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Milton v. Powell

Court of Appeals of Tennessee, Knoxville

October 2, 2019

GLORIA JUANITA MILTON
v.
DONALD POWELL ET AL.

          Session August 20, 2019

          Appeal from the Chancery Court for Campbell County No. 7CH1-2017-CV-11 Elizabeth C. Asbury, Chancellor

         This case presents a boundary line dispute between the owners of adjacent properties. Gloria Juanita Milton (plaintiff), owner of a roughly 2.44-acre lot in the Morton Acres subdivsion in Campbell County, brought this action against the owners of the adjacent lot to the north, Donald Powell and Donna Powell Fredricks Carson (defendants). The issue at trial was the location of the boundary line between the properties. Each side hired a surveyor. Plaintiff's surveyor, William Easter, presented a survey of plaintiff's property that conformed very closely to the calls and boundaries established by the original subdivision plat. Defendants' surveyor, Dwight Crutchfield, presented a survey of the boundary line that gave defendants property in the amount of about 0.46 acre more than that described in the subdivison plat and Easter's survey. The trial court credited the survey presented by plaintiff and established the boundary line as presented in the Easter survey. Defendants appeal, arguing that the trial court erred by disregarding well-established principles for determining disputed boundaries as prescribed in Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct. App. 1980) and Wood v. Starko, 197 S.W.3d 255 (Tenn. Ct. App. 2006). We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          J. Stephen Hurst, LaFollette, Tennessee, for the appellants, Donald Powell and Donna Powell Carson.

          Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellee, Gloria Juanita Milton.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which and Thomas R. Frierson, II, and Kenny Armstrong, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         On May 27, 1975, the Esco Morton farm was subdivided and the plat for the subdivision, called Morton Acres, was recorded. The original surveyor and creator of the subdivision plat was George M. Phillips. Plaintiff purchased Lot 34 in 1989 and has lived in a residence on the property since then. Her property is a roughly rectangular-shaped plot running east to west lengthwise. The east boundary is Lance Lane and the west boundary is Cedar Creek. Defendants own Lot 35, which lies to the north. Thus, the disputed boundary line is plaintiff's north border and defendants' south border. According to the subdivision plat, it is 755 feet long and bears a call of North 80-30W.

         As found by the trial court in its final judgment, "the parties lived in peace until approximately 2012 when Defendants extended a fence" and after that, "problems ensued between the parties." In 2017, plaintiff filed this action to quiet title, seeking injunctive relief and declaratory judgment. At trial, the parties and their surveyors testified. It was agreed and stipulated that the location of plaintiff's northeastern corner (and defendants' southeastern corner) was marked by an iron pin or post on Lance Lane found by the surveyors. The surveyors agreed that the boundary line runs in a straight line generally west from this corner to a point in the middle of the creek. Plaintiff's surveyor, Easter, testified as follows regarding his search for a marker on plaintiff's northwestern corner:

We calculated where the rear pins should have been from the plat of record using Mr. Phillips' survey data and did an extensive search down at the creek. We never found anything. They washed away or they were never set in the first place.

         Because he found no monuments of significance to physically mark the boundary line, Easter utilized the call provided on the subdivision plat and turned essentially the same angle from the known boundary line as did the original surveyor. The following diagram is a reproduction of Easter's survey, with handwritten notes showing the owners of each property, their proposed boundary lines, and the undisputed corner:

         (Image Omitted)

         Defendants' surveyor, Crutchfield, disagreed with Easter about the existence of artificial monuments pertinent to the boundary line. He testified that he discovered old fence posts in the disputed area. Crutchfield and the defendants argued that the old fence marked the boundary line. Crutchfield stated that he found an old iron pin on the east bank of the creek that ostensibly marked the disputed corner. He admitted, however, that the subdivision plat did not call for a marker at the location where he found it. He didn't know who put the pin there, and neither he nor Easter thought it was done by the original surveyor Phillips. Plaintiff denied that there were fence posts in the disputed area and produced old photographs of her back yard that she argued proved this assertion. She took the position that any old fence posts in the wooded area in dispute did not mark a boundary line, and pointed out that the subdivision plat contains no reference to or marking of any fence posts.

         There is a chain link fence in defendants' back yard that was constructed around 1996. The south border of that fence is on or near the line established by Crutchfield. The parties disagreed sharply over whether defendants extended the fence around 2012. Defendants testified that they did not, and that the fence remained unchanged since it was built in the mid-1990s. Plaintiff testified that defendants extended the chain link fence in a southward direction to encroach on her property.

         Crutchfield did not do a full survey of either plaintiff's or defendants' parcel, but produced a drawing that showed his estimation of the disputed boundary line. He turned the angle of the line about three degrees smaller than Easter and Phillips, resulting in significant deviation from the calls on the subdivision plat. For example, the subdivision plat marks the western border of Plaintiff's property ‒ the one that runs along the creek ‒ as being 170 feet long. Crutchfield's survey reduces the length of this line to approximately 104 feet. According to the subdivision plat, plaintiff's Lot 34 ...


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