# FILED
May 9, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk GEORGE AVERY

LAND and w ife, ) STELLA FAYE LAND, ) ) Plaintiffs/App ellees, ) ) Appeal No. ) 01-A-01-9611- CH-00524 VS. ) ) Sequatchie Chancery ) No. 1507 BUSTER CRUM and wife, ) PATRICIA L. CRUM, ) ) Defendants/Ap pellants. )

IN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE
APPEAL FROM THE CH ANCERY COU RT OF S EQUATC HIE C OUNTY

AT DUNLAP, TENN ESSEE
HONORABLE J EFFREY F . STEWART, CHANCELLOR

L. Thomas Austin P. O. box 666 Dunlap, Tennessee 373 27 ATTORNEY FOR

PLAINTIFFS/APPE LLEES Howard L. Upchurch P. O., Box 3 81 Pikevil le, Tennessee 37367 ATTORNE Y FOR

DEFEN DANTS/

APPELLA NTS



### AF FIRMED A ND REMA NDED

HENRY F . TODD, PRESIDING J UDGE, MID DLE SECTION

CONCURS: SAMUEL L. LEWIS, JUDGE BEN H. CAN TRELL, JUDGE- 2 -

GEORGE AVERY

LAND and w ife, ) STELLA FAYE LAND, ) ) Plaintiffs/App ellees, ) ) Appeal No. ) 01-A-01-9611- CH-00524 VS. ) ) Sequatchie Chancery ) No. 1507 BUSTER CRUM and wife, ) PATRICIA L. CRUM, ) ) Defendants/Ap pellants. )



## O P I N I O N
The defendants, Buster C rum and wife Patri cia L. Crum, have appealed f rom the judgment of the Trial Court resolvi ng a boundary

dispute favor

ably to the plaintiffs, George Avery Land and w ife, Stella Faye Land. The sole issue presented to this Court by the defendan ts/appellants is:

Whether the Chancello r erred by ruling th at the common boun dar yline betw een the parties’ properties should be surveyed in the cours e and distance method when there were ample natural o bjects, landmar ks, artifici al monuments and linesof adjoining landowners sufficiently describing the common boundary line.
The appellee’s version of th e issue on appeal is: Whether the Chancello r prop er ly set the boundary betw een the parties g iven all the evidenc e presented at trial.

I.

The Factual Situation According t o a surveyor’s draw ing in the r ecord, the plai ntiffs and defendants own adjoining lots in a 19 lot subdivisi on. A ll of the lots fr ont on the southerlyside of a road var iously r eferred to as “t he Old Hill Road,” or “ the Old Dunlap Cagle Road.” Lots 1 through 8 varyin widt h, but lots 9 thr ough 19 have identical frontages of 200 feet each, and areas varying from 10.5 acres to 12. 5 acres.- 3 -

Plaintiffs’ lot is show n as lot 19, and t he adjoining lot of defendants is l ot 18. The plat shows plaintiffs’ lot as fronting200 feet on the southwesterly side of Old Dunl ap Cagle Road and extending back betwee n parallel straight l ines 2,100 feet on the northwest side and 2,030 feet plus or minus on the south east side (th e common boundary with lot 18) to a str

aight dead li ne on which it measures 255 feet more o r less. The p lat shows lot 18 fronting 200 feet on the public road and ext ending bet ween parall el straight lines 230 feet more or les s on northwest (the common boundary with lot 19) and 1980 feet on the southeasterly s ide to a straight dead line on w hich it measures 260 feet more or less.

II. The Pleadings The complaint alleges that plaintif fs are owners of pr operty desc ribed in a deed exhibi ted to the complai nt. The deed, dated Jan uary 9, 1963, states that Everett Roberts and wife conveyed to plaintiff s a tract described in detail as follows:

Lying a nd being in t he 2nd Civi l Distri ct, Flat Mountain Baptis t C hurch Community of Sequatch ie County, Tennessee, bou nded and described as f ollows: Beginning on a point in the center l ine of the Hill (Old) Road opposite a Cross on rock, in the Southeast boundary of the Isaac Williams Triang le, being th e Northwest corner of a tract of land conveyed by deed dated

______

Tennessee Land Company to the Trustees of the Flat Moun tai n Baptis t Church of record in Deed Book No. 2 page 248 in t he Register’s Office of Sequatchie County, Ten nes see; thence w ith the center line of the Hill R oad and the West bounda ry lineof the Church property South 26 / and 53' East 325.0 feet to the Southwest corner

of said Church proper

ty, contin uing wi th the center line of the Hill R oad South 25 / East 700.0 feet to a point wi th pine and red oak pointers; then ce South 58 / and 30' West, crossing branch 780 feet, fence corner 945 feet, with fence line 1778 feet f ence corner, crossing branch 1950 feet, in all 2100.0 feet to a stake w ith chestnutoak pointer ; thence North 4 / and 15' W est, fence corner 300 feet, with fence line 120 8 f eet fence corner, 1292 road, 1600 feet roa d, in all 1808 feet to a stake i n painted line and fence li ne, being the S ou th lin e of the Isaac W illiams 369 acre tract; thence with the South line of the Williams tract and fence li ne North 77 / and 14' East- 4 - 140 .0 feet to a Tenn essee Land Compan y iron corner; thence with the west line of the Isaac W illiams Triangle South 12 / and 46' East 989. 1 feet to a Tennessee Land Company

iron corner ; thence wi th the Sou th line of the IsaacW illiams Triangle North 46 / and 26' East 100.0 feet a Tennessee Land Compan y iro n pointer corner, c ontinuing North 26 / and 26' East with the South li ne o f the Esaac W illiams Triangl e 1505 feet to the point of beginning, containing 45 acres, more or les s. (The emphasized v

erbiage of pl aintiff’s deed desc ribe the disputed boundary

line.)

The complaint als o alleged that the defendants are the ow ners ofland described in a deed exh ibited to the complaintand recorded on July 10, 198 2. Said deed states that Cynthia Austin con veyed to defendants land d escribed as follows:

a certain tract or parce l of land in 2nd C ivil D istrict of Sequatchie County, State of Tennessee, as f ollows: BEGINNIN G at a st ake in the south margin of th e old Dunlap-Cagle ( Old Hill Road), said point being t he northwestern corner of the tract of land a cquired by Stephen T. Greer, et al, by deed recorded in Deed Bo ok 48, page 418, Reg ister’s O ffice of Sequa tchi e Cou nty, Tennessee, said point al so being a corner to t he property of Avery Land, thence along the sou th margin of said Old Cagle Roa d (Old Hil l Road), South 23 deg. 32' East 200 feet to a stake in t he south margi n of said road, then South 52 deg. West 2,030 feet more or less , to a point in the original southwest boundary li ne of property acquired byStephen T. G ree r, et al, by deed recorded i n Deed Book48, page 418 , thence Northwestwardl y along th e original southwest boundary line of said original tract 255 feet more or less, to the southwest corner of the Av ery Land proper

ty, thence along the southea st line of said Avery Land property

North 38 deg . 30' East 2,100feet to the pointof BEGINNING, containing 10.7 acres, mor e or less. (The emphasiz ed words of defen dant’ s deed describe the di sputed boundary line.) Being the same propert y conveyed to Cynthia A ustin from Stephen T. Greer, et al, by de ed of record in Deed Book 57, page 382 Reg ister’s O ffice of Sequatchi e Co unty, Tennessee.

The complaint further

alleged that defenda nts had committed tresp ass and waste upon plain tif fs’ p rope rty.- 5 - T he answer admi tted the above ment ioned deed, but denie d encroachment upon pl aintiff’s land.

III. The Decision of the T rial Court

After a non-jury

trial, on J une 2, 1993, the Tri al Court enter ed an order contai ning the followin g:

I T IS, THEREFOR E, ORDERED , ADJUDGED AND DECREED t hat the property line shall exte n d two hundred (200.0) feet alongthe road begi nning wi th t h e iron marker w hich is common t o the defenda nt s and Mr. Lockhart, and there is n o dispute as to t he southern boundary of the defen dants which shall go fro m the corner of Mr . Loc khar t at le ast t wo hun dred fif ty five (255.0) feet as called f or in the defendan ts’ deed, if it goes to the pile of r

ocks wi th the iron pi n th er ein as the plai ntiff, George Avery

Land, testified. Fr

om those two ( 2) marks , the line shal l be a strai ght call fr om the point establishe d o n the road to the p oint establis hed on the backside of the proper ty, wi th said lineto be establis hed bya survey

and the e xpen se of said survey to be born e equallyby the part ies hereto. The s urvey of said propert y is attached to this

order, alongwith a por tion of the Chancellor’s memorandum opinion, w hich a re hereto designated as Exhibits “A” and “B”.

Exhibit A to the order

of the Trial Cour

t is exhi bited to this opi nion as Exhibit A.

IV. Resolution of the Is sues The parties areagreed as to the location of thetermini of the di sputed line, i.e., the cor ner at the road and the corner at the rear of the pr operty . Plai ntiffs contend, and the Trial C ourt found that the boundary was a str

aight linebetween the two corners. The defendant s insist that the line meanders to co nform to certain natural and artificial monuments not mentioned in deeds but w hich, accordi ng to the- 6 -

testimony

of Mr. Cru m, were poi nted out to Mr. Crum by M r. Land shortl y after the defenda nts purchased thei r lot. Mr . Land testified that he did not point out th e disputed monuments to Mr. Crum. This is the onl y disputed testimony i n the record, and it is determinative of the ap peal.

Mr. Land explai ned that the disput ed monuments were painted marks
on trees which had been placed by him well within his l ot to prevent some timber cutters from cutting t rees on adjoini ng land, a par t of which l ater became the defendant s’ lot. The Trial Judge evi dently acc redited the testim ony of Mr. Land in preference to that of Mr. Crum, th ereby reac hing the res ult above st ated.

The rule concerning preference of natural and artificial monu ments i s inapplicable where they are not needed to complete ambigu ous or incompl ete deed discriptions.

In Thornburg v. Chase , Tenn. App. 1980, 606 S. W.2d 672, t hi s Court reversed a b oun dary li ne judgment and hel d that, althoug h an unascertai ned or disputed boundary maybe established by a parol agreement, the ev idence did not establish such a n agreement; that , in establi shing disp uted boundaries, natural landmarks are considered first, artificial marks or monumen ts are considered s econd, and finallycourses and di stances; and that this rule of co nstruction is designed to aid in determining the intention of the parties to a deed which is to be determined if possible from the instrum ent in connection with the surrounding circumsta nces.

The cited opinion is not authori ty for modifying a clear

descriptio n in a deed which r

equires no interpretati on.

In Prichard v. Rebori , 135 Tenn. 328, 186 S.W. 121 (1916), the SupremeCourt held t hat the reason for t he pref erence o f monuments is that the- 7 -

parties are presumed to have exam ined the pro perty and to have taken note of the monuments in the li ne. This observ ation has no appli cation wher e there is noneed to supplement the deed discripti on.

The deed to defend ants, quoted above, described t he disputed lineas follows:

. . . thence alongthe south marg in of said Old Cagl e Road

(Old Hill Road) South 23 deg. 32' East to a stake in the sou th margin of said road, thence So uth 52 deg. W est 2030 feet more or less to a poin t in the southwest boundary line of property acquired by Stephen T. Greer et al by deed recorded in Deed Book 48 page 418

. . . . The deed to plaintif fs, quoted above, described th e line as follows: - - - thence south 58 degrees and 30 minute s west - - - 2,100 feet to a sta ke - - -.
The parties agree upon the two points or corners which are connected byth e disputed lin e. The course of sai d line is c learly stated as South 52 deg ree s west or south 58 deg rees 30 minuteswest. N o physical monuments are mentioned , hence the line must be a straig ht line in thedirection stated withou t deviatio n.

The plats draw n by the various surv eyors show

coursesdifferent from the courses stat ed in the deeds of the parties, bu t this is considered ir relevant because no survey

or showed a

deviation from a straig ht line except the surveyor for defe ndant s whose tes timony in cluded the fo llowing:

Q. Okay. Does the Cr um deed name any monuments or physical points on theground that y ou could find? A. No, it’s not calling for physical points. It does call for going w ith the Aver

y land.

. . . A. The land deed is very precise in it s notation of physical monuments. It -- the part tha t’s pertaining to this comes down the cent er of Hill R oad, says to a point. Of course, that’s a point

in th e ce nter of the road and n o longer decipherable. But from there it goes so many feet,- 8 - 780 feet crossi ng a branch, hits a fence corner at 945 feet, then with the fence line 1778feet to a fence corner and then crossi ng a branch 195 0 for a t otal o f 2100 to a stake with chestnut pointer.

. . . Q. Okay. On the road si de of it, the linestartswith a pine and red oak po inters. Di d you find a pin e and red oak pointers on the road side of it? A. The p ine and red oak pointer s, if you’l l note, that comes down the center of the road. Q. Yes, sir. A. A nd no, th ose were not existi ng. We did find an esta blish ed co rner off of t he ro ad on the ri ght-o f-way.

. . . Q. Okay. Now, after finding those two points, what did you do to try to ascertain the location of the actual line on the ground between those two points? A. After

view ing all of theevidence, ac cording to reestablishi ng the lines st ate law, y ou take physi cal evidence or physical markers holding prece dent. And with Crum’s deed simply calling for a bearing , a course in distance, and callingfor going with the Av ery lin e, we look forthe Avery

land at the Ave ry Land deed an d the monuments on it. The monuments on it, be ing many for that length of line, and the particula r line that was there we found an existi ng painted li ne that had been paint ed at least twice. We followed that line. And we did not shoot it by cours e in distance because of the phys ical evidence taken precedent over it

. And we found natural monuments, which is called -- creeks would be a natural monument. And we found ther e’s two of tho se called for in the deed. They are existing. They are t h e r e . We found, also, artificial monumen ts, which is -- fences would be an artificial monument. We found that called for in the deed. Q. Okay. What you’re s aying, I believe, if Mr. Austin will permit, i s that t he rules of instruction, when you’re trying to establish a boundary l ine, say you look to natur al monume nts first, artificial monume nts next, and the last thing yo u look to is course and distances, correct? A. Right. Q. And you were look ing f or natural or artificial monuments between the t wo points that you’ve already testified to, on t he ground; is that correc

t? A. Yes.- 9 - Q.`O kay. Now, after -- after making that examination, Mr. Brad ley, did you establish a -- did you draw a line through there and establish on the line the ac tual arti fici al and natural monuments that you found on thi s line? A. Yes.

The testimon y of this wi tness sugg ests numerous monuments upon which the defendants rely ; but neither t he testimony of thi s witnes s no r the plat presented by him furnishes any guidance for the establishment an d later deli neation of a boundary line other than the two agreed upon corners.

The testimony of M r. Crum suppor ts his rel ianc e upon an agreed bou nda ry, but his enginee ring test imony doesnot properly delineate the bound ary on a plat or a compl ete metes and bounds des cription.

Moreover, Mr. Crum’ s testimony as to the ag reed b oundary is contradicted by

Mr. Land, and t he Trial cour t accepted the version of Mr. Land.

The descriptio n in defendant’s deed, quoted above, cont ains only t wo landmarks, the termini w hich are ag reed upon by t he parties, and no other landmarks. It contains no other

land marks and only one com pass dire ction (South 52 degrees W est).

As above indicated, defendant’s te s timony as to agreed or admi tted landmarks was not

accepted by the Trial Judge and this Court concu rs in that f inding.

The descriptio n in plainti ff’s deed, quo ted abo ve, d oes con tain s ome landmarks, but the courses and distancesbetween the landmarks are insufficient to require a modification of the j udgment of the Trial Court. From the agreed northerly corner, the line proceeds in the direction of south 58, 30de grees 30 m inutes west, crossing a branch at

780 feet, passing a fe nce corner at 945 feet , following a fence- 10 -

to 1,778 feet to another fence corne r and crossi ng another br anch at 1,950 feet. The only direction in the foregoing i s south 58 degr ees 30 minutes west.

The survey

ordered by

the Trial Court (Exhibit A to their opi nion does not indicate the compass reading of the straig ht line decre ed by the Tri al Court.

With the clouded and incomplete eng ineering data it is readily see n that
a straight

line between two ag reed termini was the onl y satisfacto ry resol ution available to the Trial J udge.

This non-jury judgment comes to this Court for r eview d e novo upon the record and must be affirmed unless theevidence pr eponderates agai nst the factual findings of the Trial Jud ge. TRAP Rule 13(d).

Any conflict in t estimony requiring a determination of the cred ibili ty o f witnesses

is for the Trial Cou rt and being upon the revi ewing court unless ot her real evidence c ompels a contrar y conclus ion. State ex rel Balsinger v. Town of Madisonville , 222 Te nn. 272, 435 S.W.2d 803 (1968); Bowman v. Bowman , Tenn. App. 1991, 836 S.W.2d 563. No such real evidence in this record compels a cont rary conclusion.

The evidence does not preponde rate against the fact ual conclusions upon which thejudgment of theTrial Court is b ased. Upon rev iew de nov o upon the record, this

Court agrees with t he decision of the Tr ial Court.

The judgment of the Trial Court is af firmed. Costs of this app eal are assessed against the appellants and the ir surety

. The cause is remanded to t he Trial Court for necessary further procee dings.- 11 - 

### AF FIRMED A ND REMA NDED

_________________________________ HENRY F. TODD, PRESIDING J UDGE, MID DLE SECTION

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ BEN H. CAN TRELL, JUDGE