IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

March 20, 2012 Session

MARIE McPEAKE v. EDNA DICKSON and BRIDGETTE COLLETTE

DICKSON

AND

DANNY DICKSON and wife, VICKIE DICKSON v. MARIE McPEAKE

Direct Appeal from the Chancery Court for Henderson County

No. 21281 James F. Butler, Chancellor

No. W2011-01127-COA-R3-CV - Filed April 26, 2012

This appeal arises out of a four-day trial over a boundary line dispute. Numerous surveyors

and other witnesses testified at trial, and many maps, aerial photographs, survey plats, deeds,

and other documents were entered into evidence. The chancellor personally viewed the

property in question as well. Thereafter, the court established the boundary line as set forth

in the survey plat prepared by the defendants’ surveyor. The plaintiff contends that this was

error. We affirm.

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

ALAN E.HIGHERS,P.J.,W.S., delivered the opinion of the Court, in which DAVID R. FARMER,

J., and HOLLY M. KIRBY, J., joined.

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Marie McPeake

Laura A. Keeton, Huntingdon, Tennessee, for the appellees, Edna Dickson, Bridgette

Collette Dickson, Danny Dickson and Vickie Dickson
OPINION

I. FACTS & PROCEDURAL HISTORY

Marie McPeake purchased a 75-acre tract of land near the Life community in

Henderson County, Tennessee in 1993. The property to the south of the 75-acre tract had

been owned by Edna Dickson since 1946. The common boundary line between the two

properties was described in basically the same manner in both parties’ deeds. Beginning at

the boundary line’s east end, the boundary line was to run “westward with the meanders of”

a road, now known as Sheppard Road, for a distance of about 80 poles until the road

intersected a small farm road. At that point, the boundary line would run south with the farm

road for about 8 to 10 poles, then the boundary line would continue running westward about

55 to 60 poles to its west end. Mrs. McPeake’s property lay to the north of the line, and

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Mrs. Dickson’s property lay to the south.

A dispute arose around 2006, when Edna Dickson conveyed a lot of approximately

one acre to her granddaughter, Bridgette, who began to clear the lot in order to build a house

there. Mrs. McPeake then filed a complaint in the chancery court of Henderson County

against Edna Dickson and Bridgette Dickson, seeking to have the Dicksons enjoined from

encroaching on the disputed property and seeking to have the boundary line established by

the court. Mrs. McPeake alleged that she is the legal owner of the disputed property, but in

the alternative, she claimed that she owned the property by virtue of adverse possession

pursuant to Tenn. Code Ann. § 28-2-101, et seq.

Edna Dickson and Bridgette Dickson filed an answer and counterpetition, in which

they claimed ownership of the disputed property and requested that the court declare the true

boundary line. They alleged that Mrs. McPeake had cut timber from Edna’s land and

interfered with Bridgette’s use of her land, entitling each of them to an award of damages.

The Dicksons also sought an injunction preventing Mrs. McPeake from interfering with

construction on the disputed property. The Dicksons’ counter-petition stated that it was also

joined by Bridgette’s parents, Danny and Vickie Dickson, as third-party plaintiffs, as they

also owned property affected by the disputed boundary line.

The deed descriptions of the common boundary line can be traced back to 1946, when a common 1

grantor conveyed the 75-acre tract to one of Mrs. McPeake’s predecessors in title and conveyed 185 acres

to Mrs. Dickson and her now deceased husband. The deed descriptions use general directions, such as

westward or south. The distances are measured in “poles,” and the measurements are preceded by the word

“about,” e.g., “about 80 poles.” One pole equals 16.5 feet. There were some slight differences in the

distances stated in the two deed descriptions, as, for example, one called for 8 poles down the farm road, and

the other called for 10 poles, which is a difference of 33 feet. 

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On May 3, 2007, the chancellor entered an order stating that the parties had reached

an agreement to be mutually enjoined from changing the character of the disputed property.

Mrs. McPeake filed a motion requesting that the chancellor go to the location of the disputed

property to view the same in order to assist the court in its determination of the issues. An

agreed order was subsequently entered on this matter, stating that the parties had agreed for

the chancellor to personally view the disputed area. After several continuances, the case was

finally tried over the course of four non-consecutive days in late 2009 and early 2010.

As previously noted, Mrs. McPeake’s property lies to the north of the disputed

boundary line, and the Dickson property lies to the south. The parties’ deeds basically called

for the eastern half of the common boundary line to run with Sheppard Road. Although it

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has some curves, Sheppard Road generally runs in an east/west direction. Thus, on the

eastern half of the disputed boundary line, Mrs. McPeake’s property would lie north of

Sheppard Road, and the Dickson property would lie south of Sheppard Road, according to

the deeds. Mrs. McPeake’s position in this lawsuit is that a portion of Sheppard Road was

relocated further north at some point after the deeds from the common grantor were written

in 1946. As a result, Mrs. McPeake contends, a portion of her property now lies south of the

existing Sheppard Road.

At trial, Mrs. McPeake presented the testimony of Jessica Reddin, who served as the

911 Director for nearby Chester County. Ms. Reddin held a bachelor’s degree in Geographic

Information System Mapping, and she testified that she was trained to locate roads using

aerial photography. Ms. Reddin testified that her office maintains aerial photographs of

neighboring counties, including Henderson County, and that she was able to locate some

aerial photographs of the area in dispute. One of those aerial photographs was from 2007,

and Ms. Reddin identified Sheppard Road on the photograph as a paved road. However, she

also stated that another road could be seen in the photograph, which she described as “the old

road where it used to be.” Ms. Reddin said she could see where the old road started, then

continued through an area where the tree line had been cut, and she said the ground looked

different where the old road had been located. Ms. Reddin testified that the electric power

lines now follow along the old roadbed. Ms. Reddin also produced another aerial photograph

that was older than the 2007 photo, although she did not state when the second photo was

taken. Ms. Reddin said that she could identify both roads in this photo as well, in “the exact

same” location asthe previous photograph. On cross examination, Ms. Reddin conceded that

she had no personal knowledge of whether the old road she described was the old Sheppard

Road, stating, “I was told that.”

It is undisputed that Sheppard Road has in the past been referred to as the Mifflin and Saltillo

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Road, Sheppard Schoolhouse Road, and other slight variations of these names. For clarity, we will refer to

the road simply as Sheppard Road in this opinion.

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Next, Mrs. McPeake presented the testimony of Darrell Beckham, who was employed

as senior crew chief for Reasons Engineering & Associates, the company hired by Mrs.

McPeake to survey the property in dispute. Mr. Beckham testified that he handled the

“actual field work” for the survey with a three-man crew, and he assisted the licensed

surveyor in “working up” the data. Mr. Beckham testified that the McPeakes told him at the

outset that Sheppard Road had changed and that it was not originally in its present day

location. Mr. Beckham said that when he began the survey work, he looked for evidence of

the old road and saw the old roadbed to the south of the existing Sheppard Road. He said,

“As you’re driving down [Sheppard Road], you could look to the left and you could see an

old road depression.” Mr. Beckham explained that because old roads were not paved, they

would increase in depth as time went on, leaving a defined depression. He said that he could

see a depression on the ground in this area, which is why he knew that the clearing in the

trees was not simply due to a utility easement.

Mr. Beckham noted that the deeds called for the eastern portion of the common

boundary line to run westward along Sheppard Road until it intersected a small farm road,

which the boundary line would then follow south for a short distance. Mr. Beckham testified

that the existing Sheppard Road does not intersect with the small farm road, but lies a bit

north of it. However, Mr. Beckham said that the old roadbed depression he found does

intersect with the small farm road.

Again, after following the farm road south for a short distance, the deeds called for

the common boundary line to continue westward. According to Mr. Beckham, this section

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of the boundary line should also be located further south than where the Dicksons contend

the line exists. Mr. Beckham testified that when he went to track this section of the line, he

found remnants and pieces of an old and delapidated wire fence that had been there for quite

some time, which ran under the ground in some places. Mr. Beckham testified that it

appeared to him that the land was contained by this fence and that the fence was the obvious

boundary line. He conceded that the fence did not begin near the small farm road, and that

the first piece of fence was found approximately 400 feet away from the farm road.

However, he said that he found numerous pieces of fence beyond that point, running for most

of the length of what he believed to be the boundary line. Mr. Beckham testified that he

found an old angle iron about two inches tall sticking out of the ground near the end of the

The dispute between the parties centers on whether Sheppard Road has been relocated, which

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directly affects the eastern portion of the boundary line between the properties. However, after following

Sheppard Road, the deeds called for the boundary line to go south a certain distance and then continue

westward. Therefore, if the true location of Sheppard Road is further south, then the remainder of the

disputed boundary line would be moved further south as well, into an area which the Dicksons claim belongs

to Edna.

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wire fence. He explained that an angle iron is a commonly used survey marker. However,

Mr. Beckham acknowledged that the angle iron was “not completely all the way over to the

boundary line of the [neighboring property owner] over there where it should have been,” so

that his version of the disputed boundary line continued on past the angle iron. Mr. Beckham

also acknowledged that the fence ended at the angle iron, so that there was no fence along

the westernmost portion of his version of the boundary line.

The next witness to testify was Devon Acheson, who was a licensed surveyor also

employed by Reasons Engineering & Associates. He took over responsibility for completing

the survey work that Mr. Beckham began. Mr. Acheson produced a large map, dated 1950,

that depicted a portion of Henderson County. Mr. Acheson testified that the 1950 map

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appears to show Sheppard Road intersecting with the farm road. He testified that based upon

his work on the ground, he concluded that the farm road does not intersect with the current

Sheppard Road, as the current Sheppard Road lies approximately 150 to 200 feet north of the

beginning of the farm road.

It is undisputed that a school bus turnaround loop was constructed in this area of

Sheppard Road, near the farm road, in the 1960's, because the Dickson children were the last

ones to be picked up on Sheppard Road. The turnaround loop circles down to the south of

the existing Sheppard Road, toward Edna Dickson’s house, and then reconnects with

Sheppard Road at a point further down the road. The land encircled by the loop consists of

approximately 0.9 acres. Mr. Acheson testified that the small farm road “comes into,” or

connects with, the lower western side of the paved turnaround loop, and that the turnaround

loop then intersects with the existing Sheppard Road. Although Mr. Acheson testified that

the farm road does not intersect with the existing Sheppard Road, he conceded on crossexamination that he did not know if, prior to the construction of the turnaround loop, the farm

road may have continued on through that area to connect with the existing Sheppard Road.

In other words, he acknowledged the possibility that a portion of the farm road was paved

over and became the side of the loop.

Mr. Acheson also produced an updated version of the previously discussed 1950 map,

which was revised and edited in 1991. The map legend states that revisions to the map were

depicted in purple and made based on aerial photographs taken in 1985, in addition to other

sources. Mr. Acheson testified that Sheppard Road was depicted in purple on the map, which

indicated that the road was in a different location than on the 1950 map. He placed a circle

on the 1991 map to indicate the area of Sheppard Road that had been changed. On crossexamination, Mr. Acheson was questioned regarding whether the precise area of Sheppard

This map was created by the Tennessee Valley Authority and published by the United States

4

Geological Survey. 

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Road that is in dispute was actually colored in purple on the map, and Mr. Acheson conceded

that he could not really tell whether it was depicted in purple because he is color blind.

5

Mr. Acheson testified that a 1967 survey of a neighboring parcel proves that Sheppard

Road was in its current location in 1967. However, he explained that none of the deed

descriptions prior to that time described the precise location of the road. For example, one

of the 1946 deeds at issue stated that the boundary line would run “with the meanders of” the

road. Mr. Acheson opined that the cleared area south of the existing Sheppard Road, where

the power lines run, was the location of the old roadbed. He explained that he did not believe

the area to be a simple utility easement, because although a utility easement would be cleared

of trees and brush, it would not have a depression typical of an old roadbed. Mr. Acheson

suggested that the road was probably relocated sometime between 1950 and 1967. He

testified that a 1938 map depicted Sheppard Road as “totally different” than the maps from

1950 and later years. Mr. Acheson conceded that the existing Sheppard Road is curvy, and

his designation of the old Sheppard Road is a straight line, which suggests that if the road

was relocated, as he contends, a curve was actually inserted into an otherwise straight section

of road. Mr. Acheson said that the old roadbed is straight, but that the actual old road could

have had some curves, if they fell within the straight roadbed.

Mr. Acheson testified that the old roadbed continued westward and crossed through

the center of the school bus turnaround loop before intersecting with the southbound farm

road. As a result, Mr. Acheson opined that the land in the center of the turnaround loop was

divided, with Mrs. McPeake owning the northern portion of the “island” and Mrs. Dickson

owning the southern part.

Regarding the western portion of the boundary line, which extends westward from the

farm road, Mr. Acheson said that he was able to identify the line due to the remnants of the

old wire fence and the angle iron. He opined that Mrs. McPeake owned the area north of the

fence, and Mrs. Dickson owned the area south of the fence. He conceded that the deeds did

not mention a fence, but he said the fence substantiated that his version of the line was at the

correct location. Mr. Acheson described the fence as “not an existing standing fence,” but

pieces and remnants of fence, extending along portions of the boundary line, in trees and

mostly lying on the ground. He conceded that the fence did not run in a straight line but

meandered among the trees, while the deeds simply called for a straight line running

westward. Mr. Acheson said he did not see any other intersecting fences. Regarding the

eastern end of the fence, nearest the farm road, Mr. Acheson said that part of the fence

From our review of the 1991 map, it appears that one section of Sheppard Road is depicted in 5

purple, but it is east of the area in dispute, and the portion of the road that is relevant to this appeal is

depicted in black or gray. 

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appeared to have been pushed up with farm equipment, and he was “quite positive” that at

one time the fence had extended further east. Regarding the western end of the line, he

admitted that there were no more pieces of fence beyond where they found the angle iron,

and yet he extended the boundary line past the angle iron because the deeds did not call for

an angle.

At the west end of the common boundary line, the McPeake deed called for the

western boundary of the McPeake tract to extend north “about 12 poles” to meet back at the

Sheppard Road. Twelve poles would equal 198 feet. However, because Mr. Acheson’s plat

had placed the common boundary line further south along the fence line, the western

boundary on his plat actually extended 523.8 feet before reaching the road. Mr. Acheson

acknowledged this discrepancy but said that, in his professional opinion, the monumentation

on the ground, such as the old roadbed, the farm road, and the wire fence, dictated the

location of the common boundary line rather than the deed’s unreliable distance calls.

Mr. Acheson pointed out that Mrs. McPeake’s deed stated that she owned, “by

estimation, about 75 acres.” He said that according to his survey, the McPeake tract was 75.9

acres. Mr. Acheson claimed that under the survey prepared by the Dicksons’ surveyor, Mrs.

McPeake’s tract would only contain 67.19 acres. He explained that there was a discrepancy

of 5.61 acres due to the surveyors’ different opinions as to the common boundary line

between Mrs. McPeake’s tract and Mrs. Dickson’s tract. In other words, the area claimed

by both Mrs. McPeake and Mrs. Dickson consisted of about 5.6 acres. The remainder of

Mrs. McPeake’s “lost acreage” under the Dicksons’ survey was due to differences regarding

the location of boundaries between the McPeake tract and other neighboring landowners.

Mrs. McPeake’s husband, Jerry McPeake, also testified at trial. He was born in 1938

and testified that he played ball and hunted in the area around Sheppard Road as a boy. Mr.

McPeake testified that he remembered a road running through this area in a general east/west

direction around the 1950's, and the road he recalled was not in the same location as the

present day Sheppard Road. Mr. McPeake said the old road was “more of a straight road”

and did not have “that bend.” Mr. McPeake described the old road as graveled for about 100

feet past the old schoolhouse, then continuing on as a dirt road that was not maintained. He

testified that the depression of the old roadbed is still visible, and that power lines now run

along the edge of the old road. Mr. McPeake testified that the old roadbed meets the farm

road, but the farm road does not meet the existing Sheppard Road, although it does meet the

school bus loop. He said the old farm road goes generally southward and leads into the field

behind Mrs. Edna’s house.

Mr. McPeake said that he could remember the fence at issue from when he hunted in

the area as a boy, and he said that at that time, it was a standing fence and “in a lot better

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shape.” He also described the fence as “straight as a bullet.” Mr. McPeake said that after

his wife bought the property, he hired a paper company around 1994 to clear cut the trees on

the property in that area, all the way down to the location of the remnants of the old fence,

and no one tried to stop them from cutting.

Mr. McPeake testified that after his wife bought the property, they also hired a

surveyor to survey the common boundary line between her property and the Dicksons’

property, and that surveyor was Eddie Coleman. According to Mr. McPeake, Mr. Coleman

6

walked the line with him and told him that the property line followed along the existing

Sheppard Road. Mr. McPeake said that he told Mr. Coleman at that time that there was an

old roadbed to the south of the existing Sheppard Road, but Mr. Coleman said that he was

not concerned with the old road. Mr. McPeake claimed that Mr. Coleman also told him that

the western portion of the common boundary line followed along the old fence. Mr.

McPeake said that Mr. Coleman never gave him a plat or written document evidencing his

survey. When asked how Mr. Coleman’s survey allegedly connected the existing Sheppard

Road with the fence much further south, Mr. McPeake said he “come around in a circle” to

connect them.

Mrs. McPeake was unavailable at trial, but she testified by deposition and stated that

she recalled walking along the boundary line with Mr. Coleman, and that Mr. Coleman said

that the boundary line followed the old wire fence. Mrs. McPeake’s son-in-law, Robert

Thurston, Jr., testified at trial and said that he was also present to witness the survey by Mr.

Coleman in 1994. He also said that Mr. Coleman marked the common boundary line as

coming down the existing Sheppard Road, and following along the old wire fence. Mr.

Thurston said that while he was present, no one said anything about the road having moved.

Mr. McPeake’s first cousin, Larry Joe McPeake, testified as well. He said that he first

became familiar with the area in dispute around 1955 because his father farmed and hunted

in the area, and he also played ball in that area as a boy. Larry Joe McPeake testified that he

remembered going to the area on one occasion and noticing that Sheppard Road had been

rerouted. He testified that on another occasion when he returned to the area, he noticed that

there were power lines running down the old roadway. When asked when the road changed,

Mr. McPeake replied, “I can't say exactly. I just know it happened.” He said he recalled the

school bus turnaround loop being constructed around 1959, 1960, or 1961, and he thought

that Sheppard Road was relocated at that same time. He explained, “Well, here’s what

happened. When I – when you leave the Center Hill Road and go westward down Sheppard

Road, when you got up to the point of the hill, the old road went this way, but the new road

More recently, Mr. Coleman had surveyed the disputed boundary line for the Dicksons, and he 6

testified for the Dicksons at trial.

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had been routed this way, and a loop was made at the end.”

After the presentation of Mrs. McPeake’s proof, numerous witnesses were called by

the Dicksons. Mr. Joe Keen, who was 82 years old, testified that he had lived on Sheppard

Road since 1954, and that the road had not moved or been relocated during that time. Mr.

Keen lived approximately one mile from Mrs. McPeake’s property. Seventy-six year old

Dennis Dyer testified that he was familiar with Sheppard Road because he lives in that area,

he was born and raised there, and because he worked for the Henderson County Road

Department for 32 years. Mr. Dyer said that Sheppard Road had never been located further

south or otherwise changed location, stating, “It’s just like it’s always been.” Although

Harold Hensley did not testify at trial, the parties stipulated that he would testify that he had

been a road commissioner for Henderson County since 1965, that Sheppard Road had not

been located anywhere other than its current location during that time, and that he had no

knowledge of any changes in its location ever occurring.

The next witness to testify was Danny Dickson, Edna’s son, who had joined her

counterpetition as a third-party plaintiff because he also owns property affected by the

disputed boundary line. Danny Dickson testified that he was born in 1953 and grew up on

the property that his parents had purchased in 1946. His parents had deeded a portion of their

property to him in 1978 so that he could build a house thereon. Danny’s property lies along

the existing Sheppard Road, and the alleged old roadbed crosses over a portion of his

property.

Danny Dickson testified that the school bus turnaround loop was constructed around

1966 or 1967 so that the bus would no longer have to back out of the Dicksons’ long

driveway. He explained that the Dicksons’ long driveway to their house was actually the

small farm road referred to in the deeds. He said the farm road continued on past his

mother’s house, but it was used as the Dicksons’ driveway. Mr. Dickson said that prior to

the construction of the loop, the farm road connected with Sheppard Road, but that section

of the farm road was paved to form the turnaround loop. Mrs. Dickson’s house is now

located near the “bottom,” or southern portion, of the loop.

Danny Dickson testified that he remembered when Mr. Coleman surveyed the

property for the McPeakes around 1994, and that he was in agreement with where Mr.

Coleman hung ribbon and marked the boundary line. However, Danny testified that the line

surveyed by Mr. Coleman did not follow along the old wire fence, as alleged by Mr.

McPeake. Danny testified that prior to this lawsuit arising, he was aware that there were bits

and pieces of fence wire in the woods because he had stumbled upon them. However, he

testified that he did not know of the fence as a boundary fence, and he did not know who

built the fence. He said that there are fences all over the property. Danny testified that there

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are actually four fences in that area, and that some intersect at right angles with the fence at

issue. He said the fences run “in every different direction” and appear to make a pen or

rectangle, as one fence ran parallel with the fence at issue, several hundred feet away. He

also explained that there are no fence posts in the area, and all of the fence wire is simply

attached to trees. He produced photographs of the fence wire, with orange ribbon tied to it

in order to make it more visible, and the photographs depict different sections of the fence

running in different directions in the background.

Danny also testified that Jerry McPeake did not “clear cut” timber all the way to the

fence, as he had claimed. Danny said that the clear cutting stopped at where he understood

the boundary line to be. He conceded that Mr. McPeake had harvested some timber on what

the Dicksons claimed was their property, up to the fence, but he said that the timber cut on

their property appeared to have been “select cut.” Danny explained that the area is not

visible from Mrs. Dickson’s house, and that during the time when the timber was cut, he was

not at home because he was working and his mother was physically unable to go into the

woods. Danny said he “had no idea,” and no reason to suspect, that Mr. McPeake had cut

timber on the Dicksons’ property. Danny produced a photograph that he claimed depicted

his grandson standing beside a large tree on the north side of the fence where Mr. McPeake

claimed to have clear cut the timber.

Regarding the alleged location of the old roadbed, Danny testified that his family and

others had ridden four-wheelers and jeeps along the power line right-of-way. He testified

that although the area in question is cleared of trees for about 40 to 50 feet from treeline to

treeline, the “tracks” are no wider than a four-wheeler.

Mrs. Edna Dickson was in ill health and unavailable to testify at trial, but her

deposition testimony was presented. She said the Sheppard Schoolhouse Road referred to

in her deed was “still the road that we all use.” She testified that she had lived on Sheppard

Road her entire life, that the road had never been moved, and that the only change to it was

the addition of the turnaround loop. Mrs. Dickson testified that she had not seen the fence

in the woods because she is physically unable to walk around the property and see such

things, but that she had never known of a fence in the area near the loop.

Bridgette Dickson testified that she had intended to build a house on the 0.9 acre

parcel inside the turnaround loop, but that her plans were halted due to the filing of this

lawsuit. She testified about various expenses she had incurred due to her inability to proceed

with the construction of her house.

The next witness to testify for the Dicksons was Steve Deaton, who was employed by

Coleman & Associates Surveying as a survey party chief. Mr. Deaton had graduated from

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the Defense Mapping School and the Defense Mapping Agency’s Advanced Imagery

Analysis course. He explained that the Defense Mapping Agency is a branch of the United

States Armed Services that facilitates the operations of the United States military. He had

served overseas as a supervisor of analysis and synthesis terrain teams. Mr. Deaton

explained that he would identify major and minor supply routes in order to move military

units across prepared or unprepared roads. In that regard, he was trained to look at remote

sensed imagery, including aerial photographs, in order to identify the natural features as well

as manmade infrastructures in the area, including roads, bridges, supply routes, etc., and to

determine the condition of such features and how they could be utilized. After Mr. Deaton

became employed by Coleman & Associates Surveying, he had assisted Mr. Coleman in

surveying the property at issue in this case. The trial court recognized him as an expert in

his field, over the objection of counsel for Mrs. McPeake.

Mr. Deaton testified that he disagreed with the testimony of Ms. Reddin, the 911

Director who had opined that the aerial photographs she found depicted an old roadbed lying

south of Sheppard Road. Mr. Deaton explained that a traveled way that has evolved over

time will have a meandering pattern because in the early days of travel, travelers would take

the easiest route to get to a location, not necessarily a straight line route, because that would

generally require traveling across, through, and over obstacles. Mr. Deaton testified that the

aerial photographs produced by Ms. Reddin showed several clearly identifiable traveled

ways, while the cleared area south of Sheppard Road was a very direct, very straightforward

route that was uncharacteristic of the other traveled ways in the area. He stated that the

cleared area was a more direct route typical of the installation of a power line, water line, or

gas line, but not characteristic of a traveled way that had evolved over time, as all of the other

traveled ways in the photograph were depicted.

Next, Mr. Deaton testified about several of the maps that had previously been

introduced as exhibits, in addition to other documents as well. He testified that he had a

paper copy of the 2002 Henderson County general highway map, with a clear acetate copy

of the 1938 general highway map overlaid onto the paper map, and he said that “clearly the

location of the traveled way is in the same location” in both maps, with the exception of the

addition of the turnaround loop.

7

Mr. Deaton also testified about the revised TVA/USGS map, which allegedly showed

that the road had changed between the date of the original map in 1950 and the revised map

Mr. Deaton later conceded that the 1938 map was different in some respects than all of the other 7

maps and photographs that were available. However, he explained that, being a handdrawn map, the 1938

map likely contained errors because the photographs would show a true depiction of the area, and no other

piece of physical evidence that was available supported the different features shown in the 1938 map. 

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in 1991 due to the road being depicted in purple. Mr. Deaton testified that the area shown

in purple was east of the area in dispute. He testified that the 1991 map showed that the main

portion of Sheppard Road was in the same configuration as in 1950, with no significant

change in its pattern.

Mr. Deaton also testified about several more aerial photographs that had been

obtained from TVA. One of those photographs was taken in December 1946, and it showed

the relevant portion of Sheppard Road. Mr. Deaton pointed out that in the 1946 photo, there

was no deforested area running south of Sheppard Road, where the “old roadbed” allegedly

existed. There were no power lines in that area either, and it appeared to Mr. Deaton to be

a field. In any event, the 1946 photograph did not depict a road other than the present-day

Sheppard Road. Mr. Deaton discussed another aerial photograph from 1967, also obtained

from TVA, which did show the deforested area lying south of Sheppard Road, in addition

to the school bus loop. However, he testified that a comparison of the 1946 photo and the

1967 photo consistently show Sheppard Road in the same location throughout that period of

time. He also explained that these photographs demonstrated that the deforested area

appeared sometime after the 1946 photograph was taken. In sum, Mr. Deaton opined that

the evidence from 1946 forward proved that the location of Sheppard Road had not changed

since 1946, and there was no evidence of a road being in the location of the existing power

lines.

Next, Mr. Coleman testified about his surveys of the property in question. He

explained that he had performed survey work for both the McPeakes and the Dicksons. He

had surveyed the common boundary line for the McPeakes when Mrs. McPeake purchased

the property in 1993. He had performed a survey for Bridgette Dickson around 2006, when

Edna conveyed the 0.9 acre parcel inside the turnaround loop to her, and thereafter, he

surveyed Edna’s property in its entirety. Mr. Coleman testified that when he surveyed for

the McPeakes in 1993, he measured the boundary line as following along the center of the

existing Sheppard Road, and the McPeakes did not suggest that this was error or that the road

had been in any other location. Mr. Coleman said that there was no need for him to prepare

a plat when he surveyed the property in 1993, because he discussed his findings with the

McPeakes and Dicksons at that time, and they all agreed as to the location of the boundary.

Mr. Coleman testified that he did not know there was a dispute until after he surveyed the

“island” for Bridgette, when Mr. McPeake contacted him to say that he thought the road

might have been relocated and wondered if he might have an ownership interest in the

turnaround loop.

Mr. Coleman said that he had “thoroughly examined every inch” of the power line

area looking for characteristics of an old road, and he found none. He said there were no

road banks, shoulders or side ditches, and at the locations where there are two “hollows” in

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the area, there is no evidence of any means of conveying water from one side of the “road”

to the other, and no bridge. Mr. Coleman said that if the area was an old roadbed, one would

expect to find gravel or something to sustain its base, and the area should be somewhat level

rather than “5 foot higher on one side than the other, and it certainly wouldn’t go 100 feet and

change elevations 20 feet,” with gullies and hollows along the way. In short, Mr. Coleman

said he found no evidence of a road existing in that location, and he found “absolutely no

evidence, none whatsoever,” to suggest that Sheppard Road had been in any location other

than where it currently exists.

Mr. Coleman also testified that his 1993 survey had no tie with the old wire fence.

Mr. Coleman testified that there were several fences in the area, but something unique about

the fencing was that there were no fence posts, and all of the fencing was nailed to trees. He

described it as meandering “every which way.” Mr. Coleman testified that ordinarily a

boundary line fence will be erected with fence posts. He also described several other

“criteria” that he considers when determining whether a fence marks a boundary line. First

of all, he said that the fence must be in the general proximity of where the deed calls for the

boundary line to run. Second, Mr. Coleman said that the fence needs to run in the general

course bearing that is called for in the deed. For example, he stated, if a deed calls for a line

to proceed north, and there is a fence in the general proximity that runs north, Mr. Coleman

said that he would give that fence consideration as a boundary marker. Next, Mr. Coleman

testified that a boundary line fence will usually establish limits of possession, meaning that

each party’s “possession activities” extend to the fence and stop. Finally, Mr. Coleman

testified that he considers the “monumentation” of the fence, or whether the act of building

it declared openly and notoriously that the builder thought that was the location of the

boundary line. Mr. Coleman said that he did not find any of these criteria present in this

particular case. Instead, he said the fence was some 350 feet from the nearest perimeter line,

with no pattern to the fence that would indicate someone tried to create a straight line, and

no signs of “a long-term possession.” Mr. Coleman said this fence was in the middle of the

Dickson property. He also noted that none of the deeds mentioned a fence. Mr. Coleman

acknowledged that angle irons were used in the old days like a corner monument or to mark

pins that were set, but he said he “absolutely” disregarded the angle iron along the old fence

line as having any bearing on the boundary, because it was 350 feet from the deed corner, out

in the woods owned by the Dicksons.

According to Mr. Coleman, there had been seven surveys performed over the years,

which were relevant to the property in dispute. Mr. Coleman had completed three of those

surveys, and four other surveys, of neighboring parcels, had been completed by three other

surveyors, dating back to 1967. Mr. Coleman testified that if the survey prepared by Mr.

Acheson, Mrs. McPeake’s surveyor, was correct, then all seven of the other previous surveys

were incorrect.

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Some other witnesses testified as well, but their testimony does not bear repeating for

purposes of this opinion. The trial court’s order, entered on March 31, 2011, states that the

chancellor also viewed the property area in dispute in the presence of the parties and the

surveyors for each side. The order states that the chancellor “went out and viewed the cutthrough and rode over it, end to end, and must say that it [was] unable to see any evidence

that a road was once there.” After noting many conflicts between the parties’ evidence, the

trial court’s order stated that the court was “more persuaded by” the Dicksons’ proof and

evidence. As such, the court ruled that the boundary line would be established as set forth

in Mr. Coleman’s survey plat. The court dismissed the complaint filed by Mrs. McPeake and

granted judgment for the Dicksons on their counterpetition, awarding $16,156.50 to Bridgette

for expenses she incurred after she was enjoined from completing her house, and awarding

$5,800 to Mrs. Dickson for the value of timber cut on her property by the McPeakes. Mrs.

McPeake timely filed a notice of appeal.

II. ISSUES PRESENTED

On appeal, Ms. McPeake presents the following issues for review:

1. Did the trial court err in failing to address the issue of adverse possession, which was

raised in the complaint and addressed during witness testimony;

2. Did the trial court in essence base its findings of fact primarily on the testimony of

Danny Dickson and the Dicksons’ surveyor, Eddie Coleman; and

3. Did the documentary evidence establish by a preponderance of the evidence that

Sheppard Road had been relocated.

III. STANDARD OF REVIEW

On appeal, a trial court’s factual findings are presumed to be correct, and we will not

overturn those factual findings unless the evidence preponderates against them. Tenn. R.

App. P. 13(d) (2011); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence

to preponderate against a trial court’s finding of fact, it must support another finding of fact

with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.

2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);

The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.

1999)). “When issues of credibility and weight of testimony are involved, we afford

considerable deference to the trial court's findings of fact.” Larsen-Ball v. Ball, 301 S.W.3d

228, 235 (Tenn. 2010) (citing Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007)). “Because

trial courts are able to observe the witnesses, assess their demeanor, and evaluate other

indicators of credibility, an assessment of credibility will not be overturned on appeal absent

clear and convincing evidence to the contrary.” Hughes v. Metro. Gov’t of Nashville &

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Davidson County, 340 S.W.3d 352, 360 (Tenn. 2011) (citing Wells v. Bd. of Regents, 9

S.W.3d 779, 783 (Tenn. 1999)). We review a trial court’s conclusions of law under a de

novo standard upon the record with no presumption of correctness. Union Carbide Corp.

v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.

Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

IV. DISCUSSION

A. Adverse Possession

On appeal, Mrs. McPeake argues that the trial court erred in failing to address the

issue of adverse possession. She points out that her complaint alleged that even if she was

not the legal owner of the disputed property, she nevertheless owned a portion of the property

by virtue of adverse possession pursuant to Tenn. Code Ann. § 28-2-101, et seq. Mrs.

McPeake contends that the testimony of various witnesses that she “clear cut” timber on the

property in dispute around 1994 demonstrates adverse possession. Mr. McPeake testified

that he had not done anything on the disputed property since he cut the timber there around

1994, but nonetheless, Mrs. McPeake argues that “clear cutting” timber constitutes notice to

the world of an adverse claim, and therefore, a single act of “clear cutting” was sufficient.

8

In response, the Dicksons claim that the trial court rejected the adverse possession argument

because it found that the McPeakes did not “clear cut” the property at issue.

From our review of the record, it does not appear that the issue of adverse possession

was mentioned during the four-day trial. However, various witnesses did testify about the

timber cut in the disputed area, and the trial court’s order addressed this testimony as follows:

Mr. Acheson also opined that another indication of the “old fence”

being the line was that Edna Dickson acquiesced in McPeake cutting timber

to, or in the area of, that fence. Danny Dickson rebutted this by his testimony

that the timber was not “clear cut” as described by McPeake to the old fence,

but that it was more of a “select cut” and he did not know McPeake was

cutting it, he being gone, and his mother, Edna Dickson, was elderly and not

able to go into the woods. . . .

Mrs. McPeake argues on appeal that the trial court’s finding was in error, because, according

to Mrs. McPeake, Danny Dickson conceded at trial that McPeake did “clear cut” the area in

On appeal, Mrs. McPeake’s adverse possession argument hinges on whether she and/or her 8

husband did in fact “clear cut” the property in dispute. She does not argue that adverse possession would

be established by cutting select trees or by any other action that she took with respect to the property.

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question. Mrs. McPeake claims that the trial court “misquoted” the trial testimony. We

disagree with this assertion. Danny Dickson testified at trial that the McPeakes did not clear

cut up to the fence line, as Mr. McPeake had claimed in his testimony. When asked to

identify on a map the location where the clear cutting occurred, Mr. Dickson stated, “It’s

hard for me to tell.” However, he emphasized that the clear cutting stopped at where he

understood the boundary line to exist. Mr. Dickson said that the cutting that took place on

the Dickson property near the fence was a select cut, meaning not all trees were removed.

He produced a photograph of a large tree which, he testified, is still standing on the side of

the fence where the McPeakes claimed to have clear cut. On cross-examination, Danny

Dickson was again asked to identify on a survey plat which area was clear cut and which area

was select cut. At first, he again identified the two separate areas, but later, he said, “I think

that was – I think that was clear cut, too, from here to here.” He asked for the next question

on the issue to be reworded and indicated that he did not understand. When questioned

further on re-direct, Danny apologized and said again that he was confused. He then clarified

that the disputed area was not completely clear cut, and that some trees remained in that area.

The trial court clearly considered Danny’s testimony in its entirety and concluded from his

testimony that the disputed property was not clear cut. The evidence does not preponderate

against this finding.

Because we find no error in the trial court’s finding that the McPeakes did not clear

cut the property in dispute, it is not necessary for us to address Mrs. McPeake’s assertion that

a single instance of clear cutting is sufficient to establish adverse possession.

B. Witness Credibility

The next issue raised by Mrs. McPeake on appeal, as stated in her brief, is, “Did the

trial court in essence base its findings of fact primarily on the testimony of Danny Dickson

and Defendant[s’] surveyor, Eddie Coleman, to the exclusion of other witnesses whose

testimony was unchallenged?” As previously noted, the trial court’s order stated that the

court was “more persuaded by the [Dicksons’] proof and evidence.” In several instances,

after summarizing the testimony of the McPeakes and their witnesses, the court explained

how the McPeakes’ evidence was rebutted or disputed by the testimony of Danny Dickson.

The court also adopted the survey plat prepared by Mr. Coleman rather than the plat prepared

by Mr. Acheson. Thus, it does appear that the trial court relied heavily on the testimony of

Danny Dickson and Mr. Coleman in reaching its findings of fact. However, we cannot say

that this was error. We find no merit in Mrs. McPeake’s suggestion that the testimony of her

witnesses was “unchallenged.” There were considerable differences of opinion on many

different issues throughout the four-day trial. The trial court was able to observe the

witnesses, assess their demeanor, and evaluate other indicators of credibility, and therefore,

we will not overturn its assessment of credibility absent clear and convincing evidence to the

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contrary. Hughes, 340 S.W.3d at 360. We find no such contrary evidence in the record

before us, and in fact, we find the testimony of Mr. Coleman and Mr. Dickson quite

convincing.

C. The Weight of the Evidence

Finally, Mrs. McPeake argues on appeal that the documentary evidence presented,

including the maps, aerial photographs, and deeds, established by a preponderance of the

evidence that Sheppard Road had been relocated in order to build the turnaround loop, thus

affecting the boundary line at issue. Again, we must respectfully disagree. We will not

belabor this opinion by reproducing the lengthy summarization of testimony already included

herein. We briefly note, however, that several disinterested witnesses testified at trial that

Sheppard Road had never been moved, while the witnesses testifying to the contrary were

mostly related to Mrs. McPeake. Moreover, the trial judge personally observed the location

in question and was “unable to see any evidence that a road was once there.” Mr. Deaton,

who was highly trained and experienced in identifying roadways from aerial photographs,

testified that the deforested area south of Sheppard Road was not characteristic of a traveled

way, but more like a power line easement. He also produced an aerial photograph, as

opposed to a map, from December 1946, which showed that in 1946, Sheppard Road was in

its present-day location, and the deforested “roadbed” area did not even exist at that time.

Mrs. McPeake made much of the fact that the farm road does not intersect with the

existing Sheppard Road. However, the trial court found, and the evidence suggests, that in

the past, the farm road did intersect with Sheppard Road, and that portion of the farm road

was paved when the turnaround loop was constructed.

We note that we are also unpersuaded by the suggestion that the old wire fence

constituted the western half of the common boundary line. There were no fence posts in that

area, the fence wire meandered back and forth through the woods, and it did not extend to

either corner, or end, of the line that it allegedly marked. While the deeds called for this

section of the line to proceed westward, the fence, according to the survey plat prepared by

Mr. Acheson, appears to extend somewhat toward the southwest. The fence was also some

350 feet from the nearest perimeter line, according to Mr. Coleman. The deeds did not

mention a fence, but one deed did provide a distance call for a line extending from the road

south to that corner of the common boundary line, and the distance call was much shorter

than the distance to the fence. In addition, the survey plat relied upon by Mrs. McPeake

conflicted with seven previous surveys, by four different surveyors.

Having reviewed the entire record in this case, including the documentary evidence

such as maps, photographs, and deeds, in addition to the testimony presented, we conclude

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that the trial court’s decision to adopt the survey plat prepared by Mr. Coleman is supported

by the preponderance of the evidence. The weight of the evidence does not support a finding

that Sheppard Road was relocated.

V. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is hereby affirmed.

Costs of this appeal are taxed to the appellant, Marie McPeake, and her surety, for which

execution may issue if necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

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