02-Jun-2005

The Tennessee Court of Appeals held in Moore v. James Devault, et al (2002) that necessity is not a prerequisite to establishment of an express easement. Therefore, the principle that an easement ceases with lack of necessity has no application. Mere non use does not constitute abandonment of an easement. Mere non use will not amount to the abandonment of an easement, but there must be some positive showing if there is an intention to abandon. The party asserting the abandonment of an easement must prove it by clear and unequivocal evidence. In order to prove an abandonment, the party with the burden of proof must show not only an intention to abandon the easement but also external acts of carrying that intention into effect. Thus, non use of the easement, by itself, is insufficient to prove an abandonment. Non use must be coupled with the proof that the easement holders intended to abandon the easement. The intention may be proven with the evidence of acts clearly indicating that the easement holder desires to lay no further claim to the benefits of the easement.