# FILED

August 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

ANNA LEE CRISP, ) ) BLOUNT CIRCUIT Plaintiff/Appell

ant )

) NO. 03A01-9711-C V-00527 v. ) ) HON. W. DALE YOUNG ORVILLE C. BORING and wife , ) JUDGE WANDA SUE BORING, ) ) Defendants/Appellees ) AFFIRMED

Phillip Reed, Mar

yville, for A

ppellant. David R. Duggan,

Maryville, f

or Appellees.



### O P I N IO N

INMAN, Senio

r Judge This is a boundary

dispute. The plain

tiff alleges that t

he location of the boundary line bet

ween her property

and the adjoining la

nd of the defendants i s shown by a survey made by Sterling E ngineering, Inc. The defendants on th

e other hand allege t

hat the proper boundar

y is shown by a survey

made by E

verett Land Com

pany. They

also claim titl

e to the disputed area, a s

mall triangula

r tract, by e stoppel by deed, adverse possession inclu ding the pa yment o f taxe s for mo re tha n 30 ye ars, a nd ot her pr o-for ma defenses. A bench trial resu

lted in a finding that t

he plaintiff is a pre

decessor in title to the defendant’s property, and that it was she who, by deed, established the now-disputed bounda ry. The tria

l judge applied the p

rinciple of estoppel

by1 The trial court made no such f

inding. 2 deed to the findings,

“found the issues

in favor of the defe

ndants,” and dismissed the case. The parties agre

e that the judgm

ent leaves the contr

oversy but not the case in limbo,

since the location of

the disputed boundary

was not determ

ined. Restated, the issue

is whether the plai

ntiff is estopped to c

hallenge a call and distance in a dee

d she executed, supe

rimposed upon proo

f that the defendants paid taxe s on the disputed area for thirty (30)

years. The

defendants present as an issue w

hether “the tr

ial court should be af

firmed in findi

ng that the boundary line in di spute should be establis hed along the line as testified to by the defendants’ surve yors.” 1 The plaintiff and h

er husband acquired 1 00 acres in 1946. On March 15, 1946 they convey

ed 46 acres (whic

h included the disputed a rea) to Blankenship. This d

eed included a call and distance of “ South 72 deg. East 37 3 feet,” and was prepared from a survey m ade by a registered land surveyor. Blankenship, in 1971,

conveyed a porti

on of this tract, 17. 95 acres, to another Blankenship.

This deed included th

e disputed area, a

nd utilized the call and distance of South 72 deg. East 373 feet. This 17.95 acre tract was conveyed to the defendants in 199 3. Again, the sam e call and distance,

later disputed, was utilized. It

will be seen from

the foregoing that the

plaintiff is the defendant’s predecessor in title. It is not entirely

clear from t

he record when this

controversy ar

ose. The area in dispute wa

s created in 1946 whe

n the plaintiff conve

yed 46 acres to Blankenship. The complaint was filed July 23, 1996, more than fifty years later, and after title to t

he disputed area wa

s transferred thr

ee times.2 He was employed by the pl aintif f’s son. The plaint

iff was not

aware that

her propert

y was being surveyed.

3 His rationale i

ncluded the reliance on a f ence which had been in existence for a bout 25 years. Other proof esta

blished t hat a fence should be about 50 years old be

fore it may safely be r

elied upon as

a line monum ent. In any even t, the fence was no t continuous. 3 Charles Sterling w

as employe

d by the plaintiff

to survey her re

maining land, together wit

h the disputed area.None of the descri ptions in the various relevant deeds wou

ld close, a com

mon-enough discove

ry, and Mr. S terling conceded that in such instances it was ne cessary to consi

der the title history, old fences and other m

onuments and the t

opographical aspect

s. It is perhaps noteworthy that

Mr. Sterling did no

t himself conduc

t the survey, bu

t relied on his field crew for the requisite information; somewhat strangely, he never discussed the survey with the plaintiff. 2 Much of the expert testimony was given over to assumptions and pure speculation abou t the call “South 72 deg. Eas t 373 feet.” Mr. Sterling made t wo assumptions, the

first of which wa

s based on a survey

by Everett and

the second of which involved an a

sserted transpositio

n error in the 1946 dee

d to Blankenship. Thes e assumptions we re made by

Mr. Sterling in his

efforts to prove that the call “

South 72 deg. East 37 3" was erroneous a nd unintended. 3 But with all the assumptions favorable to the plaintiff, Mr. Sterling conceded that the description in the initial deed to Blankenship would not close. The defendants’ surveyor, Mr . Everett, agr eed that the descri

ptions would not close, and testi fied that the most feasib le solution was to c onnect the two known points which wo

uld do the least dam

age to the deed descr

iptions and would not compound th e closure e rror. He also opined th at Mr. Sterli ng’s assumptions were not reasonable in the science of surveying, and that his, Mr. Everett’s, reliance upon a 50-year-old fence was reasonable and professional under the circum

stances.4 Our review of the

findings of fact ma

de by the trial Court

is de novo upon the record of the tr

ial Court, accompanied by a presumption of the correctnes s of the finding, unless the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Te nn. 1996). While the defend

ants advanced variou s legal theories in th e advocation of their case, we think the preponderance of the evidence supports a finding that the disputed boundary

should be established in

accordance with the testimony of surveyor Ev

erett. It was in her deed t

o Blankenship in 1946 that the disputed call fir

st appeared, and she testified that “we put the line where we wanted it.” Estoppel by deed is a bar w

hich precludes one pa

rty to a deed, and privies, from asserting as against the other party, and privies, any right or title in derogation of the deed or from denying the truth of an y material facts therein asserted

. Davidson County v. Beauchesne, 281 S.W.2d 266 (T enn. App. 1955); Denny v. Wilso n County, 281 S.W.2d 671 (Tenn. 1955). We agree with the appellees that since the plaintiff crea

ted the call and dista

nce in her deed to Bl

ankenship she is now concluded with respe

ct to that call and ca

nnot aver against it. The evidence does not preponderate against the judgment of the trial court and is accordi

ngly affirm

ed. But as we her

etofore stated, t

he judgment was based solely

on a finding that the pla

intiff was estopped

to deny the averments of her deed, which d id not wholly resolve t his controversy. To resolve it, we r

eference the dra

wing prepared by

Mr. Everett, and the two points therein marke

d ‘B’ and ‘A ’. These points should be connected w

ith a straight5

line, and th e clos ure pr oble m will b e reso lved . This line w ill b e desc ribed as “N 04-18-05 S 270.52 feet to the Boring Bou ndary.” Costs are assessed t

o the appellant.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Charles D. Susa

no, Jr., Judge