Easements in Tennessee: How Access Rights Are Created, Used, and Ended

An easement is a right to use someone else's land for a specific purpose without owning it: a driveway, an access road, a utility line, a shared path. Easement disputes generally raise three questions. Does an easement exist, what does it allow, and has it ended?

Each answer depends on how the easement was created. For boundary lines and adverse possession of the land itself, see property line disputes with a neighbor; for clouds on title and quiet title suits, see title defects and quiet title.

The basic vocabulary

Tennessee courts describe an easement as an interest in property that gives its holder an enforceable right to use another's property for a specific purpose (Hall v. Pippin, Tenn. Ct. App. 1998). Easements come in two broad classes (Pevear v. Hunt, Tenn. Ct. App. 1996):

• Appurtenant: there are two tracts. The dominant tract benefits from using the servient tract, the land the easement crosses. A typical access easement is appurtenant.
• In gross: a personal right to use another's land that does not benefit another tract, so usually only one parcel is involved.

Tennessee favors appurtenant easements over easements in gross (Pevear). An appurtenant easement is not a personal right; it can be used only for the purposes of the dominant tract (McCammon v. Meredith, Tenn. Ct. App. 1991).

Easements can be created in several ways, including express grant, reservation, implication, prescription, estoppel, and eminent domain (Pevear).

Express easements: written into a deed

A deed can grant an easement, or the seller can reserve one over the land conveyed (Bradley v. McLeod, Tenn. Ct. App. 1998). The Court of Appeals has described the general rule that easements must be created either by an express writing or by prescription, with implied easements as disfavored exceptions (Bradley).

Recording matters. A registrable instrument is effective between the parties without registration, but as to other people without actual notice it takes effect only from when it is noted for registration with the register of deeds (Tenn. Code Ann. § 66-26-101). An unregistered instrument is void as to existing or later creditors of, and bona fide purchasers from, the makers who lack notice (§ 66-26-103).

Some easements are a single sentence that gives no width or route. When the instrument and the surrounding circumstances do not fix the location, the use of the way fixes it, and an easement that is not specifically defined need only be what is reasonably necessary and convenient for its purpose (Shew v. Bawgus, Tenn. Ct. App. 2007). In Shew, where a driveway under a deed's reserved right of outlet had kept the same width for over fifty years, the court refused to let it be widened to thirty feet.

Implied easements from prior use

An implied easement arises when one tract is divided into separately owned parts, as an inference of what the parties intended (Cellco Partnership v. Shelby County, Tenn. Ct. App. 2005). The claimant must prove each element (Cellco):

1. A separation of title.
2. Before the separation, the use giving rise to the easement was long established and obvious or manifest enough to show it was meant to be permanent.
3. The easement is essential to the beneficial enjoyment of the land granted or retained.

A fourth is sometimes added: the use must be continuous, not occasional (Cellco, quoting Johnson v. Headrick, Tenn. Ct. App. 1948). Obvious means discoverable on reasonable inspection, not necessarily visible, and a temporary arrangement for the convenience of the whole tract is not enough (Cellco). Tennessee courts have read necessity here to mean reasonably necessary to enjoy the dominant tract (Fowler v. Wilbanks, Tenn. Ct. App. 2000). In Fowler, where the claimant's father had once owned the whole tract, the court affirmed an implied easement over a gravel road.

Two more points. The statute of frauds does not bar an implied easement, because it is treated as arising by operation of law or as part of the written conveyance (Cellco). And Tennessee is stricter when the seller is the one claiming the easement. Where an owner gives a warranty deed without expressly reserving an easement, there can be no reservation by implication unless the easement is strictly one of absolute necessity (Bradley, quoting LaRue v. Greene County Bank, Tenn. 1942). LaRue itself also speaks of a reasonable necessity strong enough to create a clear presumption in the seller's favor, and in Harris v. Gray (Tenn. Ct. App. 1945) the court affirmed an implied reservation for a seller whose remaining land was cut off under that reasonable-necessity test. So the exact standard for a seller is not settled.

Easements by necessity

An easement by necessity requires that the two tracts were once held by one person, that the unity of title was severed by a conveyance, and that the easement is necessary for the dominant owner to use the land, with the necessity existing both when title was severed and when the easement is used (Cellco). It typically arises when a conveyance leaves a parcel landlocked.

Tennessee does not require strict necessity for this kind of easement; reasonable necessity is enough, but it must be more than mere convenience, and a way of necessity will not be implied where the claimant has another reasonable mode of access (Cellco). In Bradley, there was none because the claimants could build an equally good driveway on their own land.

A way of necessity ends when the reason for it no longer exists (Cole v. Dych, Tenn. 1976). Where the route has not been selected, the servient owner has the first right to select it, if reasonable, but the route is set by the reasonable convenience of both owners (City of Whitwell v. White, Tenn. Ct. App. 1974, citing McMillan v. McKee, Tenn. 1914).

Prescriptive easements: twenty years of use

A prescriptive easement is based on use rather than a deed. The claimant must prove by clear and convincing evidence at least twenty years of use that is adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescence of the servient owner, for the full period and while that owner is under no legal disability (Stone v. Brickey, Tenn. Ct. App. 2001, quoting House v. Close, Tenn. Ct. App. 1961).

• Exclusive does not mean the claimant is the only user. It means the claimant's right does not depend on a similar right in others; the owner and neighbors can also use the road (House; Stone).
• Intermittent use is not enough. In McCammon, occasional trips moving farm machinery fell far short.
• Use is adverse when it is made under a claim of right, whenever the user wants, without asking permission, and disregarding the landowner's claims (House). Permission undercuts that.

Estoppel and old public roads

Tennessee lists estoppel among the ways an easement can be created (Pevear). The published cases treat it as ordinary equitable estoppel. In Callahan v. Town of Middleton (Tenn. Ct. App. 1954), the court tested a claimed easement by estoppel against the general elements: conduct by the landowner that conveys a false impression of the facts, with the expectation that the other side will act on it, and, on the claimant's side, lack of knowledge of the true facts, reliance on that conduct, and a change of position to the claimant's detriment. The court rejected the claim there. An actual intent to deceive is not required (Douglass v. Rowland, Tenn. Ct. App. 1976, a boundary case).

A separate rule applies to old roads. Owners whose land abuts a once-public road keep a private access easement over it even after it stops being a public road, though that private easement can be abandoned like any other (Hall).

What the easement holder and the landowner may each do

The use of an easement must be confined to the purposes for which it was granted or reserved, and the holder cannot materially increase the burden on the servient land or impose a new burden (Adams v. Winnett, Tenn. Ct. App. 1941). This is the rule against overburdening. A holder who uses an access easement to reach property other than the dominant tract becomes a trespasser to that extent (McCammon). The holder may make improvements that do not change the easement's character (Miller v. Street, Tenn. Ct. App. 1983).

The landowner keeps rights too. In Cole, a case about a road dedicated for public cemetery access, the Tennessee Supreme Court approved a decree letting the servient owners use the roadway for any purpose that did not interfere with the easement. The same opinion states the general rule on gates: the owner of land subject to a right of way may maintain gates if they are necessary to the owner's use and enjoyment of the land and do not unreasonably interfere with the use of the way (Cole). In Adams, by contrast, the court upheld an injunction against gates that a jury found would unreasonably interfere with the right of way.

Maintenance: a right of way implies the right to maintain a passable way, used so as to avoid unnecessary inconvenience to the servient owner (Whitwell; McCammon). In Cole, the Supreme Court refused to place the burden of maintaining the road on the servient owners, but I have not found a published Tennessee decision setting a general default rule on who pays for repairs of a private easement; a written easement can answer that. For a statutory easement, § 54-14-102 puts maintenance on the person granted the easement.

Relocation: in Cole, the Supreme Court struck a decree provision giving the servient owners the right to relocate the right of way, calling it potentially productive of further litigation. I am not aware of a published Tennessee decision letting a servient owner move an established easement without the holder's agreement. The holder is limited too: the Court of Appeals has described a general rule barring the holder from making a material alteration in an easement without the servient owner's consent, though a slight change that does not create a new and different servitude is not usually objectionable (Stone v. Brickey).

How an easement ends

• Abandonment. The party claiming it must prove it by clear, unequivocal evidence of intent to abandon plus external acts carrying that intent into effect; nonuse alone is not enough (Hall). For an easement created by express grant, mere nonuse, however long, is not sufficient evidence of abandonment (Edminston Corp. v. Carpenter, Tenn. Ct. App. 1976).
• Merger. When the holder acquires ownership of the servient land, the easement is extinguished, but courts normally will not apply merger to cut off third parties who still have an interest in it (Hall).
• End of necessity. A way of necessity ends when the necessity does (Cole).
• Release. The easement holder can sign a written release. Under the recording statutes discussed above, an unrecorded release may not bind a later bona fide purchaser of the benefited land who has no notice of it.
• Statutory nonuse. A private road condemned under the statute ceases when it falls into nonuse or is not maintained (Tenn. Code Ann. § 54-14-117).

I have not found a published Tennessee decision on whether the servient owner's own adverse use can extinguish an easement.

Landlocked land: the private road statute

The owner of land cut off from a public road by another's intervening land has the right to have a private easement of up to 25 feet (15 feet in metropolitan-government counties) condemned across that land for ingress, egress, and utility lines (Tenn. Code Ann. § 54-14-102). Maintenance is the responsibility of the person granted the easement, and gates or fencing that restricts access to the subservient land may not be erected (§ 54-14-102). A 2022 amendment lets a holder of a statutory easement narrower than 25 feet petition for additional land for utility lines, which the court may grant on a showing of good cause, within the same width limits (2022 Tenn. Pub. Acts ch. 808).

The procedure, in outline:

1. The petition is filed in the county where any of the affected land lies, naming everyone with an interest in it (§ 54-14-103). Chancery, circuit, and county courts share jurisdiction (§ 54-14-102).
2. The court appoints an appraiser, and the petitioner posts a bond for twice the appraisal; the appraisal sets the bond only and is not admissible as evidence (§ 54-14-103).
3. A jury of view sets apart the easement by metes and bounds, locating it where it serves the petitioner with the least monetary damage practicable, and assesses damages: the cash value of the land taken plus incidental damages, less incidental benefits (§§ 54-14-108, -109, -111).
4. The easement is granted on payment of the damages and costs, and the court may award the landowner reasonable attorney's fees unless the landowner acted in bad faith (§ 54-14-113).

The court may instead grant a mutual use easement that both owners can use (§ 54-14-118). There is no right to a statutory easement if the land was cut off by the intentional and knowing action of its own owner (§ 54-14-119).

A 2020 amendment (2020 Tenn. Pub. Acts ch. 703) repealed § 54-14-101, rewrote § 54-14-102(a), and limited the statutory right to land with no outlet, rather than no adequate and convenient outlet, although the joinder provision of § 54-14-102 still refers to owners deprived of adequate and convenient outlets. Older cases applied the prior wording, so how far they still guide the statutory process is not settled. The Court of Appeals has held that the 2020 amendments did not change the common-law easement by necessity described above (Smith v. White, Tenn. Ct. App. 2024).

If you are dealing with an access or easement question in Middle Tennessee, my office can review the deeds, the history of use, and the options with you.

Educational disclaimer: This article provides general Tennessee educational information only and is not legal advice for any specific property or dispute.