Howard Taylor v. Eric Clime ( 2021 )

RENDERED: MARCH 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0528-MR
HOWARD TAYLOR APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
v. HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 19-CI-00437
ERIC CLIME AND ELAINE CLIME APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.
COMBS, JUDGE: Howard Taylor appeals the judgment of the Pike Circuit Court
entered February 5, 2020, following a bench trial involving a boundary line dispute
with his neighbors, Eric and Elaine Clime. After our review, we affirm.
The parties own adjoining tracts of real property on Hunts Branch
Road in Pike County. Taylor’s property lies north of the Climes’ property. The
parties agree that their properties meet at a point along the uphill portion of a
fence. The fence begins below at a “felled beech tree” on the Hunts Branch of
Fedscreek, a tributary of the Levisa Fork of the Big Sandy River. The Climes
contend that the felled beech tree at Hunts Branch creek marks the parties’ shared
boundary line and that the fence is situated inside their property line. Taylor
argues that a standing beech tree -- farther south of the felled beech tree at the edge
of Hunts Branch Road -- marks the boundary between them and that the fence is,
therefore, situated well inside his property line. The parties’ competing claims put
into dispute a roughly triangular parcel of 1.37 acres bifurcated by the fence.
Taylor explains that the parties’ disagreement centered largely on which of the two
beech trees represents the natural marker of their shared boundary line.
Following a bench trial conducted on February 4, 2020, the circuit
court concluded that the fence itself marked the boundary between the parties’
property – allotting the larger part of the disputed area to the Climes and a narrow
portion, lying to the north of the fence, to Taylor. The court determined that this
conclusion was most consistent with the location of a prescriptive easement
described in an agreed order settling an earlier dispute between the parties.
The court concluded that the fence began at the felled beech, which
the court found was the tree described in the relevant mineral deed consulted by
Tim Malone, the Climes’ surveyor. The court observed that the fence ran roughly
parallel to the boundary line advocated by Malone and that it had stood for more
than fifteen (15) years. The court found that during this period, Taylor had used
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that part of the disputed area lying on his side of the fence for pasturing livestock.
It concluded that Taylor had been in possession of that portion of the disputed area
when the Climes acquired title to their property and that he now adversely owned
the property up to the fence. However, the court rejected Taylor’s claim to an
additional portion of the disputed area that lay south of the fence. This appeal
followed.
On appeal, Taylor contends that the trial court erred by failing to find
the testimony of his expert witness, Luke Hatfield, more credible than Malone’s
testimony and by failing to establish the boundary line between the properties in
accordance with the survey prepared by Hatfield. We disagree.
Our rules of civil procedure provide that “[f]indings of fact shall not
be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” CR1 52.01.
This rule is applicable to boundary disputes. Webb v. Compton, 98 S.W.3d 513(Ky. App. 2002) (citing Croley v. Alsip, 602 S.W.2d 418 (Ky. 1980)). “[A] fact
finder may choose between the conflicting opinions of surveyors so long as the
opinion relied upon is not based upon erroneous assumptions or fails to take into
account established factors.” Id. at 517 (quoting Howard v. Kingmont Oil Co., 729
S.W.2d 183, 184-85 (Ky. App. 1987)).
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Kentucky Rules of Civil Procedure.
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Taylor argues that Hatfield’s determination of the boundary line was
well supported by his observation of a beech tree in a line consistent with the
description provided by Taylor’s deed. Additionally, Hatfield identified
photographs showing the initials of Taylor’s family carved into its bark many years
ago. Hatfield testified that the line that he plotted better set out the boundary
between the parties because it followed the language in Taylor’s deed, which
called for the line to run “down the point to a beech tree.” He testified further that
Malone’s line did not follow the point to the beech tree as called for in Taylor’s
deed -- but instead followed angles, calls, and distances set out in a 1914 mineral
deed down the hill to a different beech tree. Taylor contends that the court erred
by relying on testimony based upon the mineral deed as opposed to his surface
deed and that the entirety of the disputed property more clearly belongs to him.
The Climes contend that the trial court did not err by relying on
Malone’s testimony concerning the beech tree. Although they argue that the trial
court’s conclusion that the fence marks the parties’ boundary line improperly
results in a windfall to Taylor, they did not cross-appeal the judgment.
The expert surveyors agreed that mineral deeds are commonly
referenced in establishing surface boundary lines. While the expert testimony
confirmed that descriptions contained in mineral deeds do not necessarily match
the boundaries of surface estates, we are not persuaded that the court erred by
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relying on Malone’s use of the mineral deed description, in part, to locate the
beech tree separating the parties’ property. Indeed, when determining boundaries,
the general rule is that natural and permanent monuments are the most satisfactory
evidence and that they control all other means of description. Metropolitan Life
Ins. Co. v. Hoskins, 273 Ky. 563, 117 S.W.2d 180 (1937).
Malone testified that the beech tree was of an adequate age to justify
its use as a monument in the 1914 deed that he consulted and that the tree was in
the location that he expected it to be according to his measurements. Once the
beech tree was identified through the various descriptions and the angles, calls, and
distances included in the mineral deed, Malone was able to confirm the boundary
line.
The trial court’s findings of fact are clearly based upon the testimony
of the parties and their expert witnesses, the title and possession of the property,
the trial exhibits, and other relevant evidence. Its decision to rely on Malone’s
expert opinion is not clearly erroneous. The judgment is supported by substantial
evidence. We can discover no error, nor can we conclude that there is any basis
for reversal.
Therefore, we AFFIRM the judgment of the Pike Circuit Court.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
James P. Pruitt, Jr. Jonah L. Stevens
Pikeville, Kentucky Pikeville, Kentucky
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