### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 6, 2003 Se ssion DUDLEY STOVALL, SR., ET AL 

### . v. WILLIAM THOMAS BAGS BY, JR., ET AL 

### . Appeal from the Chancery Court for Williamson County No. 25000 Russ Heldman, Chancellor

No. M2002-01901-COA-R3-CV - Filed Nove mber 24, 2003

This twice-tried boundary line litigation, spanning five yea rs, involves a small square-footage of a long-existing pr iv at e r oa dw ay, five surveyors-engineers, and a host of lay witnesses. The Chancellor a dopted the expert opinion of one of the survey ors with respect to the precise location of a crucial corner of the roadway . We affirm except as modified with respect to discretionary costs, wh i ch requires a remand for determination. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cha

ncery Court is Affirmed as Modified and Remanded
W IL LI AM H. I NMAN , S R
. J., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R ., and W IL LI AM B. C AIN , JJ., joined. Christopher

D. Crave ns, Nashville, Ten

nessee, attorne

y f or Appellants, William Thomas Bagsby, Jr. an d V el ma K. Ba gs by. Douglas S. Hale, Franklin, Tennessee, attorney for appellees, Dudley

Stovall, Sr., and Betty Carolina Stovall. Julia E. Stovall, Franklin, Tennessee, attorney for appellee, Martha Oakley
OPINION I.
This a boundary

dispute, at the core of which is a private roadwa y identified as Jackson L

ane, which was cre ated in 19 32 as “a s trip of land 16 feet i n width” to serve the Stovall p

roperty as the sol e means of accessto a public

roadwa y. T his private roadway

has been used by the

Stovalls for more than twenty y

ears, and title thereto was decretally awarded to the Stova

lls acco rding to the equit able principle of adver se posses sion. This a djudicat ion is not questioned on appeal except as to its exact location.-2- II.
The property of O akley bounds Jackson Lane on the east; the Bagsby

property bounds Jackson Lane on the west. The lane is 1096 feet in length, straight-line measure, or 1102.29 feet, according to conflictive measurements. At issue is the portion of Jackson Lane abutting the e astern boundary of the Bagsby

land extending from the public road to a point whe re it inte

rsects w ith Bag sby s’ northea st corne

r and phy sically

widens to t

wenty -one fe et.
From 1936 to 1984 the width of Jackson Lane was not chang ed and B agsby s’ northeast corner was rounded along its western margin until it was gradually “squared off” and the corner relocated by defendants in accordance with Ronnie Br own’s survey in 1984. Stovall objected to this relocation of Bagsbys’ no rtheas t corn er alt hough it did not interfere with the use of Jackson Lane . Mr. Bagsby testified that prior to retaining the services of Randolph Chapdelaine, none of t he other survey ors, who had bee

n retain ed to rel ocate

his northeast corner, had opined that Jackson La ne encroached on the Bag sby

Tract. Thereafter, the Bagsby s removed the fence along the e ntire western margin of Jackson L ane, which was the e astern b oundary of their land, and announced their intentions to erect a new fence that would encroach upon

the aspha lt surface of the lane. Stovall objected beca use the new fence Bag sby planned t o erect would interfere with the use of Jackson Lane since it w ould extend

approxima

tely five feet into the asphalt pavement at the northeast corne r. Evidence was present

ed that Jac

kson L ane had

been in e xistence f or over f ifty years, a nd that it had always existed betwee n the Oakley f

ence and theBagsby

fences in such the same location as it presently exists and that the northeast corne r of the Bagsby

Tract was alway s rounded.
III.
This case was tried twice before diff erent trial jud ges. The first trial proceeded to final judgment and a new trial was awarded af ter a procedural morass developed inv olving conflicting decretal provisions. The testimony at the first trial wa s preserved and presented, at least in par t, at the secondtrial. A host of witnesses testified, five of whom were licensed surve yors. The Chanc ellor ruled that the Sto valls had acquire d title

to Jackson L

ane tog ether wi

th “a twe nty -one and

one-half foot area in its northeast corner” by adverse possession, and prohibited theBa gs bys from establishing their eastern line to interfere

with Jackson Lane. Decr

etal provisions were again questioned, resulting in the adoption by the Chancellor of the survey pe

rformed by

Ron Lowery , who was initially retained by Mr. Bag sby

to identify and locate

a “property

line, a deed line” on

the east side of Jackson Lane. Lowery believed a boundary

survey wa s required in order to identify the precise line. Mr. Bagsby objectedto Lowery ’s site selection of the northwest cor ner of h is proper

ty, but not the

southeas t cor ner, because

it should ha

ve refe renced an existing

stump. Mr. Bagsb y th

ereupon instructe d Lowe ry to set no pi ns and lea

ve the pr emises.-3-

Lowery testifie d that Mr. Bagsby be lieved hi s northea st

corner should hav e been lo cated w ith reference to astump called for in the Stovall deed, but Lowery disagreed. The

Chancellor approved and adopted the survey

of Lowery

and decreed accordingly. The Chance llor found, inter alia : The 16-foot

right of way

for Jackson Lane was first re served [created] in 1932, the

phy sical bou

ndaries o f which were established in 1937. The Stovalls have exercised sufficient control over theentire length of Ja cks on Lane togethe

r with the 21.5 -foot area at its NS corner for more than 20 year s, and that such con trol was o

pen, con tinuous, actual, adverse and

notorious. The NE corner of the B agsby

Tract is 1096 linear feet from the NW corner o f the tract. The survey by Chap delai ne is not an accurate description of the land owned by Ba gs by. The Oakley

fe nce is an ancient monument establishing the western boundary of the Oakley prope

rty an d, co nsequently, the eastern boundary

of Jackson Lane.

VI.
The Bagsb ys a

ppeal and presen

t for rev iew two iss u es: (1) whe ther the trial cou rt erre d in establishing their

ea st er n b ou nd ar y an d n or th ea st er n c or ne r a cc or di ng to th e s ur ve y of To m Lo we ry, and (2) whether it was error to allow Stovall discretionary costs of $8000.00.
V.
As a prelimi nary

matter, w e turn to th

e a pplicable standard of review. Bec ause this is an appeal from a decision made by the court following a bench trial, the standar d set for th in Tenn. R. App. P. 13(d) governs our review. Thus, we must examine the record de novo and presume that the findi ngs of fact are correct “ unless the preponderance of the evidenc e is otherwise.” Tenn. R. App. P. 13(d). Further

more, g reat we ight must be given to the factual findings made by the trial court that rest on determinations of credibility. See Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996). The presumpt

ion of cor

rectne ss requir

es us to ac cept the

trial cou rt’s find ings of f act unle ss th e aggr egate weight of the evidence demonstrated that a finding of fact other than the one found by the trial court is more probably true. See Estate of Haynes v. Braden , 835 S.W.2d 19, 20 (Tenn. Ct. App. 1992) (holding

that an a ppellate court is b ound to re spect a t rial cou rt’s find ings if it cannot determine that the evidence preponderates otherwise). For the e vidence to preponderate against a trial c ourt’s finding of fact , it must

support another finding of fact with gre ater convincing effect. See The Realty Shop, Inc. v. RR Westminister Holding, Inc. , 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). Questions of law rec eive plenary

review. See Malone & Hyde Food Servs. v. Parson , 642 S.W.2d 157, 159 (Tenn., Ct. App. 1982). This standard also applies in boundary disputes when the trial cou rt, as the finder of f

act, is required to choose between two competing survey s. See, e.g., Horne v. Wa rmath , No. 02A01-9509- CH-0 0201, 1996 W

L 465546 (Tenn. App. Aug. 16, 1996) perm. app. denied (Tenn. Jan 16, 1997);-4-

McMahan v. Douglas , 1988 WL 20542 (Tenn. App. March 4, 1988), perm. app. denied (Tenn. May 23, 1988).
VI.
Defend ants argue

that in est

ablishing the Bag sby s’ northeast corner and the western margin of Jackson Lane, the trial court erred in adopting the survey of Ron Lowery , because hefailed to give priority to natural monu ments overcoursesand dista nces, re lying on the

well-se ttled rule that in determining disputed b ou ndaries , resort is to be ha

d first to n atural o

bjects or landmar ks; next to artificial monuments or marks ; then toboundary lines of adjacent landowners; and finally to courses and distances. Prichard v . Rebori , 186 S.W.121 (Tenn. 1916).
The Bagsby s take issue with the failure of Lowe

ry to rec ognize an old stump in determining the margins of Jackson Lane, because the lane itself is only required to be sixteen (16) feet wide, and is significantly wider as it corners the Stovall Tra ct. Co nt ra ry t o a ll bu t o ne su rv eyo r, th e B ag sb ys insis tthat the “Lowery

survey ca

nnot be relied on as an accurate depiction of the loc ation of th e Bagsb ys’ northeastern corner or easter n line, because the establishment of both is dependent upon the correct establishment of the location of Jackson Lane.” This contention is contrary to the testimony of Lowery and another survey or, Fuqua, that the Bagsby s’ northeast corner does not require the prior location of Jackson Lane. The Bagsby s had no quarrel with Lower y’s location of their southeastern and northwestern corners, and the basic ag reement am ong all experts participating in this trial was that the n orthwest

c orner of defendants’ property was appropriately

located. Mr. Bagsby

testified ot he rw is e, bu t i t i s c le ar th at th e t ri al co ur t r ej ec te d p or ti on s o f h is te st im on y. The judgment does not preponderate ag ainst the trial c ourt’s findings a nd therefore is affirmed, Rule 13(d) Tenn. R. App. P., except as hereafter noted.
VII.
The second issue concerns the awa rd of $8,0 00.00 disc

retiona ry costs to the

Stovalls. Rule 54.04(2) Tenn. R. Ci v. Pro. Rule 54.04(2) provides : Rule 54.04

Costs (1) Costs i ncluded in the bill of costs prepared by

the clerk shall be allowed to the pre

vailing party unless the court otherwise directs, but costs against the state, its officer, or its age ncies shall be im

posed only to the extent permitted by law. (2) Costs not included in the bill of costs prepared by the clerk are allowabl e only in the court’s discre tion. Discret

ionary costs allowabl e are: reasonable and necessary court reporter expenses for depositions or trials, reasonable and

necessary

expert witness fees for

depositions-5- or trial, and guar

dian ad litem fees ; travel e xpenses ar

e not allo wable discretionary

costs. Sub

ject to Rule 41.04, a party r equesting discretionary

costs sha ll fi le an d s er ve a m ot io n w it hi n t hi rt y (3 0) da ys af ter entryof judgment. The trial court retains jurisdiction over a motion for discretionary

costs even though a

party has filed a

notice of appeal. The court ma

y ta x discretio nary

costs at th

e time of voluntary dismissal. (3) The court may

appoint an interpreter of its own selection and may fix reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may

be taxed ul

timately as costs in the discretion of the cour t. The motion for

discreti onary

costs as amen ded included court-ordered surveying

and engineering

expenses owing to Ragan-Smith Associates in the amount of $6696.52. These expenses should be taxed as court costs, rather than as discretionary c osts. Invoices from other surve yors do notdistingu

ish fees for field and administrative work from fee s for testifying , and we are unable to make the distinction.
The rule is made clear in Miles v. Voss Health Care Center , 896 S.W.2d 773 (Tenn. 1995): However, the rule

specific ally

limits discreti onary

costs with

regar d to expertwitnesses to their fees for testi fying. The record reveal s that Dr. Colvin met with the employee one

time for the purpose of

evaluating her disability . He also

spent time

reviewing the medical proof as part of his evalu ation. He

testifie d in perso n at the tr ial. He charged

$750 for his se rvices. The employee ’s motion for discretionary costs does notindicate how much of

Dr. Colvin’s fee was for his evaluation, and how much was for his appearance and te stimony at trial. Since, a s indicated above, the portion of the fee charg ed fo r eva luating the employee is not recoverable under Rule 54.04(2), but the portion of the fee cha

rged f or his tr ial testimony is recovera ble as discretionary cost, the case

mu st be re manded to

the trial court to ma

ke this determination. See, also, Shahrdar v. Global Housing, Inc. , 983 S.W.2d 23 0 (Tenn. Ct. App. 19 98) holdin g that “

. . . . recovery

of expert fees under the rule is limited t o fees incurred for actual deposition or trial testimony . (Emphasis added). Fees for prepa ration time are not recoverable.”
As in Miles , supra, the case must be remanded to the trial court to make this determination.-6-

The judgment is affirmed, except as modified with respect to the discretionary costs, and remande d to the tri al court . Costs on a ppeal ar e assess ed to the a

ppellant s.

___________________________________ WILL IAM H. I NMAN, SENIOR JUDGE