Understanding Property Right of Way Laws in Tennessee

Property Right of Way in Tennessee Explained

The "right of way" may be the most misunderstood area of property law. For many, "right of way" signifies the ability to drive your car down the road legally. But in legal terms, it has a much different definition and is broadly applied. In simple terms, the word "way" involves a path or a road if you are talking about a roadway system. "Right" means that there is an entitlement. So, the phrase "right of way" means that one property (or person) has the right to use a road as a result of being allowed the legal use of that road by another property (or person).
This right for one property to use the road is considered an easement. The land which contains the road where the easement exists is referred to as a "servient tenement." A servient tenement has no right over the road, or to use the road if you will. To the best of my knowledge, no road has more than one servient tenement owner in Tennessee.
Instead of having several servient tenements for the same road, you may see occasions where multiple "dominant tenements" exist over a road . Essentially, the "dominant tenements" have the right to enjoy the "servient tenement" without any obligation upon the servient tenement.
This type of analysis is important when defining who is able to utilize a roadway and who is not able. Residents of the servient tenement do not have the right to pass over the road. To the contrary, passenger cars and trucks may be able to pass over the road. I say "may" because roads cannot be used for all purposes. For example, a warship could not use a residential road.
Due to this limited analysis, the assessment of timber cruisers conducting trespass timber checks can be a complicated situation. The issue arises from the fact that many times, the road is used only for commercial logging operations, such as trash trucks or logging trucks. When that occurs on a roadway where no trespassing signs exist, even passenger cars and trucks will regularly pass over that road.
When a Tennessee attorney is analyzing right of way issues, she must determine if the road is an "easement" or is an actual "right of way." The main distinction is the ability of the dominant tenement to enjoy the pathway.

Types of Property Right of Way in Tennessee

Tennessee recognizes several types of right of way. Each has different legal standards and rules.
Public Road
The most common type of public right of way in Tennessee is a road or street constructed and maintained by a local, state or federal authority in accordance with governmental procedures, regulations and standards. Such roads must be approved by the appropriate authorities and are typically considered public highways.
Utility Right of Way
An easement for utility purposes are subject to similar requirements as public highways. They often have to be dedicated to the governing authorities and meet similar width and access qualifications, as well as the nature of the utility or utilities to be supplied.
Prescriptive Easement
Not every right of way has to be dedicated or conveyed to an owner under the laws of Tennessee. An easement may be implied where there is evidence of prescriptive use. For example, an easement can be acquired "by an adverse user [who] must show by clear and convincing proof that the user exercised a dominion over the land and that such use of the land was open, visible, continuous, exclusive and uncompensated."
Private Pathway
Private pathways and roads do not share many of the same rights as highways, utility easements or other public rights of way. For example, if the pathway crosses the 50-foot setback for other property in the county, it must be permitted by the appropriate authorities and an easement provided.

Legal Guidelines for Property Right of Way

The statutory framework governing the creation and enforcement of easements is found in Tennessee Code Annotated, Title 28, Chapter 2. An easement is created by grant, reservation, reservation or exception in a deed, by operation of law or by prescription. Tenn. Code Ann. § 28-2-101. With regard to ways of necessity (a right of way is a type of necessity), the law is provided in Tennessee Code Annotated § 28-2-104, which states as follows: A way of necessity shall not be deemed to include a way to any place that is not a necessity, such as an access to an area for hunting or fishing or for such other purpose as would justify a way of necessity to a place to which another has no legal right of access, unless a way of necessity is, at the time the owner of property includes the other property in a conveyance, expressly reserved in and made a part of the deed; but a way of necessity is not excluded because it may be more expeditious and convenient to the grantee of such property to use another and different way not a necessity than it is to use a way of necessity, or because the grantee may be enabled to travel by some other way from the grantee’s own property to the grantee’s destination without using the way of necessity. While most of the statutory provisions deal with real estate issues, occasionally, a court will review the subject and apply the common law principles to the intangibles of a property in considering a right of way to a utility or telephone easement.
In the case of Daugherty v. Tennessee Telephone Utility, a local telephone company had allowed a contractor to improve equipment on its property without the proper permits. The neighbors complained of dirt and debris on their property along with the noise of the truck traffic coming in and out. This right of access was not appropriate without notice to the neighbors because it impacted their property rights and was found to violate their due process rights.

Creating a Property Right of Way

A right of way may be "expressed" or "implied". An "express" right of way is a written document giving one the right to use a portion of the real property of another for a specific purpose or purposes. It will be signed by the owner ("grantor") and it will advise all others that an interest has been created on the subject land in favor of another for the use of the land in question. An "implied" right of way is one created by the appropriate use of the subject property by one who was not an owner at the time the use was established. An implied right of way may exist where one parcel of land is sold with no road access and the only manner of reaching the land in question is across the land of another. If an owner uses an existing road, path or other right of way to access their land, then the law will presume that an easement exists that will permit continued use of the right of way without the need for a written document.
In Tennessee, a right of way is acquired through a process referred to as "prescriptive easement" which is similar to that used to acquire title to land owned by another. A prescriptive easement (sometimes called a "customary right of way") can be acquired by "open, notorious, continuous and adverse user of land in question for a period of twenty years". The law presumes that any user of land for twenty years to be adverse. That is, the user does not have permission from the owner to use the property.
So long as all the elements of a prescriptive easement are acknowledged, the law will allow one to acquire a right of way to use the property of another. Generally speaking, such rights are acquired through non-payment of rent, the nature of the user is continuous, that the user "clams" the right to use the property in question and that the user is doing so in a manner that is inconsistent with the rights of the owner.

Disputes Concerning Property Right of Way

As most anyone knows, a dispute over the right-of-way is bound to arise from time to time. Such disputes can involve property owners, utilities, real estate developers, contractors and even public entities. One such reasonable request may involve requests by a utility company to access private property for the purpose of providing services to neighboring properties. The Tennessee Court of Appeals issued a decision indicating that the cost of providing such easements may not be shifted onto the property owner . At the same time, the court held that nothing in the statute requires the utility to bear the development costs involved in making such improvements. Private property owners have a general obligation to allow reasonable access to utilities. This does not, however, apply if the property owner has not granted the utility an easement. Even if the utility company does have an easement, certain limits may apply. Utilities have the right to access private property in order to provide services to neighboring properties. However, the costs associated with new lines or poles should not be shifted onto the property owner if it produces no direct benefit.

Implications of Property Right of Way on Property Value

When assessing the value of a property confronted with a right-of-way, one might conclude that the chances are good that the "taking" will devalue the property. The short answer is, it depends. Chiefly, it is important to consider what change occurs as a result of the right-of-way taking. Does the taking remove land area from the subject property, or does it result in a change of the character of the land (i.e., moving a road to the right from the centerline to the right-of-way line)? If the land area of the subject property is decreased as a result of the taking, it not only removes "value," it also removes the income-generating area in the case of income-producing property. If the character of the land is changed as a result of the taking (i.e., the blasting, clearing and grading for the road relocation), the value may be diminished, but the land area has not been reduced.
This value change should take into consideration any severance damages that may be owed (or determined) to the subject property. For example, the taking of the right-of-way area may impact the ability of the property owner to develop the site as the ultimate use could be hindered or diminished because the property is smaller than originally thought. This could lead to a smaller income stream being generated.

Modifications and Termination of Property Right of Way

Tennessee property owners have the right to enforce private restrictions, covenants, and rights of way because law in Tennessee recognizes limitations on a person’s ownership of their property for the benefit of other landowners. A grant of a right of way does not last forever. But all is not lost if there is a dispute about the right of way. There are many ways to modify and potentially terminate rights of way.
A right of way maybe modified by joinder of those who own an interest in the land in order that the same be extinguished. The easement may also be terminated by nonuse or abandonment, by a change of circumstances or conditions, by prescription or by operation of law.
An easement may also be extinguished by the voluntary agreement of the parties involved. This is usually done by a written instrument signed by the owner of an interest in the land. An easement may also be extinguished by a formal judicial proceeding before a proper court.
It is also important to note that a right of way may become extinguished when there is a change of circumstances or conditions so that the original purpose of the servitude cannot be realized. The effect of this is to immediately terminate the servitude. For example, suppose that land is acquired by the U.S. Government for the purpose of building a post office. Subsequently, the post office is moved. A railroad leading to the main entrance of the post office is not used. The railroad right-of-way terminates immediately because it becomes impossible to serve the dominant property.
A right of way may be extinguished by nonuse or abandonment. In Tennessee, nonuse in itself is not sufficient to extinguish an easement. The right must not only be lost, but there must also be a loss of the unity of title constituting the basis of the easement.
Furthermore, easements may be extinguished by prescription, which is the method whereby a right is acquired to place or maintain an obstruction on the premises of another by adverse possession. To establish such an easement, the parties claiming the easement must trace their title back for at least 20 years.
Where an easement is acquired over land under an instrument creating a fee simple subject to a condition subsequent, if that condition is broken McDonald v. Peters, 227 S.W.2d 130, 131-32 (Tenn. Ct. App. 1950), the right-of-way is extinguished.
Finally, if a servitude is created by deed, that deed may be revoked. McDonald, 227 S.W.2d at 131. It has long been held in Tennessee that the right, title, and interest of a grantor in real estate, which has been restored to him, will upon his death, descend to his heirs subject only to a right-of-way, which, for purposes of applying the grantor’s right of revocation contained in the deed, is regarded as a mere personal privilege. Id. at 129, 131; Wilson v. Campbell, 217 S.W. 74, 75 (Tenn. 1919). A right of way created by deed can therefore be revoked at a later time.

Professional Guidance and Resources

For property owners facing issues related to right of way, it is essential to seek legal guidance from professionals experienced in Tennessee law. Local sources may provide guidance on the impact of state law within individual communities. However, when interpreting statutes and case law, expert legal advice will provide assurance that treatment of property is consistent with Tennessee law.
Local law offices that focus on real estate are often the best options when seeking an attorney on a right of way. A local attorney will be familiar with ordinances specific to a county or town, and this can help in terms of understanding the laws and utilizing them to one’s advantage . While individuals who own property on top of right of ways in the state of Tennessee still retain certain rights for their own property, there may be limits to that property right. An attorney will be able to explain this in greater detail.
The state of Tennessee does provide online resources to help individuals who are dealing with issues regarding right of way. For example, the Department of Transportation contains information for those who work in the transportation industry in Tennessee and may need assistance justifying condemnation.