Foshee v. Brigman, 129 S.W.2d 207 (Tenn. 1939). · Go Syfert
Foshee v. Brigman, 129 S.W.2d 207 (Tenn. 1939). Cases Citing This Book View Copy Cite
61 citation events (54 in the last 25 years) across 5 distinct courts.
Treatment trajectory · 1952 → 2026 · click a year to view as-of
1952 1989 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) ROBERT L. DAVIS v. KAREN EDWARDS (2×) also: Cited as authority (quoted)
unknown court · 2025 · signal: see · quote attribution · 2 verbatim quotes · confidence high
if the easement is claimed under a grant, the extent of the easement is determined by the language of the grant.
discussed Cited as authority (verbatim quote) Richard E. Riegel, Jr. v. Patricia A. Wilkerson
Tenn. Ct. App. · 2014 · signal: see · quote attribution · 1 verbatim quote · confidence high
if the easement is claimed under a grant, the extent of the easement is determined by the language of the grant.
examined Cited as authority (verbatim quote) Cellco Partnership v. Shelby County (4×) also: Cited as authority (quoted), Cited "see, e.g."
Tenn. Ct. App. · 2005 · signal: see also · quote attribution · 2 verbatim quotes · confidence high
if the easement is claimed under a grant, the extent of the easement 595 is determined by the language in the grant
examined Cited as authority (verbatim quote) Steve Myers v. Danny Wilson & Elmo Mayes (3×) also: Cited as authority (rule), Cited "see"
Tenn. Ct. App. · 2000 · signal: see · quote attribution · 1 verbatim quote · confidence high
the extent of the easement is determined by the language of the grant
cited Cited as authority (rule) Charles E. Walker v. State of Tennessee
Tenn. Ct. App. · 2022 · confidence medium
City of Jackson v. Walker-Hall, Inc., No. W2004-01612-COA-R3CV, 2005 WL 1834114 , at *7 (Tenn. Ct. App. Aug. 3, 2005) (citing Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939); Henry v. Tenn. Elec.
discussed Cited as authority (rule) Glenn R. Burkey v. Geoff Post
Tenn. Ct. App. · 2018 · confidence medium
The language in a deed controls the extent and scope of an easement only if “the easement is claimed under a grant.” Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939); Rogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 WL 2337616 , at *7 (Tenn. Ct. App. June 19, 2012) (“It is axiomatic that the extent of an easement can be established by a written description in the grant of the easement.”); see also 25 AM.
cited Cited as authority (rule) Sherwood v. Tennessee Valley Authority
6th Cir. · 2014 · confidence medium
Foshee v. Brigman, 174 Tenn. 564 , 129 S.W.2d 207, 208 (1939).
cited Cited as authority (rule) Robin D. Wilson v. Joseph M. Weese
Tenn. Ct. App. · 2014 · confidence medium
Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939).
discussed Cited as authority (rule) Tidwell v. Bezner
Okla. Civ. App. · 2010 · confidence medium
He argues that the gate does not unduly prevent Tidwell from using his easement because Tidwell admitted he still "drives right through it." He relies on Lindhorst v. Wright, 1980 OK CIV APP 42 , ¶ 10, 616 P.2d 450, 454 , holding that a fee owner may use land burdened with an easement in a reasonable manner "that does not unduly burden the use made by the easement owner." He also relies on decisions of other states holding that gates may be erected as long as they do not "unreasonably ... interfere with the right of passage." See e.g., Foshee v. Brigman, 174 Tenn. 564 , 129 S.W.2d 207, 208 (1…
cited Cited as authority (rule) Burlison v. United States
6th Cir. · 2008 · confidence medium
“If the easement is claimed under a grant, the extent of the easement is determined by the language of the grant.” Foshee v. Brigman, 174 Tenn. 564 , 129 S.W.2d 207, 208 (1939).
cited Cited as authority (rule) Burlison v. United States
6th Cir. · 2008 · confidence medium
“If the easement is claimed under a grant, the extent of the easement is determined by the language of the grant.” Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939).
discussed Cited as authority (rule) Columbia Gulf Transmission Company v. The Governors Club Property Owners Association (2×)
Tenn. Ct. App. · 2006 · confidence medium
Rector v. Halliburton, No. M1999-02802-COA-R3-CV, 2003 WL 535924 , at *5 (Tenn. Ct. App. Feb. 26, 2003) (citing Foshee v. Brigman, 174 Tenn. 564, 567 , 129 S.W.2d 207, 208 (1939)); see -4- also Cellco Partnership v. Shelby County, 172 S.W.3d 574, 592 (Tenn. Ct. App. 2005); Lynn v. Turpin, 215 S.W.2d 794, 796 (Tenn. 1948); Foshee, 129 S.W.2d at 208 (holding if an easement is claimed under a grant, the extent of the easement is determined by the language of the grant).
discussed Cited as authority (rule) Rick A. Hughes and Lisa J. Hughes v. Richard C. Poulton and Annette L. Poulton (2×)
Tenn. Ct. App. · 2005 · confidence medium
Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939); Myers, 2000 WL 210266 at *2-3.
cited Cited as authority (rule) City of Jackson, Tennessee v. Walker-Hall, Inc.
Tenn. Ct. App. · 2005 · confidence medium
“If the easement is claimed under a grant, the extent of the easement is determined by the language of the grant.” Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939).
cited Cited as authority (rule) Paul Rector v. Elizabeth Halliburton
Tenn. Ct. App. · 2003 · confidence medium
Foshee v. Brigman, 174 Tenn. 564, 567 , 129 S.W.2d 207, 208 (1939).
cited Cited as authority (rule) F. T. Greer v. Joseph Marci
Tenn. Ct. App. · 2002 · confidence medium
Foshee v. Brigman, 129 S.W.2d 207 at 208 (Tenn. 1939) See also Henry v. Tenn. Electric Power Company, 5 Tenn. App. 205 (1927).
discussed Cited as authority (rule) Billy Conatser v. L.D. (Joe) Ball
Tenn. Ct. App. · 2001 · confidence medium
Foshee v. Brigman, 174 Tenn. 564, 567 , 129 S.W.2d 207, 208 (Tenn. 1939). -4- The deed from Stearns to Mr. Ball stated in pertinent part: The Grantor hereby conveys to the Grantees such rights of ingress and egress as it acquired in the case of The Stearns Company and Charles Beaty vs.
discussed Cited "see" John Shell and Connie Shell v. Sherri Cole Williams v. Rick Shell
Tenn. Ct. App. · 2014 · signal: see · confidence high
See Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn.1939) (“If the easement is claimed under a grant, the extent of the easement is determined by the language of the grant.”). “[T]he easement holder's use of the easement must be confined to the purpose stated in the grant of the easement.” Columbia Gulf Transmission Co. v. The Governors Club Prop.
discussed Cited "see" Mary Lou Gammo v. Richard Rolen (2×) also: Cited "see, e.g."
Tenn. Ct. App. · 2010 · signal: see · confidence high
See Foshee v. Brigman, 129 S.W.2d 207 (Tenn. 1939)l; Reider v. Orme, 68 S.W.2d 960 (Tenn. Ct. App. 1933) and Ogle v. Trotter, 495 S.W.2d 558 (Tenn. Ct. App. 1973).
cited Cited "see" Kenneth Sutton and wife, Juanita Sutton v. Lisa Baysden
Tenn. Ct. App. · 2004 · signal: see · confidence high
See Foshee v. Brigman, 129 S.W.2d 207 (Tenn. 1939); Melton v. Donnell, 114 S.W.2d 49 (Tenn. 1938); Zumstein v. Smith, 1996 WL 659063 (Tenn. Ct. App. Nov. 14, 1996).
cited Cited "see, e.g." Henry's Florist, Inc. v. Heather R. Knott
Tenn. Ct. App. · 2024 · signal: see, e.g. · confidence medium
See, e.g., Foshee v. Brigman, [] 129 S.W.2d 207, 208 (Tenn. 1939).
discussed Cited "see, e.g." Steven J. Strange v. Hank E. Roberts
Tenn. Ct. App. · 2020 · signal: see also · confidence medium
The parties’ intention regarding “the purpose and scope of an easement conveyed by express grant is determined by the language of the deed.” Shell v. Williams, No. M2013-00711-COA-R3- CV, 2014 WL 118376 , at *4 (Tenn. Ct. App. Jan. 14, 2014); see also Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939).
discussed Cited "see, e.g." Thomas v. United States (2×)
Fed. Cl. · 2012 · signal: see, e.g. · confidence low
See, e.g., Foshee v. Brigman, 174 Tenn. 564 , 129 S.W.2d 207, 208 (1939); Columbia Gulf Transmission Co. v. Governors Club Prop.
discussed Cited "see, e.g." Billy Culp v. Billie Grinder (2×)
Tenn. Ct. App. · 2003 · signal: see, e.g. · confidence low
See, e.g., Foshee v. Brigman, 174 Tenn. 564, 567 , 129 S.W.2d 207, 208 (Tenn. 1939).
discussed Cited "see, e.g." Leslie Moore v. James DeVault (2×)
Tenn. Ct. App. · 2002 · signal: see, e.g. · confidence low
See, e.g., Foshee v. Brigman, 174 Tenn. 564, 567 , 129 S.W.2d 207, 208 (Tenn. 1939).
Retrieving the full opinion text from the archive…
Foshee Et Al.
v.
Brigman
Tennessee Supreme Court.
Jun 10, 1939.
129 S.W.2d 207
Kilgo & AemstroNG, of- Greeneville, for appellant., Frank M. Beery, of Greeneville, for appellee.
Green.
Cited by 29 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 90%
Citer courts: Court of Appeals of Tennessee (1)
Mr. Chief Justice Green

delivered the opinion of the Court.

This bill was brought by certain landowners to enjoin defendant Brigman from maintaining gates or bars across a right of way to which complainants were entitled, running across the lands of the defendant, from their premises to the public road. The chancellor dismissed the bill but the Court of Appeals reversed his decree and decreed for complainants on the authority of Melton v. Donnell, 173 Tenn., 19, 114 S. W. (2d), 49.

The chancellor’s decree was evidently based on Luster v. Garner, 128 Tenn., 160, 159 S. W., 604, 48 L. R. A. (N. S.), 87, Ann. Cas., 1914D, 769. In Melton v. Donnell, supra, it was thought that changed conditions required a change of the rule announced in the earlier case and it was held that where a road has been used for passage without gates or bars under an adverse claim of right uninterruptedly for twenty years or more, the owner of the land over which the road ran — the servient estate— was not entitled to erect gates or bars. The reasons for[*566] this change of view on the part of the court are set out in the opinion.

In the case before us the right of way does not rest on prescription — was not acquired by adverse use for twenty years or more. Complainants base their claim on their deeds. The deeds, describing the land conveyed by metes and bounds, add “together with a right of way to the road at Bible’s house.” Bible’s house is located on the public road, across that road from the lands of defendant.

The original owner of all the land conveyed that portion nearest the road to Brigman and the deed to Brig-man reserved a right of way for the complainants as aforesaid. The particular road was opened up by the original owner when all the land was his and he used it to get to the back of his premises and haul out wood. The road is well defined.

The proof is in irreconcilable conflict as to the presence of gates and bars across this road in previous years. A short while before this suit was brought, defendant put gates across the road, complainants claim by permission, with the understanding that their .erection was temporary. The defendant owned land on both sides of the road and wished to use both sides for a pasture. There was no water for his stock on the north side and it would of course be inconvenient and put him to some expense to fence the road. Balancing the relative inconveniences to the parties we think they are about equal. It would of course put complainants to some trouble to open and close gates as they passed through, and defendant’s troubles, which the absence of gates will cause, have been indicated.

As heretofore stated, the complainants claim this easement under their deeds and it seems to us this is a[*567] ease for the application of the general rnle as to the erection of gates on a way acquired by a grant.

“It may he laid down as a general rnle that the grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from doing so; and unless it is. expressly stipulated that the way shall be an open one or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way if they are constructed so as not unreasonably to interfere with the right of passage.” 17 Am. Jur., 1011.

Cases supporting the foregoing rule are collected in 73 A. L. R., 779, from twenty-seven jurisdictions.

Melton v. Donnell, supra, supports the conclusion therein announced by citation of the following cases: Fankboner v. Corder, 127 Ind., 164, 26 N. E., 766; Shivers v. Shivers, 32 N. J. Eq., 578, affirmed in 35 N. J. Eq., 562; Hill v. Miller, 144 Gra., 404, 87 S. E., 385; Puryear v. Clements, 53 Gra., 232; Bolton v. Murphy, 41 Utah, 591, 127 P., 335; Bogerson v. Shepherd, 33 W. Va., 307, 10 S. E., 632.

An examination of these authorities discloses that all of them recognize a difference in the rights of the owner of the dominant estate where his easement arises by prescription and where it arises under a deed. If the easement is claimed under a grant, the extent of the easement is determined by the language of the grant. If the easement is claimed by adverse .use, the extent of the easement is determined by the character of the use. If for twenty years the easement has been adversely claimed and used, free from gates, under Melton v. Donnell, su [*568] pra, the owner of the servient estate can not impair the easement by the erection of gates.

The claim to the easement in the case before ns, however, being based alone on the deeds, we see no reason for departing from the general rnle and restraining the defendant from the erection of gates. No special eqnities in favor of the complainants are here present.

Oonrt of Appeals reversed and chancellor affirmed.