lane-alan-schrader-trust-as-trustee-under-the-trust-agreement-dated-16th ( 2012 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:
ERIC C. McNAMAR KEVIN C. TANKERSLEY
B. TOO KELLER Winamac, Indiana
Keller Macaluso LLC
Carmel, Indiana
FILED
Aug 30 2012, 9:18 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
LANE ALAN SCHRADER TRUST as )
Trustee under the Trust Agreement dated )
16th day of November, 1999, and known as )
LANE ALAN SCHRADER SELF- )
DECLARATION OF TRUST, )
)
Appellant-Petitioner, )
)
vs. ) No. 75A04-1112-PL-676
)
LARRY GILBERT and )
NANCY J. MALECKI, )
)
Appellees-Respondents. )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable Patrick B. Blankenship, Special Judge
Cause No. 75C01-0905-PL-17
August 30, 2012
OPINION – FOR PUBLICATION
BAKER, Judge
In this case, we are presented with a property boundary dispute and how trial
courts may settle them through the use of land surveys. Here, a landowner purchased
property based on information from a neighbor that a barn on the property had a twenty-
foot setback. The landowner required this setback to conduct his business; however, at
least two surveys indicated that the setback was less than the required twenty feet. The
landowner decided to have a legal survey performed on the property, which indicated that
there was a twenty-foot setback. This legal survey was recorded in the county recorder’s
office.
The landowner’s neighbors appealed the legal survey to the trial court, arguing
that it should be stricken from the recorder’s office. After a bench trial, the trial court
determined that the legal survey was defective for failure to use good surveying practices
and imposed two previous surveys. We conclude that this was error. The applicable
statutory provisions require that strict notice provisions be followed, and there was no
evidence that notice was given before the two previous surveys were conducted.
Moreover, we think that the proper interpretation of the statute is that the trial court may
either accept the survey that is being appealed, order a new survey, or order the county
surveyor to locate and mark the boundary lines according to the trial court’s findings as
supported by the evidence.
Appellant-defendant Lane Alan Schrader as Trustee of the Lane Alan Schrader
Trust (the Trust) appeals the trial court’s findings of fact and conclusions of law in its
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order striking a legal survey and imposing two previous retracement surveys. More
particularly, the Trust argues that the trial court’s findings of fact and conclusions of law
are clearly erroneous, inasmuch as they are not supported by facts in the record.
Specifically, the Trust asserts that there is no evidence in the record that the legal survey
was conducted in derogation of good surveying practices.
Additionally, the Trust maintains that the trial court’s order must be vacated
because the applicable statute requires that the trial court either affirm the legal survey or
set aside the survey and order a new one.
Finally, the Trust contends that a second applicable statute imposes strict notice
requirements to establish property lines pursuant to a legal survey. And because
appellees-plaintiffs Larry Gilbert and Nancy J. Malecki (collectively, “the Appellees”)
failed to present evidence that proper notice was given before the previous retracement
surveys were conducted, no legal survey was created, and the trial court erred by
imposing those two surveys.
Determining that the trial court did not err by concluding that the legal survey was
not conducted through the use of good surveying practices, but finding that the trial court
erred by imposing two previous surveys, we reverse and remand to the trial court with
instructions that the trial court enter a new order consistent with this opinion.
FACTS
On February 28, 2004, Lane Schrader purchased a parcel of property in Starke
County described as:
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THE EAST HALF OF THE FOLLOWING TRACT, TO WIT:
COMMENCING AT A POINT ON THE SECTION LINE 660 FEET
WEST OF THE SOUTHEAST CORNER OF THE SOUTHEAST 1/4 OF
SECTION 29, TOWNSHIP 32 NORTH, RANGE 4 WEST OF THE
SECOND PRINCIPAL MERIDIAN, STARKE COUNTY, INDIANA.
THENCE WEST ON THE SECTION LINE 660 FEET, MORE OR LESS,
TO THE SOUTHWEST CORNER OF THE SOUTHEAST 1/4 OF THE
SOUTHEAST 1/4 OF SAID SECTION 29; THENCE NORTH 660 FEET,
MORE OR LESS, TO THE NORTH LINE OF THE SOUTH HALF OF
THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION
29; THENCE EAST 660 FEET, MORE OR LESS, TO A POINT 660
FEET WEST OF THE EAST LINE OF SAID SECTION 29, THENCE
SOUTH 660 FEET, MORE OR LESS, TO THE PLACE OF BEGINNING.
Ex. E. (Warranty Deed in Trust). Approximately three months later, Schrader conveyed
the parcel to the Trust.
The Trust property’s southeast border was adjacent to Gilbert’s property and the
Trust property’s north border was adjacent to Malecki’s property. The Gilbert property
had “senior rights” in the quarter section, which means that the parcel has been cut from a
parent tract and prevails over other property descriptions. Tr. p. 328. Gilbert’s parcel
was described as:
A tract of land commencing at the Southeast Corner of Section[ ]29, range
4 West of the 2nd P.M., Starke County, Indiana; thence West 660 feet on
The section line; thence North 330 feet; thence East 660 feet to the Section
line; thence south 330 feet to the place of beginning.
Appellant’s App. p. 10
Before purchasing the property, Steven Schrader, the son of Lane Schrader, visited
the property, and a neighbor showed him monument pins that marked the property lines.
Lane purchased the property based, in part, on the neighbor’s representations. Relying on
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the monument points, the Schraders believed that they would have a twenty-foot setback
on the side of a barn on the property, which was needed to run a business from the back
of the property.
Within one month of purchasing the property, the Trust hired Turning Point
Surveying, Inc. (Turning Point) to survey the property. Turning Point surveyed the
property and recorded its survey with the Starke County Recorder’s Office on June 16,
2004, but there was no evidence introduced at trial that Turning Point notified
neighboring landowners that the company conducted or recorded the survey. The
Turning Point Survey indicated that the setback was less than twenty feet.
Approximately one year later, the Trust hired Progressive Engineering, Inc.
(Progressive) to conduct a retracement survey to verify the survey conducted by Turning
Point. The Progressive Survey was consistent with the survey completed by Turning
Point. Although Progressive completed the retracement survey in December 2005 and
provided the Trust with a copy at that time, Progessive did not record the survey until
April 21, 2009. And like the Turning Point survey, there was no evidence introduced at
trial indicating that Progressive notified neighboring landowners that it had conducted or
recorded the survey.
Before Progressive recorded its survey in April 2009, Torrenga Surveying, LLC
(Torrenga) was hired to create a legal survey1 and set out the lines of occupation on and
1
A legal survey is typically performed to establish boundary lines between landowners that are in dispute.
See Ind. Code § 36-2-12-10. By contrast, a retracement survey is a survey of real property that has been
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adjacent to the Trust property. To create a legal survey, Torrenga gathered record
descriptions of both the land to be surveyed and the adjoining properties along with
copies of prior surveys, maps, documents and field notes relating to the Trust’s deeded
property. More particularly, Stuart Allen of Torrenga obtained from the Starke County
Recorder’s Office a 1993 survey of the Gilbert property conducted by Joe Smrt and the
Territorial Engineering Survey. Additionally, Allen obtained an opinion letter from
Territorial Engineering setting the corner of the southeast quarter; a letter written by Smrt
to a property owner west of the Trust property in which Smrt commented that a fence on
that property was on or near a boundary line; a survey conducted by former Starke
County Surveyor Van Janovic of a parcel just north of the north boundary of the quarter
section that contained the Trust property; and other documents. Torrenga, however, was
not given a copy of the Progressive Survey by the Trust.
After gathering these documents, Allen and other members of Torrenga’s
surveying crew, visited the Trust property and located as many monuments and fence
lines as they could find. The crew found an iron pipe monument in the northwest corner
of the property and another iron pipe monument adjacent to a fence corner in the
northeast corner of the property – a fence Progressive had called a line of occupation.2
The crew also found two more pipe monuments on the east side of the property.
The Torrenga survey crew then searched beyond the borders of the Trust property
and found additional fence lines on parcels to the west running in a similar direction as
2
Bradley Cramer of Progressive Engineering admitted at trial that the lines of occupation deviated from
the section lines. Tr. p. 194.
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the fence on the east side of the property. Torrenga also considered monument points in
a survey conducted by Janovic of a parcel north of the Malecki property, which was just
north of the quarter section containing the Trust property. The points identified by
Janovic in his retracement survey were set by surveyor Donald Mason, but it is not
known whether Mason created a survey of the parcel. Janovic, however, was not
surprised by the reasonable agreement between the so-called “Mason points” and the
fences west of the Trust property.
Ultimately, Allen created the “Torrenga Survey” along with a “Theoretical
Breakdown” of the quarter section containing the Trust Property and other parcels. Ex. 3;
Ex. 1 (Theoretical Breakdown). The Torrenga Survey, the legal survey at issue, set out
lines of occupation for the Trust property and surrounding parcels. The Theoretical
Breakdown survey was a representation of what the quarter section would look like if
certain monument points were used. The Theoretical Breakdown survey was not
recorded.
Torrenga recorded the Torrenga Survey with the Starke County Recorder on or
about January 22, 2009. Approximately four months later, on May 19, 2009, the
Appellees filed an appeal challenging the proposed legal survey, naming the Trust;
Dennis Estok, the Starke County Surveyor; Jackie Bridegroom, the Starke County
Recorder; Torrenga, and Allen as opposing parties. On July 9, 2009, Allen, Torrenga,
and the Trust filed a motion to dismiss, asserting that Allen and Torrenga were not proper
parties to the lawsuit and that Malecki had forfeited her right to challenge the accuracy of
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the legal survey when she had defaulted in her prior, related lawsuit, Lane Alan Schrader,
Self Declaration of Trust, by Lane Alan Schrader, Trustee v. Alfred Malecki and Nancy
Malecki, Husband and Wife et al., 75C01-0507-PL-050. On January 28, 2010, the trial
court held a hearing on the motion and took the motion under advisement; however, it
failed to issue a ruling on the motion.
A bench trial was conducted on the appeal of the Torrenga Survey from November
16-18, 2010, and the trial court took the matter under advisement. On December 21,
2010, counsel for the Appellees submitted additional authority to the trial court in support
of their assertion that the legal survey should be stricken from the record in the Starke
County Surveyor’s Office. On January 3, 2011, counsel for the Trust responded to the
submission.
On November 10, 2011, the trial court entered findings of fact and conclusions of
law in its order finding the Torrenga Survey defective. More particularly, the trial court
determined that “while the Court recognizes that it may order a new survey be made by a
competent person, the [Court] declines to do so for the reason that the evidence is
overwhelming that the [Trust] already has in its possession two (2) surveys prepared by
competent persons which clearly show the boundary lines for the Trust property.”
Appellant’s App. p. 16. The Trust now appeals.
DISCUSSION AND DECISION
I. Clearly Erroneous Findings
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The Trust contends that out of the trial court’s thirty-four findings of fact, fourteen
are material and clearly erroneous. As stated above, the trial court entered findings of
fact and conclusions of law. Accordingly, we must conduct a two-tiered standard of
review. Thompson v. Leeper Living Trust, 698 N.E.2d 395, 397 (Ind. Ct. App. 1998).
First, we determine whether the evidence supports the findings, and then we determine
whether the findings support the judgment. Id. This Court will not set aside the trial
court’s findings unless they are clearly erroneous; in other words, they are unsupported
by facts in the record or reasonable inferences drawn from the facts. Id.
When determining whether findings are clearly erroneous, we neither reweigh the
evidence nor judge the credibility of witnesses and consider only the evidence supporting
the judgment. Id. We may affirm the judgment on any legal theory supported by the
findings. Id.
At the outset, we note that in response to the Trust’s arguments, the Appellees rely
on broad statements with general citations to over 200 pages of transcript. The Indiana
Rules of Appellate Procedure require that a party provide a cogent argument with
adequate citation. See Ind. Appellate Rule 46(B) (providing that the Appellee’s Brief
shall form to Appellate rule 46(A)); Ind. Appellate Rule 46(A)(8) (requiring that “[e]ach
contention [] be supported by citations to the authorities, statutes and the Appendix or
parts of the Record”). This allows the appellant to appropriately respond and prevents
the court from becoming an advocate when it is forced to search the entire record for
evidence in support of the appellee’s broad statements. Keller v. State, 549 N.E.2d 372,
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373 (Ind. 1990). We note that this is also inefficient and caution against this practice in
the future.
Proceeding to the merits, Thompson is instructive on this issue. In Thompson, the
Leeper Living Trust property bordered Jack Thompson’s, Harold Gardner’s, and Syntha
Salyer’s property on the south. 698 N.E.2d at 396. Thompson and Gardner requested
that a legal survey be performed by Bradley Cramer, whose results were different from
the previous survey. Id.
All parties, except the Trust appealed, arguing that it was improperly conducted
and inconsistent with prior surveys. Id. The trial court held a hearing and issued findings
of fact and conclusions of law, rejecting Cramer’s survey. Id. at 397. The trial court
reasoned that “the legal description is presumed correct and that compelling visual
evidence at variance with the legal description must exist to support a legal survey which
varies from the proper legal description.” Id.
A panel of this Court opined that the “question of the correctness of a survey is
one of fact.” Id. The panel noted that the evidence regarding the correctness of Cramer’s
survey was in conflict and that the “trial court was entitled to credit evidence of the
survey’s inaccuracy and to discount evidence to the contrary.” Id. at 397-98.
Accordingly, the panel found no error. Id. at 397.
Likewise, in the instant case, Steve Schrader testified that state law required that a
commercial building have a twenty-foot setback from any property line. Tr. p. 440-41.
Schrader stated that according to the Turning Point Survey, Progressive Survey, and the
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Smrt Survey, the barn did not have the required twenty-foot setback from the property
line. Id. at 441. Therefore, Torrenga was hired to perform a legal survey.
Surveyor Janovic testified that in his “opinion, [Allen from Torrenga] did not use
. . . controlling monuments.” Tr. p. 292. He also testified that some of the points located
by surveyor Don Mason, who is deceased and whose survey was not admitted into
evidence, were “a huge blunder.” Id. at 249. This was significant because Allen had
relied upon some of these points in preparing the Torrenga Survey.
Perhaps most compelling, Allen testified that he never searched any of the records
of prior ownership of the real estate or obtain information regarding senior rights. Tr. p.
598-99. Similarly, Allen stated that he did not inquire as to how certain improvements
got there, who put them there, and how long they had been there. Id. at 598. Thus,
similar to Thompson, although there was evidence tending to show the Torrenga Survey
was informative, the correctness of the Torrenga Survey was in conflict, and the trial
court was entitled to accept the evidence discussed above crediting the survey’s
inaccuracy. Consequently, we find no error on this issue.
II. Trial Court’s Judgment Prohibited by Statute
The Trust maintains that the trial court’s judgment that two previous retracement
surveys control the boundaries between the Trust and the Appellees’ properties is
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prohibited by Indiana Code section 36-2-12-14. The interpretation of statute is a question
of law, which we review de novo. State v. Int’l Bus. Mach. Corp., 964 N.E.2d 206, 209
(Ind. 2012). Our objective when construing a statute is to determine and give effect to
the legislative intent of the statute. Chavis v. Patton, 683 N.E.2d 253, 257 (Ind. Ct. App.
1997).
When interpreting a statute, the rules of statutory construction apply. Id. The
express language of the statute controls, and the statute is interpreted as whole, giving
words their common and ordinary meaning. Family & Social Servs. Admin. v. Calvert,
672 N.E.2d 488, 491-92 (Ind. Ct. App. 1996). Moreover, we construe statutes in such a
way as to prevent absurdity and hardship. Id. at 492. Therefore, we interpret provisions
of an act together so that no part of it is rendered meaningless and to harmonize the
provision at issue with the remainder of the statute. Pressley v. Newburgh Town
Council, 887 N.E.2d 1012, 1018 (Ind. Ct. App. 2008).
Indiana Code section 36-2-12-14 describes the process by which a property owner
may appeal a survey conducted under Indiana Code section 36-2-12-10. Upon learning
that an adjacent property owner has appealed a survey, the surveyor who conducted the
legal survey must transmit copies of the relevant field notes and other papers to the trial
court. I.C. § 36-2-12-14(b). During the appeal, the trial court may hear evidence of other
surveys and consider parol evidence. I.C. § 36-2-12-14(c); see Cleveland v. Obenchain,
107 Ind. 591, 593, 8 N.E. 624, 624 (1886) (“It would produce great confusion, and work
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much injustice, if parties could only try the correctness of a survey by the descriptions
found in the conveyances”).
Most at issue in this case, however, is Subsection -14(c), which provides, in
relevant part:
The court may receive evidence of any other surveys of the same premises.
If the court decides against the original survey, it may order a new survey
to be made by a competent person other than the person who did the
original survey, and it shall:
(1) determine the true boundary lines and corners of the lands included in
the survey; and
(2) order the county surveyor to:
(A) locate and perpetuate the boundary lines and corners according
to the court’s findings by depositing durable markers in the
proper places, below the freezing point;
(B) mark the boundary lines and corners; and
(C) enter the boundary lines and corners in his field notes.
(emphasis added).
The Trust argues that “by the plain language of the statute, the trial court only
could affirm the survey or order a new one. This is because legal surveys are subject to
strict rules in Indiana.” Appellant’s Br. p. 12. The Appellees counter that Subsection
14(c) grants the trial court power to “receive evidence of any other surveys of the same
premises.” Appellees’ Br. p. 6. Additionally, the Appellees point out that Subsection
14(c) states that if the trial court rejects the original survey it may order a new a one, but
that it is not mandatory. Id. at 7.
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The Trust directs us to Indiana Code section 36-2-12-10, which lists the strict
requirements that must be met before a legal survey is created. The Trust argues that
because the requirements of Section 10 were not satisfied by the two surveys that the trial
court’s order imposed on the parties in its order, Section 14 granted the trial court the
authority to either accept the Torrenga Survey or order a new survey.
Indiana Code section 36-2-12-10(b) provides, in relevant part:
A landowner desiring to establish the location of the line between the
landowner’s land and that of an adjoining landowner by means of a legal
survey may do so as follows:
(1) The landowner shall procure a land surveyor registered under IC
25-21.5 to locate the line in question and shall compensate the
surveyor.
(2) The land surveyor shall notify the owners of adjoining lands that
the land surveyor is going to make the survey. The notice must
be given by registered or certified mail at least twenty (20) days
before the survey is started.
(3) If all the owners of the adjoining lands consent in writing, the
notice is not necessary.
(4) The lines and corners shall be properly marked, monumented by
durable material with letters and figures establishing such lines
and corners, referenced, and tied to corners shown in the corner
record book in the office of the county surveyor or to corners
shown on a plat recorded in the plat books in the office of the
county recorder.
(5) The land surveyor shall present to the county surveyor for entry
in the legal survey record book a plat of the legal survey and
proof of notice to or waiver of notice by the adjoining
landowners. The land surveyor shall give notice to adjoining
landowners by registered or certified mail within ten (10) days
after filing of the survey.
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Landowners seeking to establish property lines pursuant to a legal survey must
follow the statute to the letter. Leons v. Bloemaker, 649 N.E.2d 1041, 1043 (Ind. Ct.
App. 1995). In Leons, a panel of this Court held that because notice of a survey had not
been served on a wife who held property as a tenant by the entirety with her husband,
who had been provided notice, “the requirements of the legal survey statute were not met.
Thus, no legal survey was created.” Id. at 1045.
Here, the Appellees presented no evidence that either the Turning Point Survey or
the Progressive Survey satisfied the notice requirements of Section 10. Accordingly,
neither created a legal survey. Moreover, the Turning Point Survey was recorded on June
14, 2004, and the Progressive survey was recorded on April 21, 2009 – well beyond the
time limit to appeal these surveys. Thus, by imposing upon the Trust two surveys that
were recorded beyond the ninety-day time limit to appeal the surveys, the trial court has,
in effect, stripped the landowner of the right to appeal those surveys as permitted by
Section 14. And as stated above, when interpreting a statute, we strive to give effect to
the entire statute.
Nevertheless, the Appellees essentially argue that the trial court may impose
boundary lines even in the absence of a valid survey. The Appellees focus on Section
14(c), which states:
The court may receive evidence of any other surveys of the same premises.
If the court decides against the original survey, it may order a new survey
to be made by a competent person other than a person who did the original
survey, and it shall:
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(1) determine the true boundary lines and corners of the lands
included in the survey; and
(2) order the county surveyor to:
(A) locate and perpetuate the boundary lines and corners
according to the court’s findings by depositing durable
markers in the proper places, below the freezing point;
(B) mark the boundary lines and corners; and
(C) enter the boundary lines and corners in his field notes.
(emphases added).
The Appellees focus on the fact that Section 14 states that the trial court “may”
order a new survey if it rejects the original one and that the trial court “shall determine
the true boundary lines.”
When reading Section 14 as a whole, the trial court has essentially three options:
(1) it may accept the original survey; (2) it may reject the original survey and it is
permitted to order that a new survey be performed by a different surveyor from the
surveyor who performed the original survey; (3) it may reject the original survey and
order the county surveyor to locate and mark the boundary lines with durable markers in
the proper places according to the trial court’s findings based upon evidence presented to
it, including previous surveys.
This interpretation is consistent with the language used in Section 14 and gives
effect to the entire section, which we strive to do. Moreover, by requiring the trial court
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to order the county surveyor to locate and mark the boundary lines according to its
findings, in effect, establishes a new legal survey.
Here, although the trial court was well-intended, it misspoke when it concluded
that:
while the Court recognizes that it may order a new survey be made by a
competent person, the [court] declines to do so for the reason that the
evidence is overwhelming that the Lane Alan Schrader Trust already has in
its possession two (2) surveys prepared by competent persons which clearly
show the boundary lines of the Trust property. That no other adjoining
property owners are disputing the boundary lines of their real estate as their
property is set out pursuant to the original deed call outs and lies in relation
to the Trust property as surveyed by both Turning Point Surveying, Inc., in
2004, and Progressive Engineering in 2005.
Appellant’s App. p. 16.
It is clear that the trial court did not accept the Torrenga Survey and did not choose
to order a new survey. Accordingly, in light of the trial court’s findings, which we have
already determined were not clearly erroneous, the trial court should have ordered the
county surveyor to locate the boundary lines with durable markers in the proper places
according to its findings that were based on the evidence. In this case, that evidence was
the Turning Point Survey and the Progressive Survey. Consequently, the trial court
should have ordered the county surveyor to mark the boundary lines according to the
Turning Point Survey and the Progressive Survey rather than simply imposing those two
surveys. Put another way, the trial court did not err by accepting the two previous
surveys but skipped a step by imposing them. Therefore, we conclude that the trial court
erred by imposing the two previous retracement statutes.
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CONCLUSION
Although we conclude that the trial court did not err by rejecting the Torrenga
Survey, it did err by imposing the two prior surveys. Strict notice requirements must be
satisfied for a legal survey to be conducted, and no evidence was produced to show that
proper notice was given before the two previous surveys were conducted. The trial court
had three options: It could either accept the Torrenga Survey, order that a new survey be
performed, or order the county surveyor to mark the boundary lines according to the trial
court’s findings as supported by the evidence. This interpretation is consistent with the
language of Section 14 and harmonizes Section 10 and Section 14. Accordingly, we
reverse and remand to the trial court with instructions that it enter a new order consistent
with this opinion.
The judgment of the trial court is reversed and remanded with instructions.
ROBB, C.J., and BRADFORD, J., concur.
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