1 While the Fullers’ complaint sought dama

ges for t respass, no evidence

of damages w as int

roduced at t

rial f or the trial court’s consideration. Additionally, the parties do no t raise an issue regar ding trespas s or dama ges on app eal.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON Submitted On B rief March 21, 200 1 Session LESLIE C. CROSSETT, ET AL 

### . v. ROY E. FULLER, ET AL 

### . Direct Appeal from the Chancery Court for Carroll County No. 97CV-153 Ron E. Harmon, Chancellor

No. W2000-02482-COA-R3-CV - Filed July 19, 2001

This is an appeal from a boundary dispute. The property in dispute is a roadway used by bothparties to access their properties. The trial court determined the common boundar y l ine, provided the Crossettswith an easement f or ingress and egress, and awarded the Fullers their costs. The Crossetts appeal. We affir

m. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed; and Remanded
D AVID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS andH OLLY K. L ILLARD , J.J., joined.
W. Collins Bonds, Milan, Tennessee, for the appellants, Leslie C. Crossett and wife, Wanda L. Crossett and Harold Crosse

tt, Leslie Cros sett and Bobby Crossett as Trustees of the

Crossett Trust. Dwayne D. Maddox, III, Huntingdon, Tennessee , for the appellees, Roy E. Fuller and wife, Lou

ise B. Fuller.
OPINION
Leslie Crossett (Mr. C rosse tt) an d his w ife, W anda L. Cro sse tt ( Mrs . Cr oss ett , co lle cti vel y, the Crossetts), filed a complaint against Roy Fuller (Mr. Fuller) and his wife, Louis

e B. Fuller (Mr

s. Fuller, collectively the Fullers), seeking to establish the disputed boundary between the properties of the respective p

arties. The Fulle

rs filed an answe

r, counter-comp

laint, and third-p

arty compla

int, acknowledgingthat a dispute existed between the parties as to the location of the com mon bou nda ry. In their counter-complaint, the Fullers sought damages for tre spa ss in an amount not to exceed $25,000. 1 Their third- par ty complaint alleged that Harold Crossett, Leslie Crossett, and B obby Crossett as Trustees of the Crossett Trust should be made parties to this action.-2-

The Crossetts, and Harold Crossett, Leslie Crossett, and Bobby Cross

ett as Trustees of the Crossett Trust, moved to

dismiss the counter

-complaint and thir

d-party complaint. The trial court denied said motion to dismiss by order dated December 16, 1999.
The Crossetts, the Crossett Trust, an d th e Fullers own con tiguous tracts of

land in Carroll Cou nty, Tennessee. The

Crossetts own a 5.9 a

cre tract of la

nd which is bo rdered on the south by Highway 77, on the west and north by Joe David Brandon (Mr. Brandon), and on the east by the Fullers. There is a road runn i ng in a northerly direction from Highway 77 which is used by the Crossetts to acce

ss their driveway

and which is also us

ed by the Fu

llers.
The Fullers introduced into evidence trial exhibit 11, which is a warranty deed, purporting to show that the Ful

lers own the road

way. The de

ed provides as fo

llows:
BEGINNING

at a stake in

the north margin of Hwy

# 77, the same bein

g one rod east of the east line of the Herbert Crossett land and being one rod east of

his southeast corner; thence with the east line of the 1 p ole right o f way north 21⁄2 degrees we

st 195 poles to a stake 1 rod east of Crossett’s east

line; thence nort

h 861⁄2 degrees e

ast with the Vernon Fuller line 22 rods and 6 feet to a stake; thence north 21⁄2 degree s west with the west line of

the Vernon Fulle

r tract 66 rods to a

st ake; thence s outh 861⁄2degrees west

23 rods 6 feet to a stake in the east line of the Crossett land; thence south 21⁄2 degrees east with the east line of the Crossett land 261 rods to a stake in the north margin of the right of way of Hwy . #77; thence with the north margin of the right of way of sa

id highway

east 1 rod to the point of beginning and containing 10 acres, the same more or less.
The Crossetts contend that the road provided for in the Fullers’ deed is not the sameas the roadway which is the subject of this dispute. Instead, the Crossetts argue that the roadway in dispute is that road sho wn o n th e 19 26 h ighw ay su rvey.
A roadway is mentioned in the deed for the Crossetts’ property . That de ed pr ovides as follows:
BEGINNING

at a stake the Southea

st corner of a tr

act deeded to He

rbert Crossett

on on [sic] November 5, 1 949, by Ola Cr ossett and runs South

with roadway

45 1/3 poles to a stake, th

e original Southe

ast corner of Ola Crossett farm; thence west 20 9/10 poles with the south line of the original tract to a stake, the southeast corner of tract deeded to Elsie Al

ta Brandon on Nov

ember 5, 1949 by

Ola Crossett ; the nce North 45 1/3 poles to stake in H erber t Crossett’s south lin e; Thence East w

ith Crossett’s south line (Tract deeded November 5, 1949 by Ola Crossett) 20 9/10 poles to the beginning, containing by estimation 5.9 acres, more or less.
The Crossetts contend that the roadway mentioned in their deed is the road which is the focus

of this dispute.-3-

The Cro ssetts hired Tony Reasons (Mr. Reas

ons), a civil eng

ineer and land su

rveyor, to survey their property in anticipation of selling some of it in 1997. Mr. Reasons determined that there was an old

roadbed which wa

s fairly we

ll defined in plac

es and which was b

ordered on both th

e east andwest side with fencing. Using the deed call of 1682.29 feet, Mr. Reasons went east the distance called for and

found one pin with another pin being 16 1⁄2 feet further east. The pins corresponded to those mentioned in older deeds. Additionally, Mr. Reasons found a rock to be in a straight line withth e Crossetts’ southeast corner. Mr. Reasons also found a car jack 16 1⁄2 feet east of what appeared to be a

n apparent line. M

r. Reasons stated

that, in hisopinion, the roadway described in the Fuller deed was clearly located on the Fuller s’ property.
The Crossetts also hired Frank Coley (Mr. Coley), a licensed surve yor, to su rvey their pro pert y. Mr. Coley began at a rock referenc ed in Mr. Fuller’s prede

cessor’s deed a

nd surveye

d all of the physica

l evidence such a

s fences and iron

pins. Mr. Cole

y located t

he original fence lines running north and south in the Crossett Trust property and some iron pins. He determined that the distances between the fence lines correspond

ed with the Crossetts’ deeds. Mr. Coley did not find any other natural monuments other than the rock. Mr. Coley noted that if y ou ran a line in a southerly direction from the angle iron located on the east side of the gravel ro ad coming off of Highway 77, the Crossett

line moves toward the center of the gravel road and reaches the ce nter of the road at the point where the gravel road intersects Highway 77. Mr. Coley further noted that the road he located

ran with the Crosse

tts’ boundary

lines. After hearing testimony

from the parties, the surveyors, and other witnesses, the trial court determined the c

ommon boundary

line between the

parties:
the r ock in the southern portion that’s shown on Exhibit 21 (survey by Ton y M

. Reasons), will be the starting point to determine the boundary li ne. The line will extend straight to the no

rthern most prope

rty that is in d

ispute that woul d be the northeast corner of the 97.56 acre tract shown on Exhibit 21. The line will intersect the base of a tree shown

in Exhibit 10(photograph). I have chose n the tree becau

se the pin is no longer there. This is approximately 16.5 feet west of the car jack, and, as I said, will extend in a straight line to the northern mos

t portion of the pro

perty in dispute. Further, the court found that the Crossetts should have an easement for ingress and egress that runs withthe land beginning at Highway 77 and extendin g n orth to the northern most edge of Mr. and Mrs. Crossett’s land. Subsequent

from the entry of judgment, the Fullers filed a motion for discretion ary costs. The trial court awarded

the Fullers their disc retionary cost s with the e xception of a $10.92 c harge for photograph

s. The Crossetts bring this appeal, raising the following issue s, as w e perceive them , for this court’s review:-4-

1. Whether

the evidence preponderated against the trial court’s finding regarding the common boundary line location.
2. Whether

the trial court erred in a

warding the Fu

llers their discretionary

costs in excess of the cos

ts associated with

their expert’s tes

tifying at trial.
Because this matter

was tried before

the court sitting without a jury, our review of the trial court’s findings of fact is de novo with a presumption of correctness, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d). As the issues regard questions of law, our review is de novo with no presu mption of corre ctness. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997); Tenn. R.App. P. 13(d). Our de novo review is tempered by the fact that the trial court is in the best position to

assess the credibility of the witnesses and such determinations are afforded great weig ht on app eal. See Massengale v. M assengale , 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995). On issues regardi ng the credibili

ty of witness

es, the trial cour

t will not be rever

sed unless there is clear

and convincing evidence

to the contrary. See Tennessee V alley Kaolin Corp. v. P

erry , 526 S.W.2d 488, 490 (Tenn. Ct. App. 1974).
As regards the court’s determination of the common b oundary line of the parties, after a thorough review of

the record, we hav

e determined tha

t the evidence do

es not preponder

ate against the trial court’s bou ndary line d etermination. Accordingly, we affirm the trial court’s common boundary line determination.
Rule54.04 of the Tennessee Rules of Civil Procedure provides for costs allowable to the prevailing party. Rule 54.04 (2) states, in pertinent part,
Costs not included in the bill of costs prepared by the clerk are allowable only in the court’s discretion. Discretionary costs allowable are: reasonable and necessary court reporter expenses for depositions or trials, re asonable and nec

essary expe

rt witness fe es for depositions or

trials . . . ; travel

expenses are not a

llowable discret

io nar y costs. Tenn. R. Civ. P. 54.04(2).
In their brief, the Crossetts claim that thetrial court erred in awarding as discretionary

costs all of the charges of Mr. Reasons, the Fullers’ expert witness, because “said charg es include more tha[n] the charges made for appearing and testifying in the trial of

this matter . . . .” In their motion for discretionary

costs, the Fuller

s listed as total cos

ts and expenses incu

rred through th

e tria l , $1,611.42, which included court reporter costs, costs for se

rvice of proces s, expert witness fees, and costs of photographs. Re

garding Mr. Re

asons’s fees, the

Fullers’ affid

avit of attorney and verified bill of discretionary costs states: “The costs and expenses incurred by defendants Fuller through the trial include th e followin g: . . . Reasons Engineering and Associates (expert witness) 500.00." In response to the Crossetts’ claim that the costs associated with Mr. Reasons includedmore than those for appearing and testifying at trial, the Fullers, in their appe llees ’ brief, stated , “No where in the-5-

record does it reflect that these charges were for any thing else.” We must agree. The Crossettsmake a blanket allegation that the costs associated with Mr. Reasons were f or more than appearing and testifying at t rial , yet they

do not provide this c

ourt with any

cites to the reco

rd to support their allegation. Accordingly, based upon the foregoing and the language in Rule 54.04(2), we find that the trial court did not a

buse its discretion

in awarding the

Fullers their

trial costs with

the exception of the costs of the photographs, as such cost is not allowable pursuant to said Rule.
For the foregoing reasons, we affirm the trial court’s judgment in all re spects. Costs of this appeal are taxed to the Ap pellants, Les

lie C. Crossett and w

ife, Wanda L. C

rossett, and Har

old Crossett, Leslie

Crossett and Bobby Crossett as Trustees of the Crossett Trust, and their surety , for whi ch ex ecut ion may i ssu e ifnece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE