RENDERED: MARCH 5, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0528-MR

HOWARD TAYLOR APPELLANT 

v. 

APPEAL FROM PIKE CIRCUIT COURT

HONORABLE EDDY COLEMAN, JUDGE

ACTION NO. 19-CI-00437 

ERIC CLIME AND ELAINE CLIME APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.

COMBS, JUDGE: Howard Taylor appeals the judgment of the Pike Circuit Court 

entered February 5, 2020, following a bench trial involving a boundary line dispute 

with his neighbors, Eric and Elaine Clime. After our review, we affirm.

The parties own adjoining tracts of real property on Hunts Branch 

Road in Pike County. Taylor’s property lies north of the Climes’ property. The 

parties agree that their properties meet at a point along the uphill portion of a 

fence. The fence begins below at a “felled beech tree” on the Hunts Branch of 
-2-

Fedscreek, a tributary of the Levisa Fork of the Big Sandy River. The Climes 

contend that the felled beech tree at Hunts Branch creek marks the parties’ shared 

boundary line and that the fence is situated inside their property line. Taylor 

argues that a standing beech tree -- farther south of the felled beech tree at the edge 

of Hunts Branch Road -- marks the boundary between them and that the fence is, 

therefore, situated well inside his property line. The parties’ competing claims put 

into dispute a roughly triangular parcel of 1.37 acres bifurcated by the fence. 

Taylor explains that the parties’ disagreement centered largely on which of the two 

beech trees represents the natural marker of their shared boundary line. 

Following a bench trial conducted on February 4, 2020, the circuit 

court concluded that the fence itself marked the boundary between the parties’ 

property – allotting the larger part of the disputed area to the Climes and a narrow 

portion, lying to the north of the fence, to Taylor. The court determined that this 

conclusion was most consistent with the location of a prescriptive easement 

described in an agreed order settling an earlier dispute between the parties. 

 The court concluded that the fence began at the felled beech, which 

the court found was the tree described in the relevant mineral deed consulted by 

Tim Malone, the Climes’ surveyor. The court observed that the fence ran roughly 

parallel to the boundary line advocated by Malone and that it had stood for more 

than fifteen (15) years. The court found that during this period, Taylor had used 
-3-

that part of the disputed area lying on his side of the fence for pasturing livestock. 

It concluded that Taylor had been in possession of that portion of the disputed area 

when the Climes acquired title to their property and that he now adversely owned 

the property up to the fence. However, the court rejected Taylor’s claim to an 

additional portion of the disputed area that lay south of the fence. This appeal 

followed.

On appeal, Taylor contends that the trial court erred by failing to find 

the testimony of his expert witness, Luke Hatfield, more credible than Malone’s 

testimony and by failing to establish the boundary line between the properties in 

accordance with the survey prepared by Hatfield. We disagree. 

Our rules of civil procedure provide that “[f]indings of fact shall not 

be set aside unless clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the credibility of the witnesses.” CR1 52.01. 

This rule is applicable to boundary disputes. Webb v. Compton, 98 S.W.3d 513

(Ky. App. 2002) (citing Croley v. Alsip, 602 S.W.2d 418 (Ky. 1980)). “[A] fact 

finder may choose between the conflicting opinions of surveyors so long as the 

opinion relied upon is not based upon erroneous assumptions or fails to take into 

account established factors.” Id. at 517 (quoting Howard v. Kingmont Oil Co., 729 

S.W.2d 183, 184-85 (Ky. App. 1987)).

 

1 Kentucky Rules of Civil Procedure. 
-4-

Taylor argues that Hatfield’s determination of the boundary line was 

well supported by his observation of a beech tree in a line consistent with the 

description provided by Taylor’s deed. Additionally, Hatfield identified 

photographs showing the initials of Taylor’s family carved into its bark many years 

ago. Hatfield testified that the line that he plotted better set out the boundary 

between the parties because it followed the language in Taylor’s deed, which 

called for the line to run “down the point to a beech tree.” He testified further that 

Malone’s line did not follow the point to the beech tree as called for in Taylor’s 

deed -- but instead followed angles, calls, and distances set out in a 1914 mineral 

deed down the hill to a different beech tree. Taylor contends that the court erred 

by relying on testimony based upon the mineral deed as opposed to his surface 

deed and that the entirety of the disputed property more clearly belongs to him. 

The Climes contend that the trial court did not err by relying on 

Malone’s testimony concerning the beech tree. Although they argue that the trial 

court’s conclusion that the fence marks the parties’ boundary line improperly 

results in a windfall to Taylor, they did not cross-appeal the judgment. 

The expert surveyors agreed that mineral deeds are commonly 

referenced in establishing surface boundary lines. While the expert testimony 

confirmed that descriptions contained in mineral deeds do not necessarily match 

the boundaries of surface estates, we are not persuaded that the court erred by 
-5-

relying on Malone’s use of the mineral deed description, in part, to locate the 

beech tree separating the parties’ property. Indeed, when determining boundaries, 

the general rule is that natural and permanent monuments are the most satisfactory 

evidence and that they control all other means of description. Metropolitan Life

Ins. Co. v. Hoskins, 273 Ky. 563, 117 S.W.2d 180 (1937). 

Malone testified that the beech tree was of an adequate age to justify 

its use as a monument in the 1914 deed that he consulted and that the tree was in 

the location that he expected it to be according to his measurements. Once the 

beech tree was identified through the various descriptions and the angles, calls, and 

distances included in the mineral deed, Malone was able to confirm the boundary 

line. 

The trial court’s findings of fact are clearly based upon the testimony 

of the parties and their expert witnesses, the title and possession of the property,

the trial exhibits, and other relevant evidence. Its decision to rely on Malone’s 

expert opinion is not clearly erroneous. The judgment is supported by substantial 

evidence. We can discover no error, nor can we conclude that there is any basis 

for reversal. 

Therefore, we AFFIRM the judgment of the Pike Circuit Court.
-6-

ALL CONCUR.

BRIEFS FOR APPELLANT:

James P. Pruitt, Jr.

Pikeville, Kentucky

BRIEF FOR APPELLEES:

Jonah L. Stevens

Pikeville, Kentucky