### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JUNE 3, 2002 Session ARLIE L. BINGHAM v. JOH N W. DOLES, ET AL 

### . Direct Appeal from the Chancery Court for Hardin County No. 5807; The Honorable Ron E. Harmon, Chancellor

No. W2002-00104-COA-R3-CV - Filed October 17, 2002

This appeal arises from a boundary line dispute. The plai ntiff filed suit against the defendant, an adjacent land owner, alleging that a propose d addition to the defendant’s home woul d encroa ch onto the pl ai nt if

f’ s p ro pe rt y. The trial court ruled that defendant had g ained title to the disputed p roperty under th e doctr

ines of adverse possession and title by acquiescence. The plaintiff appea led challenging the court’ s ruling on adverse possession. For the following r easons, we affirm the decision of the trial court.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined. J. Gilbert Parrish, Jr., Savannah, TN, for Appellant Dennis W. Plunk, Savannah, TN, for Appellee OPINION Facts and Procedural History Arlie L. Bingham (“

Mr. Bingham”) and John W. and Cy nthia K

. Doles (“the Doles”) are owners of adjacent tracts of property in Hardin County, Tennessee that border the Tennessee River. This dispute involves the common boundary line dividing the pa rties’ property

. The re are three tracts of property relevant to this appeal. These three tracts we re i nitiall y owned by common g rantors, Jesse and Johnnie Sue Mayfield (“the Mayfields”) . The Mayfie lds1 Th e date s of co nveya nce a nd the reco rding dates fo r the var ious trac ts provided in the re cord diff er somewhat from those p rovid ed in the parties ’ briefs. An y differen ces, ho weve r, are im mate rial to this ap pea l. -2- convey ed one of the tracts to Mr. Bingham by warranty deed dated July 2, 1986. 1 Mr. Bingham re cord ed this deed three day s later on July 5, 1986. The recor ded deed contains the following description: Beginningat an iron pin in the Southwest right of way of Dor

othy Ann Campsite Road, the same being Fly ’s Northeast corner and the Nort her n, most Nor

thwest corner of the tract herein described; thence with the Southwest and West right of way of Dorothy Ann Campsite Road as follow s: South

36 deg. 30' Eas t 36 feet

to a nail & cap, Sou th 24 deg. 21' West 3 7 feet to a 10' ha ckberr y; th ence with the South margin of an old abandoned

road, passing an iron pin at 124 feet, in all plus or minus 174 feet to a pool contour of Tennessee River; thence South 19 de g. 45'

West with said contour 76.7 feet; thence North 67 deg. 54' 02.8" West with a fence, passing the centerline of a gr

avel roa d at plus or

minus 157 f

eet, in a ll plus or mi nus 265 fe et to White Oak Creek; thence up said creek Nor th 12 deg. 30 ' East

37 feet; thence North 56 deg. 30' East with Fly ’s Southeast boundary line, p assin g an iron pin at 20 fe et, in all 114 feet to the be ginni ng, containi ng 0.51 a cre gr oss. Subject to road e asement

.

In two subse quent tra

nsaction s, the May

fields co nveyed the re

maining tracts to Billy Way

ne Faulkner (“Mr. Faulkner”). I

n the first tra nsaction, whatwould late r become known as t

he “Fir st Tract” was conv ey ed to Mr. Faulkner by w arrant

y deed da ted Septe mber 22, 1 993. Appr

oximately three years la

ter, what would become known as the “Second Tract” was conveye d to Mr. Faulkner by q ui tc la im de ed da te d A pr il 19 , 1 99 6 a nd re co rd ed th e s am e d ay. The quitcl aim deed conveying the Second tract to Mr. Faulkner contains the following description: Beginning at a

point in the

easter n margin of the D orothy

Ann Campsite Road, th

is pointbeing the northwest corner of the Ar lie Bingham lot as described in Deed Book 123, page 299; runs thence in a northern direction with the eas tern right of way margin of said road

39 feet to a stake, this point being the southwest corner of the lot already owned by B illy Way

ne Faulkner; ru ns thence with the south boundary line of Faulkne r 135 fee t to the Tennessee River; runs thence with the contour of the Tennessee River in

a southern direction 41 feet; runs thence in a wester n direction with the northern boundary of Arlie Bingham lot mentioned above 139 fee t to th e point of be ginning , and being a por tion of Tr act 2 as d escribe d in a deed of

general warran ty from Russe

ll Morrow, et al., to Johnnie Sue Mayfield, date d November 10, 1976, of record in the Register’s Offic e of Hardin County, Tennessee, in Deed Book 86, page 8 2. It i s th e intention of the Grantors to convey all of their remainder interest in the lot known as Tract 2 of said deed, aft er the con veya nce to Arl ie L.-3-

Bingham as shown in deed recorded in Deed Book 123, page 299, Register’s Offic e, Hardin County, Tennessee. Soon after th

e conve ya nce of th e Second Tract to Mr. Faulkner, Mr . Faulkner conve ye d both the First Tract and the Second Tract to the Doles by a single warranty

deed dated May

3, 1996, which was subsequently rec orded. The description given in the Doles’ warranty

deed for the Second Tract is identical to the description in Mr. Faulkner’s quitclaim deed except for the last sente nce. Instead of the last sentence as shown a bove, the Doles’ de

ed state d, “This isthe ident ical rea l estate conveye d to B il ly Wayne Fa ulkner by quitclaim deed da ted April 19, 1996, of record in the Register’s Office, Hardin County , Tennessee, in Deed Book 173, pag e 105.”
For severa l ye ars afte

r the con vey ance of

the Firs tTract a

nd the Sec ond Trac t to the Dol es, the parties h ad no dispu

tes as to th

eir commo n boundar

y lin es. In the early part of 1999, however, the Doles decided to build an addition onto their house. The addition wa s to be loc ate d on the southern border of

the Second Tract. In response to the proposed a ddition, Mr. Bingham asserted his be lief that the addition would encroach onto the northern border of his property and f

iled sui t agains tthe Doles seeking injunctive relief and a j udgment declaring him to be the owner in fee simple of the disputed property. Mr. B ingham’s complaint alleged that the Doles were encroaching on his property by

approximately eightee

n feet at the northeast corner and 4.37 f

eet on the southeas t corner. The dispute eventuall y proceeded to trial. To support their respective positions, both parties had survey s perfor

me d on th e tracts. Mr. Bingham called to the stand He nry Williams (“Mr. Williams”), a surveyor

who had surveyed both Bingham’s tract and the Second Tra ct ownedby the Doles. Mr. Williams testified that he could physically layout the

dimension s called

for in each of the deeds on the property , but that doing so resulted in an overlap in the respective boundaries. Mr. Williams further testified that this disputed area basically consisted of an old abandoned road. The Doles called William Ashe (“Mr. Ashe”) as an expert witness. Mr. Ashe a greed that the tracts, as described

in the par ties’ deeds, had overlapping boundaries. Similarly , Mr. Ashe stated that both deeds included

the southe

rn portio n of an ab andoned road tha t is now merely a

depression in the earth and barely

detectable. Following further testimon y by the p arties a

nd additio nal witne sses, the court issu ed its rulin g. The tria

l court f i rst determined that the property lines as described in the deeds were accura tely reflected in Mr. Ashe’ s survey and that a

n overla p in the de scription s did in fa ct exist. Next, the court determined that Mr. Bingham’s legal

title to the

disputed p

roperty was supe rior to that of the Doles due to the fact that Mr. Bingha m recorded his deed first. The court, howe ver , concluded that the disputed property ha

d been acquiesced over the y ears by Mr

. Bingham and that the Doles andtheir

pr ed ec es so r i n i nt er es t, Mr . F au lk ne r, ha d a dv er se ly p os se ss ed it . A cc or di ng ly, the court reformed the deeds, gr anting the Doles a portion of the disputed property

. Mr. Bingham filed a timely notice of a

ppeal and now contests the trial court’s decision.-4- Issues Mr. Bingham has raised the following thr ee issues for our review: 1. Whether

the court erred by

reforming the boundary

lines of the parties’ property after determining that Mr. Bingham’s legal t itle to the disputed p

roperty was supe rior to that of the

Doles due

to the dee ds’ rela

tive rec ording d ates; 2. Whether

the court erred by

reforming the deed even thoug h Mr. Bingha

m wa s an alleged bona fide purchaser and no mutual mistake in the deeds existed; and
3. Whether

th e t rial court erred in finding that the Doles and Mr. Faulkner, the pr ed ec es so r i n i nt er es t, ad ve rs el y po ss es se d t he di sp ut ed pr op er ty. The Dole s have al so raise d severa l issues fo r our re view. The

y a re as fo llows:
1. Whether

the trial court correctly

established the boundary under the doctrine of boundaries by a

cquiescence; and
2. Whether th

e evidence is suf

ficient t o affirm the trial court. Standard of Review When a civil action is heard by a trial judg e sitting without a jury, our revie w of the matter is de novo on the record, accompanied by a presu mpti on of c orrect ness o f the f indi ngs below. Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988); T.R.A.P. 13(d). We may not reverse the findings of fact made by the tri al jud ge unless they are contrary

to the preponderance of the evidence

. Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). This presumption of correctness, however, doe s not attach to the trial judge’s legal determinations or the trial c ourt’s conclusions that are based on undisputed facts. NCNB Na t’l Bank v. Thrail kill , 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). Legal Superiority of Mr. Bingham’s Deed Wi th reg ard to his first issu e, Mr. B ingham p oints to thr ee rea sons why

the cour t erred in reforming the deeds after determining that his leg al title to the disputed property wassuperior to that of the Doles . First, M

r. Bing ham simply

argue s that bec ause the

court found that hi s le g al title to the property wa s superior, the court should have granted him the disputed property . We disagree withthis reasoning. Mr. Bingham apparently has not taken into account the remainder of the court’ s rulin g. The court based its decision on the doctrines of adverse posse ssion and title by acquiesce nce. Under these doctrines, a bald assertion of gre ater l egal title does not constitute a proper defense.

Second, Mr. Bi ngham argues that beca use his deed was recorded first, the court e rred by failing to grant him the disputed property. Ag ain, however, Mr. Bingham has appa rently overlooke d the reasoning behind the trial court’s decision . If w e were to agree with Mr. Bingha m on this issue-5-

basedon his reas oning, w e would effectiv ely overrul e all equita

ble and st atutory doctrine s availa

ble under Tennessee law to gain title to land.
Fi na ll y, Mr. Bingham

argues that he is entitled to the disputed property mer

ely beca use he acquired his intere st by

warran ty d eed whe reas the Doles re ceived t

heir interest in the property fr

om Faulkner, who held a

quitclaim deed. I n support o f this arg

ument, Mr. Bing

ham points us to Black’s Law Dictionar

y , whic h stat es tha t quit clai m dee ds fa

il to c onta in an y w arra ntiesor g uara

ntee s. We disa gree, ho wever, with Mr. Bingham’s rea soning. We first note that section 66-5-103 of the Tennessee Code recognizes thevalidity of quitclaim deeds as a pr oper form of

conveya nce. Further, for the same reasons as above, Mr. Bingham a gain has failed

to consider the reasoning of the trial court and the true issues of t

his case. Acc ordingly, we hold that all three of Mr. Bingham’s argume nts with re spect to th

is issue ar e without m

erit. Mr. Bingham ’s Alleged Status as a Bona Fide

Purchas er and the

Lack of a Mut

ual Mistake
In his second issue, Mr . Bingh am makes two distinc t argum ents. First, Mr. Bingham argues that because he is as a bona fide purchaser of the disputed land and took without notice of a mistake in his deed, the court should not have granted the land to the Dole s. In support of his argument, Mr. Bingham cites thisCourt’s r

ecent decision in Wallace v. Chase , No. W1999-01987-COA-R3-CV, 2001 Tenn. App. LEXI S 263 (Tenn. Ct. App. Apr.17, 2001). In Wallace , we held,
A court of chancery

in Tennessee has thepower to reform and correct errors in deeds produced by f

raud or mistake. See Barnes v. Gregory , 38 Tenn. (1 Head) 230, 236 (1858). To be the subject of reformation, a mistake in a deed must have bee n mutual or there must have been a unilateral mistake coupled with fra ud by the ot he r p ar ty, such that the deed does not embody the actual intention of the parties. See Anderson v. Howard , 18 Tenn. App. 169, 74 S.W.2d 387, 389-90 (Tenn. Ct. App. 1934); Pittsb urg Lumbe r Co. v. She ll , 136 Tenn. 466, 189 S.W. 879, 880 (Tenn. 1916). Reformation may

be granted

against the original parties, their privies, those c laiming under them with notice, andthird persons who will suffer no prejudice thereby

. See 76 C.J.S. Refo rmation of I nstrumen ts § 54 (1994). As a general rule, howe ver, a court of chancery

may not refor

m a deed against a bona fide purc haser for value without notice. See Gibson v. Flynn , 1988 Tenn. App. LEXI S 713, No. 88-120- II, 1988 WL 119257, at

*3 (Te nn. C t. App . Nov. 10, 19 88) (ci ting Brier Hill Collieries v. H. Pile , 4 Tenn. App. 468, 478 (1926)). Wallace , 2001 Tenn. App. LEXI S 26 3, at *9-10. Based on Wallace , Mr. Bingham argues that because he was a bona fide purc haser for value

and took the land without notice of any mistake in the deed, the chancery

court lacked the authority to reform his deed. Our review o f the re cord ag ain, howe ver, reveals th at the chancery court’s ruling was not basedon its auth ority

to refor m mistaken

deeds. I nstead, t he court held that under the doctrines of-6-

adverse possession and title by acquiesce nce, the Doles were the rightful owne rs of the disputed property. Ac cordingly , Wallace is not applicable to the present case. Si mi la rl y, in his second argument, Mr. Bingham a rgues that the court

erred in allowing parol evidence to controvert the unambiguous description given in his deed. Whi le we agree with Mr. Bingham that parol evidence should not be“offe red to vary the terms of a written instrument that is clear and unambiguo us on its face ,” this rule of law is not appl

icable to this case . Thus, wit

h rega rd to this issue , Mr. Bin gham ag ain failsto addre ss the ruling of the trial cou rt. Acco rdingly , we hold th at these

argume nts lack me

rit. Adverse Possession With regard to Mr. Bingha m’s third issue , he arg ues that the court improperly relied upon the doctrine of adverse possession in declaring the Doles to be the rightful owners of the disputed pr op er ty. Specifically, B ingham argues that the Doles did not possess the disputed property for the requisite time and th at the Dol es’ cha racter of posses sion failed to rise to the level necess a ry t o satisfy the require

ments of adverse possession.
In Tennessee, the doctr

ine of ad verse po ssession isrecog nized in se ctions 28- 2-101 to -105 of the Tenn essee Co de. Pursu ant to the se statute s, when proceeding under color of title, a claimant or someone in privity

of estate with the c la imant must

have ad versely possesse d the prop erty

in dispute for at least seven y ears. See T ENN
. C ODE A NN
. § 28-2-101 to -105 (2000). Turning to the case sub judice , the Mayfields g ave up color o f title to th e dispute d proper

ty to Mr. Bin gham in 19 86. Adver se color of title to

the disput

ed prope rty did not ar

ise aga in until 1996 when th e Mayfields transf erred the Second Tract to Mr. Faulkne r. Hence, the period for adver se possession under color of title could not have begun to accr ue until 1996. Bec ause Mr

. Bingham filed the present suit in 1999, the requisite time period for adverse possession under c olor of title, sev en y ears, c ould not ha ve been met. Acc ordingl

y, M r. Bing ham has ov ercome

th e trial court’s presumption of

correctness on a

ppeal wit h regar d to the dur

ation of p ossession

and we ho ld that the court erred in determining that the requir ements for adverse possession were met. Doctrine of Title by Acquiescence
As noted above, the court based its decision on both adverse possession and the doctrine of title by acquiesc ence. Mr. Bingham, however , has failed to cite any error concerning the c ourt’s ruling on the doctrine of title by acq uiescence. Thus , under Rule 13 of the Rules of Appellat e Procedure, this Cou rt is not required to reach this issue. However, in the intere st of justice and because the Doles have offered an ana lysis of the doctrine, we

have taken the liberty to re view the doctrine’s requirements as well as the facts in the re cord concerning its application.-7-

As noted by the Dol es, this Cou rt recognized the validity of the doctrine of title by acquiescence in Duren v. Spears ,1990 Tenn. App. LEXIS 333 (Te nn. Ct . Ap p. M ay 10 , 19 90) . In Duren , we held: Boundaries between ad

joining land owners can be established by acquiescence. Roane County v. Anderson Cou nty , 89 Ten n. 259, 14 S. W. 1079 (18 90); Gilchris t v. McG ee , 17 Te nn. (9 Yerg.) 455 (1836). The g eneral rules as stated in 11 C.J.S., Boundaries , conce

rning a cquiesc ence and its effect are a s follows:
In order to

esta blish a bou ndary by

acquiescence, it is not necessary that the acquiescence

should be manifested by

a conventional agreement, but rec ognition and acquiescence

must be mutual, and both parties must have knowledge of the existence of a line as a boundary

line. . . . The question as to what constitutes acquiescence must be decidedfrom the particular fa cts o f the ca se, and n o absolute rule ca n be appli ed to eve

ry case. Generally it depend s o n the acts or declarations of the parties interested, on inf erences or presumptions from thei

r conduc t, or on the

ir silenc e. . . .Fa

ilure to ob

je ct to an encroachment

with knowledge that the owner thereof c laims to that line may amount to acquiescence establishing the line as a bounda ry. . . . Rec ognition of, and acquiescence in, a line as the true boundary line of one 's land , notinduced by mistake, and c ontinued through a considerable period of time, af fords stron g, if not conclusive, evidenc e that the line so re cognize d is infact the true line, and it supports an inference or presumption that there has been an agreeme nt fixing it as the true line. Where recognition and acquiescence have

continued for the period of time prescribed by

statutes concerning acquiescenc e or for the period required by statutes of limitati ons for a cquisition of title by a dverse possession, the presumption that the line is in fact the true line or that there has been an a greement fixing it as the true line becomes conclusive, and the line as acquiesce d in is con clusiv ely established as the boundary . As establi shed it will control courses and distances called for in the title deeds or grants, and the pa rties need not rely

on paper title. 11 C.J.S., Boundaries , §§ 79 and 81 (1973).
Duren, 1990 Tenn. App. LEXI S 333, at *5-7. Applying these requireme

nts to the case sub judice , we find that the preponderance of the evidence fails to overcome the low er cour t’s determinations of fact with regard to this doctrine. Ac co rd in gl y, we hold that the court did not err by determining the Doles to be the owners of the disputed property under

the doctrine of title by a

cquiescence.-8- Conclusion Based on the foregoing conclusions, we he reby af firm the decision of the trial cou rt. Costs on appeal are assessed ag ainst the Appellant, Arlie L. Bing ham, and his surety for

which execution may issue if nece ssary.

___________________________________ ALAN E. HI

GHERS, JUDGE