### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 15, 200 2 Session WILLA B ELL HUS KEY v. JERRY MARTI N Appeal from the Chancery Court for Monroe County No. 12,939 Jerri S. Bryant, Chancellor

FILED JULY 12, 2002 No. E2001-02312-COA-R3-CV

This is a property line dispute. The defendant Jerry Martin appeals the trial court’s finding that the parties’ shared boundary line is as alleged in the original complaint. Martin argues that the evidence preponderates against the trial court’s factual findings regarding the locationof the boundary line. We aff irm the tr ial cour t’s judgme

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

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Steven B. Ward, Madisonville, for the appellant, Jerry Martin. Clifford E. Wilson, Madisonville, for the appellee, Willa Bell Huskey.

OPINION I. The property line in dispute is a portion of the southern boundary of the plaintiff Willa Bell Huskey’ s proper

ty. Huske

y filed he r compla int on Apri l 20, 2000. It allege s as follow s: T hat approximately four (4) years ago, the Def endan t began removing portions of the li ne fence which was located on the c ommon boundary as between the Plai n tiff and t he Defe ndant. Th at in approximately1997, the

dispute a rose as b etw een the part

ies as to whether or not the Defendant should be removing the fence posts and1 The earl ier name was Old Highway 68. -2- the attempts by the Defendant at that time to encroach o n th e Plaintiff’s property.

* * * That in early March, 2 000, the D efenda nt, without permission of the Plaintiff, had a large mobile home pulled from Country Side Lane across propert

y belo n ging to the

Plaintiff , after which the

mobile home was located across the bo undary l ine of the two prope

rties, leaving the mobile home protruding onto t he propert y belongin g to the Plaint iff in the area where the fencing had been removed by the Defendant. Huskey asked the court

to establish and declarethe bound ary line , and to or der Mar tin to remo ve his mobile home from the portion of the property declared to be her s. This dispute proceeded to a bench trial on May 17, 2001. The trial c ourt held that “the Plaintiff had sustained the averments of the Complaint.” It established the boundary line as alleged in the complaint. The court also ruled that Martin “shall have thirty (30) days from the entr y of this Order within which to remove his mobile home and any other of his pers onal prop erty from the property determined to be the property of the Plaintiff.”
II

. In this non-ju

ry case, ou r revie w is de novo upon the r ecord of the proc eeding s below, w ith a presumpt

ion of cor

rectne ss as to the

trial cou rt's fa ctual d etermina

ti ons, unless the evidence preponderates agains t those findings. Tenn. R. A

pp. P. 13(d

); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993); Wright v. City of Knoxville , 898 S.W.2d 177, 181 (Tenn. 1995). The trial court's conclusions of law, however, ar e accorded no such presumption. C am pbell v. Florida Steel Corp ., 919 S.W.2d 26, 35 (Te

nn. 1996) ; Presley v. Be nnett , 860 S.W.2d 857, 859 (Tenn. 1993). III. A statement of the evidence was filed in this Court pursuant to Tenn . R. App. P . 24(c). It reveal s that the parties agree as to the location of the northwest corner of Martin’s property. They also agree that the northwest corner is located in the southern boundary of Huskey’s property, and that t he line in disp

ute begin s at a one -half inc h diamete r aluminum

pipe mar king the a

foresa id corner and proceeds generally east, terminating at the recently-re named Country Side Lane. 1 They disagree vehemently as to the direction of the disputed line. Huskey argues that the line runs straight2 It is t rue that the st atement of t he evidence reflec ts that M r. H uskey al luded t o the “ East side ” of t he road. Th is is curio us sinc e bo th the Hu skey and M artin trac ts lie enti rel y o n the we st side o f that ro ad. In any even t, this “marker” is not

crit ical to the deci sion in t his cas e. -3- east as a continuation of her southern boundar y line, wh ich line a ctually c ommence s at a poin t west of the aluminum pipe. Martin argues that the property line changes direction at the aluminum pipe, proceeding in a slightl

y more nor

theaste rly direction than the line claimed by Huskey. The boundary line claimed by Martin would give him approximately 26 additional feet of frontage on Country Side Lane. In May, 1995, Martin had his property surveyed by Luther D. Hayes. See Appendix. Hayes testified that he ut

ilized the deeds of the part ies to con duct his su rvey. Hayes further testified, as recited in the statement of the evidence,

that he did f ind a partial fence which went in a Wester ly direction from an existing 1/2" aluminum cap which was shown on the plat he prepared as being a corner

of Martin, Huskey, and

Bowater, and that extending that line in a straight line in an Easterly direction was along the line claimed by the Plaintiff ... He further testified that there seemedto be something across [Country Side Lane] that tied i n with that same straight line cl aimed by the Plaintiff and that the district line is the line claimed by the Plaintiff. Huskey ’s deed ca lls for an eastern boundary line of 744 feet, fr onting Country Side Lane. The line terminates “in the western edge of [Countr

y Side Lane] at a c orner w ith Rankin H olcomb and a culvert.” Hayes testified that he started at “the ditch or cu lvert” and measured 744 feet genera lly south along the road. According to him, his measurement terminated at the point claimed by Martin as his northeast corner. Huskey testified that she andher husband moved to her property in 1985. She testified that there were old

fence p osts that r

an in a str

aight line along the

boundar y line at is su e. Hus key testified that Martin had removed some of the fence posts, and that in March, 2000, he brought in a mobile home that extended onto her property some 25 feet. Huskey’s son, James A. Huskey, testified at the trial below. The statement of the evidenc e reflec ts his testim

ony as follows: [T]hat the Southern boundary line of the property began a t a pipe at its Southwestern corner and ran in a strai ght line with both Bowater and Martin along an old fence to a marker which is located on the East side 2 of [Country Side Lane]. Mr. Huskey further testified that he had two discussions with Mr. Martin, the second one around 1989,3 No evidence remains of t he cedar tre e to whi ch Holcomb ref erre d. -4- at which time Mr. Martin had r e moved some of the fence posts and had started m

owing some

of the pr operty belonging to the Plaintiff[.] Travis Holcomb, Martin’s neighbor to the south, testified that he had kn own the pr

operty in question since 1947. Holcomb stated that his brother had once owned the property now owned by Huskey. H e furthe

r testified that it was his recollecti on that the re was a fence which started

at the road and went in a straight line passing the Martin property an d then t he Bowater propert y in a Weste

rly direction to Huskey’s Southwestern corner. He furth

er testif ied that th is was a straight line and that it did notchange di rection and that the fence was definitely there in 1947 and that there was a cedar tre e in the fence row at the highway. 3 The following excerpt from Martin’s deposition was read a s a part of Huskey’s proof: Q: Okay, the

re was a fence, was ther

e not, or a

t least a li ne of post s that ran all the way from [Country Side Lane] all the way ba ck to the western corner? A: Not as long

as Ican remember. I mean I can’t remember no fence a being there. Q: Well, s ir, there

were po sts there , were th ere not? A: No, there wasn’t posts there. Q: Did you take some of them down? A: No. Q: You never took a single post down? A: Not except just where I fenced in the fr ont yard and I took them down, but no line fence or anything. I didn’t know there was a line fence there. A county ta

x map was introduc ed that sh ows the boundary li ne at issu e running i n a continuous straight line with the district line, a position cons istent with the description of the-5-

s outhern boundar

y line in Hu skey’s deed. The l ine shown

on the tax

map is the b oundary

li n e argued for by Huskey.-6- IV. Martin contends on appeal that the trial court erred in finding that the evidence preponde rates in favor of

Huskey’s position. More specifically, Martin argues the following, as quoted from his brief: The Chancellor gave undueweight to the existence of the district line and the disputed testimony about the old fence. The only undisputed testimony was the ditch on Plaintiff ’s opposit e boundar y and the c all for 744 feet from that ditch in Plaintiff’s deed ... The Chancellor should have given the greatest weight to the uncontested proof. The gene ral rule regard ing the dis position of

a proper ty line disp

ute is as f ollows: When de termining a bounda ry line tha

t is indispute, the court mus t look first tothe natural objects or landmarks on the property, then to the artificial objects or land m arks on the property, then to the boundary lines of adjacent pieces of property, and finally to courses and distances contai ned in documents relevant to the disputed property. Mix v. Miller , 27 S.W.3d 508, 513 (Tenn. Ct. App. 1999). Martin, while ac kn owledgin g this general rule, cites the Sup reme Court case of Pritchard v . Rebori , 135 Tenn. 328, 333, 186 S.W. 121, 122 (Ten

n. 1916), where th

e court n oted that

“this general ru le, as to th e relati ve importance of these guides to the ascertainment of a boundary of land, is not an absolute or inflexible one.” Id.
We find nothing in the record to support Martin’s contention that thetrial court applied the rulein Mix in an “inflexible” manner. Rather, the record supports the opposite conclusion, i.e. , that the trial court carefully considered and we ighed all of the evidencein a manner consistent with the principles set forth

in Mix and Pritchard . Due to the conflicting testimony regarding the existence of fence p oles alon g the alle ged prop erty line, the c redibility of the various witnesses was an importantconsideration in this case. “When the trial judge has seen a nd heard a witness's testimony, consider able deference

must be accorded on review to the trial court's findings of credibility and the weight to be accorded to that testimony.” Cutler-Hammer v. Crabtree , 54 S.W.3d 748, 753 (Tenn. 2001). Based on our review of the record, we find that the evide nce doe s not prep onderat

e agains t the trial court’s factual findings underpinning its holding in this case. V. The trial court’s judgment is affirmed. Costs on appeal are assessed to the appellant, Jerry Martin. This case is remanded to the trial court for enforc ement of the judgment and for collection of costs assessed below.-7- _______________________________ CHARLES D. SUSANO, JR., JUDGE