BOBBY W. MCEARL, ET AL.
TALMO JOHNSON, ET AL.
Submitted on Briefs, September 4, 2014
Appeal from the Chester County Chancery Court No. 2012CV601 James F. Butler, Chancellor
John E. Talbott and G.W. Sherrod, III, Henderson, Tennessee, for the appellants, Talmo Johnson, Mary Sue Johnson, and the Talmo Johnson Trust.
Terry Abernathy, Selmer, Tennessee, for the appellees, Bobby W. McEarl and Sarah L. McEarl.
Kenny W. Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.
KENNY W. ARMSTRONG, JUDGE
During the 1950s and early 1960s, Talmo Johnson and his wife, Mary Sue (the "Johnsons"), acquired several tracts of adjoining land in Chester County, Tennessee. The Johnsons consolidated the separate tracts into one farm. Later, the Johnsons sold part of their land to Elbert Brooks by warranty deed dated January 18, 1969. The land conveyed to Mr. Brooks was located southeast of the parcel that the Johnsons retained. The warranty deed from the Johnsons to Mr. Brooks states that the parcel would be "generally bounded. . . by the Jacks Creek Canal." The Jacks Creek Canal ("Jacks Creek") forms the western and northern borders of Mr. Brooks's property and the southeastern border of the Johnsons's property. Sometime prior to Mr. Brooks's acquisition of the property, Mr. Johnson erected a barbed-wire fence on the east side of Jacks Creek. Mr. Brooks and the Johnsons never disputed their common boundary line. Mr. Brooks subsequently sold his land to Bobby and Sarah McEarl (the "McEarls, " or "Appellees") by warranty deed dated March 9, 1999. This deed also employed the language that the parcel would be "generally bounded . . . by the Jacks Creek Canal." The controversy over the location of the common boundary line between the McEarls' property and the Johnsons' property began as early as 2005, when Mr. McEarl encountered hunters on his property. The hunters claimed that Mr. Johnson had given them permission to enter the property. Mr. McEarl contacted Mr. Johnson and requested that he stop telling hunters they could cross Jacks Creek. Mr. Johnson complied, and the problem with hunters crossing the creek ceased.
In 2006, Mr. Johnson conveyed, via quitclaim deed, his property to the Talmo Johnson Trust (together with the Johnsons, "Appellants"). This deed contained more specific calls and descriptions than the warranty deeds that had been used to transfer the property from Mr. Brooks to the McEarls. The quitclaim deed stated that the boundary was "to a point in the southeast bank of Jacks Creek, " rather than "generally bounded. . . by the Jacks Creek Canal" as appeared in earlier deeds.
The instant lawsuit arose after Mr. McEarl discovered that trees had been removed from the east bank of Jacks Creek without his consent. On April 2, 2012, the McEarls filed suit against the Appellants in the Chancery Court of Chester County, alleging damages for the timber that had been cut. On April 30, 2012, Appellants filed their answer to the complaint. Concurrent with the answer, Appellants filed a counter-complaint against the Appellees, asking the court to establish the boundary line between the McEarls' property and the Johnsons' property as the "upper east bank" of Jacks Creek. On August 29, 2012, Appellees filed their answer to the counter-complaint.
The court held a bench trial on June 19, 2013 and November 1, 2013. The evidence adduced at the hearing was as follows:
Elbert Brooks testified on behalf of the McEarls. Mr. Brooks purchased roughly 340 acres from the Johnsons in 1969. Before finalizing the sale, Mr. Brooks testified that he had asked Mr. Johnson where the boundary line between the properties was located. Mr. Johnson responded that the boundary line was the centerline of Jacks Creek. However, there were no witnesses to this exchange. In 1999, Mr. Brooks sold his property to the McEarls. Mr. Brooks testified that after the instant lawsuit had been filed, Mr. Johnson came to his house to discuss the boundary line. At that time, Mr. Brooks reminded Mr. Johnson that they had set the property boundary as the centerline of Jacks Creek at the time of transfer.
Sammy Hill, a self-employed equipment operator, testified for the Appellees. In April 2011, Mr. Johnson hired Mr. Hill to "clean the ditch bank" in order to enable Mr. Johnson to repair his barbed-wire fence. Mr. Hill testified that Mr. Johnson directed him to remove timber from the creek bank. Following Mr. Johnson's directive, Mr. Hill testified that he clear-cut the area, removing some three-to-five truckloads of logs. Although Mr. Hill characterized the quality of the lumber as "below average, " he testified that Mr. Johnson had instructed him to take the wood to Price's Sawmill in Selmer, Tennessee. Mr. Hill received roughly $4, 500 from Price's Sawmill for the lumber. Mr. Hill further testified that Mr. Johnson had instructed him to give half of the proceeds from the first load of logs to Mr. McEarl. However, when Mr. McEarl discovered that the timber had been removed, he told Mr. Hill to stop work until Mr. McEarl could speak with Mr. Johnson. In June 2011, Mr. Hill resumed his work at Mr. Johnson's request, and assumed that any controversy between the parties had been resolved. On cross-examination, Mr. Hill reiterated his belief that Mr. Johnson owned the land where the disputed timber was located. However, he also testified that he knew the land was not owned by Mr. Johnson. In this regard, Mr. Hill contradicts his own testimony. Mr. Hill also explained that there were several places where it was hard to locate the fence, and that some sections of fence were located on the bank of Jacks Creek, while other sections were located in Jacks Creek.
Rish Young, a forester and timber buyer, also testified on behalf of the Appellees. In 2009, Mr. McEarl contacted Mr. Young regarding the sale of timber, and Mr. Young bought the timber rights to roughly 130 acres of the McEarls' land. In 2009 and 2010, Mr. Young harvested the timber stands on the McEarls' property. Mr. Young testified that he was directed by Mr. McEarl to leave a "streamside management zone" next to Jacks Creek,  and that he did not harvest any trees within a sixty-six foot strip bordering the creek. Mr. Young characterized the trees in this streamside management zone as "good timber" and also noted that "the oak was exceptional."
Wade McMahan testified on behalf of the Appellees. Mr. McMahan is a private forestry consultant retained by Mr. McEarl to determine the value of the timber that was removed from the streamside management zone. Mr. McMahan surveyed the area using accepted industry practices and determined the average value of the removed timber was $6, 239.06, and the high value of the timber would have been $7, 523.58.
Bobby McEarl testified that he had known Mr. Johnson since he was a child and had worked for him as a plumbing contractor. He testified that in the fall of 2010, Mr. Johnson called him and demanded that he remove the trees from the east bank of Jacks Creek. Mr. McEarl questioned whether Mr. Johnson actually owned any land on the east bank. Mr. Johnson allegedly agreed that he did not own anything on the east bank, but regardless he was going to have workers remove the trees. Mr. McEarl objected, and there was not another discussion about tree removal until April 2011, when Mr. McEarl discovered Sammy Hill removing trees. As noted above, Mr. McEarl confronted Mr. Hill, who explained he was working at Mr. Johnson's direction. Sometime later, Mr. Johnson telephoned Mr. McEarl and explained that Mr. Hill was going to give Mr. McEarl half of the proceeds from the timber. Mr. McEarl stated that he was not going to take any money for the timber, and that he did not see why he should be paid for half of what he already owned in full. When Mr. McEarl went to Mr. Johnson's farm to speak with him about the situation, Mr. Johnson allegedly threw a $700 check at him. In response to this exchange, Mr. McEarl contacted counsel. Mr. McEarl also notified the Tennessee Department of Environment and Conservation regarding Mr. Johnson's removal of the timber from the streamside management zone.
Tony Johnson, the Johnsons' son, testified on behalf of the Appellants. Tony Johnson owns property adjoining both the Johnsons' property and the McEarls' property. Tony Johnson testified that he grew up on the Johnsons' farm, and the barbed-wire fence had been in existence his entire life. On cross-examination, Tony Johnson admitted that he had told Mr. McEarl that his father had made a mistake when he sold the property to Mr. Brooks. Tony Johnson explained that "where dad had messed up [was in] not reserving enough of the bank to actually be able to put a fence." He also agreed that his father had failed to reserve the entire creek for himself when he sold the property to Mr. Brooks.
Appellant Talmo Johnson testified that he had previously owned the McEarls' property. Mr. Johnson explained that at the time he sold this property to Mr. Brooks, he had "tried to make it plain and clear that [he] would not sell it without putting a fence on the bank of [Jacks Creek]." Mr. Johnson elaborated that he "would [have] been out of water if [he] hadn't kept [the creek]." Mr. Johnson stated that when he sold the property, he understood that he would be setting the boundary line, and he intended for the entirety of Jacks Creek to remain in his possession. Mr. Johnson also testified that he would not have put the fence on someone else's property, and that he did not make any agreements that would have set the boundary anywhere other than along the fence. Mr. Johnson did not conduct a survey of the land when he sold it to Mr. Brooks, and no one disputed the boundary line until the instant case arose. Throughout these proceedings, Mr. Johnson has maintained that he did not have any agreements with Mr. Brooks regarding the boundary line.
Mr. Johnson stated that he hired Sammy Hill to clear the east bank of the creek in order to build a fence that would keep cattle on his side of the property, and he gave Mr. Hill instructions not to cut any trees beyond the fence. Mr. Johnson stated that he did not receive any money from the timber that was taken to Price's Sawmill. Instead, he indicated that the money from the timber was used to pay Mr. Hill for his work. Mr. Johnson also testified that he wanted to give Mr. McEarl some of the proceeds, but he rejected his check. Mr. Johnson did not personally supervise Mr. Hill's work, but he did expect his instructions to be followed. Mr. Johnson described the trees that Mr. Hill removed as "pulpwood." Mr. Johnson acknowledged that he received a letter from the Tennessee Department of Conservation stating that he was in violation for clearing a streamside management zone, but he did not receive any further citation or penalty from the department.
On cross examination, Mr. Johnson denied asking Mr. McEarl to cut the timber on the creek bank in order to repair the fence, and he also denied telling Mr. McEarl he was going to hire someone to cut the timber on Mr. McEarl's behalf. Mr. Johnson also denied that Mr. Hill informed him that Mr. McEarl had demanded that the timber not be removed. Mr. Johnson admitted that he did not do anything to come into compliance with the Department of Environment and Conservation's notice, but that the streamside management zone had re-vegetated on its own.
Greg Perry testified as an expert on behalf of the Appellees regarding the survey he conducted of the McEarls' property. In preparing his survey, Mr. Perry relied on the deeds from Mr. Johnson to Mr. Brooks and from Mr. Brooks to the McEarls. Mr. Perry's survey located the boundary line at the centerline of the Jacks Creek. Mr. Perry based his determination, in part, on his interpretation of the words "bounded by Jacks Creek Canal, " which were found in both deeds. Mr. Perry testified that had the deeds read "to the Jacks Creek Canal, " this language would not have changed his determination of the location of the boundary line. Mr. Perry admitted there was no reference to the centerline of Jacks Creek in the deeds, but he also noted that there was no reference to the fence in any of the deeds. Although he testified that he was aware of the quitclaim deed from Mr. Johnson to the Talmo Johnson Trust, Mr. Perry indicated that he had not relied on that deed when preparing his survey. Mr. Perry explained that while the quitclaim deed had very detailed descriptions, he could not locate the surveyor who had prepared it. Furthermore, he testified that it was his practice to rely on older deeds rather than newer ones when preparing survey plats.
Daryl Isbell, a registered land surveyor, testified as an expert witness for the Appellants. Although Mr. Isbell did not prepare his own survey, he testified that he had physically visited the properties, had researched the deeds, and had examined Mr. Perry's survey. Mr. Isbell testified that he would not have located the boundary line in the centerline of Jacks Creek because the words "bounded by" typically mean near, as opposed to the center of something; therefore, he would have relied on the deed from Talmo Johnson to the Talmo Johnson Trust and would have located the boundary line on the east bank of Jacks Creek.
On December 31, 2013, the trial court issued a letter ruling in this matter. This ruling was incorporated, by reference, into the final decree and judgment, which was entered on January 16, 2014. Therein, the court set the common boundary line between the two properties as the centerline of the Jacks Creek and rendered judgment in ...