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Weber v. Kroeger

Court of Appeals of Tennessee, Nashville

October 10, 2019

KENNETH A. WEBER ET AL.
v.
HAROLD W. KROEGER ET AL.

          Session September 4, 2019

          Appeal from the Chancery Court for Davidson County No. 16-1151-II Anne C. Martin, Chancellor.

         Two adjoining property owners disputed their shared boundary line. The contractor who renovated the houses on each of the parcels owned both properties before selling them to the parties, and he erected a privacy fence where he thought the property line was located. A survey conducted years after the parties had purchased the properties placed the boundary line in a somewhat different location than the location of the privacy fence. When one of the property owners began dismantling the fence in an effort to utilize the property that the survey showed belonged to them, the neighboring owners obtained a temporary restraining order to maintain the status quo and filed a declaratory judgment complaint to determine the boundary line. The trial court entered a judgment declaring that the privacy fence was the boundary line and that the parties jointly owned the fence. On appeal, we affirm the trial court's ruling declaring the location of the boundary line, but we reverse the ruling that the fence is jointly owned.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part, and Vacated in Part

          Hilary Claire Dennen and Alvin Scott Derrick, Nashville, Tennessee, for the appellants, Harold W. Kroeger, Mary Kay Kroeger, and The Kroeger Family Trust Dated October 26, 2018.

          Kenneth A. Weber, Nashville, Tennessee, for the appellee Shelley E. Munroe, and pro se. [1]

          Andy D. Bennett, J., delivered the opinion of the Court, in which W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         I. Factual and Procedural Background

         The two parcels of land at issue in this case were initially part of a larger tract that was divided into a northern property (2405 Oakland Avenue) and a southern property (2407 Oakland Avenue). Both parties purchased their respective lots from Robert Brady Fry, who renovated the houses situated thereon. Mr. Fry purchased 2407 Oakland Avenue ("2407") on April 9, 2003, and he purchased the adjoining property to the north, 2405 Oakland Avenue ("2405"), on May 20, 2004. Mr. Fry renovated 2405 and sold it to Harold W. and Mary Kay Kroeger ("the Defendants") on May 16, 2005.[2]

         The Defendants' deed describes their property as follows:

LAND in Davidson County, Tennessee, being the northerly half of Lot Number 167 on the Plan of Belmont Land Company's Plan of Lots called Belmont Heights, of record in Plat Book 421, page 34, Register's Office for Davidson County, Tennessee, to which plan reference is hereby made for a more complete description.
BEING the same property conveyed to Robert Brady Fry by deed from Brennan Chad Brown, an unmarried person, of record as Instrument No. 200405210059958, Register's Office for Davidson County, Tennessee.
THIS CONVEYANCE IS SUBJECT TO: (1) Taxes which have been prorated and assumed by Grantee; (2) All restrictions of record; (3) All easements of record; (4) All visible easements; (5) All matters appearing on the plan of record; (6) All applicable governmental and zoning regulations.

         The Defendants and Mr. Fry executed an addendum to their purchase and sale agreement ("the Addendum") providing that $5, 000 of the purchase price would be held in escrow until Mr. Fry (1) erected a privacy fence between 2405 and 2407 and (2) installed gutters and downspouts on the house. The language regarding the privacy fence is as follows:

Privacy fence to the rear of property and between 2405 and 2407 Oakland Avenue. Fence to the North side of property to be completed in coordination with completion of grading with owners of 2403 Oakland Ave. Seller agrees to complete this portion of the fence within 30 days of notice from buyers.[3]

         Mr. Fry sold 2407 to Kenneth Weber and Shelley Munroe ("the Plaintiffs") on July 27, 2006. The Plaintiffs' deed describes their property as follows:

Land in Davidson County, Tennessee, being the south half of Lot number 167 on the Map of Belmont Land Company's plan of record in Book 421, page 34, Register's Office for Davidson County, Tennessee.
Said part of Lot number 167 fronts 50 feet on the westerly side of Oakland Avenue and runs back between parallel lines 175 feet to an alley.
Being the same property conveyed to Robert Brady Frye (sic) by deed of record as instrument 20030414-0049351, said Register's Office. The said Robert Brady Frye is also known as Robert Brady Fry. His spouse, Sharma Fry, joins in this conveyance.
THIS CONVEYANCE IS SUBJECT TO: (1) Taxes which have been prorated and assumed by Grantee; (2) All restrictions of record: (3) All easements of record; (4) All visible easements; (5) All matters appearing on the plan of record: (6) All applicable governmental and zoning regulations.

         The parties did not question the location of their shared boundary until sometime in 2011, when the Plaintiffs had a survey done for reasons unrelated to this case. As described more fully below, the 2011 survey indicated that the boundary line did not match up with the location of the privacy fence. The Defendants had another survey done in 2016, and based on the results of that survey, the Defendants decided to take down the privacy fence and make use of the property that the survey indicated belonged to them. The Plaintiffs objected to the Defendants' removal of the fence and sought injunctive and declaratory relief to resolve the dispute.

         The parties had a bench trial on November 28, 2018. The witnesses included Mr. Fry, Mr. Weber, and both defendants. Mr. Fry testified that he intended the privacy fence between 2405 and 2407 to be on the property line between the two properties and that, during the time that he lived in 2407, he considered the fence to be the boundary between 2405 and 2407. Mr. Fry explained how he decided where to place the privacy fence:

[T]he idea that a fence post - - the center of a fence will precisely be on a boundary is unlikely. . . . Belmont and Oakland, that neighborhood is almost exclusively 50-foot by 150-foot lots. Some rare exceptions. But almost every lot including all of them on Oakland and that lot are 50 by 150. The house is set - - the setback is 5-foot off the property line. . . . Our method for laying out the fence would be a measure between the houses. They had the same setback and split that difference. That would have been our method for laying out the fence.

         Mr. Fry confirmed that he and his workers followed this practice when they installed the privacy fence at issue. The Defendants were living at 2405 when the privacy fence went up, and they did not express any objections to the location of the fence.

         An alley runs behind the Plaintiffs' and the Defendants' houses that is parallel to Oakland Avenue. Both parties have an area on their respective properties, contiguous to the alley, where they can park their vehicles. Mr. Fry testified that 2407 had a cement parking pad next to the alley that was there when he purchased the property in 2003. Mr. Fry believed the northern edge of the parking pad marked the northern edge of the property belonging to 2407. Mr. Fry also testified about a concrete sidewalk perpendicular to Oakland Avenue that ran along the northern edge of 2407 and to the front door of the house:

There was a sidewalk to the front door. It kind of came up the right side of 2407 and then took a left and had a number of steps along the way to get to the - - 2407 sits probably 8 feet or possibly more above street level. So that's kind of the - - you know, the - - I guess, the approach to the home.

         Mr. Fry explained that the concrete walkway was solid but did not look nice when he moved into 2407, so he placed a crab orchard stone veneer on top of the existing concrete to improve its appearance.

         The privacy fence was placed between the parking pad, on the west side of 2407, and the walkway, on the east side of 2407. According to Mr. Fry, the fence lined up with the northern edge of the parking pad and also lined up with the northern edge of the walkway. When asked why he did not have a survey done of the two properties before he made the improvements, Mr. Fry responded:

[W]e were cooperating properties in terms of we were neighbors. We were both probably equally anxious to get the fence constructed. Again, I had some knowledge about the setbacks, and I don't know that - - you know, again, that's still in some situations is how I would do it in a similar situation. I wouldn't necessarily - - if two neighbors - - you know, there's not an intention to - - a fence isn't used to reward or deprive anybody of their property, but that doesn't necessarily mean that it's a split hair down the very center of the property line either.

         Mr. Fry testified that there had been a chain-link fence between the two properties at some point in the past. Although he could not say the privacy fence was placed exactly where the chain-link fence had been, he testified that he did his best to make sure the privacy fence was in line with "the preexisting structures that were there."

         Mr. Fry testified that the Defendants never complained to him about the location of the privacy fence or the cement parking pad belonging to 2407. While he was living in 2407, Mr. Fry stated that he and the Defendants treated the northern edge of the walkway, the privacy fence, and the northern edge of the parking pad as the boundary line between the two properties.

         Sometime in the first quarter of 2011, the Plaintiffs wanted to put up a fence between their property and the property to their south, 2409 Oakland Avenue. They arranged to have a survey done at their landscapers' suggestion. The surveyor pinned all four corners of 2407, and the pins that were placed between 2405 and 2407 did not line up with the line the Plaintiffs believed was the boundary between the properties. According to the survey, the Plaintiffs' parking pad was about eighteen inches over the line into the Defendants' property. The survey line crossed over the line where the privacy fence was located and, according to the survey, a portion of the privacy fence was about seven inches too far south of the property line, encroaching onto the Plaintiffs' property. The survey showed that the Defendants were utilizing some of the Plaintiffs' yard in the front, near Oakland Avenue. Mr. Weber testified about his surveyor's pins:

[O]ur surveyor . . . pinned . . . the boundary with the Kroegers. At that point, obviously, I noticed where the pins were and noticed, well, gee, you know, this boundary over here with the Kroegers, if you compare it to the survey, it's off, like, you know, to, I guess, the ...

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