George Avery Land and Stella Faye Land v. Buster Crum and Patricia L. Crum - Concurring

GEORGE AVERY LAND and wife, )
STELLA FAYE LAND, )
)
Plaintiffs/Appellees, )
) Appeal No.
) 01-A-01-9611-CH-00524
VS. )
) Sequatchie Chancery
) No. 1507
BUSTER CRUM and wife, )
PATRICIA L. CRUM,
Defendants/Appellants.
)
)
)
FILED
May 9, 1997
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT OF SEQUATCHIE COUNTY
AT DUNLAP, TENNESSEE
HONORABLE JEFFREY F. STEWART, CHANCELLOR
L. Thomas Austin
P. O. box 666
Dunlap, Tennessee 37327
ATTORNEY FOR PLAINTIFFS/APPELLEES
Howard L. Upchurch
P. O., Box 381
Pikeville, Tennessee 37367
ATTORNEY FOR DEFENDANTS/APPELLANTS
AFFIRMED AND REMANDED
HENRY F. TODD,
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
GEORGE AVERY LAND and wife, )
STELLA FAYE LAND, )
)
Plaintiffs/Appellees, )
) Appeal No.
) 01-A-01-9611-CH-00524
VS. )
) Sequatchie Chancery
) No. 1507
BUSTER CRUM and wife, )
PATRICIA L. CRUM, )
)
Defendants/Appellants. )
OPINION
The defendants, Buster Crum and wife Patricia L. Crum, have appealed
from the judgment of the Trial Court resolving a boundary dispute favorably to the
plaintiffs, George Avery Land and wife, Stella Faye Land. The sole issue presented
to this Court by the defendants/appellants is:
Whether the Chancellor erred by ruling that the common
boundary line between the parties’ properties should be
surveyed in the course and distance method when there
were ample natural objects, landmarks, artificial
monuments and lines of adjoining landowners sufficiently
describing the common boundary line.
The appellee’s version of the issue on appeal is:
Whether the Chancellor properly set the boundary
between the parties given all the evidence presented at
trial.
I.
The Factual Situation
According to a surveyor’s drawing in the record, the plaintiffs and
defendants own adjoining lots in a 19 lot subdivision. All of the lots front on the
southerly side of a road variously referred to as “the Old Hill Road,” or “the Old Dunlap
Cagle Road.” Lots 1 through 8 vary in width, but lots 9 through 19 have identical
frontages of 200 feet each, and areas varying from 10.5 acres to 12.5 acres.
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Plaintiffs’ lot is shown as lot 19, and the adjoining lot of defendants is lot 18. The plat
shows plaintiffs’ lot as fronting 200 feet on the southwesterly side of Old Dunlap Cagle
Road and extending back between parallel straight lines 2,100 feet on the northwest
side and 2,030 feet plus or minus on the southeast side (the common boundary with
lot 18) to a straight dead line on which it measures 255 feet more or less. The plat
shows lot 18 fronting 200 feet on the public road and extending between parallel
straight lines 230 feet more or less on northwest (the common boundary with lot 19)
and 1980 feet on the southeasterly side to a straight dead line on which it measures
260 feet more or less.
II.
The Pleadings
The complaint alleges that plaintiffs are owners of property described
in a deed exhibited to the complaint. The deed, dated January 9, 1963, states that
Everett Roberts and wife conveyed to plaintiffs a tract described in detail as follows:
Lying and being in the 2nd Civil District, Flat
Mountain Baptist Church Community of Sequatchie
County, Tennessee, bounded and described as follows:
Beginning on a point in the center line of the Hill
(Old) Road opposite a Cross on rock, in the Southeast
boundary of the Isaac Williams Triangle, being the
Northwest corner of a tract of land conveyed by deed
dated ______ Tennessee Land Company to the Trustees
of the Flat Mountain Baptist Church of record in Deed
Book No. 2 page 248 in the Register’s Office of
Sequatchie County, Tennessee; thence with the center
line of the Hill Road and the West boundary line of the
Church property South 26/ and 53' East 325.0 feet to the
Southwest corner of said Church property, continuing with
the center line of the Hill Road South 25/ East 700.0 feet
to a point with pine and red oak pointers; thence South
58/ and 30' West, crossing branch 780 feet, fence corner
945 feet, with fence line 1778 feet fence corner, crossing
branch 1950 feet, in all 2100.0 feet to a stake with
chestnut oak pointer; thence North 4/ and 15' West, fence
corner 300 feet, with fence line 1208 feet fence corner,
1292 road, 1600 feet road, in all 1808 feet to a stake in
painted line and fence line, being the South line of the
Isaac Williams 369 acre tract; thence with the South line
of the Williams tract and fence line North 77/ and 14' East
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140.0 feet to a Tennessee Land Company iron corner;
thence with the west line of the Isaac Williams Triangle
South 12/ and 46' East 989.1 feet to a Tennessee Land
Company iron corner; thence with the South line of the
Isaac Williams Triangle North 46/ and 26' East 100.0 feet
a Tennessee Land Company iron pointer corner,
continuing North 26/ and 26' East with the South line of
the Esaac Williams Triangle 1505 feet to the point of
beginning, containing 45 acres, more or less. (The
emphasized verbiage of plaintiff’s deed describe the
disputed boundary line.)
The complaint also alleged that the defendants are the owners of land
described in a deed exhibited to the complaint and recorded on July 10, 1982. Said
deed states that Cynthia Austin conveyed to defendants land described as follows:
a certain tract or parcel of land in 2nd Civil District of
Sequatchie County, State of Tennessee, as follows:
BEGINNING at a stake in the south margin of the old
Dunlap-Cagle (Old Hill Road), said point being the
northwestern corner of the tract of land acquired by
Stephen T. Greer, et al, by deed recorded in Deed Book
48, page 418, Register’s Office of Sequatchie County,
Tennessee, said point also being a corner to the property
of Avery Land, thence along the south margin of said Old
Cagle Road (Old Hill Road), South 23 deg. 32' East 200
feet to a stake in the south margin of said road, then
South 52 deg. West 2,030 feet more or less, to a point in
the original southwest boundary line of property acquired
by Stephen T. Greer, et al, by deed recorded in Deed
Book 48, page 418, thence Northwestwardly along the
original southwest boundary line of said original tract 255
feet more or less, to the southwest corner of the Avery
Land property, thence along the southeast line of said
Avery Land property North 38 deg. 30' East 2,100 feet to
the point of BEGINNING, containing 10.7 acres, more or
less. (The emphasized words of defendant’s deed
describe the disputed boundary line.)
Being the same property conveyed to Cynthia Austin from
Stephen T. Greer, et al, by deed of record in Deed Book
57, page 382 Register’s Office of Sequatchie County,
Tennessee.
The complaint further alleged that defendants had committed trespass
and waste upon plaintiffs’ property.
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The answer admitted the above mentioned deed, but denied
encroachment upon plaintiff’s land.
III.
The Decision of the Trial Court
After a non-jury trial, on June 2, 1993, the Trial Court entered an order
containing the following:
IT IS, THEREFORE, ORDERED, ADJUDGED
AND DECREED that the property line shall extend two
hundred (200.0) feet along the road beginning with the
iron marker which is common to the defendants and Mr.
Lockhart, and there is no dispute as to the southern
boundary of the defendants which shall go from the
corner of Mr. Lockhart at least two hundred fifty five
(255.0) feet as called for in the defendants’ deed, if it
goes to the pile of rocks with the iron pin therein as the
plaintiff, George Avery Land, testified. From those two (2)
marks, the line shall be a straight call from the point
established on the road to the point established on the
back side of the property, with said line to be established
by a survey and the expense of said survey to be borne
equally by the parties hereto. The survey of said property
is attached to this order, along with a portion of the
Chancellor’s memorandum opinion, which are hereto
designated as Exhibits “A” and “B”.
Exhibit A to the order of the Trial Court is exhibited to this opinion as
Exhibit A.
IV.
Resolution of the Issues
The parties are agreed as to the location of the termini of the disputed
line, i.e., the corner at the road and the corner at the rear of the property. Plaintiffs
contend, and the Trial Court found that the boundary was a straight line between the
two corners. The defendants insist that the line meanders to conform to certain
natural and artificial monuments not mentioned in deeds but which, according to the
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testimony of Mr. Crum, were pointed out to Mr. Crum by Mr. Land shortly after the
defendants purchased their lot. Mr. Land testified that he did not point out the
disputed monuments to Mr. Crum. This is the only disputed testimony in the record,
and it is determinative of the appeal.
Mr. Land explained that the disputed monuments were painted marks
on trees which had been placed by him well within his lot to prevent some timber
cutters from cutting trees on adjoining land, a part of which later became the
defendants’ lot. The Trial Judge evidently accredited the testimony of Mr. Land in
preference to that of Mr. Crum, thereby reaching the result above stated.
The rule concerning preference of natural and artificial monuments is
inapplicable where they are not needed to complete ambiguous or incomplete deed
discriptions.
In Thornburg v. Chase, Tenn. App. 1980, 606 S.W.2d 672, this Court
reversed a boundary line judgment and held that, although an unascertained or
disputed boundary may be established by a parol agreement, the evidence did not
establish such an agreement; that, in establishing disputed boundaries, natural
landmarks are considered first, artificial marks or monuments are considered second,
and finally courses and distances; and that this rule of construction is designed to aid
in determining the intention of the parties to a deed which is to be determined if
possible from the instrument in connection with the surrounding circumstances.
The cited opinion is not authority for modifying a clear description in a
deed which requires no interpretation.
In Prichard v. Rebori, 135 Tenn. 328, 186 S.W. 121 (1916), the
Supreme Court held that the reason for the preference of monuments is that the
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parties are presumed to have examined the property and to have taken note of the
monuments in the line. This observation has no application where there is no need
to supplement the deed discription.
The deed to defendants, quoted above, described the disputed line as
follows:
. . . thence along the south margin of said Old Cagle Road
(Old Hill Road) South 23 deg. 32' East to a stake in the
south margin of said road, thence South 52 deg. West
2030 feet more or less to a point 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 plaintiffs, quoted above, described the line as follows:
- - - thence south 58 degrees and 30 minutes west - - -
2,100 feet to a stake - - -.
The parties agree upon the two points or corners which are connected
by the disputed line. The course of said line is clearly stated as South 52 degrees
west or south 58 degrees 30 minutes west. No physical monuments are mentioned,
hence the line must be a straight line in the direction stated without deviation.
The plats drawn by the various surveyors show courses different from
the courses stated in the deeds of the parties, but this is considered irrelevant
because no surveyor showed a deviation from a straight line except the surveyor for
defendants whose testimony included the following:
Q. Okay. Does the Crum deed name any monuments
or physical points on the ground that you could find?
A. No, it’s not calling for physical points. It does call
for going with the Avery land.
...
A. The land deed is very precise in its notation of
physical monuments. It -- the part that’s pertaining to this
comes down the center of Hill Road, says to a point. Of
course, that’s a point in the center of the road and no
longer decipherable. But from there it goes so many feet,
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780 feet crossing a branch, hits a fence corner at 945
feet, then with the fence line 1778 feet to a fence corner
and then crossing a branch 1950 for a total of 2100 to a
stake with chestnut pointer.
...
Q. Okay. On the road side of it, the line starts with a
pine and red oak pointers. Did you find a pine and red
oak pointers on the road side of it?
A. The pine and red oak pointers, if you’ll note, that
comes down the center of the road.
Q. Yes, sir.
A. And no, those were not existing. We did find an
established corner off of the road on the right-of-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 viewing all of the evidence, according to
reestablishing the lines state law, you take physical
evidence or physical markers holding precedent. And
with Crum’s deed simply calling for a bearing, a course in
distance, and calling for going with the Avery line, we look
for the Avery land at the Avery Land deed and the
monuments on it. The monuments on it, being many for
that length of line, and the particular line that was there
we found an existing painted line that had been painted at
least twice. We followed that line. And we did not shoot
it by course in distance because of the physical evidence
taken precedent over it. And we found natural
monuments, which is called -- creeks would be a natural
monument. And we found there’s two of those called for
in the deed. They are existing. They are there. We
found, also, artificial monuments, which is -- fences would
be an artificial monument. We found that called for in the
deed.
Q. Okay. What you’re saying, I believe, if Mr. Austin
will permit, is that the rules of instruction, when you’re
trying to establish a boundary line, say you look to natural
monuments first, artificial monuments next, and the last
thing you look to is course and distances, correct?
A. Right.
Q. And you were looking for natural or artificial
monuments between the two points that you’ve already
testified to, on the ground; is that correct?
A. Yes.
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Q.`Okay. Now, after -- after making that examination, Mr.
Bradley, did you establish a -- did you draw a line through
there and establish on the line the actual artificial and
natural monuments that you found on this line?
A. Yes.
The testimony of this witness suggests numerous monuments upon
which the defendants rely; but neither the testimony of this witness nor the plat
presented by him furnishes any guidance for the establishment and later delineation
of a boundary line other than the two agreed upon corners.
The testimony of Mr. Crum supports his reliance upon an agreed
boundary, but his engineering testimony does not properly delineate the boundary on
a plat or a complete metes and bounds description.
Moreover, Mr. Crum’s testimony as to the agreed boundary is
contradicted by Mr. Land, and the Trial court accepted the version of Mr. Land.
The description in defendant’s deed, quoted above, contains only two
landmarks, the termini which are agreed upon by the parties, and no other landmarks.
It contains no other land marks and only one compass direction (South 52 degrees
West).
As above indicated, defendant’s testimony as to agreed or admitted
landmarks was not accepted by the Trial Judge and this Court concurs in that finding.
The description in plaintiff’s deed, quoted above, does contain some
landmarks, but the courses and distances between the landmarks are insufficient to
require a modification of the judgment of the Trial Court. From the agreed northerly
corner, the line proceeds in the direction of south 58, 30 degrees 30 minutes west,
crossing a branch at 780 feet, passing a fence corner at 945 feet, following a fence
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to 1,778 feet to another fence corner and crossing another branch at 1,950 feet. The
only direction in the foregoing is south 58 degrees 30 minutes west.
The survey ordered by the Trial Court (Exhibit A to their opinion does not
indicate the compass reading of the straight line decreed by the Trial Court.
With the clouded and incomplete engineering data it is readily seen that
a straight line between two agreed termini was the only satisfactory resolution
available to the Trial Judge.
This non-jury judgment comes to this Court for review de novo upon the
record and must be affirmed unless the evidence preponderates against the factual
findings of the Trial Judge. TRAP Rule 13(d).
Any conflict in testimony requiring a determination of the credibility of
witnesses is for the Trial Court and being upon the reviewing court unless other real
evidence compels a contrary conclusion. State ex rel Balsinger v. Town of
Madisonville, 222 Tenn. 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 contrary
conclusion.
The evidence does not preponderate against the factual conclusions
upon which the judgment of the Trial Court is based. Upon review de novo upon the
record, this Court agrees with the decision of the Trial Court.
The judgment of the Trial Court is affirmed. Costs of this appeal are
assessed against the appellants and their surety. The cause is remanded to the Trial
Court for necessary further proceedings.
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AFFIRMED AND REMANDED
_________________________________
HENRY F. TODD,
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_______________________________
SAMUEL L. LEWIS, JUDGE
_______________________________
BEN H. CANTRELL, JUDGE
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