of land to ensure that his or her particular survey will be reliable and consistent with other existing surveys, so as to discourage litigation. Id. at 374.

B. Field Surveys

After a surveyor has completed a comprehensive review of all available records, deeds and prior surveys, the surveyor begins the field survey. Once in the field, the surveyor has a duty to make a diligent search for all monuments referenced directly or indirectly in the deed or property description that either occur naturally or were put in place by prior surveyors or other persons. Id. at 371. 748*748 Monuments have special significance because monuments indicate the location of property at issue on the ground. The search for monuments must continue until the monuments are located or until there is an explanation for their absence. Id. at 372. If necessary, the surveyor should consult former surveyors, landowners, residents, or other knowledgeable parties to determine monument sites or obtain other information tending to show where a piece of property should be located. Id. Testimony of neighbors and informed residents concerning boundaries is an important source of information for resurveys. As stated in one treatise, "[a] diligent, thorough, and complete search for all evidence is the fundamental essence of land surveying." BROWN, BOUNDARY CONTROL at 372. Through these investigative efforts, the surveyor attempts to reach his or her goal: the "location of land boundaries in accordance with the best available evidence" even though the best evidence may be "mere hearsay or reputation." Id. at 372-3; see Part II(B) infra on determining the order of importance of conflicting descriptive elements in a conveyance.

C. The Centrality of the Original Survey

Since the physical position of monuments referenced in a conveyance reflect the original boundaries of a particular parcel, a subsequent surveyor must attempt to conform his or her survey as closely as possible to the prior surveyor's work. Hence treatises and courts frequently recite an admonishing maxim, namely that a surveyor must follow in the footsteps of the original surveyor. See Rudolph Galiber's Testimony (Tr. 1B, p. 35.), Marvin Berning's Testimony (Tr. 2, p. 112-114). The purpose and result of this principle is to give effect to the intentions of the parties at the time of the survey as well as ensuring the continuity of boundaries over time. Accordingly, "[t]he general rule governing the determination of boundary lines by resurvey is that the intent of the new survey should be to ascertain where the original surveyors placed the boundaries," not to determine new modern boundaries. (boundary dispute involving 135-year-old survey resolved by the court's attention to totality of the evidence including evidence of the parties' intentions).

II. DETERMINING THE INTENT OF PARTIES TO A CONVEYANCE

While a surveyor must aspire to walk in the exact steps of an original surveyor, sometimes a surveyor may be unable to find monuments placed by the original surveyor because the monuments may have been obliterated or lost. When a surveyor is unable to follow the precise "footsteps" of his or her predecessor, then a surveyor must attempt to track the original surveyor's work using whatever recoverable evidence that exists. See, generally, ROBILLARD, CLARK ON SURVEYING § 14 (section on tracking a survey); 11 C.J.S. § 61. Ultimately, a surveyor may only be able to "say with a great degree of certainty, `this is where the surveyor walked.'" See, BROWN, BOUNDARY CONTROL at 294.

A. Original Survey Lines or Lines of Possession?

When a surveyor has difficulty retracing the original surveyor's steps, either because field evidence is missing or conflicting, certain principles guide his or her evaluation of existing field evidence. First, because original lines control other information contained in the conveyance, a surveyor should determine whether or not a line of possession, such as a fence, marks the location of the original survey line. See ROBILLARD, CLARK ON SURVEYING § 16.17. For instance, if the possession line is marked by an old boundary fence erected at approximately the same time as the original surveyor ran the lines, the fence may memorialize the survey line itself. BROWN, BOUNDARY CONTROL at 372. A surveyor's determination that a line of possession corresponds with an original survey line should be made according to the best evidence available which may include testimony of residents and the evaluation of the age of fencing or other natural monuments. Id. In addition, where surveyors disagree on the location of property lines and where a true 749*749 survey line may be uncertain, monuments, such as fences which mark a possession line and which were established soon after the original survey, will control. Id. at 89 and 93.

In the context of a surveyor's inability to locate original monuments or the original survey lines, lines of possession may become significant precisely because they give effect to the conveyer's intentions. This is particularly true when a conveyance contains a written statement describing these intentions. Accordingly, where a deed contains such a recitation of the parties' intentions, a surveyor should compare all of the conflicting descriptive elements, such as lines of possession, monuments, and acreage, and give the most weight to the element or elements which best effectuates the intentions of the parties to the deed. See BROWN, BOUNDARY CONTROL at 82.

List at list three things that stood out as important to the court that are new ideas for you:

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

 

 

 

 

 

 

 

 

 

Evaluating Boundary Evidence

Locating Boundaries: Surveyors are at their very core analysts. Locating a boundary on the

ground is a function of several things including document research, historic research, gathering

field evidence, and careful analysis. When surveyors find themselves in an embarrassing

position in court it is often because they haven’t performed up to the courts expectations. Here

is a portion of a case where the court outlines what it expects from a surveyor. Please read this

portion of the case and make note of the courts expectations:

 

 

 

Read the whole deed and understand it works as a unit. The words between the bearings and distances are most important. Remember the deed is to be read and understood within the confines of time.

 

Rules of construction only come into play in the event of an ambiguity. If the intent is clear within the four corners of the document no construction is necessary. Surveyor would do well to understand Ockham’s Razor-All things being equal the simplest answer is probably correct. (my paraphrase).

 

Surveyor’s need to work hard to make a deed function within itself before applying rules of construction.

 

This is the most important word in a deed. “North 32 degrees East, 112.47 feet TO a 12” hackberry” is the call you are dealing with. The only thing that matters is everything after the word “TO”. The rest of the call is just an aid to find the evidence of the true boundary. Here is an uncomfrontable truth, if the hackberry is gone ask the residents (parol evidence) before just laying out the distance.

 

Record Evidence

Document research is one of the most important steps in any survey. It is at this point

that every surveyor begins “following in the footsteps” of his or her predecessor. When the

research process begins the surveyor should keep in mind the ultimate goal is to replace

boundary corners back in their original location, even if this is in conflict with the measurements.

Surveyors fall into two broad categories when it comes to retracement. The first are the

surveyors that simply reproduce measurements on the current deed. The second category of

surveyor takes into account all the qualitative evidence related to the survey. These include

items such as possession, occupation, original intent, etc. The first type of surveyor can literally

wreak havoc on a community. The second type of surveyor realizes his or her responsibility and

acts accordingly, and it all begins with research.

One of the most overlooked principals when doing document research is the fact

surveyors should go back to the documents that created the parcel. This only makes sense. If

the ultimate goal is to recreate the footsteps of the original surveyor, then one must fully

understand the conditions of the original survey. The first step in this process is to obtain a copy

of the documents that created the parcel along with the adjoiners data. The following is an

outline of the document research process. This includes all documents and plans called for or

discovered that have some bearing on the survey at hand.

1. Obtain cadastral mapping for the area

2. Obtain deed references back to the deed that created the subject tract.

3. Obtain adjoiners deed references back to the creation of the adjoining tract.

4. Obtain deeds and place all of them in chronological order.

5. Plot two deed mosaics, one of the current deeds (including adjoiners) and one of the

deeds as they existed when the tract was created.

6. Place pertinent deed data in a database or spreadsheet.

The simplest way to get organized and begin researching is with a cadastral (tax) map.

This map will show the parcels with roads, above ground utilities, etc. As a general rule most

deeds have a reference to the tax parcel identifier on them. The tax map is also a good place to

record deed references. Simply list the references in a column, on the subject tract, starting with

the current deed and going back to the creating deed.

It is very important to obtain the deed that created the parcel being surveyed. Many

surveyors neglect to do this. This is perhaps the most important step. Once it is determined

when the parcel was created then it’s a good idea to obtain all adjoining deeds for the same

time period. Once again all of this is done with one simple goal in mind-to follow in the footsteps

of the original surveyor. It cannot be expressed strongly enough, a surveyor doesn’t simply

recreate measurements, he or she must recreate history. It is the retracing surveyors’ job to

recreate exactly what the original surveyor did, even the mistakes.

Surveying is often viewed as a three dimensional process but it’s actually four

dimensional. Not only is a surveyor concerned with length, area and volume, but the

retracement surveyor must be concerned with time. It is for this reason that all document

research should be placed in chronological order. Many times problems can quickly be solved

simply by examining dates. Anyone who has been through a deposition realizes how important

dates are to attorneys, they should be equally important to surveyors.

After obtaining the required deed work a deed mosaic should be made. A deed mosaic is simply an

exact plot of the deeds, discrepancies and all. Bearings and distances should be labeled as well as

monuments called for. Adjoiners names, deed references and passing calls should also be listed. If the

surveyors has a way to generate approximate latitudes and longitudes for the corners this is also

helpful. This can be a real time saver when do field reconnaissance on large tracts.

MONUMENTS

There is a simple principle in surveying, he who finds the most pins, wins. The value of a

found, undisturbed, called-for monument can’t be overstated. Found original monuments are

without error, regardless of measurement evidence. That’s not to say there may not be

unwritten rights that must be dealt with. A surveyor should always be sensitive of occupation

and senior right issues. The majority of monuments found are uncalled for or replacement

markers. Quite often original monuments or their accessories exist they are just missed.

Even is a monument is missing it can still be controlling if it's original location can be

determined.

Scriveners are often lax when it comes to describing corner markers. Too often every

corner called for is an “iron pin” with no further description. Is the corner a pipe or rebar? What

diameter is it? Is it capped? What is its proximity to record information? There is a bad habit

among some deed writers to call for an iron pin at every corner, even if one was never set. Even

worse is the policy of calling every corner a “point”. This can often be an indicator that a survey

was never done.

Corners fall into three categories, existent, obliterated and lost. An existent corner is one whose

position can be identified either by finding the original marker or by its’ accessories. An obliterated

corner has no remaining trace of any monumentation or its accessories but the location can be

recovered. The location can be reestablished using parol evidence, acceptable record evidence, by a

replacement monument shown to be in the original location or by improvements put in place at a known

relation to the original marker. A lost corner is one whose position cannot be determined by the original

monuments or its accessories.

This is important. These are the two questions a court wants answered. The “what” only changes by deed (except in the case of adverse possession). The “where” can be determined by a surveyor or through a boundary establishment principle like acquiescence, agreement or estoppel. More on this later.

Plastic newspaper bags and bird droppings have both been evidence I have used to resolve boundary disputes. Evidence of boundaries lie in much more than numbers. The surveyor should know much more than just how to measure.

 

Evidence is not proof, it leads to proof. Evidence is useless until it is analysised and put into context, a surveyors job.

 

Remember what you, as a surveyor, do today will have to be retraced by someone 100 years from now. Leave the evidence you would want to see.

 

 

 

 

 

Measurements

Courts view surveyors as experts in measurement. A surveyor should know not only the

capabilities but also the limitations of measurements. Measurements are used primarily for

relative comparison. They are also used to aid surveyors in the search for monuments. It should

always be kept in mind that a retracement surveyor doesn’t establish boundaries with

measurements; instead the surveyor locates the boundary then measures it.

Nothing said here is meant as a justification for substandard measurements. There is no

excuse for poor measurement technique. On the other hand today’s measurement technologies

have blinded many surveyors to their true function.

In the May 1, 2006 issue of Time Magazine an article on what scares doctors the most

about healthcare pointed out what a preoccupation with technology can lead to. One thing that

concerned many doctors was a preoccupation with technology. Many physicians felt as if the

profession was too quick to order an expensive, high-tech test instead of simply spending more

time talking to the patient to determine the true nature of the complaint. The same could be said

of the survey profession at times.

During a recent state convention a meeting was held to discuss the survey regulations of

the host state. One surveyor stood up and asked if the state could create a special certification

for surveyors who do only GPS surveys. GPS, like any other new measurement technology is

just a tool. The finest GPS unit created can never determine a boundary. In the aforementioned

Time Magazine article it was pointed out that “it is easier to gather gigabytes of information than

to acquire the judgment to apply it wisely.”

it was flawed in its methodology. He therefore set out to locate the center anew, using the legally prescribed methodology and modern survey techniques and disregarding any evidence of the boundaries as reflected in the deeds, fence lines, county road location, and lines of occupation.”

New measurement technology is a tool to aid surveyors in making the same decisions that have

been made for centuries.

When modern measurements are compared to original measurements, the analysis

should be in term of the original measurements. A deed that describes a tract of land in rods

and links should be analyzed in rods and links not in feet and tenths of feet. This is a foreign

concept to many modern surveyors.

There is another measurement technique that often causes argument among surveyors.

When retracing a survey originally created with a compass and chain many surveyors believe a

compass and chain should be used to replace missing corners. Then a modern instrument is

used to document the retracement. This methodology is controversial to say the least.

Another problem with measurements as evidence today is the pseudo-state plane

system many surveyors insist on using. These fall into two categories:

1. State plane positions created without using the proper elevation and scale

factors.

2. State plane positions that are modified using some type of datum adjustment

factor to raise all coordinate values to surface level.

Often surveyors begin a survey using valid state plane positions but fail to use a scale

and elevation factor to place field measurements on the grid. This is done most the time to avoid

the perceived tedium of dealing with a grid factor. The final result of this type of survey isn’t a

state plane coordinate and the positions shouldn’t be presented as such.

The second problem is the use of a datum adjustment factor. This is a factor that is

created in order to place grid positions on the ground for an entire project. This too leads to

coordinates that appear to be state plane but aren’t. Both of these methods of dealing with state

plane coordinates should be avoided. The state plane coordinate system should be used as

designed.

"We consistently have held that what boundaries a deed refers to is a question of law, while the

location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the

deed reveal a latent ambiguity, then we determine the intent from contemporaneous

circumstances and from standard rules of construction. A basic rule is that boundaries are

controlled, in descending priority, by monuments, courses, distances, and quantity, unless this

priority produces absurd results. The physical disappearance of a monument does not end its

use in defining a boundary if its former location can be ascertained" Theriault v. Murray,

1991,588 A.2d 720 (1991)

When a surveyor undertakes a boundary surveyor there are only two questions to answer. What

is the boundary, which is a question of law and where is it at, which is a question of fact.

Surveyors often get themselves in trouble answering these two questions. When the “what”

doesn’t match the “where” of vice versa the first inclination is to change one to match the other.

It isn’t the job of a surveyor to establish new lines where none existed when doing a boundary

retracement. The surveyor doesn’t use measurements to establish a boundary; rather his or her

job is to find the boundary then measure it.

The intent of the grantor and to a somewhat lesser extent the grantee is of paramount concern.

If the intent is found within the four corners of the deed then nothing else is required to establish

the property. If however a latent ambiguity is found when trying to apply the deed to the ground,

then extrinsic evidence can be used to help determine intent. Extrinsic evidence can’t be used

to supply the description or change intent but is only applied to the ambiguity to make clear that

which is uncertain. Extrinsic evidence is admissible to show where the land is that fills the

description given in a deed, but it cannot supply material parts of the deed; it is permissible to

apply, but not to supply, description. When ascertaining the intent of the grantor a surveyor

should determine what they meant by what they said, not what try to determine what they meant

to say.

When conflicts in a deed arise it becomes necessary to use the elements in the description that

are most certain and least likely to be in error to determine the intent of the parties. To that end

most jurisdictions use as a general guideline the following list of conflicting elements with the

most certain or reliable being at the top:

A. Right of possession

B. Senior Rights

C. Written intentions of the parties

1. Natural Monuments

2. Artificial Monuments

3. Record Monuments

4. Bearings and Distances

5. Bearing or Distance

6. Area

A valid right of possession will trump everything else. The most commonly discussed of these in

surveying is adverse possession. Surveyors can’t determine if a valid adverse possession claim

has taken place but he or she should be familiar with the basic concept. The discussion of

adverse possession is beyond the scope of this text.

Senior rights take place within the context of a sequential conveyance. From a practical

standpoint a sequential conveyance occurs outside the context of a subdivision. In a subdivision

several lots are created at the same time. A sequential conveyance occurs when lots are

created over time. As an example say Reed owns 5.5 acres and he sales off 2 acres to Smith in

1950 then 2 more acres to Jones in 1952 and finally 1.5 acres to Harris in 1957. Smith was first

out of the parent tract and is senior to both Jones and Harris. Jones is junior to Smith but senior

to Harris and Harris is junior to all. Determining senior rights is a function of proper research.

This is why simply pulling the current deeds rarely gives a surveyor all the information he or she

will require to do a proper survey.

SENIOR RIGHTS

ORIGINAL OWNER1947

ACREATED 1950

BCREATED 1952

CCREATED 1955

100’120’ 150’

365’ BASED ON A FIELD SURVEY

Senior rights are based upon the idea a grantor can’t sell the same tract of land to two different

individuals at the same time. As a general rule in the case of overlaps the disputed land will go

to the senior owner. In the case of small gaps the area in question will usually go to the junior

tract. This, of course, is dependent on how the deeds are written.

The most certain evidence is a natural monument, such as a call for a creek or the top of a bluff.

This type of monument is the least likely to change over time and be disturbed. The second

most certain is an artificial monument placed by the parties or a surveyor at the time of the

conveyance. The next would be a record monument, which is a call for an adjoiner’s line. Then

the surveyor would look and the measurements on the lines, trying to make both the bearings

and distances work then if necessary either bearings or distances. Finally, the least reliable form

of information to use is area. This list isn’t set in stone and has as its ultimate goal the

determination of the intent of the parties. If the ultimate intent lies in the area then this could

outweigh an artificial monument. It is also interesting to note that this list starts at the top with

the least amount of mathematical manipulations and ends at the bottom with the item that

requires the most manipulation.

 

Easements An easement is an interest in land created by either agreement or grant that confers a right

upon owners to some benefit or lawful use over the estate of another; it is distinct from fee

ownership.

Easements fall into two categories, appurtenant easements and easements in gross. An

appurtenant easement is one that benefits the dominant estate and attaches itself to the parcel

of land. A driveway easement for ingress and egress across tract “A” to benefit tract “B” would

be an appurtenant easement. tract “B” would be the dominant estate and tract “A” the servient

estate. The easement goes with tract “B” when it is sold. An easement in gross attaches to a

person or entity. An easement for a power line across a tract is an easement in gross. A right to

fish or hunt would be an easement in gross. It serves no particular estate. Easements can also

be either positive or negative. A positive or affirmative easement permits the possessor of the

easement to some physical act on the lands of another party. A negative easement allows the

dominant estate to prevent the servient estate from doing something. An example would be an

easement for light or air.

APPURTENANT EASEMENT

DOMINANT ESTATE

SERVIENT ESTATE

INGRESS/EGRESS EASEMENT TO DOMINANT ESTATE

EASEMENT IN GROSS

Easements are usually limited to the use that is described in the document that creates them. It

is for this reason easements need to carefully thought out and described at the time of creation.

Many lawsuits have resulted from confusion over what right the easement actually created.

Land owned in fee simple can be lost by various means but easements are virtually forever.

Easements can be created several ways. The most common are an express conveyance,

implied easements, estoppel, easement by necessity and by prescription.

Express Conveyance - an easement created by a deed or will. Easement deeds create an

easement without deeding any land in fee. Easements can also be created in a deed by

exception or reservation. A reservation creates a right for the grantor in the land described as

granted. An exception withdraws a part of that which is being granted.

Implied Easement - when an owner conveys a portion of a tract of land he or she also conveys,

by implication, all easements that are apparent or obvious that is necessary for the use of the

land. This type of easement is often claimed in the case of a land locked parcel. If a parcel is

created from the parent that is land locked an implied easement may be created to resolve the

access issue.

Easement by estoppel - estoppel is a bar raised by the law which precludes a person from

asserting something contrary to his or her previous actions or statements. This may happen if

owner “A” leads owner “B” to believe he has access to a tract by easement then “B” builds

improvements on his landlocked parcel. If “A” tries to prevent “B” from accessing the parcel after

the improvements “A” may be estopped from doing so because “B” took actions to improve the

property he may have not done otherwise.

Easement by necessity - A court may decide an easement is necessary for the enjoyment and

reasonable use of a tract. The courts will look for a common grantor and if an alternative means

of access is available. Usually only availability is considered, not cost or convenience. The

easement will only exist for the period it is necessary.

Easement by prescription - an easement by prescription has pretty much the same

requirements as those necessary to claim land by adverse possession. First the use must be

open and notorious. This simply means the use isn’t hidden from the true owner or the public.

Secondly the use must be adverse or hostile which means the claim of the person using the

easement is adverse to the claim of the true owner. The use must be continuous and in some

jurisdictions that can be seasonal. In other areas seasonal use does not constitute continuous

use. Continuous use can be tacked to a previous owner. The use must also be for a statutory

period. This period is usually the same as for adverse possession. The element often different

from adverse possession claims when compared to prescriptive easement clams is exclusive

use although some states (Tennessee) include this.

Easements can be terminated by an agreed upon release by all the parties involved. They can

also be terminated by merger. When a dominant estate acquires a servient estate the easement

benefiting the dominant estate is extinguished. Basically a person can never have an easement

across themselves. If the estates are one again split the easements aren’t revived. Destruction

of the land due to erosion can terminate an easement. When an easement is overburdened by a

use inconsistent with the original use an easement can be terminated. An easement can be

terminated by abandonment. This means more than just nonuse. The entity having the

easement right must act in a way so as to indicate the easement will never be used again.

IN THE COURT OF APPEALS OF TENNESSEEAT NASHVILLE

August 8, 2008 Session

ERVIN D. SMITH, ET AL. v. PAUL EVANS, ET AL.

Appeal from the Chancery Court for Montgomery CountyNo. MC-CH-CV-MG-07-1 Laurence M. McMillan, Jr., Judge

No. M2007-02855-COA-R3-CV - Filed August 27, 2008

Owners of property brought suit to terminate an ingress/egress easement across their land,contending that the necessity for the easement no longer existed. Following a trial, the ChanceryCourt ruled against the owners, finding that since the easement was reserved in a recorded plat, itwas not an easement by necessity; consequently, the easement was not destroyed upon the sale ofthe dominant estate. On appeal, the owners maintain that the easement was destroyed at the end ofthe necessity. Finding the easement to be express, we affirm the decision of the Chancery Court.Finding the appeal not to be frivolous, no attorney’s fees are awarded.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., andANDY D. BENNETT, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellants, Ervin D. Smith and Donna Smith.

Joe Weyant, Clarksville, Tennessee, for the Appellees, Paul Evans and Danielle Evans.

OPINION

Prior to 1992, the Donald C. Cook Construction Co., Inc. owned a large plot of land locatedin Montgomery County. In December 1992, Donald Cook, as president of the company, receivedapproval of a plat which divided up part of the property into tracts varying from 1.5 to 2.19 acres,all fronting on the east and west sides of Sawmill Road; the lots were made available for sale. Mr.Cook retained ownership of a 14.2 acre tract of land immediately behind the lots which fronted onthe west side of Sawmill Road (the “Cook Property”). To ensure access to the Cook Property, he

Without reserving the easement, the 14.2 acre parcel would have been landlocked from public access roads1

by the tracts created in the plat to the east and by pre-existing tracts of land to the west (none of which were owned by

Mr. Cook). The parties agree that, at the time the plat was created, the easement was necessary to ensure access between

the Cook Property and Sawmill Road.

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reserved a 20 foot ingress/egress easement over lot 5 of the subdivision; this easement was includedin the recorded plat and allows access to Sawmill Road.1

In May 1994, Ervin and Donna Smith (“the Smiths”) purchased lot 5. At the time of thepurchase, they were aware of the easement even though it was not mentioned in their deed. Inaddition, their deed expressly provided that the conveyance was subject to the “terms, matters andconditions” as shown on the recorded subdivision plat. Paul and Danielle Evans (“the Evanses”)owned property which adjoined the western side of the Cook Property and which fronted on ChesterHarris Road; their homeplace was located on this property. The Cook Property lay between theSmiths’ property and the Evanses’ property. In October 2000 the Evanses purchased the CookProperty; as a result of their purchase, access from the Cook Property to Chester Harris Road wasnow available across the Evanses’ homeplace lot.

In February 2007, the Smiths filed suit in Chancery Court for Montgomery County seekingto terminate the easement over their property, asserting it was an easement by necessity which wasextinguished when the Evanses purchased the Cook Property. The Evanses contended that theeasement was express in the plat and thus was not terminated by the end of the necessity. Followinga trial, the Chancery Court found that the easement continued to exist. This appeal followed.

STANDARD OF REVIEW

Both parties agree as to the facts of this case; consequently, the appeal concerns a questionof law. The standard of review on appeal of a question of law is “de novo without a presumptionof correctness afforded to the lower court’s conclusions of law.” Blair v. Brownson, 197 S.W.3d681, 683 (Tenn. 2006); Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn. 2003).

ANALYSIS

I. The Nature of the Easement

An easement is “an interest in property that confers on its holder a legally enforceable rightto use another’s property for a specific purpose.” Hall v. Pippin, 984 S.W.2d 617, 620 (Tenn. Ct.App. 1998); see also Fowler v. Wilbanks, 48 S.W.3d 738, 740 (Tenn. Ct. App. 2000); Pevear v.Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). Such an interest in land can be created in anumber of ways; the methods applicable to the present case are (1) by express grant, (2) byimplication, and (3) by reservation. Pevear, 924 S.W.2d, at 115.

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An express easement is a grant of an interest in land which must comply with therequirements of the statute of frauds at Tenn. Code Ann. § 29-2-101. Cellco P’ship v. ShelbyCounty, 172 S.W.3d 574, 593 (Tenn. Ct. App. 2005); Mitchell v. Chance, 149 S.W.3d 40, 47 (Tenn.Ct. App. 2004); Nunnelly v. Southern Iron Co., 29 S.W. 361, 365-66 (Tenn. 1895). “To create aneasement by express grant, there must be a writing containing plain and direct language evincing thegrantor’s intent to create a right in the nature of an easement rather than a license.” 25 Am. Jur. 2dEasements and Licenses § 15 (2008); Adcock v. Witcher, 1995 WL 675852 at *2 (Tenn. Ct. App.Nov. 15, 1995). “The scope of such an easement is set forth in express terms, either in the grantingdocuments or as matter of incorporation and legal construction of terms of relevant documents...”25 Am. Jur. 2d Easements and Licenses § 15. An easement reserved in a recorded plat is sufficientto constitute an express easement. Moore v. Queener, 464 S.W.2d 296, 302 (Tenn. Ct. App. 1970);see also Jacoway v. Palmer, 753 S.W.2d 675 (Tenn. Ct. App. 1987); Smith v. Black, 547 S.W.2d 947(Tenn. Ct. App. 1976).

An easement by implication is an easement that will “arise upon severance of a single pieceof land into separately owned parts as an inference of an intention of the parties to the conveyance.”Cellco P’ship, 172 S.W.3d at 588-89 (citing Barrett v. Hill, 1999 WL 802642 *2 (Tenn. Ct. App.Oct 7, 1999)); see also LaRue v. Greene County Bank, 166 S.W.2d 1044, 1048 (Tenn. 1942). “Acommon law way of necessity is a type of easement by implication and ‘rests on the implication thatthe parties intended and agreed to provide for such a way.’” Cellco P’ship, 172 S.W.3d at 591(citing Gowan v. Crawford, 599 So.2d 619, 621 (Ala. 1992)) (emphasis added). The impliedeasement arises “where it is of such necessity that we may presume it was within the contemplationof the parties to the conveyance.” Fowler, 48 S.W.3d at 740; The Pointe, LLC v. Lake Mgmt Ass’n,Inc., 50 S.W.3d 471, 478 (Tenn. Ct. App. 2000). To create an easement by necessity, a party mustshow that:

(1) the titles to the two tracts in question must have been held by one person; (2) theunity of title must have been severed by a conveyance of one of the tracts; (3) theeasement must be necessary in order for the owner of the dominant tenement to usehis land with the necessity existing both at the time of the severance of title and thetime of exercise of the easement.

Cellco P’Ship, 172 S.W.3d at 592 (citing Powell v. Miller, 785 S.W.2d 37, 39 (Ark. 1990)).

An easement by reservation is “in behalf of the grantor [of] a new right issuing out of thething granted, and an easement appurtenant to the grantor’s remaining land may be created byreservation.” 25 Am. Jur. 2d. Easements and Licenses § 16 (2008). Even though an easement byreservation is a separate type of easement, it can still be sub-categorized as being either express orimplied. Id.; LaRue, 166 S.W.2d at 1048-49; Johnson v. Headrick, 237 S.W.2d 567, 569-70 (Tenn.Ct. App. 1949). An implied easement by reservation is created over one parcel of subdivided land“where, during the unity of title, an apparently permanent and obvious servitude is imposed on onepart of an estate in favor of another part, which servitude, at the time of the severance, is in use andis reasonably necessary for the fair enjoyment of the other part of the estate...” Johnson, 237 S.W.2d

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at 569-70 (citing 17 Am. Jur. Easements pp. 945, 946). Thus, an implied easement by reservationrequires no writing; just a servitude which is apparent in light of the existing circumstances. LaRue,166 S.W.2d at 1049. An express easement by reservation “arises when a property owner conveyspart of his or her property to another, but includes language in the conveyance reserving the rightto use some part of the transferred land as a right-of-way.” 25 Am. Jur. 2d. Easements and Licenses§ 16 (2008) (emphasis added). Any reservation of an easement “is equivalent, for the purpose ofcreation of the easement, to an express grant of the easement by the grantee of the lands.” Id.

When an easement can be either express or implied, a court should find the easement to beexpress. “Easements by implications...are exceptions to the general rule that easements must becreated by either an express grant or by prescription.” Cellco P’ship, supra at 589 (citing Barrett,1999 WL 802642 at *2); see also Cole v. Dych, 535 S.W.2d 315, 318 (Tenn. 1976). The court inCellco P’ship held that, where a deed did not expressly grant an easement, the Court must resort toalternative theories to determine “whether an easement was nevertheless created.” Id. at 588. Thealternative theories referred to were easements by implication. Id. Thus, a court should consider aneasement by implication only if it has determined that there is no express easement.

The Smiths argue that the substance of the easement should win out over its form and, as itwas born of necessity, the fact that it was reserved in a recorded plat does not make it an expresseasement. While they are correct that the intent of the parties is relevant in determining whether aneasement by implication arose, see Cellco P’ship, 172 S.W.3d at 588-89, an express easement willbe found if its creation is in the proper form; the intent behind the creation is not a determiningfactor. See Moore v. Queener, supra.

The Chancellor found that Mr. Cook’s intent in creating the easement was to connect thelandlocked 14.2 acre tract to Sawmill Road and that the easement over lot 5 was reserved byrecording it in the original plat. Because Mr. Cook, as grantor, retained an interest over the land thathe granted (lot 5), an easement arose by reservation. Furthermore, Mr. Cook expressly reserved theeasement when he included it in the subdivision drawing and language of the recorded plat. All therequirements of an express easement were met.

II. The Termination of the Easement

We must next determine whether the easement was destroyed when the Evanses bought theCook Property or in any other fashion. There are a number of ways to end an express easement;however, there is no evidence that any action was taken to terminate the easement in this case.

The Smiths contend that an express easement created out of a necessity should terminate atthe elimination of such necessity, i.e., when the Evanses bought the Cook Property, thereby endingthe necessity for access to Sawmill Road. This is contrary to the law of Tennessee. In Smith v.Adkinson, 622 S.W.2d 545 (Tenn. Ct. App. 1981), the plaintiffs sought to enforce their rights to usea road between their property and property of the defendants. The defendants claimed that, at most,plaintiffs had an easement of necessity; they sought to have the easement extinguished because

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plaintiffs had acquired other property giving them access to the same road at issue. On appeal, thiscourt cited with approval “the rule that the easement ceases with the necessity has no applicationto...an express easement.” Id. at 547 (citing 28 C.J.S. Easements § 54 (1941)). This is the samesituation as in the present case.

An easement by express grant can be extinguished:

by an act of the dominant owner, either by release or abandonment, by act of theservient owner by prescription or conveyance to a bona fide purchaser without notice,by the conduct of both parties, such as by merger or estoppel, or by eminent domain,mortgage, foreclosure, or tax sale.

25 Am. Jur. 2d Easements and Licenses § 95. An easement “created by reference to a filed map canbe extinguished only by the united action of all lot owners for whose benefit the easement iscreated...” 28A C.J.S. Easements § 140 (2008). No such measures were taken in this case; indeed,the deed conveying the Cook Property to the Evanses includes the following language: “Included inthe herein conveyance is a 20 foot easement for purpose of ingress and egress over the southern mostportion of Lot 5...from the easterly boundary of the herein described tract to the westerly margin ofthe right-of-way of Sawmill Road, so-called.” The easement was not terminated when the Evansesbought the Cook Property.

III. Attorneys Fees For The Appeal

The Evanses ask this Court to award attorney’s fees based upon what they contend to be afrivolous appeal. We do not find the appeal to be frivolous and, consequently, deny the request.

The remedy for a frivolous appeal is provided in Tenn. Code Ann. § 27-1-122, which states:

[w]hen it appears to any reviewing court that the appeal from any court of record wasfrivolous or taken solely for delay, the court may, either upon motion of a party or ofits own motion, award just damages against the appellant, which may include butneed not be limited to, costs, interest on judgement and expenses incurred by theappellee as a result of the appeal.

This statute “must be interpreted and applied strictly so as not to discourage legitimate appeals...”Davis v. Gulf Ins. Group, 546 S.W.2d 583 at 586 (Tenn. 1997). The Smiths are not asking for anyfundamental changes to existing law; rather, they seek a different interpretation or application of thelaw of easements. Simply because this Court agrees with the lower court’s decision does not makethe appeal frivolous.

CONCLUSION

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For the reasons set forth above, the decision of the Chancery Court finding of an expresseasement is AFFIRMED. Costs are assessed against the Smiths, for which execution may issue ifnecessary.

___________________________________ RICHARD H. DINKINS, JUDGE

Riparian and Littoral Boundaries

Before beginning this discussion please be aware that riparian and water boundaries are a

complicated issue and the following is meant to be a brief introduction. Only surveyors that are

qualified by experience and education should undertake this type of work.

Riparian rights are rights an owner has to water or the land under the water for property that is

adjacent to rivers and streams. Littoral rights are water rights for land adjacent to a sea or lake.

These terms are used interchangeably. First let’s go over some basic definitions that are often

used when discussing water rights.

Accretion - Land forming by imperceptible degrees upon the bank or shore of a body of water.

Increase by external addition.

Reliction - Land increase by the permanent withdrawal of water.

Avulsion - A sudden and obvious separation of land by a violent action of water. An example

would be would a steam changes channels.

Thread of stream - A line midway between the banks of a stream

Thalweg - The deepest part of a channel or stream.

Typically if the boundary between two properties is a non-navigable steam the boundary line

runs along the thread or center of the main current. If the water body is navigable the boundary

usually goes to ordinary or mean low water in most states. The determination of what is

navigable is key. The Supreme Court has said..

“ The legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances

and at all times.”

311 U.S. 377 (1940) UNITED STATES v. APPALACHIAN ELECTRIC POWER CO

Navigability is usually based on if the steam can be used for commerce. If it is capable of

transporting goods in the regular course of trade it is considered navigable. This is often a

distinction that is argued in court.

The question often arises as to who owns land when the boundary of the water body changes.

The general rule is if the change occurs gradually then the boundary line changes as well. If the

change in the water body is abrupt then the boundary remains where it is. When these changes

occur and land must be apportioned to adjoining owners there are general rules but each state

has particular laws pertaining to this.

IN THE COURT OF APPEALS OF TENNESSEEAT NASHVILLE

July 13, 2000 Session

CITY OF MURFREESBORO v. PIERCE HARDY REAL ESTATE, INC.

Appeal from the Circuit Court for Rutherford CountyNo. 35319 Robert E. Corlew, Judge

No. M2000-00562-COA-R9-CV - Filed October 12, 2001

This case involves a dispute between the City of Murfreesboro and a landowner over thevalue and the acreage of a tract of land taken by the city to be used for a greenway along the StonesRiver. The city appeals the trial court’s denial of a motion in limine that the city filed to excludetestimony of the landowner’s appraiser. The motion stated that the expert’s testimony relied on aninadmissible method of valuation and should, therefore, be excluded. Additionally, the landownerappeals the trial court’s ruling that the landowner did not own a .61 acre portion of the of the landtaken because, as it sits at the bottom of a navigable waterway, it is not subject to private ownership.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit CourtAffirmed in Part, Reversed in Part, and Remanded

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J.,W.S., and ALAN E. HIGHERS, J., joined.

Thomas L. Reed, Jr., Jerry E. Farmer, Murfreesboro, Tennessee, for the appellant, City ofMurfreesboro, A Municipal Corporation in Rutherford County, State of Tennessee.

G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellee, Pierce Hardy Real Estate, Inc.

OPINION

The City of Murfreesboro condemned 2.36 acres of a 10.5 acre commercial tract that wasowned by Pierce Hardy Real Estate, Inc. (“Landowner”) and located along the West Fork of theStones River. The city desired to take, and subsequently has taken, the land for the construction ofa greenway along the river. The 2.36 acre tract is comprised of .61 acres located in the riverbed ofthe Stones River and 1.75 acres located along the embankment of the river. Landowner’s deeddescribes the property as running to the center of the river. The condemned property includes landat the bottom of the river (between the centerline of the river and the riverbank), the riverbank(including sheer bluffs), and a strip across the top of the bluffs.

1The city filed a third motion, but the trial judge’s ruling on that m otion was no t appealed by either party in th is

case.

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In the trial court, the city filed two motions which are the subject of this appeal.1 The firstwas a motion to have the testimony of Landowner’s appraiser excluded on the basis that theappraiser used an improper method of valuation. Landowner’s appraiser planned to testify that theentire tract taken by the city was valued at $70,000.00 per acre and, since the city was taking 2.36acres, the city owed just compensation of $165,200.00. The city’s motion cited the TennesseeSupreme Court decision Wray v. Knoxville, L.F. & J.R. Co., 113 Tenn. 544, 82 S.W. 471, 473(1904), and stated that the planned testimony of the expert violated its precedent and, therefore,should be excluded. The trial judge denied this motion, and the city appeals that ruling.

The second motion filed by the city was to have the West Fork of the Stones Riverrecognized as a navigable waterway. The city contended that, pursuant to Tennessee law, theriverbed of a navigable waterway is incapable of private ownership. Therefore, Landowner wouldnot be entitled to compensation for that portion of the condemned land. In support of its contention,the city asserted that the U.S. Army Corps of Engineers had given public notice that the Corps haddetermined that the waterway was navigable. Further, the city argued, such notice was dispositiveon the issue of whether the waterway was navigable and, as the federal government was assertingjurisdiction over the river, the river was navigable. The trial judge agreed, stating that “as a practicalmatter” because the federal government was asserting jurisdiction over the river, neither the Stateor a private party could claim a right to the land. Landowner appeals that ruling.

I. Standard of Review for the Trial Judge’s Ruling on Expert Testimony

The first issue before this court is whether the testimony of Landowner’s appraiser shouldbe admitted. The “trial judge, of course, has very broad discretion in the conduct of a trial, andprobably in no area does he have wider discretion than dealing with the . . . admission of thetestimony of expert witnesses.” Shelby County v. Barden, 527 S.W.2d 124, 131 (Tenn. 1975). Incondemnation cases, a trial court is allowed wide discretion when ruling on matters related to experttestimony. State Dep’t of Transp. v. Veglio, 786 S.W.2d 944, 947-48 (Tenn. Ct. App. 1989); Stateex rel. Moulton v. Blake, 357 S.W.2d 836, 838 (Tenn. Ct. App. 1961). Further, Tennessee case lawgenerally holds that the trial judge’s wide discretion extends to the “admissibility of a experttestimony as to [the] value” of the land taken in condemnation cases because the weight to be giveneach expert’s testimony is for the trier of fact. State ex rel. Dep’t of Transp. v. Brevard, 545 S.W.2d431, 436 (Tenn. Ct. App. 1976). Trial courts have broad discretion over the admission of allevidence concerning the value of condemned land. City of Johnson City v. Outdoor West, Inc., 947S.W.2d 855, 858 (Tenn. Ct. App. 1996). Our role, therefore, is to review the trial court’sdetermination on the admissibility of the proposed expert’s testimony regarding valuation of the landtaken by the city under an abuse of discretion standard. Veglio, 786 S.W.2d at 948.

The abuse of discretion standard requires us to consider (1) whether the decision has asufficient evidentiary foundation, (2) whether the trial court correctly identified and properly applied

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the appropriate legal principles, and (3) whether the decision is within the range of acceptablealternatives. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). Whilewe will set aside a discretionary decision if it does not rest on an adequate evidentiary foundation,or if it is contrary to the governing law, we will not substitute our judgment for that of the trial courtmerely because we might have chosen another alternative.

II. Motion in Limine to Exclude Testimony by the Landowner’s Appraiser

When a public entity takes land by exercise of the power of eminent domain, justcompensation must be paid to the landowners. Tenn. Const. art.1, § 21. Thus, the court’s objectivein an eminent domain proceeding is to determine and award just compensation. Love v. Smith, 566S.W.2d 876, 878 (Tenn. 1978); State v. Williams, 828 S.W.2d 397, 400 (Tenn. Ct. App. 1992). Therequired “just compensation” is the fair market value, in cash, of the land actually taken, at the dateof the appropriation. Alloway v. City of Nashville, 13 S.W. 123, 123 (Tenn. 1890); Tenn. Code Ann.§ 29-17-810. “Market value” is the “price which would be paid by a willing buyer from a willingseller at the time the land was taken.” Williams, 828 S.W.2d at 401. It is estimated as if the ownerwere willing to sell, but did not have to sell, and the taker desired to purchase, but did not have topurchase, that particular quantity of land at that place and in that form.” Brevard, 545 S.W.2d at434.

As a general rule, in determining the compensation, or the market value of the property taken,every element which can fairly enter into the question of value may be considered. 29A C.J.S.Eminent Domain § 119, at 316 (1992); Alloway, 88 Tenn. at 510, 13 S.W. at 124 (in determiningmarket value, everything that enhances or depreciates value must be considered). In arriving at fairmarket value, all attributes of the property, including reasonably available uses, are to be taken intoconsideration, without undue emphasis on a single element in relation to general value. ShelbyCounty v. Stallcup, 594 S.W.2d 392, 394-95 (Tenn. Ct. App. 1979). All of the constituent elementsof the land affect its market value. State Dep’t. of Trans. v. Woods, No. 01A01-9308-CV-00383,1994 WL 44955, at *2 (Tenn. Ct. App. Feb. 16, 1994) (no Tenn. R. App. P. 11 application filed).While the jury is limited in awarding just compensation to the range of market values establishedby the competent proof, the jury is entitled to consider all relevant factors affecting the value. Cityof Johnson City, 947 S.W.2d at 860.

To meet the objective of determining fair market value, the “trier of fact must hear proof.”State v. Cox, 840 S.W.2d 357, 363 (Tenn. Ct. App. 1991). The market value is arrived at byestimating the “specific, identical land taken by placing a value upon it. This can only be done bya statement of facts, and by opinions and estimates of parties acquainted with the land and upon suchfacts, opinions, and estimates of the land must the valuation be based.” Wray, 82 S.W. at 473.Evidence of value in a just compensation case “must be restricted . . . to the general value of the land,estimated upon consideration in a single view of all its elements of value . . . .” Brevard, 545S.W.2d at 434. The courts of this State have “followed a policy of liberality in admitting opinionevidence respecting the fair cash market value of real estate.” Smith v. Livingston Limestone Co.,Inc., 547 S.W.2d 942, 943 (Tenn. 1977).

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In the usual course of proceedings, the landowner and the taking authority produce witnesses,often experts, who testify regarding the fair market value of the property. See, e.g. Smith County v.Eatherly, 820 S.W.2d 366, 368 (Tenn. Ct. App. 1991). When an expert testifies as to the value ofthe land taken, “the jury is not required to accept or reject in toto the theory of either party, but mayarrive at its own concept of truth and justice from the evidence.” City of Johnson City, 947 S.W.2dat 859 (quoting State ex rel. Shaw v. Shofner, 573 S.W.2d 169, 174 (Tenn. Ct. App. 1978)). The juryis entitled to consider the credibility of an expert’s testimony on the value of land in light of allrelevant evidence. Id. at 859; Chambers v. Bradley County, 53 Tenn. App., 455, 461, 384 S.W.2d43, 45 (1964) (“The general rule that the weight to be given expert opinion evidence is for the juryis too familiar to justify extended citation of cases.”).

An expert witness qualified by “knowledge, skill, experience, training, or education” maytestify to scientific, technical, or other specialized knowledge if it “will substantially assist the trierof fact to understand the evidence or to determine a fact in issue.” Tenn. R. Evid. 702. A trial courtmay disallow expert testimony if the underlying facts or data show a lack of trustworthiness. Tenn.R. Evid. 703. The facts or data underlying the expert’s opinion must be “of a type reasonably reliedupon by experts in the particular field in forming opinions or inferences.” Id. In addition, the trialjudge has “wide discretion in passing upon the admissibility of expert testimony as to value.”Brevard, 545 S.W.2d at 436-37. Further, an expert witness is not disqualified to testify merelybecause he may have used some criteria in arriving at his opinion which is not altogether the standardamong appraisers. Id.

Obviously, an appraiser’s estimate of the value of the condemned portion of Landowner’sproperty would be helpful to a fact-finder whose responsibility was to set that value. In the casebefore us, the city opposes the appraiser’s testimony regarding value because of the methodology heused to arrive at that value. The attack does not, however, rest on a claim that the methodology isnot one reasonably relied upon in the field of appraisal. Instead, the City of Murfreesboro soughtto exclude the testimony of Landowner’s expert on the basis that his estimate of the value of the landtaken was arrived at by a method determined to be improper in Wray v. Knoxville, LaFallette &Jellico Railroad Co., 113 Tenn. 544, 82 S.W. 471 (1904). In that case, the Tennessee SupremeCourt determined that the trial court had used (through sustaining objections to testimony and itsinstructions to the jury) an incorrect method for valuing the specific land taken.

By the rule laid down by the learned trial judge the specific land taken is nevervalued. He directs the witnesses to value the whole tract, including the right of way,and then to value the remainder of the tract, excluding the right of way, and they arenever permitted to value the land actually taken, but only to infer, by a process ofsubtracting the value of the remainder from the value of the whole tract, what is thevalue of the part taken. But the witnesses were not permitted to value the land taken,and this is what the law says they shall do.

Wray, 113 Tenn. at 554, 82 S.W. at 473.

2The reasoning behind exc luding this type of estimation is (1) it calls for the inference of the value of the

property taken because there is no direct testimony about the value of the spec ific piece of pr operty taken and (2) it

combines the computations of value of the specific piece of property taken and damages to the remaining property due

to the taking.

3These numbers are estimations calculated from the numbers p rovided in the briefs of the p arties. They may

not be exa ct and are us ed by this cou rt strictly for explicative purpose s.

4In addition to fair compensation for property actually taken, a landowner may be entitled to “incidental

damages” to the land rem aining in his po ssession after a p artial taking. State v. Parkes, 557 S.W.2d 504 , 507 (Tenn.

1977) . Damage s to the remain ing portion o f Landow ner’s prop erty were not p led in this case.

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In the Wray decision the Tennessee Supreme Court held that an inference, or before and after,method of valuation is inappropriate. Id. A before and after method is one in which the value of theland is computed as the difference between the value of the entire tract of land before the taking andthe value the land remaining after the taking. Id.2 Thus, this method estimates any decrease in thevalue of the land remaining, not the value of the land taken.

The city equates the appraiser’s methodology herein with the before-and-after valuation ofthe untaken portion of a parcel disallowed in Wray. We respectfully disagree with thatcharacterization. In support for its request the city cites the Wray decision for the proposition that“[t]he Wray Court held that taking a per acre value for an entire tract, then subtracting the value ofthe remainder from the value of the whole to arrive at the value of the part taken is an incorrectmethod of valuation” (emphasis added). However, the court in Wray stated that it was improper fora trial judge to instruct the jury that “the whole tract must be first valued at what it was worth beforethe railroad touched it and again after the right of way was carved out, and the difference wouldrepresent the value of the part taken and appropriated.”

In the present case, Landowner’s appraiser planned to testify that the value of the 2.36 acrestaken by the city was $165,200. That estimate is based upon his opinion that the value of the entiretract of land owned by Landowner was $735,000.003 and that the total property was 10.5 acres;therefore, the property was worth $70,000.00 per acre. Since the city was taking 2.36 acres of landthat was worth $70,000.00 per acre, the value of the land taken by the city was $165,200.00. Thismethod does not constitute consideration of the decrease in value of the remaining portion ofLandowner’s property; rather, it seeks to value the specific piece of land condemned. Accordingly,this testimony does not violate the holding in Wray.

The aim of the court in Wray was to prevent testimony that combined an assessment ofdamages to the land remaining with an assessment of the value of the land taken. The testimony ofthe expert in the present case does not combine these figures.4 Having determined that the proposedtestimony is admissible under the Wray holding, we find no basis for reversing the trial court in itsexercise of its broad discretion to determine the admissibility of testimony of experts. Brevard, 545S.W.2d at 436-37. The methodology used by the appraiser goes to the weight to be given his opinionof the value of the land taken, and the trier of fact is the final arbiter as to the credibility and weight

5To the extent the city’s real problem is a methodology which values all the ac res on Lan downer’s p roperty

equally, the city is free to cross examine the appraiser regarding those issues and to present expert testimony of its own

to contradict the value estimated by Landowner’s appraiser.

6The city also included in its motion in limine regarding L andown er’s expert’s testimony a request that if the

trial court allowed the expert’s testimony that it, “[i]n the alternative . . . disallow any testimony bas ed on the c ompara ble

sales used in [the expert’s] report.” The city made its objection on the ground that such testimony would not be relevant,

and the trial court characterized it as based on the theor y that the comp arables use d by the app raiser “are no t sufficiently

compa rable to the lan d in question .” The trial court actually granted the city’s motion, but stated that “it appears that

upon direct examination, no party should be entitled to discuss with their exper t witnesses com parable sa les specifically,

because in fact everyone of land is unique, and the fact that anoth er parcel . . . sold for som e dollar valu e is hearsay . .

. ” and would be excluded on grounds of relevance. The court further stated that “[t]he opportunity to explore such

comparable sales rests with the party who cross-examines the expert witne ss should that p arty seek to attack the bas is

for the opinion of the expert stated on direct.” This court has stated that “[a]s to value, the expert witness may expre ss

his opinion and then state the basis on which he arrived at that opinion, but the answers given to the questions on cross-

examination may be loo ked to by the Court . . . in evaluating the opinion expressed by the [expert].” Brevard , 545

S.W.2d at 437. The city has argued the “comparable sales” issue in its brief. However, we decline to address the question

of the admissibility of potential testimony which may or may not be elicited by the city on cross-examination of

Landow ner’s expert. Further, the city’s motion was granted, and the city’s application for interlocutory appeal was

granted by the trial court and by this court to review “the method of . . . valuation” used by the appraiser.

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of testimony.5 Davidson County Bd. of Educ. v. First Am. Nat’l Bank, 301 S.W. 2d 905, 911 (Tenn.1957). We affirm the trial court’s exercise of its discretion in allowing the testimony ofLandowner’s expert.6

III. Motion in Limine Regarding the Navigable Waterway

The city also filed a motion in limine to preclude Landowner from introducing evidenceregarding the value of .61 acres which is part of the 2.36 acre tract condemned by the city. That .61acres is part of the riverbed of the West Fork of the Stones River and is under water. The city assertsthat the river is a navigable waterway and, pursuant to Tennessee law, the riverbed of a navigablewaterway cannot be held by a private party. Therefore, the city asserts, Landowner is not entitledto compensation for land it cannot own or convey.

As proof that the West Fork of the Stones River is a navigable waterway, the city relies ona public notice posted by the US Army Corps of Engineers, dated May, 8, 1986, which includes a“List of Navigable Waters of the United States within the Nashville District.” The list of navigablewaters includes “West Fork, Stones River.” The city argues that this public notice is conclusiveevidence that the West Fork Stones River is navigable.

In Tennessee, where a waterway is “navigable” in the legal sense, it is deemed to be held bythe state in trust for the citizens. State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158S.W. 746, 752 (Tenn. 1913). As such, neither the waters nor the lands underlying them are capableof private ownership. Id. at 747. “Under Tennessee law title to the bed of a navigable stream, to thelow-water mark is publicly held and belongs to the State.” Uhlhorn v. Kaltner, 637 S.W.2d 844, 846

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(Tenn. 1982). The legal consequences of a determination that a waterway is navigable, in the legalsense, are well settled.

The only question for determination is whether Reelfoot Lake is a navigable body ofwater in the technical legal sense of that term. If it is, we think it is beyond disputeupon the authorities that neither the waters nor the lands underlying them are capableof private ownership. If it is not, and is navigable only in the common or ordinaryacceptation of the term, then both the waters and the lands underlying them arecapable of private ownership, and belong to the defendants.

Cates, 127 Tenn. at 580, 158 S.W. at 747.

To be a “navigable” such that it invokes the prohibition on private ownership, a waterwaymust, in its ordinary state, be capable of and suited to navigation by vessels employed in the ordinarypurposes of commerce. Cates, 127 Tenn. at 584-86, 158 S.W. at 749. The determination of whethera waterway meets the definition, and is, therefore, navigable is one of fact to be determined by thejury. Southern Ry. Co. v. Ferguson, 105 Tenn. 552, 562-63, 59 S.W. 343, 346 (Tenn. 1900).

The issue of whether the Stones River is a navigable waterway was not determined herein,however, on the basis of a factual record. Instead, the trial court found:

The rule in Tennessee has always been that the question of navigability of a streamis one of fact which must be determined by a jury. Where the federal government,however, has previously determined a stream to be navigable, it appears that from apractical standpoint, one who seeks to assert his possession of the land lying underthe navigable stream would be prevented from doing so by virtue of federalenactments controlling those streams. Thus, where the federal government isexercising jurisdiction over the portion of the Stones River in question, neither theState nor the City, and certainly not a private landowner has any authority to exercisedomain over that soil covered by the navigable waterway, and thus from a practicalstandpoint, it appears that the landowner in this cause should be prevented fromintroducing proof concerning that land below the low water mark of the river.

Thus, the issue before us is whether a determination by the federal government, or moreaccurately its agent the Corps of Engineers, that a waterway is navigable for federal purposespreempts state authority to determine whether that waterway is navigable in the legal sense with statelaw consequences to ownership interests. Because this issue presents a question of law, we reviewthe trial court’s decision de novo. Tenn. R. App. P. 13(d).

We begin by examining the Corps of Engineers’ own statement of the authority and effectof the Public Notice which is the basis for the city’s motion and the trial court’s decision. Thatnotice provided, in pertinent part:

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The Corps of Engineers, under delegated authority from the Secretary of the Army,is responsible for the protection and preservation of all waters of the United Statesincluding navigable waters of the United States. . . . The term “navigable waters ofthe United States” is defined as those waters which are presently used, or have beenused in the past, or may be susceptible for use to transport interstate or foreigncommerce.

The definition used by the Corps is that contained in 33 C.F.R. § 329.4 (2001), part of theRivers and Harbors Act of 1899. The authority of the Corps of Engineers over navigable waters ofthe United States is grounded in that Act, 33 U.S.C. §§ 401 et seq. The Act was originally passedto protect interstate commerce in navigable waters, and it is the basic legislation for controlling workand activities in navigable waters of the United States. Under the Act, the Chief of Engineers andthe Secretary of the Army must approve all plans and specifications for the placement of structuresand other works in the waterways which fit the legislative definition of “navigable waters of theUnited States.” 33 U.S.C. § 401 (2001); 33 C.F.R. § 329.4 (2001) (stating the definition ofnavigable waters). Obstruction or alteration of such waters is prohibited without a permit from theCorps of Engineers. 33 U.S.C. § 401 (2001).

Federal law gives the Corps of Engineers the power to declare waterways navigable for thepurpose of furthering its mission, and this declaration is “binding in regard to the activities of theCorps of Engineers.” 33 C.F.R.§ 329.9 (2001). However, “precise definitions of ‘navigable watersof the Untied States’ or ‘navigability’ are ultimately dependent on judicial interpretation and cannotbe made conclusively by administrative agencies.” 33 C.F.R. § 329.3 (2001). See Miami ValleyConservancy Dist. v. Alexander, 692 F.2d 447, 451 (6th Cir. 1982) (holding that the Corps ofEngineers “failed to prove that [portions of the Miami] River and its tributaries are navigable” );United States v. Harrell, 926 F.2d 1036, 1039 (11th Cir. 1991) (holding that the Corps of Engineersincorrectly determined that Lewis Creek was a navigable waterway). The regulations governing theCorps of Engineers make the same point clearly:

Although conclusive determinations of navigability can be made only by federalCourts, those made by federal agencies are nevertheless accorded substantial weightby the courts.

33 C.F.R. § 329.14 (emphasis added).

Because a determination by the Corps of Engineers that a particular waterway is a “navigablewater of the United States” is not binding on a federal court called upon to make that legal decision,such agency determination cannot be binding on Tennessee courts on the question of whether awaterway is navigable in the legal sense, under state law, so as to affect ownership rights. For thatreason, we disagree with the trial court’s conclusion that the agency’s public notice precludes judicialdetermination of navigability. While such a determination by the Corps may be accorded substantialweight, Landowner is entitled to introduce contrary proof and to question the Corps determinationand the procedures used to reach it. Miami Valley Conservancy Dist., 692 F.2d at 449-50; Harrell,926 F. 2d at 1043-44 (the letter from the Corps of Engineers “fall far short of a determination of

7In Muncie Pulp Co., 119 Tenn. at 94-95, 104 S.W. at 449, our Supreme Court described the consequence of

the Mississippi River having be en declared a navigab le water of the United States by Co ngress as follows:

The comme rce clause o f the Constitution of the United States, all other things aside, affords ample protection

to the right of every citizen to the free navigation of the river, whether the current be in one state or the other,

without fear or hindrance or b urdens imposed by such states.

In addition , in Cates, 158 S.W. at 749, our Supreme Court stated:

The chief importanc e of determ ining whether R eelfoot Lak e is navigable in the technical legal sense does not

concern its use as a public highway for comm erce, but is in reg ard to the res pective rights of the public and

private person in the use and ownership of its waters and the lan ds subme rged by them . It is primarily a

question of dominion and ownership, rather than one of commerce and travel. The r ight of the pub lic to use

its waters as a highw ay for comm erce is prec isely the same . . . .

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navigability required by 33 C.F.R. § 329.14”and was not entitled to substantial weight, citing theprocedures required by 33 C.F.R. § 329.14(b)).

The record before us does not include any reference to a federal court determination that theWest Fork of the Stones River is a navigable water of the United States. We are not convinced,however, that a determination of navigability for federal regulatory purposes equates to a finding ofnavigability to state law purposes. Through the commerce clause of the United States Constitution,Congress has authority to legislate with respect to navigable waters to the extent commerce isconcerned. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 595, 61 S. Ct. 772, 775(1941); see also State v. Muncie Pulp Co., 104 S.W. 437, 449 (Tenn. 1907). The federalgovernment has paramount or dominant control over navigable waters used in interstate commercefor purposes of and to the extent necessary to protect interstate commerce. U.S. v. Rands, 389 U.S.121, 123, 88 S. Ct. 265, 226 (1967); Day v. Armstrong, 362 P.2d 137, 143 (Wyo. 1961). Thatcontrol, however, involves use of the waterway, not ownership of the soil beneath it. “This powerto regulate navigation confers upon the United States a ‘dominant servitude.’” Rands, 389 U.S. at123, 88 S. Ct. at 267. The Rivers and Harbors Act has no effect on or application to questions ofownership of the land under the waterway.

The ownership of the bed and banks of navigable waters within astate ordinarily is governed by state law, subject to the paramountpower of the United States to ensure that such waters remain free forinterstate and foreign commerce. The ownership of such lands, asbetween the state and riparian owners, is determined according to thelocal law of the state in which they are situated.

65 C.J.S. Navigable Waters § 106, at 183 (2000). Navigable waters of the United States are public,7

and their use cannot be interfered with by the state or the riparian owners. The federal government’sparamount control over such waters is defined by the commerce clause. Chicago, M., St. P. & P.R.Co., 312 U.S. at 595-96, 61 S. Ct. at 775. However, other than on lands owned by the United States,title of navigable waters, and the soil beneath them, lies in the states. Donnelly v. United States, 228

8The city argues that the state legislature’s adoption of Tennessee Code Annotated § 69-1-11 7 constitutes state

recognition of the navigability of waterways which are subject to the Rivers and Harbors Act. We respectfully disagree.

That statute is part of a chapter on watercourses which begins with the statement th at all navigable waters are p ublic

highways. That provision has been determined to be merely a statement of the common law, and, even without the

statute, commo n law forbid s the obstruc tion of naviga ble streams. Southern Ry. Co., 105 Tenn. 552, 562, 59 S.W. 343,

345 (1900). The remainder of the chapter deals primarily with keeping such waterways open for navigation. To that

end, Tennessee Code Annotated § 69-1-117 prohibits any project which may impair the navigability of any waterway

in the state without a permit issued by the state department of environment and conservation. Tenn. Code Ann. § 69-1-

117(a). The portion of that statute upon w hich the city plac es significance sim ply states that any wa terway subje ct to

the Rivers and Harbors Act is exempt from the permit requirements. We interpret that provision merely as recognizing

the Corps o f Engineers p ermitting autho rity for those wate rways cove red by that A ct. To the extent that the statute can

be read as de ferring authority to the federal government, it relates only to permitting authority. We find no legislative

intent to grant au thority to determ ine ownersh ip rights unde r state law to an a gency of the fed eral govern ment.

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U.S. 243, 260, 33 S. Ct. 449, 454 (1913). Consequently, a state may decide the ownership ofsubmerged lands, irrespective of any federal determination of the navigable or nonnavigablecharacter of the waters above them. Day, 362 P.2d at 141.

Whether, under local law, the title to the bed of the stream is retainedby the State or the title of the riparian owner extends to the thread ofthe stream, or, as in this case, to low water mark, the rights of the titleholder are subordinate to the dominant power of the federalgovernment in respect of navigation.

Chicago, M., St. P. & P.R. Co., 312 US at 596, 61 S. Ct. at 775 (emphasis added). In making adetermination of ownership, the state may apply its rules regarding ownership of submerged lands.Donnelly, 228 U.S. at 260, 33 S. Ct. at 454. In Tennessee, that determination is fact based.

Therefore, we conclude that the question whether the West Fork of the Stones River is anavigable water of the United States does not necessarily determine the ownership, as a matter oflaw, of the riverbed.8 Nonetheless, we recognize the inherent rationality of the trial court’sobservations regarding the relationship between navigability for federal law purposes andnavigability for state law purposes. We interpret the trial court’s statements as a recognition that awaterway which meets the definition of “navigable waters of the United States” will also benavigable under Tennessee’s definition. The definition of “navigable waterway of the United States”has been considered often in federal courts, and can be summarized as follows:

The test of navigability has been stated and restated by the federal courts for the lastone hundred years. Navigability has been defined in countless ways but its essentialelements have remained constant. The District Court here properly identified theseelements: A navigable waterway of the United States must (1) be or have been (2)used or susceptible of use (3) in the customary modes of trade and travel on water (4)as a highway for interstate commerce.

Miami Valley Conservancy Dist., 692 F.2d at 450.

9We do not hold tha t a reduction of the amount of land actually taken would result automatically in a

concomitant reduction in the value of the land taken. That issue remains to be decided by the jury who is to determine

the just comp ensation du e Lando wner in light of all rele vant circums tances.

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Thus, there is logic to the assumption that a waterway which is used or usable for travel ininterstate commerce would also be navigable for purposes of commerce within the state. We do notdisagree with the trial court’s assessment of the practicality of a factual determination that the WestFork of the Stones River is a navigable waterway of the United States. However, there is no proofin the record before us regarding the navigability of the river at all, except for the Public Noticeissued by the Corps of Engineers.

Accordingly, we reverse the trial court’s order finding that the West Fork of the Stones Riveris navigable and, thus, its riverbed is not subject to private ownership. The determination ofnavigability is still an issue for the trier of fact based upon evidence relevant to that determination.

However, we agree with the city that if the West Fork of the Stones River is determined tobe navigable, Landowner is not entitled to compensation for that portion of the condemned landbeyond the low-water mark, because there can be no private ownership rights in the riverbed.

In this state it has long been established that grants of land lying upon navigablestreams extend to the ordinary low water mark only, and that the title to the bed ofsuch streams remains in the state. . . . If a water course be navigable in the legalsense, the soil covered by the water, as well as the use of the stream, not only belongsto the public but is not subject to entry or grant as other land.

Cunningham, 28 Tenn. App. at 651, 192 S.W.2d at 341 (citations omitted). Thus, any deed toLandowner which purported to include land under the river, if that river is determined to benavigable, must be read as conveying only that property extending to the low water mark.

Landowner has argued that, even if a portion of the condemned land lies under a navigablestream, the city cannot avoid paying for that portion because the city has already condemned theproperty and cannot “uncondemn” that portion. Landowner is mistaken its interpretation of theconsequence of a determination that the river is navigable. If that is the case, the disputed portionof land under the riverbed belongs to the State, to be held in trust for the public. Such publicly heldproperty is not subject to condemnation by a municipality. Therefore, if the Stones River isnavigable, any attempt by the city to condemn the land belonging to the state was a nullity. The cityis not “uncondeming” the property; rather, the property was never actually condemned.

We remand the issue of whether the river is navigable, in the legal sense, for evidence on thatissue and, consequently, a determination, if it becomes necessary, regarding whether a portion, andwhat portion, of Landowner’s property condemned by the city is incapable of private ownershipbecause the river is a navigable waterway.9

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In summary, we affirm the trial court’s ruling on the admissibility of the testimony ofLandowner’s appraiser regarding the value of the condemned property. We reverse the trial court’sholding that Landowner is precluded from claiming ownership of land under the river and remandfor a hearing on that issue. Costs are taxed to the City of Murfreesboro.

__________________________________________PATRICIA J. COTTRELL, JUDGE

IN THE COURT OF APPEALS OF TENNESSEEAT JACKSON

September 20, 2000 Session

THE POINTE, LLC, ET AL. v. LAKE MANAGEMENT ASSOCIATION,INC.

A Direct Appeal from the Chancery Court for Shelby CountyNo. 98-0972-I The Honorable Walter L. Evans, Chancellor

No. W2000-00211-COA-R3-CV - November 6, 2000

This appeal arises from a declaratory judgment action to determine rights in a privately-owned lake. Plaintiffs purchased land adjacent to the artificially-created lake for the purpose ofdeveloping residential lots. Subsequent to the sale of the property, Plaintiffs’ grantor conveyed titleto the lake to Defendant. Defendant claims it has the right to control use of the lake and thatPlaintiffs have no right to lake access without Defendant’s permission. The trial court grantedDefendant’s motion for summary judgment on the grounds that: (1) the lake is unnavigable, and noriparian rights can therefore flow to adjoining landowners; (2) the Defendant, as owner of the landsubjacent to the lake, has a right to the unimpeded use and control of the property; and (3) any useof the lake by the adjoining property owners without Defendant’s consent would constitute a

trespass. Plaintiffs appeal.

Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court is Vacated;Summary Judgment Granted to Plaintiffs; Remanded

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER,J. and HOLLY KIRBY LILLARD, J., joined.

David L. Leake, Memphis, For AppellantsDavid M. Dunlap, Memphis, For Appellants

Robert A. Cox; James F. Horner, Memphis, For Appellee

OPINION

Plaintiffs, The Pointe, LLC, Sean T. Aldridge and John H. Thomas, appeal the order of thetrial court granting Defendant, Lake Management Association, Inc., summary judgment and denyingPlaintiffs’ motion for summary judgment. Plaintiffs filed a declaratory judgment suit to determine

1In late 1997 , Madd ox conve yed his half-interest in the Property to Plaintiff John H. Thomas (“Thomas”).

Aldridge, Thomas and another investor later formed The Pointé, LLC, for the purpose of developing the Prop erty into

a fifty-lot residential development to be known as “The Pointé at Lakeland” (the “Development”).

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their rights under a warranty deed to undeveloped land adjacent to a privately-owned, man-madelake located in Shelby County, Tennessee. The trial court granted Defendant’s motion for summaryjudgment, finding that: (1) because the lake is not navigable, no riparian rights flow to adjoininglandowners; (2) the Defendant owns the lake and has a right to the unimpeded use and control of theproperty; and (3) any use of the lake by the adjoining property owners without Defendant’s consentwould constitute a trespass.

On December 17, 1993, Plaintiff Sean T. Aldridge (“Aldridge”) and his partner, Glen AllenMaddox (“Maddox”)1 purchased a 30 acre parcel of land located in Lakeland, Tennessee (the“Property”) from Lakeland Development Corporation (“LDC”). The Property is situatedimmediately adjacent to Garner Lake (the “Lake”), a 247-acre, man-made lake created in the late1950's or early 1960's, also owned by LDC. Garner Lake was created through the use of an earthendam across a stream known as “Scotts Creek.” In addition to water from the creek, LDC createdseveral wells which tap into an aquifer to provide the water needed to keep the lake at an elevationof approximately 352 feet.

At the time, the Lake was created, LDC owned substantially all of the real property adjacentto and under Garner Lake and, until approximately 1982, LDC was the sole developer of land aroundthe Lake. During that time, LDC developed several residential subdivisions adjacent to the Lake,using the Lake as the focal point of the development plans. In 1982, LDC began to sell off bulkparcels of undeveloped property adjacent to Garner Lake. LDC sold the last such undevelopedparcel to Plaintiffs. The deed (the “Base Deed”) to Plaintiffs contains no restrictions regarding useof the Lake, and specifically grants to Plaintiffs “all of the appurtenances and hereditamentsthereunto belonging.”

Five months after the sale of the Property to Plaintiffs, LDC conveyed title to the propertyunderneath the Lake to Defendant, Lake Management Association, Inc. In January of 1996,Defendant filed for record in the Register’s Office of Shelby County a document entitled“Declarations, Easements, and Reciprocal Use Agreement for the Garner Lake, Lakeland, ShelbyCounty, Tennessee” (the “Declaration”). The Declaration, filed after Plaintiffs’ Base Deed wasrecorded, is a unilateral document which seeks to impose certain restrictions and fees relating to theuse of the Lake on “all real property owners which adjoin Garner Lake.”

In response to Defendant’s filing of the Declaration, Plaintiffs filed a Complaint forDeclaratory Judgment in Shelby County Chancery Court seeking a determination that they had theright to unrestricted access to and use of the Lake through their deeds to the adjoining property.Both parties filed motions for summary judgment. On January 18, 2000, the Chancellor entered anorder denying Plaintiffs’ motion for summary judgment and granting the Defendant’s motion forsummary judgment. Plaintiffs appeal.

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The sole issue for appeal is whether the trial court erred in denying Plaintiffs’ motion forsummary judgment and in granting Defendant’s motion for summary judgment. To decide the issue,we must determine if Plaintiffs are entitled to the unrestricted use and enjoyment of the Lake through

their Base Deed to property adjoining Garner Lake. The habendum clause of the deed in controversy

provides in pertinent part:

TO HAVE AND TO HOLD the aforesaid real estate, together withall the appurtenances and hereditaments thereunto belonging or in anywise appertaining unto the Grantee, Grantee’s heirs and assigns, infee simple forever . . . .

The facts are undisputed, and the issue concerns the interpretation and legal effect of thePlaintiffs’ deed. Issues relating to the interpretation of written instruments involve legal rather thanfactual issues. See Rapp Constr. Co. v. Jay Realty, 809 S.W.2d 490, 491 (Tenn. Ct. App. 1991).These essentially legal questions can be resolved using summary judgment when relevant facts arenot in dispute. See Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn. Ct. App. 1992).

A motion for summary judgment should be granted when the movant demonstrates that thereare no genuine issues of material fact and that the moving party is entitled to judgment as a matterof law. Tenn. R. Civ. P. 56.03. Summary judgment is only appropriate when the facts and the legalconclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms,900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumptionof correctness regarding a trial court's grant of summary judgment. See Bain v. Wells, 936 S.W.2d618, 622 (Tenn. 1997). Therefore, our review of the trial court’s grant of summary judgment is denovo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

Plaintiffs provide three theories under which this Court should find that they have the legalright to unrestricted use of Garner Lake: appurtenances; riparian rights; and implied easements.These theories are closely related and all describe the means by which a property owner is entitledto the use of something which adds to the enjoyment or benefit of his property. We hold thatPlaintiffs acquired the right to freely use and enjoy Garner Lake by virtue of riparian rights as anappurtenance to their property in the form of an implied easement.

Black’s Law Dictionary describes an appurtenance as something which “is by right used withthe land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air, or heatfrom or across the land of another.” Black’s Law Dictionary, 103 (6th ed. 1990). The TennesseeSupreme Court has defined an appurtenance as:

“That which belong to something else; adjunct; appendage; an accessory; somethingannexed to another thing more worthy; * * * in common parlance and legalacceptation, something belonging to another thing as principal and passing asincident to it, as a right of way or other easement to land.”

2“Strictly speaking, a riparian owner is one whose land abuts upon a river and a littoral owner is one whose land

abuts upon a lake or sea. However, current usage . . . has been said to have made the term ‘riparian’ an acceptable term

as to land abutting upon either rivers or lakes.” 78 Am Jur 2d Waters § 260 (1975).

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La Rue v. Greene County Bank, 166 S.W.2d 1044, 1047 (Tenn. 1942) (quoting Webster’sInternational Dictionary). See also Mattix v. Sweptson, 155 S.W. 928, 930 (Tenn. 1913).

Whether an appurtenance is treated as an incident of ownership of property, or as aneasement passing with property, it is clear that the grant of an appurtenance in a deed is meant toenhance the value and enjoyment of the property. The United States Supreme Court, in Hardin v.Jordan, 40 U.S. 371 (1891), noted that the inherent value in riparian2 land is in its proximity andaccessibility to the water. This inherent value gives rise to a presumption that, when a grantorconveys property adjacent to water, the right to use and enjoy that water passes with the grant. Asthe Court observed in addressing the issue of ownership in property underneath an Illinois lake:

When land is bounded by a lake or pond, the water . . . isappurtenant to it; it constitutes one of the advantages of its situation,and a material part of its value, and enters largely into theconsideration for acquiring it. Hence the presumption is that a grantof land thus bounded is intended to include the contiguous landcovered by water.

140 U.S. at 390 (emphasis added).

Tennessee law also recognizes such a presumption. In La Rue, the Tennessee SupremeCourt noted the general rule that a grantor conveys to his grantee “every interest necessary [to theproperty’s] complete enjoyment, including all apparent and necessary easements.” 166 S.W.2d at1048. In Cox v. Howell, 65 S.W. 868 (Tenn. 1901), a case in which a mill owner sought to preventan upper riparian owner from interfering with the stream which powered the mill, the Court wrotethat:

When the Defendant sold to complainant his right and interest in themill, it carried with it all the easements and appurtenances necessaryto its operation as they existed when the sale was made, and theDefendant has no legal or equitable right to disturb the flow andsupply of water as they then existed; . . .

Id. at 871. The Court in Cox also recognized that riparian land derives part of its value from itsproximity to water, noting that, “It fully appears that any diminution of the flow of the water. . .would lessen the value of the mill and prove to that extent an injury to the complainant.” Id. Courtsin other jurisdictions have also recognized that water is appurtenant to riparian land and its value isdependent upon access to that water. See Yellowstone Valley Co. v. Associated Mortgage Investors,Inc., 290 P. 255, 258 (Mont. 1930) (recognizing that water rights were appurtenant to land and that,

3Examples of this type of navigable body of water include the Great Lakes and the Mississippi River.

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without irrigation, the land was of little value); Griesinger v. Klinhardt, 9 S.W.2d 978, 981 (Mo.1928) (noting that an artificial lake was appurtenant to plaintiff’s property, and that plaintiff’sproperty would be “practically worthless” if defendant were allowed to lower the level of the lake).

In this case, we agree with Plaintiffs that the Lake is an appurtenance to the adjoiningproperty. Plaintiffs clearly purchased the land because of its proximity to the Lake, and LDCdeveloped existing subdivisions with the Lake as a focal point of the development scheme. It isundisputed that Plaintiffs’ property is not as valuable if Defendants are permitted to control accessto the Lake, as evidenced by the fact that Plaintiffs’ bank withdrew its offer to loan Plaintiffs $2.4million to develop the land after Defendant informed the bank of its right to control the Lake.

Defendants argue that Plaintiffs do not have the right of free access to the Lake because theLake is not navigable. Navigability, however, serves only to determine ownership in the landunderneath water. See State ex rel. Cates v. West Tennessee Land Co., 158 S.W. 746, 749 (1913).A body of water which is “essentially valuable” to commerce is considered “legally navigable,”belongs to the public and cannot be privately owned.3 Id. at 749-50. On the other hand, a body ofwater which is navigable but not necessary for commerce may be privately owned, subject to a rightof access in the public. See id. A lake or stream which is considered unnavigable may be privatelyowned and controlled. See id.

Our Supreme Court has recognized riparian rights in owners of property bordering a non-navigable body of water. In Webster v. Harris, 69 S.W. 782 (Tenn. 1902), the Court, quoting fromStuart v. Clark’s Lessee, 2 Swan, 9, 58 Am. Dec., 49, said:

“If the river be a public, navigable stream in the legal sense, the soilcovered by the water, as well as the use of the stream, belongs to thepublic. But if it be not navigable in the legal meaning of the term . .. the ownership of the bed of the stream is in the riparian proprietor,but the public have an easement therein for the purpose oftransportation and commercial intercourse. A distinction is taken bythe common law between streams which in the common acceptationof the term are suited to some purposes of navigation and smallshallow streams which are not so. In respect to the former - which,though not navigable in the sense of the law, are yet of sufficientdepth naturally for valuable floatage, as for rafts, flatboats, andperhaps small vessels of lighter draught than ordinary - while it issettled that the right of property in the bed of the stream is vested inthe riparian proprietor, and in that respect it is to be regarded as aprivate river, still it is equally well settled that the public have a rightto the free and uninterrupted use and enjoyment of such stream for all

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the purposes of transportation and navigation to which it is naturallyadapted.”

Id. at 784.

In 93 C.J.S. Waters § 107 (1956), it is stated:

Although a grant of littoral land will convey no more land than theparties intended, provided such intention is revealed, the interest ofa riparian owner in the bed of a lake or pond is presumed to pass ina conveyance of the upland, in the absence of an intention to thecontrary, as disclosed either by express words of exclusion containedin the grant or conveyance or by such a description as clearlyexcludes it from the land conveyed. Although the terms of a grantmust be liberally construed in favor of the grantee, the words shouldreceive their everyday meaning, and be considered in the light of thesurrounding circumstances and the situation of the parties. No titleto submerged land will pass to a grantee of the upland where thegrantor has, in fact, no title to the land under water.

It appears that Tennessee follows this general rule. In Holbert v. Edens, 73 Tenn. 204, 209-10(1880), the Supreme Court said:

The general rule undoubtedly is that a call for the stream or bank, orobject on the bank, and then with the stream according to itsmeanders, will carry the boundary ad filum aquae [to the thread of thewater; to the central line or middle of a stream], whether the grant beby the State or a private individual. (Citations omitted).

Under these authorities, we must disagree with the trial court’s determination that there canbe no riparian rights in a non-navigable body of water. Under the rules pertaining to appurtenances,we conclude that the conveyance of upland by the owner of both the upland and the adjacent watertransfers the riparian rights absent an express provision to the contrary.

Defendant relies upon our holding in Sullivan v. Viar, 1986 WL 3334 (Tenn. Ct. App. 1986),as being controlling authority on this case. We must respectfully disagree. In Sullivan, the plaintiffand defendant were adjoining landowners, and in order to have a lake constructed by the Obion-Forked Deer Basin Authority, each executed easements for the flooding of part of their land by a lakeupon a construction of a dam for that purpose. After the lake was formed, a dispute arose as towhether the parties had the right to use the entire lake for recreational purposes or whether each partywas restricted to that part of the lake lying over the land owned by that party. This Court held thatunder the facts of that case, the parties had title to the land underlying the surface water and that eachlandowner was restricted to the use of the surface water within the boundary lines of his or her own

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property. See id. at *3. Viar has nothing to do with the conveyance of upland property by the ownerof that property and the property underlying the lake, nor does it involve riparian rights.

Defendants also rely upon Tapoco, Inc. v. Peterson, 373 S.W.2d 605 (Tenn. 1963), whereinthe owner of land underlying an artificially-created lake was granted an injunction to require ownersof houseboats to remove same from their anchorage on the lake. In Tapoco, the Court recognizedthe right of the public to use that particular lake and found that the anchoring of the houseboatsprevented or impeded public use thereof. See id. at 608. The Court noted that the houseboats weremoored on land still owned by the plaintiffs, because they were located at least 400 feet from the bedof stream as it existed prior to the construction of the dam. See id. at 607. Here again, this case doesnot involve a conveyance of property bounded by a lake or other body of water and concerning theissue of riparian rights.

Having determined that Plaintiffs did obtain water rights in Garner Lake in their deed to theProperty, we must next determine what form these rights take and the extent of the rights. Webelieve that these rights take the form of an implied easement appurtenant in the Lake which wouldinclude, among other things, the right to build docks on the lake and make use of the lake forrecreational purposes.

This Court has defined easements as “a right an owner has to some lawful use of the realproperty of another.” Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). Tennessee lawrecognizes several forms of easements, including: express easements; easements by reservation;implied easements; prescriptive easements; and easements by estoppel. Easements fall into twogeneral categories: easements in gross and easements appurtenant. See id. In Pevear, the Courtexplained the difference between easements appurtenant and easements in gross:

In an easement appurtenant, there are 2 tracts of land, the dominanttenement, and the servient tenement. The dominant tenement benefitsin some way from the use of the servient tenement. Easements ingross are simply a personal interest or right to use the land of anotherwhich does not benefit another property, or dominant estate, thuseasements in gross usually involve only one parcel. An easementappurtenant to land is favored over an easement in gross inTennessee. Goetz v. Knoxville Power & Light Co., 154 Tenn. 545,290 S.W. 409 (1926).

Id. at 116. An implied easement appurtenant should only arise where it is of such necessity that wemay presume it was within the contemplation of the parties to a conveyance. See La Rue, 166S.W.2d at 1049.

The party asserting an implied easement has the burden of showing “the existence of all factsnecessary to create by implication an easement appurtenant to his estate.” Line v. Miller, 309S.W.2d 376, 377 (Tenn. Ct. App. 1957). Under Tennessee law, those facts are:

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“(1) A separation of the title; (2) Necessity that, before theseparation takes place, the use which gives rise to the easement shallhave been so long continued and obvious or manifest as to show thatit was meant to be permanent; and (3) Necessity that the easement beessential to the beneficial enjoyment of the land granted or retained.”

Johnson v. Headrick, 237 S.W.2d 567, 570 (Tenn. Ct. App. 1948) (quoting 17 Am. Jur. Easements,pp. 945, 946). See Barrett v. Hill, 1999 WL 802642 at *3 (Tenn. Ct. App. 1999). Tennessee lawinterprets “necessity” as meaning “reasonably necessary” for the enjoyment of the dominanttenement. See, e.g., id. at 150; Line v. Miller, 309 S.W.2d 376, 377 (Tenn. Ct. App. 1957); Johnsonv. Headrick, 237 S.W.2d at 570.

In the case at bar, it is undisputed that Garner Lake was built in the early 1960's for thepurpose of a lake community development. LDC developed the Lake for recreational purposes anddeveloped subdivisions around the Lake imposing restrictions concerning the recreational use of theLake by purchasers in those subdivisions. The activities of LDC clearly show that the Lake wasintended to be the motivating factor to induce the purchase of the property in these subdivisions.Proof in the record shows that the Lake has a direct influence on the value of the properties on itsbanks. In determining whether the above elements are met in this case, the record first demonstratesthat Plaintiffs’ property was, at the time of the conveyance, part of a larger estate which included theland under Garner Lake. LDC’s sale of the Property to Plaintiffs separated the unified title. Second,the Lake has existed for over thirty years and is clearly meant to be a permanent feature of Lakeland,Tennessee and, more specifically, of the developments surrounding the Lake. Third, the proposedeasement is reasonably necessary to the beneficial enjoyment of Plaintiffs’ land because, withoutlake access, that land is worth significantly less. The fact that Plaintiffs’ lender withdrew itscommitment to make a multi-million dollar loan is clear evidence of the decreased value. Based onthe foregoing, we find that the conveyance of the property to Plaintiffs adjacent to Garner Lakecarried with it an implied easement appurtenant which gives Plaintiffs the right of reasonable accessto the Lake.

Accordingly, the order of the trial court granting summary judgment to Defendant is vacated,and summary judgment is granted to Plaintiffs. The case is remanded to the trial court for suchfurther proceedings as necessary. Costs of the appeal are assessed to appellee, Lake ManagementAssociation, Inc.

__________________________________________W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.