Robert K. Reinmiller Living Trust, Timothy H. Matthews and Paula C. Matthews v. Jeffrey L. Metschuleit, Karen Metschuleit, Glenn Nix, and Moira Nix

FILED
Oct 12 2017, 11:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
John A. Kraft J. David Agnew
Young, Lind, Endres & Kraft Robert P. Hamilton
New Albany, Indiana Lorch Naville Ward LLC
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert K. Reinmiller Living October 12, 2017
Trust, Timothy H. Matthews and Court of Appeals Case No.
Paula C. Matthews, 31A01-1609-PL-2168
Appellants-Plaintiffs, Appeal from the Harrison Circuit
Court
v. The Honorable John T. Evans,
Judge
Jeffrey L. Metschuleit, Karen Trial Court Cause No.
Metschuleit, Glenn Nix, and 31C01-1408-PL-18
Moira Nix,
Appellees-Defendants.
Pyle, Judge.
Statement of the Case
[1] The Appellants/Plaintiffs, Robert K. Reinmiller Living Trust (“Reinmiller”)
and Timothy and Paula Matthews (collectively, “the Matthews”), filed a
complaint to challenge a legal survey completed on behalf of their neighbors,
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the Appellees/Defendants, Jeffrey L. and Karen Metschuleit (collectively, “the
Metschuleits”) and Glenn and Moira Nix (collectively, “the Nixes”). They
argued that a center section line (“Center Line”) established in the survey was
erroneous and that the survey inappropriately included land within the
Metschuleits’ property boundaries that was not included in their deed’s property
description. The trial court issued a judgment granting in part and denying in
part Reinmiller and the Matthews’ (collectively, “the Appellants”) requested
relief. Specifically, the trial court invalidated the part of the survey that had
inappropriately included land within the Metschuleits’ property boundaries that
they did not own according to their property deed. However, the trial court
found that the survey’s Center Line was valid.
[2] On appeal, the Appellants argue that the trial court erred when it granted in
part and denied in part their challenge to the legal survey. With respect to the
trial court’s denial in part, they argue that the trial court’s determination that
the Center Line was valid was based on erroneous and conflicting findings.
With respect to the trial court’s grant in part, they assert that the trial court
granted relief not authorized by INDIANA CODE § 36-2-12-14(c), the statutory
provision governing “appeals” of legal surveys, because it did not have the
authority to partially validate and partially invalidate a legal survey.
[3] Because we determine that the trial court’s findings were not erroneous and
supported its judgment that the Center Line was valid, we affirm the trial
court’s judgment in part. However, we agree with the Appellants that the trial
court granted relief not authorized by statute. Upon rejecting part of the survey
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at issue, the trial court was required to order a new survey completed by a
different surveyor or to order the county surveyor to locate and mark the
boundaries with durable markers in the proper places according to the trial
court’s findings. The trial court chose not to order a new survey but failed to
order the county surveyor to locate and mark the proper boundaries according
to its findings. Therefore, we reverse in part and remand with instructions for
the trial court to enter a new judgment ordering the county surveyor to locate
and mark with durable markings the boundaries of the Center Line that the trial
court has found valid.
[4] We affirm in part, reverse in part, and remand with instructions.
Issues
1. Whether the trial court erred when it denied in part the
Appellants’ challenge to a legal survey.
2. Whether the trial court granted relief not authorized by statute
by partially validating and partially invalidating a survey.
Statement of the Facts
[5] The parties to this appeal are adjoining and contiguous landowners in Harrison
County. The Metschuleits and Reinmiller own adjacent parcels of real estate,
situated so that Reinmiller’s property lies to the south and the east of the
Metschuleits’ property. The Matthews own property to the north and east of
the Metschuleits and to the north and west of Reinmiller. The Nixes own
property to the north of the Metschuleits and Reinmiller and to the west of the
Matthews. Victor McCauley (“McCauley”), a professional land surveyor,
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surveyed the legal boundaries of the neighbors’ properties, and that survey is the
subject of this appeal. McCauley depicted the boundaries of the properties as
follows:
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(App. Vol. 2 at 107).
[6] Prior to McCauley’s survey, a civil engineer and land surveyor, Reginald
Timberlake (“Timberlake”) surveyed sections of Reinmiller’s land in 2005 and
2011 so that Reinmiller could log timber. Timberlake did not record either of
these surveys.
[7] Subsequently, in 2012, the Nixes hired Timberlake to complete a legal survey of
the Nixes’, the Metschuleits’, and the Matthews’ properties. Each of the three
sets of property owners agreed to pay 1/3 of the price for the survey. However,
after Timberlake completed the survey in March of 2012, neither the Nixes nor
the Metschuleits agreed with his results. They were concerned that the Center
Line, which was the line that determined the boundary between the Nixes’ and
the Matthews’ properties and the boundary between the Metschuleits’ and
Reinmiller’s properties, was not placed where they thought it existed. (Tr. Vol.
2 at 55). They believed Timberlake’s line was misplaced because it “severed” a
cultivated field, ran west of an existing fence line, and ran west of where they
thought it should based on where they believed remnants of an historic school
were located. (Tr. Vol. 2 at 25).
[8] With respect to the school, the Metschuleits’ deed describes their property as
containing the “south half of the northwest quarter of Section 25, Township 1
south, Range 2 east,” except for “one (1) acre out of the southeast corner
thereof deeded to Blue River Township for school purposes.” (App. Vol. 2 at
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53). The deed described the location of the school acre as “[b]eginning at the
southeast corner of said northwest quarter, running thence west along the south
line of said quarter . . . .” (App. Vol. 2 at 53). The Metschuleits’ property
contained “remnants of a foundation” of a building on a “man-made plateau
area” where they believed that the school had been located, and they believed
this location was consistent with where their deed said the school acre was and
was inconsistent with Timberlake’s survey. (Tr. Vol. 2 at 59, 144).
Timberlake’s Center Line was to the west of the school acre, whereas the
Metschuleits believed the Center Line should be to the east of the school acre.
[9] After receiving Timberlake’s survey results, the Metschuleits wrote him letters
stating that they believed the survey was incorrect and asking him to re-evaluate
his Center Line, but he declined to do so. As a result, neither the Metschuleits
nor the Nixes paid the 1/3 of Timberlake’s charge they had agreed to pay, and
Timberlake did not record the survey.
[10] Subsequently, in mid-2012, the Nixes and the Metschuleits hired McCauley to
conduct the legal survey that is depicted above. McCauley completed the
survey and recorded it in the Harrison County Recorder’s office on June 1,
2014. His survey placed the Center Line around 150 to 165 feet to the east of
Timberlake’s Center Line. According to McCauley’s Center Line, the
Metschuleits’ eastern property boundary coincided with the eastern boundary of
the cultivated field that Timberlake’s Center Line had “severed.” (Tr. Vol. 2 at
25). However, McCauley also included the one-acre school property within the
Metschuleits’ property boundaries, even though it was excepted from the deed,
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as well as a 7.575 acre parcel of land (“7.575-acre parcel”) that was not included
in their deed’s property description and did not appear to have an identified
owner.
[11] On August 12, 2014, the Appellants (Reinmiller and the Matthews) filed a
complaint challenging McCauley’s survey under INDIANA CODE § 36-2-12-14,
which allows owners of property surveyed to “appeal” that survey to the circuit
court, superior court, or probate court for the county. They argued that
McCauley’s survey reflected “different lines” than previous surveys had and
requested that the trial court set aside the survey. (App. Vol. 2 at 24).
[12] The trial court held a bench trial on April 22 and July 13, 2016. At trial, both
Timberlake and McCauley testified regarding their respective Center Line
placements. McCauley testified that when completing this type of legal survey,
a retracement survey, the goal is to “retrace the descriptions of the property” or
“follow the retracement of a deed.” (Tr. Vol. 2 at 28, 42). He further explained
that, in determining where a property’s boundaries should exist “on the
ground,” surveyors consider a “hierarchy” of landmarks. (Tr. Vol. 2 at 45).
First, a surveyor looks at the deed, then “natural monument[s]” such as “a cliff,
creek, valley, something natural.” (Tr. Vol. 2 at 42). Next on the hierarchy,
according to McCauley, a surveyor examines “artificial monuments,” such as
roads, fence lines, [and] tree lines.” (Tr. Vol. 2 at 42-43). McCauley also
explained:
In between natural monuments and artificial monuments [are]
surveyor monuments that are placed. Then after artificial
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monuments you go down to bearings, distances. . . . [Y]ou go on
down to testimony by long time landowners, parole evidence, . . .
and then at the bottom when all else fails you calculate by
acreage.
(Tr. Vol. 2 at 43).
[13] Within the context of the current case, McCauley testified that he believed the
“cultural features and the occupation” of the parties’ properties “pretty much
supported the deeds.” (Tr. Vol. 2 at 29). He concluded that it was “quite
obvious on the ground that the survey markers from Mr. Timberlake’s survey
[had] missed the old fence lines, the foundation, the cemetery, old roads by – he
was about 150 to 160 feet west of the existing occupation.” (Tr. Vol. 2 at 29).
McCauley based his placement of the Center Line on his review of the
historical documents and deeds and his conclusion that the Center Line was
supposed to be to the east of the school acre as the deed specified that the
school acre was in the southeast corner of the northwest quarter. He identified
that the school acre, on the ground, existed where there were remnants of
building foundation on the Metschuleits’ property. McCauley testified that it
was “not difficult to figure out where the school was at” on the ground because
the foundation remnants included “parts of maybe the chimney” and “lots of . .
. foundation type rocks[] spewed all over the area.” (Tr. Vol. 2 at 60).
[14] In addition to the placement of the school acre, McCauley also believed that his
placement of the Center Line was supported by other cultural features. Next to
the school, the Center Line was consistent with the location of a cemetery and
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coincided with a quarter-mile of old fencing. It also formed the eastern
boundary of the cultivated field that Timberlake’s Center Line had severed by
“about a hundred and fifty feet or so.” (Tr. Vol. 2 at 62). McCauley testified
that, along the portion of the Center Line that followed the old fencing, he had
located a “pinnacle type limestone[,] [a stone that] a lot of the old surveyors
used to plant for corners” in a location consistent with a corner described in the
Matthews’ deed. (Tr. Vol. 2 at 63). Specifically, the Matthews’ deed described
a “stone marking the southeast corner of the northeast fourth of the Nor[th]west
quarter of section 25.” (Tr. Vol. 2 at 66).
[15] With respect to the northeastern diagonal boundary of the Nixes’ property,
McCauley acknowledged that the property line intersecting with the Blue River
was supposed to be marked by an elm tree. He testified that he had not found
an elm tree in the location where he believed it should be according to his
placement of the Center Line. At the location where he calculated the elm
should be, the river bank had “sloughed off,” so he concluded that the tree had
“washed into the river.” (Tr. Vol. 2 at 76). He also testified that he did not find
an elm tree “at the terminus of Mr. Timberlake’s line,” either. (Tr. Vol. 2 at
83).
[16] Although the placement of the Center Line was the primary subject of
McCauley’s testimony at trial, he also admitted that he had included two
separate parcels of land—the one-acre school parcel and the 7.575-acre parcel—
in the Metschuleits’ property boundaries even though they were not included in
the Metschuleits’ property deed. His basis for including the school property in
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the Metschuleits’ boundaries was that the Metschuleits were “going to claim the
property . . . after this is done, even by adverse possession or by other means.”
(Tr. Vol. 2 at 45).
[17] Timberlake testified at trial and explained that his Center Line was based on
two stones he had found when he completed his 2005 survey of Reinmiller’s
property. Although the 2005 survey concerned property to the south of the land
surveyed in the instant case, Timberlake believed that the stones established
lines and corners that were relevant to his placement of his Center Line here.
Specifically, the stones were 1320 feet apart, or “a normal quarter mile,” which
“very seldom ever happens,” and the stone to the east (“Eastern stone”) had a
“plus on the top,” which Timberlake thought meant someone had “marked it”
previously. (Tr. Vol. 2 at 111, 112, 113). The stones formed an east-west line,
and the Eastern stone was located approximately in the location that McCauley
labeled with a diamond and “see report” on his later survey. The stone to the
west (“Western stone”) was located where McCauley identified the “east
sixteenth corner” on his survey. (Tr. Vol. 2 at 112-13). Timberlake testified
that he had verified the lines and corners these two stones formed because
directly north of the Western stone, he found a “stone marked with a survey
ribbon” (“Northern stone”). (Tr. Vol. 2 at 119). This stone was the equivalent
of “L3” on McCauley’s survey. See (App. Vol. 2 at 111). Timberlake further
explained that he had established the Center Line in his later survey as the line
formed between the Western stone and the Northern stone.
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[18] Timberlake also testified that he had found other evidence supporting his
placement of the Center Line. Specifically, where he had calculated that the
elm tree by the Blue River should be, he had found a tree that “was root
wadded down into the river.” (Tr. Vol. 2 at 160). Also, the northern portion of
his Center Line followed an old road. As for the Metschuleits’ and the Nixes’
concerns regarding the old school foundation, Timberlake testified that they
had “raised some serious questions” that he had not “take[n] lightly” but that
he had ultimately concluded that his Center Line was correct. (Tr. Vol. 2 at
127). He explained that:
The fact that the school is either east or west of the line does not
control my line. Now the fact that a deed calls for it to be [on]
one particular side definitely gets my attention. But in the course
of the years that I [have] spent doing this, I’ve seen people build
houses across the line. . . . If someone can build a house across
the line, what about an old school building a hundred years
ago[?]
(Tr. Vol. 2 at 128).
[19] At the conclusion of the trial, the trial court issued an order granting the
Appellants’ appeal of McCauley’s survey in part and denying it in part.
Specifically, the trial court found that McCauley had correctly identified the
Center Line and ruled that his identification of the Center Line was “valid and
confirmed.” (App. Vol. 2 at 22) (emphasis removed). However, the trial court
held that the survey was “partially invalid” in so far as it attempted to establish
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the Metschuleits as owners of the one-acre school parcel and the 7.575-acre
parcel. (App. Vol. 2 at 22) (emphasis removed). The Appellants now appeal.
Decision
[20] On appeal, the Appellants argue that the trial court erred when it granted in
part and denied in part their appeal of McCauley’s survey. In their challenge to
the trial court’s denial in part of the appeal, they assert that the trial court erred
because its findings conflicted or were erroneous and did not support its
conclusion that McCauley’s Center Line was valid. With respect to the trial
court’s grant in part of their appeal, they contend that the trial court erred
because it did not have statutory authority to only partially invalidate a survey.
We will address each of these issues in turn.
[21] Preliminarily, though, we note that the trial court entered findings of fact and
conclusions of law thereon. Accordingly, we must conduct a two-tiered
standard of review. Lane Alan Schrader Trust v. Gilbert, 974 N.E.2d 516, 521
(Ind. Ct. App. 2012), decision clarified on reh’g, 978 N.E.2d 519 (2012). First, we
determine whether the evidence supports the findings, and then we determine
whether the findings support the judgment. Id. We will not set aside the trial
court’s findings unless they are clearly erroneous, meaning that 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
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legal theory supported by the findings. Id. We review questions of law de novo.
Id. at 522.
1. Denial in Part
[22] First, the Appellants challenge the trial court’s denial in part of their appeal of
McCauley’s survey. They argue that the trial court’s denial in part was
erroneous because its findings did not support its conclusion that McCauley’s
identification of the Center Line was valid. We divide their contentions into
two broad arguments: (1) that the trial court erred when it found that
McCauley had properly surveyed the properties because McCauley did not
properly follow the statutory procedure for a legal survey; and (2) the trial
court’s findings regarding the placement of the Center Line in relation to the
school acre conflicted with each other. The Appellants’ remaining arguments
are requests to reweigh the evidence, which we will not do. See id.
[23] In support of the Appellants’ first broad argument, they direct us to 865
INDIANA ADMINISTRATIVE CODE § 1-12-10, which provides:
When conducting a retracement or original survey, a land
surveyor shall do the following:
(1) Search for controlling physical monuments and, when found,
weigh their reliability.
(2) Search for and locate the following:
(A) Monuments that reference missing control
monuments.
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(B) Monuments that substantiate control monuments that
have been obliterated.
(C) Other monuments and real evidence that are necessary
to the survey.
(3) If necessary:
(A) investigate possible parol evidence supporting the
positions of obliterated control monuments; and
(B) obtain the necessary affidavits or affidavits from
individuals involved.
(4) Obtain the following:
(A) Necessary measurements to correlate all found
evidence, including the relationship to adjoining
properties.
(B) Sufficient check measurements to satisfactorily verify
the work.
(5) Locate physical evidence of possession between adjoiners and
identify age of possession, for example, by parol evidence, if
possible.
* * *
(7) Any controlling corners that are original public land surveyor
corners or other government corners such as land grants shall be:
(A) evaluated;
(B) perpetuated;
(C) documented;
in accordance with section 30 of this rule.
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The Appellants assert that McCauley failed to “search” for controlling physical
monuments as required by 865 IAC § 1-12-10, failed to investigate parol
evidence supporting the positions of the obliterated control monuments, and
inappropriately established new monuments. We disagree. To the contrary,
there was evidence to support the trial court’s finding and conclusion that
McCauley completed a valid legal survey.
[24] The primary controlling physical monument the Appellants claim McCauley
failed to “search” for was the elm tree that was supposed to form a boundary to
the Nixes’ property along the Blue River. They admit that he “looked for” the
elm tree but claim that there is a difference between “searching for” a tree and
“looking for” a tree. (Appellants’ Br. 17). They also claim that he should have
investigated parol evidence to find the “obliterated control monument[],” the
elm tree, such as by hiring an “arborist, ecologist, pedologist, potamologist, or
other specialist to locate this very important tree.” (Appellants’ Br. 18).
Because he did not find the tree, they also claim that he failed to weigh its
reliability.
[25] When we interpret administrative regulations, the rules of statutory
construction apply. Ind. Family & Social Servs. Admin. v. Pickett, 903 N.E.2d 171,
176 (Ind. Ct. App. 2009), reh’g granted on other grounds. The express language of
the regulation controls, and the regulation is interpreted as a whole, giving
words their plain and ordinary meaning. Id. Moreover, we construe statutes
and regulations in such a way as to prevent absurdity and hardship. Id.
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[26] In the context of the Appellants’ argument, we do not find a significant
difference between the common and ordinary meanings of “search for” and
“look for.” Both express the sentiment that, as the Appellants acknowledge,
McCauley attempted to find the elm tree. As for their contention that he
should have hired a specialist, the Administrative Code does not mandate any
such requirements, and it seems possible that doing so would create “absurdity
and hardship.” See id.
[27] The Appellants also contend that “McCauley did not evaluate the evidence
properly as required by the rule” with respect to the school acre because he did
not find definitive proof that the foundation remnants on the Metschuleits’
property were, in fact, the remnants of the old school. (Appellants’ Br. 19).
However, the Appellants do not clarify what evidence they think McCauley
should have evaluated that would have produced definitive proof that the
foundation remnants were the remnants of the school. Further, there was
evidence that McCauley did properly evaluate the evidence. He stated that he
received “testimony of the clients” and researched “old photographs” and
“newspaper articles.” (Tr. Vol. 2 at 25). He also testified that he researched the
county surveyor’s records, the auditor’s records, the chain of title, and the
deeds, to the extent that he “went back to the mid-1800’s for locating the school
deeds when that was initially deeded out as a school.” (Tr. Vol. 2 at 26). On
the ground, he searched for controlling monuments and determined that there
was “cultural evidence” supporting the location of the school, including a half
mile of fencing, an old road, and the location of a cemetery. (Tr. Vol. 2 at 57).
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He also determined that the deeds indicated that the foundation was “exactly
where [the school was] supposed to [have been].” (Tr. Vol. 2 at 57). Thus,
there was evidence in the record to support the trial court’s conclusion that
McCauley properly conducted his survey and evaluated the evidence. 1
[28] The Appellants’ second broad argument—that the trial court’s findings
conflicted—also relates to McCauley’s determination of the placement of the
Center Line in relation to the school acre. The trial court found that
McCauley’s Center Line placement was correct but that he should have
excluded the school acre from the Metschuleits’ property boundaries because it
was excepted from their deed. The Appellants assert that these two findings are
inconsistent because McCauley’s placement of the Center Line automatically
“includes” the school acre in the Metschuleits’ property, whereas “[t]he
Timberlake line, which the court did not follow, would properly exclude the
School Property” because the school acre would be to the east of the Center
Line and the Metschuleits’ property boundary. (Appellants’ Br. 21).
[29] We do not find these findings inconsistent. If the school acre were not within
the boundaries of what would be considered the Metschuleits’ property
according to the placement of the Center Line, then there would be no reason
to except the property from their ownership in the deed. Under Timberlake’s
1
The Appellants also argue that McCauley based his placement of the Center Line on his clients’ wishes
rather than controlling monuments. This is a request to reweigh the evidence as McCauley testified that “the
cultural features and the occupation” he based his survey upon “pretty much supported the deeds.” (Tr. Vol.
2 at 29).
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Center Line placement, the school acre would have been clearly outside of the
Metschuleits’ property boundaries and within Reinmiller’s property boundaries,
leaving no reason for the Metschuleits’ deed to mention the parcel.
Accordingly, the trial court’s findings are consistent.
2. Grant in Part
[30] Next, the Appellants argue that the trial court erred when it validated
McCauley’s Center Line placement but invalidated McCauley’s inclusion of the
one-acre school parcel and the 7.575-acre parcel within the Metschuleits’
property boundaries without ordering a new survey. They contend that the trial
court did not have the statutory authority to partially validate and partially
invalidate a survey. We agree.
[31] INDIANA CODE § 36-2-12-14(c) governs appeals of legal surveys. It provides
that:
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
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(C) enter the boundary lines and corners in the
county surveyor’s field notes.
I.C. § 36-2-12-14(c). In Lane Alan Schrader Trust, we interpreted this provision
as providing the trial court with three options in an appeal of a survey:
(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; [or] (3) it may reject the original
survey and order the county surveyor to locate and mark the
boundaries with durable markers in the proper places according
to the trial court’s findings based upon evidence presented to it,
including previous surveys.
Lane Alan Schrader Trust, 974 N.E.2d at 524.
[32] Our holding in Lane Alan Schrader Trust is instructive here. There, a landowner
appealed a legal survey and introduced into evidence two previous surveys that
contradicted the legal survey at issue. Id. at 519-20. The trial court held that
there was no evidence of the validity of the two previous surveys because there
was no evidence that the surveyors had satisfied the statutory notice
prerequisites for creating a valid survey. Id. at 524. Nevertheless, the trial court
rejected the legal survey at issue, declined to order a new survey completed, and
ruled that the prior two surveys had clearly and validly delineated the property
boundaries. Id. at 524-25.
[33] On appeal, the appellant argued that the trial court’s only options by statute had
been to affirm the survey or order a new one, not to accept boundaries without
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a valid survey. Id. at 523. We disagreed and interpreted the statute as
providing the trial court with the three options listed above. Id. at 524. As a
result of this interpretation, we concluded that the trial court had had the
authority to determine proper legal boundaries based on the evidence presented
to it, even if that evidence was not consistent with a valid survey. See id. at 525.
However, in that eventuality, the trial court had been required to “order[] the
county surveyor to locate the boundary lines with durable markers in the proper
places according to its findings.” Id. Accordingly, we concluded that the trial
court had erred by imposing the boundaries listed in the two previous surveys
without ordering the county surveyor to mark the boundary lines according to
the surveys. Id. Doing so would have “in effect, establish[ed] a new legal
survey.” Id. at 525. We explained that, “[p]ut another way, the trial court
[had] not err[ed] by accepting the two previous surveys but [had] skipped a step
by imposing them.” Id.
[34] Based on our holding in Lane Alan Schrader Trust, we conclude that the trial
court here had the authority to determine that McCauley’s Center Line was
valid based on the evidence before it, even though it also partially invalidated
McCauley’s survey. However, as in Lane Alan Schrader Trust, the trial court
“skipped” the step of ordering the county surveyor to locate the boundary lines
with durable markers, thereby establishing a new legal survey. See id. Absent
this step, McCauley’s survey, with its partially invalidated boundary lines, is
still recorded at the Harrison County Recorder’s Office, and, as the Appellants
note, cannot give future interested parties proper notice of the properties’ legal
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boundaries. As the trial court, thus, granted relief not authorized by statute, we
determine that it erred by rejecting part of McCauley’s survey without ordering
a different surveyor to complete a new survey or ordering the county surveyor
to mark the boundaries with durable markers in the proper places according to
its findings. We reverse this specific part of the trial court’s order and remand
with instructions for the trial court to vacate this portion of its judgment.
Because the trial court chose to enter findings on the correct placement of the
Center Line without ordering a new survey, we also remand with instructions
for the trial court to order the county surveyor to locate the Center Line with
durable markers in the proper place according to its findings.
[35] Affirmed in part, reversed in part, and remanded with instructions.
[36] Baker, J., and Mathias, J., concur.
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