### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Assign ed on Briefs April 4, 2016

ROBERT PAUL MICHAELS v. DEANNA SINGLETON DRINNON ET AL



### .

Appeal from the Chancery Court for Hancock County

No. 14

- 9571 Douglas T. Jenkins

, Chancellor

No. E2015

- 00009

- COA

- R3

- CV Filed

- July 15, 2016

This is a property line dispute involving adjoining landowners. The plaintiff filed the instant action when the defendants began clearing land that the plaintiff asserted was his

. The defendants filed a counter

- complaint, c laiming ownership of the disputed property. Following a bench trial, the trial court determined the location of a boundary line between the parties , thereby award ing to the plaintiff ownership of most of the disputed area. The defendants have appealed. Discerning no reversible error, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right ; Judgment of the Chancery Court

Affirmed ; Case Remanded

T HOMAS R. F RIERSON

, II, J. , delivered the opinion of the court, in which F RANK G.

C LEMENT

, J R

., P.J., M.S., and K ENNY W. A RMSTRONG

, J. , joined.

Scott A. Hodge

, Morristown , Tennessee, for the appellants, Deanna Singleton Drinnon

and Michael Drinnon.

David H. Stanifer and Neal W. Stanifer

, Tazewell , Tennessee, for the appellee, Robert

Paul Michaels.

OPINION

I. Factual and Procedural History

This boundary dispute action was filed by the plaintiff, Robert Paul Michaels, in the Hancock County Chancery Court on January 9, 2014. Mr. Michaels owns a parcel of unimproved real property located in Hancock County. Mr. Michaels asserted that2

adjoining landowners

, Michael Drinnon and Deanna Singleton Drinnon

, had encroached upon his property and were excavating and clearing land belong ing to him. Mr. Michaels requested that the court establish th e proper boundary between the parties’ respective properties. Mr. Michaels also sought a restraining order preventing the Drinnons from encroaching on his property and an award of damages.

The Drinnons filed an answer to Mr. Michaels’s complaint

, a ssert ing that they owned the section of property in dispute (“Disputed Property”) . The Drinnons stated that they had lived on the ir property for thirty

- nine years and were familiar with the boundaries. According to the Drinnons, they were clearing a portion o f their property for the purpose of placing a mobile home thereon for their daughter ’s use when the prese nt dispute arose. The Drinnons asserted that they subsequently hired a licensed land

surveyor , who determine d that the D isputed P roperty belonged to t hem. The Drinnons

filed a c ounter

- complaint seeking establishment of the boundary line based on the survey

and damages.

The trial court conducted a hearing on the merits on April 30, 2014. The first witness, Jim McMurry

, testified that he was hired by Mr. Michaels’s predecessors in title,

the Yoders , to sell by auction approximately 276 acres of real property . In preparing for the auction, Mr. McMurry familiarized himself with the property’s boundaries and

believed he understood where they were located . Mr. McMurry conducted the real estate auction on May 1, 1993. As Mr. McMurry explained

, the Yoders’ property was sold in five tracts, with Mr. Michaels purchasing two of those tracts. He presented the court with a copy of the auction brochure, reflect ing the general division and layout of the property being sold and contain ing a depiction of the Drinnons’ property being excepted as “not part of sale.” The brochure depict s the Drinnons’ property as a rectangular p arcel containing “1 Acre and 2 Mobile H omes” with frontage on Singleton Road. On the

auction brochure , the Drinnons’ property does not appear to adjoin the line of the property owner to the west, Mr. Manning . I nstead

, the property sold in the 1993 auction

appears to surround the Drinnons’ pro perty on three sides, with the public road forming the boundary on the remaining side.

Mr. McMurry described the property purchased by Mr. Michaels as “wrapping all the way around” the Drinnons’ property from Singleton Road. Mr. McMurry acknowledged t hat the auction brochure was based on the county tax assessment map and that no survey was performed at the time of the auction. According to Mr. McMurry

, there exi s ted a right of way traversing the D isputed Property from the public road to the

property located behind the Drinnons’ land purchased by Mr. Michaels

.

Mr. Michaels testified that he attended the auction in 1993 and purchased the tracts of property that bounded the Drinnons’ land on three sides. Mr. Michaels also3

stated that he purchased th e pro perty for purposes of hunting and farming. According to Mr. Michaels, in October 2013 he observed workers on the D isputed Property , cutting trees and grading the land. Mr. Michaels reported that he attempted to speak with the

Drinnons at that time b ut that Ms. Drinnon responded by call ing the sheriff. He related that on January 1, 2014, he again saw machinery on the property being used for grading and tree removal. According to Mr. Michaels, these events led to his filing the instant

action.

In s upport of his claim, Mr. Michaels explaine d that his warranty deed indicated a right of way across the Disputed Property , which he identified as a strip of land to the east of Mr. Manning’s boundary line, running from Singleton Road to the rear boundary of the Drinnons’ property. Mr. Michaels reported that the remains of an old road bed

could be observed in that area . Although he had not had the property surveyed, Mr.

Michaels indicate d that he knew where the boundaries were located. N o question had

e ver been raised concerning Mr. Michaels’s ownership of the D isputed P roperty until the Drinnons began t heir alleged encroach ment in 2013 , twenty years after Mr. Michaels ’s purchase

. Although the survey commissioned by the Drinnons indicated a poplar stump along Mr. Manning’s eastern boundary, Mr. Michaels disputed that such a stump existed.

Barbara Seals testified that she had recently accompanied Mr. Michaels and his counsel on a visit to the Disputed Property for the purpose of searching for the poplar stump along Mr. Manning’s eastern property line. Ms. Seals testified that they had been unable to locate any such stump or the remains of one. She also testified that they did locate the old road bed approximately forty feet from the fence on Mr. Mannin g’s eastern boundary line.

Donnie Singleton, Ms. Drinnon’s brother, testified that he met the surveyor, Mr. Lacey, at the property because Mr. Drinnon was unable to do so. Mr. Singleton reported that he had “been around” the property for years because t he parcel, though previously

titled to t he Yoders

, had been owned at one time by his father and uncle. According to Mr. Singleton, he showed the surveyor the corners of the Drinnon s’ property as he

understood them to be. He testified that the Dri nnons’ property was bounded by Mr. Manning ’s property line t o the west (“Manning Line”)

. Mr. Singleton also testified that although there were remnants of an old fence running across the rear of the Drinnons’

property

, he had never s een a poplar stump or the rem ains of one.

Mr. Drinnon testified that he had been living on the property since 1974 and

became an owner in 1985. Mr. Drinnon stated that the old fence located along his rear property line was in existence when he moved in. He further explained that a lthough the fence posts had rotted

, th e wire could still be seen l ying on the ground. While Mr.

Drinnon claimed that the fenc e continued to a poplar stump at the Manning L ine on the4

west boundary of his property, h e acknowledged that there was a gap in th e fence approximately ten to twelve feet from the Manning L ine. In remember ing the old road

bed in that area , he claimed the road had been used by his wife’s father and uncle to

access their property behind his (now Mr. Michaels ’s property). When questioned, Mr.

Drinnon described the road bed as ten to twelve feet in width.

In support of his competing claim, Mr. Drinnon maintained that his property extended to the Manning L ine to the west. He also maintained that while an old poplar

stump e xisted along the boundary, its location could only be determined by digging beneath ground surface leaves. Mr. Drinnon testified that he allowed a mobile home for his daughter to be placed on the D isputed P roperty

, believing himself to be the owner

. He a dmitted that while he attended the auction in 1993 and saw the auction brochure map, he did not understand the map and thus did not object at th e time. Mr. Drinnon acknowledge d that Mr. Michaels had a right of way over the D isputed Property not

appear ing in Mr. Drinnon’s deed. Mr. Drinnon stated that although he did not show the poplar stump to the surveyor , he informed the surveyor of its location . Mr. Drinnon recognize d that his deed description did not mention any correlation to the Manning L ine.

Michael Lacey, a licensed surveyor, testified that he was retained by the Drinnons to survey their property. He stated that he reviewed the relevant deeds but noted that the descriptions were very vague. As Mr. Lacey explained, by virtue of the deed

desc riptions’ vagueness, he asked Mr. Drinnon’s daughter to have someone meet him at the property to identify the reference points. According to Mr. Lacey

, Mr. Singleton and

the Drinnons met him while Mr. Singleton identified a fence that had been built by Mr

. Singleton and his father in the 1980s.

Mr. Lacey reported that he locate d the remains of the old fence stretching along

the back line of the Drinnons’ property. He further stated that while the fence contained a gap of approximately ten feet in width as it neared the Manning L ine

, there was

e vidence of an old road bed headi ng north at that point

. As Mr. Lacey no ted that the

Drinnon s’ deed description called for a poplar tree

, h e explained that he found an old, rotten poplar stump al o ng the Manning Line that lined up “pretty good” with the old

fence running along the rear of the Drinnons’ property. Mr. Lacey claimed that there were remains of a poplar tree there, which had fallen “northeasterly.” He therefore

determined the western boundary of the Drinnons’ property to be the Manning L ine, thus establishing t he Drinnons ’ tract as containing 1.13 acres as Mr. Lacey surveyed it.

Upon further examination

, Mr. Lacey acknowledged that the Drinnons’ deed description did not mention the Manning L ine. He also admitted that Mr. Manning’s deed description expressly provide d that Mr. Manning’s property joined Mr. Michaels’s property. Following his viewing of a photograph of the Manning L ine taken by Mr.5

Michaels’s counsel , Mr. Lacey could not identify the poplar stump or a fallen tree. He

did indicate that the right of way referenced in Mr. Michaels’s deed was probably referring to the old road bed. When questioned by the trial judge regarding why the right of way was no t reflected on his survey, Mr. Lacey responded:

[B]ecause all three tracts on Michaels’ s property were all owned by the same owner, which being Carson Singleton. So they would have been found all under one ownership and so based on the Doctrine of Merger I believe it’s called, once everything is under the same ownership there’s no

need for a right of way anymore.

Following the conclusion of the proof and closing arguments, the trial court rendered its ruling from the bench, stating in pertinent part:

Well in the Court’s analysis of the situation the first thing you do is

read from Mr. Drinnon’s Deed and Mr. Michaels’s Deed. And unfortunately those Deeds are not very helpful. The only thing that the Court thinks from reading Mr. Drinnon’s Deed is thi s language about leaving the road and going to the poplar tree would have to be on the western end of whatever tract of property he was deeded because otherwise it couldn’t follow a generally southerly course back down to the road. It would be going gener ally northerly.

So the first call in that Deed the Court thinks, leaving the public road

that was then called [ Chin qu ap i n ] and now called Singleton Road the Court’s encountered that back in my days of practicing Law. And where exactly that point is is a dang good question. It’s hard for the Court to

determine that.

There are no feet in that Deed. There’s really no measurements. There’s no steps. There’s not even really good north, west, etc. directions

in the Deed.

So the Court would have to reso rt to the testimony of the Parties and the surveyor to try to ascertain where that point is. And one of the things that is very, very persuasive to the Court is the plat from that auction showed I think unequivocally that the Drinnon property did not go t o the Manning line. Of course it was based on a tax map which is a very approximate document and tax maps can’t really be used to set boundaries.6 Then we’ve got the intervening problem of before anything was really settled one of us went up there and hauled off and dozed out a home site and started to set a home on it. And then this dispute ensued in court so I think that was getting the cart before the horse and the Defendants would

have to bear the risk of loss of that.

The Court finds barely base d on the evidence here before me, which is very scant, that the Parties should work with the surveyor and ascertain the western edge of the old road bed that went from Singleton Road up to the upper property line. And the Court believes that as nearly as can tell

that was the intention of the Parties at the time. And that right of way likely is ten (10) feet in width. So the right of way itself would run parallel to Mr. Drinnon’s eastern property line in a width of ten feet from Singleton Road to the upp er property line. And the right of way is on the Drinnon side. That is, if you’re standing in the road looking up the hill it would be on the right side.

Now as near as the Court can tell the footage on that is approximately forty (40) feet from the Ma nning line on the road and it sounds like its only ten (10) or fifteen (15) feet up at the . . . from the Manning line up at the upper side of the property.

Hopefully that will afford the Defendant[s] enough land to do what they want to with that house but if it doesn’t, like I say the cart was before the horse and they ought to bear the loss on tha t.

The trial court subsequently entered a written order determining the boundary line for the Drinnons’ property to be the western edge of the old road bed running from Singleton Road to the Drinnons’ rear property line. Accordingly , the court determined that Mr. Michaels owned the property between Mr. Manning ’s ea stern property line and the western edge of the old road bed. The Drinnons filed a motion to a lter or amend, which the court denied by order dated November 26, 2014. In that order, the court explained in pertinent part:

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Motion to Alter and/or Amend the Judgment filed by the

Defendants in t his cause is hereby denied and of which the Court relies that the Defendants did not provide any additional proof other than what was previously provided at the trial in this cause and the Court specifically relies upon the previous findings of the Court.7 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the line between the parties shall begin at the stump located on Singleton Road and a straight line running to the corner of the Plaintiff and

Defendant [s’] property, being 35 feet from the Manning line.

The Drinnons timely appealed.

II. Issues Presented

The Drinnons present the following issues for our review, which we have restated slightly:

1. Whether the trial court erred by n ot accepting the boundary line determined by Mr. Lacey’s survey.

2. Whe ther the trial court erred by relying on a tax assessment map in making its determination regarding the boundary line between the parties.

III. Standard of Review

This Court review s the factual findings of the trial court de novo with a presumption of correctness and will not overturn them unless the evidence preponderates against them. See Tenn. R. App. P. 13(d); Morrison v. Allen , 338 S.W.3d 417, 425

- 26 (Tenn. 2011). “In order for the evidence to preponderate against the trial court’s findings

of fa ct, the evidence must support another finding of fact with greater convincing effect.”

Wood v. Starko , 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). We review questions of

law de novo with no presumption of correctness. See Bowden v. Ward , 27 S.W.3d 913,

9 16 (Tenn. 2000) (citing Myint v. Allstate Ins. Co. , 970 S.W.2d 920, 924 (Tenn. 1998))

.

As this Court has previously explained regarding a boundary line dispute:

“In resolving a boundary line dispute, it is the role of the trier of fact to evaluate all the evidence and assess the credibility of the witnesses.”
Mix v. Miller, 27 S.W.3d 508, 514 (Tenn. Ct. App. 1999) (citing Norman v. Hoyt, 667 S.W.2d 88, 91 (Tenn. Ct. App. 1983)). The judgment of the trial court should be affirmed, absent errors of law, unless the preponderance of the evidence is against those findings. Phillips v. Woods, No. E2007

- 00697

- COA

- R3

- CV, 2008 WL 836161 (Tenn. Ct. App. Mar. 31, 2008).

Du e to the fact

- intensive nature of boundary line disputes, the trial court is best suited to assess the credibility of the witnesses and its credibility8

determinations are binding on this court unless the evidence preponderates against them. Id. at *34. W hen the trial court makes a deter mination accepting one surveyor’ s findings over that of another, that same deference requires this court to accept the trial court’ s findings. Id.

The following rule has been adopted in Tennessee:

The construction of de ed and other instruments and documents and their legal effect as to boundaries is a question

of law. What boundaries the grant or deed refers to is a question of law; where those boundaries are on the face of the earth is a question of fact. If, therefor e, the evidence concerning the location of the true boundary line between adjacent landowners is conflicting, that issue is one of fact unless the legal construction of the deed or grant is such that the boundary is determined as a matter of law.

12 Am. J ur. 2d Boundaries § 121 (1997) (footnotes omitted). We therefore

review the trial court ’ s finding as to the true location of the [parties’] boundary line as a finding of fact that is entitled to the presumption of

correctness. Tenn. R. App. P. 13(d). Th us, we will not disturb the trial

court ’ s judgment unless the evidence preponderates against it. Id.

Hong v. Foust , No. E2011

- 00138

- COA

- R3

- CV, 2012 WL 388448 at *5 (Tenn. Ct. App. Feb. 8, 2012)

. See also Conder v. Salyers , 421 S.W.3d 589, 592 (Tenn. Ct. App. 2013)

.

IV. Survey

The Drinnons insist that the trial court erred by failing to accept the common boundar y line as shown on the survey performed by Mr. Lacey. The Drinnons essentially argue that a survey, submitted by a surveyor with accompanying testimony

, should prevail when there is no competing survey. The Drinnons cite this Court’s decision in Johnson v. City of Mt. Pleasant , 713 S.W.2d 659, 662 (Tenn. Ct. App. 1985), as authority in support of their argument . W e determine Johnson to be una vailing in this action . In

Johnson , this Court examined all of the evidence presented and determined that no

material evidence existed to support the jury’s verdict establishing the boundary line in question when the jury had found the line to be differen t from that determined by the surveyor and the surveyor’s testimony was the only testimony locating the line. Id . In the case at bar, the trial court heard testimony from several witnesses regarding the location of the boundary line in question. The Dri nnons contend, however, that because Mr. Lacey was the only exper t surveyor to provide testimony, they should prevail.9

We note that th e precise argument advanced by the Drinnons herein was rejected by this Court in Dowdell v. Cotham , No. M2006

- 00750

- COA

- R3

- CV, 2007 WL 2198169

at *8

- 9 (Tenn. Ct. App. July 25, 2007) . T his Court explained:

[The plaintiff] argues the trial court erred when it disregarded the survey performed by a registered land surveyor in the absence of a competing

survey and/or contradictory expert testimony. Citing to his argument relating to the summary judgment issue, [the plaintiff]

. . . concludes the

trial court should have determined at trial tha t the boundaries of the [plaintiff’s] property were as stated on the s urvey performed by Burns.

[The plaintiff] cites no authority to support his proposition that the law absolutely requires a competing land survey in every boundary line dispute or that the trial cou rt must adopt the sole surveyor’ s findings as a

matter of law. Similarly, he cites no authority to support his claim that the trial court was required to disregard the testimony presented by [ the defendants] because the testimony was from lay witnesses rather than expert witnesses. This claim is simply without merit.

Id.

In the case at bar, Mr. Lacey’s survey was contradicted by the testimony of Mr. McMurry and Mr. Michaels, both of whom stated that they were familiar with the

boundaries of the Drinnon s’ property and that it did not adjoin the Manning L ine. Although Mr. Drinnon and his brother

- in

- law , Mr. Singleton, claimed that the Drinnon s’ property did extend to the Manning Line , this assertion could not be harmonized with other evidence, such as the existence of the right of way , acknowledged by all witnesses

to likely be the old road bed running north through the D isputed Property from Singleton Road parallel to the Manning L ine

. Significantly, t his right of way i s only referenced i n Mr. Michaels’s deed and not Mr. Drinnon’s deed . If the Drinn ons actually own the

D isputed P roperty, the right of way should have been referenced in the Drinnons’ deed as well

. In other words, t he only rational conclusion for the right of way ’s express reference

in Mr. Michaels’s deed i s that it crosse s his propert y. Ergo , the absence of any reference to the right of way in the Drinnons’ deed indicates that they do not own the D isputed

P roperty.

Additionally, Mr. Manning’s deed description specifically reference s a beginning point on Chinquapin Road at the corner of Mr. Mi chaels’s land

. The deed description

later describes following Mr. Michaels’s property line south and southeast to the point of beginning. Mr. Manning’s deed makes no reference to adjoining the Drinnon property.10

Further more , Mr. Drinnon’s deed contains no reference to a boundary with Mr. Manning or his predecessor in title.

Moreover

, Mr. Lacey suggested in his testimony t hat he based his survey in large part on the information provided to him by the Drinnons and Mr. Singleton. In fact, Mr. Lacey stated that the deeds were “too vague” such that he needed someone familiar with the property to show him the reference points. Specifically, Mr. Drinnon’s deed description states in total:

B EGINNING at the main roa d on north side to the fence; thence south following fence to a poplar tree; thence back out the main road to the BEGINNING. Containing One (1) acre, more or less.

Both Mr. Drinnon and Mr. Singleton a cknowledg ed that they provided Mr. Lacey with

the loca tion of the poplar tree on the Manning L ine, although Mr. Singleton testified that he never actually observed the stump or its remains. As the trial court correctly noted, however, the language contained in Mr. Drinnon’s deed description “ about leaving the road and going to the poplar tree would have to be on the western end of whatever tract of property he was deeded because otherwise it couldn’t follow a generally southerly course back down to the road. It would be going generally northerly. ” In othe r words,

Mr. Drinnon’s deed description would begin with the western boundary of the Drinnon property at the road, run north to the fence identified by the witnesses, and then continue in a somewhat southerly direction to a poplar tree. Mr. Lacey’s survey , however, appears to begin on the eastern boundary of the Drinnon property at the road, run north to the fence, and then continue in a northerly direction to the purported poplar stump on the Manning L ine. Thus, Mr. Lacey’s survey does not appear to comp ort with the description in Mr. Drinnon’s deed or any of the other deeds.

As this Court has previously established, when determining the location of a boundary line in dispute, the trial court should “ look first to the natural objects or

landmarks on the property, then to the artificial objects or landmarks on the property, then to the boundary lines of adjacent pieces of property, and finally to courses and distances contained in documents relevant to the disputed property. ” Mix v. Miller , 27

S.W.3d 508 , 513 (Tenn. Ct. App. 1999) (citing Franks v. Burks , 688 S.W.2d 435, 438 (Tenn. Ct. App. 1984)). Therefore, when establishing a boundary, a “land owner may rely on deeds other than his or her own.” Mix , 27 S.W.3d at 514. In this case, the trial

court co nsidered the testimony of all the witnesses and the totality of the evidence presented when concluding that the boundary formed by the old road bed was the most appropriate boundary between the parties ’ respective properties . Based on our thorough

review of the record, we determine that the evidence does not preponderate against the11

trial court’s conclusion regarding the boundary line location or ownership of the D isputed

P roperty. We therefore affirm the ruling of the trial court.

V. Reliance on Tax Ma p

The Drinnons also argue that the trial court erred in relying on the tax assessment map to establish the boundary of their property. The Drinnons posit that such tax maps are “not particularly helpful for the purpose of establishing a boundary line.” See Lafever v. Lafever , No. M2008

- 00651

- COA

- R3

- CV, 2009 WL 167329 at *9 (Tenn. Ct. App. Jan. 23, 2009) ; see also Estate of Weaver v. Estate of Haley , No. 03A01

- 9511

- CH

- 00404, 1996 WL 97653 at *1 (Tenn. Ct. App. Mar. 6, 1996) (“ [A] tax map from a tax assessor’s plat does not establish a boundary line.”). In thi s matter, the trial court noted in pertinent

part:

[O] ne of the things that is very, very persuasive to the Court is the plat from that auction showed I think unequivocally that the Drinnon property did not go to the Manning line. Of course it was based on a tax map which is a very approximate document and tax maps can’t really be used to set

boundaries.

A lthough the trial court noted that the auction plat was persuasive , it also discounted the plat’s evidentiary value because it was based on a tax map. The court proceeded to determine that the proper boundary between the parties was the western edge of the old

road bed “based on the evidence.” Having determine d that th e evidence does not preponderate against the trial court’s location of the boundary line , w e affirm the judgment and find no error in the trial court’s determination based on all the evidence presented.

VI. Conclusion

For the foregoing reasons, we affi rm the trial court’s judgment. Costs on appeal are assessed to the appellants, Deanna Singleton Drinnon and Michael Drinnon . This

case is remanded to the trial court for collection of costs assessed below.

_________________________________ THOMAS R. FRIERSON, II , JUDGE