In the 12Th Judicial District of Tennessee

IN THE 12 TH JUDICIAL DISTRICT OF TENNESSEE CHANCERY COURT OF SEQUATCHIE COUNTY

GEORGE AVERY LAND and wife, ) NO. 2055 FAYE LAND, ) ) Plaintiffs, ) ) vs. ) ) RAE BLEVINS, TRUSTEE, HAROLD ) E. LEWIS, and wife, DONNA FAYE ) LEWIS, WILLIAM E. MORGAN, ) KIMBERLY G. LEFFEW, and TRACY ) MCDANIEL )

MEMORANDUM OPINION AND ORDER

This matter is before the court on the Plaintiffs’, George Avery Land and his wife,

Faye Land’s (collectively, the “Plaintiffs”) and the Defendants’, Rae Blevins, Harold E.

Lewis, Donna Faye Lewis, William E. Morgan, Kimberly G. Leffew, and Tracy McDaniel,

(collectively, the “Defendants”) competing Motions for Summary Judgment. The court heard the parties’ arguments on May 8, 2008 and took the matter under advisement.

Having considered the matter, the court issues this Memorandum Opinion and Order.

I. BACKGROUND

This lawsuit involves a dispute over rights to real property (the “Property”) located in Sequatchie County, Tennessee. The source of the dispute involves the severance of an estate that occurred pursuant to a deed dated September 27, 1966 (the “1966 deed”), which is attached as Exhibit 1 to the Defendants’ Motion for Summary Judgment. This deed is recorded in Book 18, page 226 in the Register’s Office of Sequatchie County, Tennessee.

By this deed, the Plaintiffs supposedly conveyed the surface rights of the Property to W.L. Condra and his wife, Laverne Condra, and reserved the mining rights to the

Property for themselves. The granting clause of the deed states:

… George Avery Land and Wife, Faye Land have bargained and sold, and by these presents do transfer and convey unto the said W.L. Condra and Wife, Laverne Condra, their heirs and assigns, the surface rights in certain tract or parcel of land in the 2nd. Civil District of Sequatchie County, State of Tennessee…. Ex. 1 to Defs.’ Mot. for Summ. J. The supposed mineral rights reservation states:

The Grantors, George Avery Land and Wife, Faye Land do hereby reserve the right of ingrees [sic] and egress for mining purposes only to and from any mines that may be located or hereinafter located on the above described tracts of land and this right is expressly reserved by the said grantors, their heirs and assigns forever, and is subject to all visable [sic] rights of way as now existing on said tracts of land. Ex. 1 to Defs.’ Mot. for Summ. J. Thereafter, the deed contains the purported surface rights conveyance:

TO HAVE AND TO HOLD the surface rights in the said tracts or parcels of land, with the appurtenances, estate, title, and interest thereto belonging, to the said W.L. Condra and Wife, Laverne Condra, their heirs and assigns, forever. Ex. 1 to Defs.’ Mot. for Summ. J.

Sometime after this conveyance, W.L. Condra and Laverne Condra sold portions of their parcel. The Defendants are the successive owners of these smaller tracts 2 that originated from W.L. Condra’s and Laverne Condra’s parcel. Each Defendant’s chain of title is linked to the 1966 deed.

On December 28, 2004, the Plaintiffs filed this lawsuit against all of the

Defendants, except for Tracy McDaniel, who was added as a Defendant in an Amended

Complaint filed on February 26, 2006. In their original Declaratory Complaint, the

Plaintiffs state that they were in the process of entering into a mining lease with a third party, which would authorize the third party to enter the land, remove sandstone from the

Property, and process sandstone on the Property. See Compl. at ¶ 5. The Plaintiffs allege that some of the Defendants have prevented the Plaintiffs from accessing the Property to exercise their supposed right to the minerals on the Property. Compl. at ¶ 5. The Plaintiffs assert that they should be permitted to enter the Property, determine the location of an existing roadway and create new roadways as they need to exercise their supposed rights to the sandstone under the 1966 deed. Compl. at ¶ 5. Accordingly, the Plaintiffs request a declaratory judgment setting out the rights of all parties, and which specifically affirms the

Plaintiffs’ rights of “ingress, egress, regress and other intrusion on the surface reasonable for the mining, exploration, and removing of minerals contained therein and thereunder.”

Compl. at ¶ 6.

On February 3, 2005, the Chancery Court of Sequatchie County entered an

Order enjoining the Defendants from “obstructing, in any manner, prohibiting or interfering with the rights of the Plaintiffs … or any of their agents or employees from

3 coming upon the premises of the lands….” The Order required the Plaintiffs to give the

Defendants twenty-four hours notice if the Plaintiffs intended to enter upon the Property.

Also on February 3, 2005, the Defendants filed their Answer to the Complaint and their Counterclaim. The Defendants set out their Affirmative Defenses which include that:

a. The Statute of Frauds precludes the Plaintiffs from removing stone from the

Property because no writing exists to specifically convey such right;

b. The Plaintiffs are estopped from suing the Defendants because by the 1966 deed,

the Plaintiffs agreed to “forever defend the title to the surface rights” of the

Property; and

c. The doctrine of laches precludes this lawsuit because the Plaintiffs have not

asserted their rights to the supposed mineral rights since the alleged 1966 transfer

of the surface rights.

Answer at Aff. Defenses ¶¶ 1, 2, 3. The Defendants generally deny that the 1966 deed reserves unto the Plaintiffs the right to remove mountain stone from the Property. See

Answer of Compl. at ¶¶ 3, 4, 5, 6, 7, 8. The Defendants admit that when the 1966 deed was executed, there were two existing entrances to coal mines on the Property and that there was visible sandstone on the Property’s surface. Answer of Compl. at ¶ 4. For their

Counterclaim, the Defendants assert that the Plaintiffs’ lawsuit violates a provision in the

1966 deed that they would defend the surface rights to the Property, and that the Plaintiffs

4 are liable for any damages caused by the possible ejectment of the Defendants from the

Property. Countercompl. at ¶¶ 1, 2.

On July 10, 2006, the Sequatchie County Chancellor, Hon. Jeffrey F. Stewart, recused himself from these proceedings. Thereafter, the case was transferred to this court.

The Plaintiffs filed their Motion for Summary Judgment on December 20, 2007.

The Plaintiffs contend that they are entitled to summary judgment “regarding ownership of the minerals and the right to remove the same by any reasonable means . . .” because:

a. the 1966 deed conveyed only the surface rights to the Property and reserved unto

the Plaintiffs the right to the minerals and access to the minerals;

b. that all of the Defendants take title subject to the reservation in the 1966 deed;

c. that the Defendants had constructive notice of the reservation because the deed was

filed in the public records of Sequatchie County;

d. that sandstone is a mineral as a matter of law and is thus included within the

meaning of the mineral rights reservation of the 1966 deed;

e. reservation of mineral rights carries with it the right to access the minerals by

reasonable and necessary methods;

f. sandstone had been harvested and used for building purposes in Sequatchie County

long before 1966; and

5 g. the Plaintiffs estate is the dominant estate and that the Defendants estates are

subordinate to such estate.

The Plaintiffs rely upon the 1966 deed, the Affidavits of George Avery Land and Roy

Potter, and testimony from the depositions of Defendants, Thomas Blevins, Tracy

McDaniel, William E. Morgan, and Harold E. Lewis to support their Motion for Summary

Judgment.

On April 30, 2008, the Defendants filed their own Motion for Summary Judgment along with a Memorandum in Opposition to the Plaintiffs’ Motion for Summary Judgment and in Support of Defendants’ Motion for Summary Judgment. The Defendants assert that the 1966 deed does not reserve unto the Plaintiffs the right to remove sandstone from the

Property. Specifically, the Defendants contend that the deed language unambiguously conveyed the surface rights to the Property, with no reservation made allowing the

Plaintiffs to destroy the surface rights. Alternatively, the Defendants contend that if the language is ambiguous, the deed does still not reserve the right to remove sandstone to the

Plaintiffs.

I. SUMMARY JUDGMENT STANDARD

Summary Judgment is governed by Tennessee Rule of Civil Procedure 56, which requires the movant to establish there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04 (2007). The court views the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in that party’s favor. Eadie v. Complete Co., 142 S.W.3d 6 288, 291 (Tenn. 2004) (citing Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 2001)).

Summary judgment is appropriate “only when the facts and conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion.” Godfrey v. Ruiz, 90

S.W.3d 692, 690 (Tenn. 2002).

To prevail on the Motion for Summary Judgment, the movant must establish there are no genuine issues of material fact for the trier-of-fact to weigh and that the movant is entitled to judgment as a matter of law. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88

(Tenn. 2000). Essentially, “the moving party must either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense.”

Blair v. West Town Mall, 130 S.W.3d 761, 767 (Tenn. 2004) (quoting Staples, 15 S.W.3d at 83). If the movant does not properly support its motion, the non-moving party’s burden is not triggered and summary judgment will not be appropriate. Blair, 130 S.W.3d at 767.

However, when the movant “makes a properly supported motion, the burden shifts to the non-moving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact.” Id. “The non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of elements of the claim.” Id. Otherwise, the non-moving party risks an adverse decision.

For example, the non-moving party may convince the trial court that there are sufficient factual disputes to warrant a trial by:

(1) pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) rehabilitating evidence challenged by the moving party, 7 (3) producing additional evidence that creates a material factual dispute, or (4) submitting an affidavit in accordance with Rule 56.07 requesting additional time for discovery.

McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998) (citing Byrd, 847

S.W.2d at 216 n.6).

If a nonmoving party does not comply with the requirements of Rule 56.03, the trial court may refuse “to consider the factual contentions of the nonmoving party even though those facts could be ascertained from the record.” Owens v. Bristol Motor

Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001). Further, “the material facts set forth in the statement of the moving party may be deemed admitted in the absence of a statement controverting them by the opposing party.” Mark VII Trans. Co. v. Belasco, No.

W2002-00450-COA-R3-CV, 2002 Tenn. App. LEXIS 936, at *11-12 (Dec. 30, 2002).

III. ISSUE

The ultimate issue in this matter is whether the Plaintiffs have a right via the

reservation in the 1966 deed to remove sandstone/mountain stone from the Property.

IV. DISCUSSION

1. Plaintiffs’ Motion to Strike Defendants’ Affidavits

The Plaintiffs filed a Motion to Strike Portions of Affidavits Submitted by

Defendants as an additional response to the Defendants’ Motion for Summary Judgment.

The Plaintiffs asked the court to strike these portions of the Affidavits:

8 a. Paragraphs 4 through 9 of the Affidavit of Kimberly Leffew;

b. Paragraphs 4 through 9 of the Affidavit of Harold Edward Lewis;

c. Paragraphs 4 through 9 of the Affidavit of Tracy McDaniel;

d. Paragraphs 3 and 4 of the Affidavit of William Morgan;

e. Paragraphs 3, 4, and 5 of the Affidavit of Carson Camp.

The Plaintiffs maintain that these portions of the Affidavits do not comply with Tenn. R.

Civ. P. 56.06’s requirement that statements in affidavits be made based upon the personal knowledge of the affiant.

The court agrees with the Plaintiffs regarding the cited portions of the Affidavits of Kimberly Leffew, Harold Edward Lewis, Tracy McDaniel, and William Morgan. In general these affiants attest to their understanding of their deeds to the subdivided portions of the Property. These affiants were not parties to the 1966 deed and their statements are irrelevant to the court’s understanding of the intentions of the parties to the 1966 deed.

Thus, pursuant to Tenn. R. Civ. P. 56.06, the court will strike the listed portions of the

Affidavits of Kimberly Leffew, Harold Edward Lewis, Tracy McDaniel, and William

Morgan.

However, the court does not believe that Tenn. R. Civ. P. 56.06 would preclude the court from considering the cited portions of the Affidavit of Carson Camp. After reviewing the affidavit, the court believes that Mr. Camp attests to matters within his personal knowledge. Specifically, Mr. Camp attests to his own experiences hiking and 9 camping on the Property during a relevant time period and what he saw on the Property during that time period. Thus, the court will not strike the listed portions Affidavit of

Carson Camp.

2. 1966 Deed Reservation

Generally, the meaning of deed language, like contractual language, is a question of law that courts may answer at the summary judgment stage. Bratton v. Bratton, 136

S.W.3d 595, 601 (Tenn. 2004); see also Hamblen County v. City of Morristown, 656

S.W.2d 331, 333-34 (Tenn. 1983); Petty v. Sloan, 277 S.W.2d 355, 358 (Tenn. 1955). Yet, to be a question of law, the deed’s language must be unambiguous so that “the words of the contract are definite and undisputed, and in deciding the legal effect of the words, there is no genuine factual issue left for the [fact-finder] to decide.” Bratton, 136 S.W.3d at 601

(citing Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn.

2002)).

When interpreting the meaning of a deed’s language, the court’s goal is to determine the intentions of the parties to the deed “in light of circumstances existing at the time.” Doochin v. Rackley, 610 S.W.2d 715, 718 (Tenn. 1981). To accomplish this, courts interpret deeds according to the plain, ordinary meaning of the language. Hamblen

County, 656 S.W.2d at 333-34; Mitchell v. Chance, 149 S.W.3d 40, 44 (Tenn. Ct. App.

2004); Honeycutt v. Honeycutt, 152 S.W.3d 556, 562 (Tenn. Ct. App. 2003); see P.M.

Drilling, Inc. v. Groce, 792 S.W.2d 717, 719-720 (Tenn. Ct. App. 1990) (applying the same rule of construction to an oil and gas lease). Additionally, courts consider the

10 language within the context of the entire document. Mitchell, 149 S.W.3d at 44. Finally, the court must construe the deed most strongly against the grantor.

Language of a deed or contract is ambiguous “only when it is of uncertain meaning and may fairly be understood in more ways than one.” Farmers-Peoples Bank v. Clemmer,

519 S.W.2d 801, 805 (Tenn. 1975) (quoted in Greene v. Greene, No. E2005-01394-COA-

R3-CV 2006, Tenn. App. LEXIS 158, *7 (February 9, 2006)). However, the language is not necessarily ambiguous when the parties adopt different interpretations of its provisions.

Cookeville Gynecology & Obstetrics, P.C. v. Southeastern Data Systems, Inc., 884 S.W.2d

458, 462 (Tenn. Ct. App. 1994) (quoted in Greene, 2006 Tenn. App. LEXIS 158 at *7-8).

Usually, parol evidence is inadmissible when such evidence would “alter or contradict the legal import of the deed.” McGannon v. Farrell, 214 S.W. 432, 434 (Tenn.

1919) (citing Trout v. N. & W. Ry. Co., 59 S.E. 394); Mitchell, 149 S.W.3d at 44. With this purpose, parol evidence is barred if it would add covenants to a deed. McGannon, 214

S.W. at 434.

However, when a deed’s language is ambiguous, the court may consider parol evidence to help explain the ambiguity. Mitchell, 149 S.W.3d at 44. Under such circumstances, parol evidence is only admissible to help ascertain the deed’s meaning when there is a latent ambiguity in a deed’s language. Id. A latent ambiguity is one that is not apparent on the face of the deed, but rather is discoverable after considering the extrinsic circumstances surrounding the formation of the deed. Id. at 44-45. More specifically: 11 A latent ambiguity is found where the equivocality of expression, or obscurity of intention, does not arise from the words themselves, but from the ambiguous state of extrinsic circumstances to which the words of the instrument refer, and which is susceptible of explanation by the mere development of extraneous facts, without altering or adding to the written language, or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words and phrases made use of. Id. at 44.

Correspondingly, parol evidence is inadmissible to explain a patent ambiguity in a deed’s language because a patent ambiguity should be apparent on the face of the document. Mitchell, 149 S.W.3d at 44. Patent ambiguities are those ambiguities that are created:

… by the uncertainty, contradictoriness, or deficiency of the language of an instrument, so that no discovery of facts, or proof of declarations, can restore the doubtful or smothered sense without adding ideas which the actual words will not themselves sustain.

Id. Moreover, parol evidence will not be admissible to create an ambiguity where none exists on the face of the document.

Here, the 1966 deed’s language is problematic because there are aspects of it that are both ambiguous and unambiguous. At first glance, the supposed reservation clause appears to be deficient because the clause does not seem to actually sever the mineral estate from the surface rights. This clause states:

The Grantors, George Avery Land and Wife, Faye Land do hereby reserve the right of ingrees [sic] and egress for mining purposes only to and from any mines that may be 12 located or hereinafter located on the above described tracts of land… Ex. 1 to Defs.’ Mot. for Summ. J. The clause does not specifically state that it reserves the right to the minerals that are located on the property. It states only that it reserves to the

Plaintiffs the right to enter and leave the property for mining purposes – not that the

Plaintiffs have rights to the materials that would be mined.

Yet, other clauses within the deed inform the meaning of this supposed reservation.

The granting clause states:

… George Avery Land and Wife, Faye Land have bargained and sold, and by these presents do transfer and convey unto the said W.L. Condra and Wife, Laverne Condra, their heirs and assigns, the surface rights in certain tract or parcel of land in the 2nd. Civil District of Sequatchie County, State of Tennessee…. Ex. 1 to Defs.’ Mot. for Summ. J. (emphasis added). The deed also states:

TO HAVE AND TO HOLD the surface rights in the said tracts or parcels of land, with the appurtenances, estate, title, and interest thereto belonging, to the said W.L. Condra and Wife, Laverne Condra, their heirs and assigns, forever. Ex. 1 to Defs.’ Mot. for Summ. J. (emphasis added). In light of these two clauses, it seems that it was the Plaintiffs’ intention to sever the estate and reserve the mineral rights to the Property unto themselves. Thus, the supposed reservation clause did actually sever the estate.

Nevertheless, the reservation clause is still ambiguous as to two issues: (a) what materials the Plaintiffs are entitled to remove, and (b) by what methods the Plaintiffs may

13 remove them. The Plaintiffs’ rights to the Property should be defined by the mineral rights reservation:

The Grantors, George Avery Land and Wife, Faye Land do hereby reserve the right of ingrees [sic] and egress for mining purposes only to and from any mines that may be located or hereinafter located on the above described tracts of land… Ex. 1 to Defs.’ Mot. for Summ. J. (emphasis added). Yet the remainder of the document does not inform the meaning of this clause and the scope of the reservation beyond the understanding that the Plaintiffs reserved the rights to enter and leave the Property for

“mining purposes only.”

The court believes that the deed language creates a latent ambiguity. For that reason, the court must consider the circumstances surrounding the formation of the 1966 deed to attempt to ascertain the parties’ intentions regarding the meaning of the phrase “for mining purposes only.” Those circumstances are in dispute. Specifically, the parties disagree whether mountain stone harvesting was a known industry in Sequatchie County at the time the 1966 deed was formed. The Plaintiffs have presented the Affidavit of Roy

Potter, in which Mr. Potter states that he is involved in the mountain stone harvesting industry in Sequatchie County. Aff. of Potter at 1. Mr. Potter also states that the rock removal industry was “widely established” when Mr. Potter was a child. Aff. of Potter at

1-2. The Plaintiffs claim that buildings located near Sequatchie County were constructed of locally harvested mountain stone many years before the 1966 deed was made. See Aff.

14 of Mr. Land at 1-2; Attachment 1to Aff. of Mr. Land; Aff. of Potter; Ex. A to Aff. of

Potter.

In contrast, the Defendants present the Affidavit of Carson Camp, who is a local historian in Sequatchie County with knowledge of the activities on the Property in this case. Mr. Camp states that he has no knowledge of sandstone removal on the Property or in Sequatchie County during the relevant time period – except for someone who stole stone from chimneys. Aff. of Camp. The Defendants also dispute whether Mr. Potter is qualified to assess whether sandstone removal was an established industry in Sequatchie County because of Mr. Potter’s young age during the relevant time period. See Defs.’ Mem. in

Opp. to Pls.’ Mot. for Summ. J. and in Supp. of Defs.’ Mot. for Summ. J. at 6.

Mr. Potter and Mr. Camp’s “competing” affidavits shows there are disputed issues of fact regarding the circumstances surrounding the formation of the 1966 deed. At the summary judgment stage, the court cannot weigh competing evidence. Rather, the court will reserve its determination of whether the circumstance surrounding the granting of the

1966 deed show that “for mining purposes” includes mountain stone removal and the removal methods currently used.

The court has also considered how the parties to the deed treated the deed reservation following the deed’s formation to ascertain the parties’ intentions regarding the scope of the mineral rights reservation. Mr. Land claims that he removed sandstone from the Property to use for building purposes during the time period before he deeded the surface rights to Mr. Condra and also the time period during which the Condras were the

15 owners of the surface rights. Pls.’ Br. in Supp. of Mot. for Summ. J. at 3; Pls.’ Mot. for

Summ. J. at 2; see Aff. of Mr. Land at 2. Specifically, Mr. Land states that he harvested stone from the Property, sold it, and that this stone was used in the construction of a shopping center in Signal Mountain, Tennessee – all before he sold the surface rights of the

Property to Mr. Condra. Aff. of Land at 2. In addition, Mr. Land claims that he executed a lease to a major oil company for the purpose of drilling and exploring for gas and oil during the time period before and after the formation of the 1966 deed. Aff. of Mr. Land at

2; Dep. of Mr. Land at 21. Yet, in his deposition, Mr. Land states that there were no mountain stone mines at the time he granted the 1966 deed. Dep. of Mr. Land at 21.

Rather, Mr. Land makes the distinction between a mining and picking the mountain stone from the surface of the Property. Dep. of Mr. Land at 21. Mr. Land also states that there were old coal mines on the Property at the time Mr. Land granted the 1966 deed to Mr.

Condra. Dep. of Mr. Land 21.

However, Carson Camp disputes that mountain stone was harvested from the

Property during the relevant time period. Aff. of Camp at ¶¶ 3, 4. Mr. Camp states that he hiked and camped on the Property during the 1960’s and 1970’s, which is the time period in which Mr. Land allegedly removed stone from the Property pursuant to the mineral rights reservation. Aff. of Camp at ¶¶ 3, 4. Thus, the parties’ conflicting evidence regarding the use of the mineral rights reservation after the Plaintiffs granted the 1966 deed creates a genuine issue of fact that will be decided after the presentation of the evidence at trial.

16 The court notes that both parties are requesting summary judgment in their favor. Both parties have presented conflicting factual evidence regarding the circumstance surrounding the deed and the exercise of the mineral rights reservation after the granting of the 1966 deed. Where parol evidence “is conflicting or may lead to more than one conclusion, the doubtful parts may be submitted to the fact-finder for resolution.” Bratton,

136 S.W.3d at 601-02. Thus, the presentation of such conflicting evidence makes it impossible to grant summary judgment to either party at this time.

If, at trial, the court determines that the 1966 deed reservation reserves unto the

Plaintiffs the right to harvest mountain stone, the court will consider whether the current methods of removal comport with the scope of the reservation. Specifically, the court will consider whether the Plaintiffs have violated the Defendants’ right to subjacent support of the surface.

V. ADDENDUM

Following preparation of this opinion, the Tennessee Court of Appeals, E.S., released its opinion in State of Tennessee v. Lahiere-Hill, L.L.C., 2008 Tenn. App. LEXIS

444, (July 31, 2008), concerning removal of minerals under a reservation of mineral rights. This opinion makes it clear that regardless of how the substance to be removed is classified, the method of removal and resulting condition of the surface after the removal is a key consideration. Citing Campbell v. Tennessee Coal, Iron & R. Co., 265 674 (Tenn.

1924), the Court of Appeals said:

17 If the extraction of the substance in question . . . is necessarily so destructive of the mined surface are as to essentially “destroy the conveyance” of the surface rights to that area, Tennessee Coal, 265 S.W.at 676, then the company does not have the right to perform the proposed extraction at all, regardless of whether the substance is a “mineral,” and regardless of whether the extraction method is the “usual and convenient means” of removing said mineral. . . .

Lahiere-Hill, * 28-29. In the present case, Defendants assert Plaintiffs do not have the right to destroy the surface rights conveyed to Defendants. Clearly, a factual issue must be resolved concerning Defendants’ proposed method of removal of mountain stone from the property and the destruction that may occur to the surface of the property by removal of the mountain stone.

VI. CONCLUSION

In view of the foregoing, it is hereby ORDERED that the Plaintiffs’ and the

Defendants’ Motions for the Summary Judgment are denied.

ENTER:

______Chancellor Part 2 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and exact copy of this Memorandum

Opinion and Order has been mailed to all parties or their counsel in this cause:

Thomas A. Greer, Jr., Esq. P.O. Box 758 Dunlap, Tennessee 37327 18 Keith H. Grant, Esq. P.O. Box 908 Dunlap, Tennessee 37327

This ______day of August 2008

Tommy C. Goins, Clerk and Master

By: ______

Deputy Clerk and Master