1 

# FILED July 8, 1996 Cecil Crowson, Jr. App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTERN SECTION AT J ACKSON

______________________________________________________________________________ JAMES E. SIM ONS and wife, Madison Chancery No. 48063 MARGARET B. SIMONS C.A. No. 02A0 1-9512-CH-00272 Plaintif fs/Appellant

s, Hon. Joe C. Morris, Chancel lor
v. HERBERT H. RE PLOGLE, Jr., Defendant/Appellee. DAN McBETH , Trent

on, At torn ey for

Plaintif fs/Appellant

s. DA VID A. RIDDI CK, Holm es, Rich & S igler, P.C., Jac kson, Attorney for Defendant/Appellee. REVERSED AND REMANDED Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. James E. Si mon s an d M arga ret B. Sim ons (“pl ain tiffs”) fil ed s

uit i n the ChanceryCourt of Madison Count y against Herb ert H. Replogle, Jr. (“defendant” ) for the purpose of establishing a common boundary line b etween the p arties. Following a bench trial the chancellor established the part ies’ common boundary line based on the calls in defendant’s deed. On appeal plaintiffs have presented
one issue for our r

eview: wh ether the evidence p repon dera tes against the chancell or’s

fi ndi ng . In ou r o pi nio n, th e ch an cello r did er r a nd w e a cco rdi ng ly
reverse.
Much of the pro of in this case is undisputed. For many years t he parties

and their predecessors in tit

le have beenadjo ining landown ers o f t wo tracts of land on the east side of Christmasville Road in Madison County. The Replogle property is loca ted im me dia te ly north of t he Simons’ property. Replogle’s south boundary and Simons’ north boundary,for all practical purposes, should be the same. The record refl ects that plaintiffs had been residing on t heir parcel of land fo r ma ny yea rs. Plaintiff Margaret

B. Simons acquired tit le to the property f

rom her mother by deed2

in Ma rch198

4. This lan d ha d be en o wned by her fam ily s inc e 19 37. A sh ort

ti me after Margaret Simons

acq uired this propert y, she made a conveyance of an interest in same to create a tenancy by the entireties with her husba nd. In 1989, plaintiffs employed Reasons Engineering Co. of Humboldt tomake
a survey of their

property. Plaintiffs test ified that the primary purpose of this survey was to have t

he corners staked and ide nt if ied so th at

th eir chi ldre n co uld re adi ly lo cate the boundaries of their propert

y. As part

of the survey, the surveyor placed stakes at t he corners of the various lines of plaintiffs’ property, including the boundary l ine separating their pr operty from defend ant.
Defendant

acquired the 8

2.5 ac re tr

act adjoining plaintiffs’ nort h boundary in April 1991 by a quitclaim deed from the ot her heirs of his mother. T his parcel of land had been in defendant’s family for slightly over one hundre d years. T he quitclaim deed contained the fo llow ing mete s and bounds description of t he property:
BEGINNI NG at a black oak, hickory and poplar

, John Gateley’s nort hwest corner, runs thence west 175 poles to a st ake; thenc e sou th 75 poles to a stak

e, post oa k

and black oak pointers; t hence east 175 poles to a stak

e and pop lar point

ers; t hence north 75 poles to t he beginnin g, cont

aining a bout

82 1⁄2 acr

es, more o r less.
In 1992, following th e purchase of his propert y, defendant removed t he stake pr ev io usly installed byplaintiffs’ surveyor designat ing the plaintiffs’ no rth boundary line where it intersect ed the east marginof th e r ig ht of way of Ch ris tm asv ille Road, and placed his own co rner pos t 32 feet sout h of t he sta ke inst

alled by plaintiffs’ surveyor. The parties at tempted t

o resolve this dispute witho ut success, and this suit foll owed. Following a b enc h t

ria l, the chancellor issued a memorandum opi nion which formed the basis of his later decree. The pertinent provisions

of t he decree r

eads as follows:3 7. The Replogle property has been occupied by Mr. Rep log le and his fa mily for over one hundred (100)years with t he description being 175 poles East-West

and 75 poles

Nor th -So ut h, whic h fo rms

a perfe ct rectangle.

. . . 1. The N or

th-South boundary line between the propert y of the Plaintiffs and the Def

endant is

establish ed accord ing to the deed of Mr. Replogle which has never been questioned in over one hundred (10 0) yea rs.
Inasmuch as

this c ase was tried below with out t he int ervent ion of a jury, our scope of reviewon appeal i s de novo upon the record in the t rial court. Findings
o f fact b y the tri al cou rt com e to thi s co urt w ith a p res um ption of co rre ctn ess . Absent an error of l aw, un less we find t hat t he evidenc e prepo nderat es again st these fin ding s, w

e mus t a ffi rm. T.R.A.P. 1 3(d). In addition, any and all confl icts in the testimony

of the wit

ne sses i nvolving t

heir credib ility is to b e resolved inthe f irst insta nce bythe t

rial court, and any findings by t hat court

, based upon credi bility, is to be given great weight by this court. State ex relBa lsin ge r v . Ma dis on vi lle , 435 S.W.2d 803, 807 (Tenn. 1968).
Our review of this record reveals that there was no app arent con flict between the part

ies over the common boundary line between their propert ies until pl ain tiffs had a su rveymad e of th eir prop erty i n 1989. Prior to the co nvey anc e to plaintiff Margaret Simons in 1984 , the early description of pl aintiffs’ property from court house reco rds describe d the land a s follows:
Bounded on the nort

h by the land of Mrs. L.R. Cash, on t he east by t

he lands of Mathews, and Mayes, on t he south by t

he lands of W.C. Browning, and C.B. Bet tie, Miss Ollie Hinson, and Mrs. S.L. Carter (f or mer lyTodd) and on the east by the Christ

masvill e Road, containing by estimation one hund red acres more or l ess . . . .
Defendant’s

proper t y, which was conveyed to his mot her and father by deed in 1938, conta ins the following description:
BEGINNI NG at a black oak, hic kor y and poplar, John Gateley’s nort hwest corner, runs

thenc e we st 175

pol es to a stake ; then ce s outh4 75 poles to a stak

e, post oak an d black oak p oint ers; thence east 175 poles to a stak

e and pop lar point

ers; t hence north 75 poles to t he beginnin g, cont

aining a bout

82 1⁄2 acr

es, more o r less.
Wit hout reviewing it in deta il, there was m o re than sufficient testimony by both parties as to the ownership of their respect ive t racts of land. However, as can be see n fr

om t he legal de scriptions appearing in t he earlier conveyances of the land of both p arties, monuments and ot her as cer ta ina ble points are sorely lacking. Th e earlier descriptions of plaintiffs’ propert y do identify t

he western boundar

y o f this property a s Christmasville Road. However, it is virt ually im possib le to locat e defendant’s

property b y its earlier description ot her than t

hat it is loc at ed i n t he old 16th Civil Distric t of Madison County.
The only proof offered by defendant in se eking to est

ablish the southern boundaryof his propert y was produced bydefendant him self, a re tired surveyor for the Tennessee De partment of Transportat

ion. He test

ified that

as far back as 1860, this pro per ty was ident

ified b y t he s ame description as we referred to above. There is no proof in the record that a survey has ever been made of defendant ’s property. It is also readily apparent tha t in the quitclaim deed to defend ant from his broth ers

and sis

ters , the g ranto rs sim pl y ado pte d the met es and bo unds descrip tion created over one hundred years ago. Whendef end an t t

est if ied at tr ia l, he presented no pl at, nor any testimony of a surveyor. He stat ed that he installed the concrete marker shown in one of the p hotographs introduced at t

rial into what he asserts is the southwe st corner of his property,which the parties ag ree is 32 feet
sou th of the point

where plaintiffs’ contend t hat t hei r n orthwest corner a nd defendant’s

sout hwest co rner sho uld be. Defendant present ed the following testimony as t

o how he located this disputed corner:
Q. (ByMr. Ridd ick) Coul d you tell us what’s in eac h of thos e pictures? A. We ll , this first

pictu re here is

a concre te mark

er th at I put

up mys elf establishing my south corner there
. I put that up there and it

’s not on their proper

ty. T he County owns 650 f eet o f right

of way o ut there. If you’l l l ook at t hat p ost t

here and mea sure it

’s 29 fe et an d 61 Parentheticall y, we n ote th at for so me substa ntia l distance p laintiff s’ prop ertyis

adjacent to and forms the east boundary of defen dant’s property. No complaint has been made by defendant of t his particular line.
5 inch es, so it i s not o n the S im ons es’ (sic ) prop erty. It’ s on th e cou nty right of way. That post is sitting 1237.5, 75 po le s fro m m y nor th boundary. Q. And did you m eas ure it? A. I measured that with 10 0 foot steel t ape down my we st boundary.
Defendant

did no t iden tify

whe re his

no rt h b ou nda ry

was lo cated, nor

the point from which he says he measured down his west bo undary, which is t he east boundary

of t he right of way f

or Christmasvi lle Road.
To this court, t he testimony o f the plaintiffs’ surveyor, Jeff Tulley, is persuasive and convincing . Tull ey testified that prior to surveying the land of the plaintif fs, he completed a survey of plaintiffs’ immediate neig hbor t o the sout

h, Gene Paul Osborne. Tul le y testi fied that he foun d al l th e mo num ents on the Osb orne prop erty and estab li she d Osborn e’s boun dar

y l ine s to hi s sa tisfa ction . When emp lo yed to surveythe p roper

ty of plaint

iffs, Tulley testified t

hat he st

arted at

Osborne’s nort hwest corner, which is plaintiffs’ southw est cor ner, in the margin of t he Ch ris tm asv ille Road, and measured plaintiffs’ land. He test ified that

from having surveyed the other call s of Osborne’s pr

operty, his loca tion of the nort hwest corner of Osb orne ’s tra ct wa s co rre ct. This was the begin ning point used b y the surveyor in measuring plaintiffs’ land. Tulley stated that he preceded north t

he length of the calls of plaint

iffs’ dee d, and by following these calls he located p laintiff s’ nort hwest
corner (defendant’s sout

hwest corner)four feet north of a fence corner. He t hen preceded to work out the balance of the cal ls on pl aintiffs’ property. 1

Tulley further testified that he measured the dista nce in t he call in plaintiffs’ deed along Christmasville Road north from the nort hwest corner of the Osborne tract for t he sta ted d istan ce, and that he also measured the Christmasville Road6

callof defe ndant

’s de ed alon g Christmasville Road south the st ated distance in defendant’s

dee d. Tu ll ey sta ted that these me asu rem ents almost “d ead cent ered” on the fence corner.
Tulleystated that he wal ked the no rth an d so uth boundary line following his surveywith plaintiff and Charlie Cash, defendant ’s uncle, showing them where the
corners were. Tulley stated that no one to ld him whe re to put t he bounda ry lines. He further t

estified that

Cash sho wed him wh ere the old fence row was and that Cash told him that

the f ence was t

he appro ximate boundary betwee n the part

ies. According to Tulle y, Simons never tried to tell him where the boundary lines were.

In our opinion, t

he evidence n ot on ly p reponderates against the chancellor’s findings,but p reponder ates in favo r of plaint iffs’ assertion as to the location of the disputed boundary. Accordingly, the decree of the chancellor is reversed. This court is of the opinio n that

the common boundaryline between the part ies is to be established and fixed in accordan ce with the survey and plat of the surveyor Tul ley. This cau se i s re man ded to the t rial court

for suchfurther and ot her proceedings as
are necessary not inconsist ent with t

his opinion. Cost

s in this cause on appeal are taxed to defendant, for whi ch execution m ay issue if ne cessary.

________________________________________ TOMLIN, Sr. J.

________________________________________ CRAWFORD, P. J. (C ONCURS)

________________________________________ HIGHERS, J. (C ONCURS)