IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
August 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
ANNA LEE CRISP, )
) BLOUNT CIRCUIT
Plaintiff/Appellant )
) NO. 03A01-9711-CV-00527
v. )
) HON. W. DALE YOUNG
ORVILLE C. BORING and wife, ) JUDGE
WANDA SUE BORING, )
)
Defendants/Appellees ) AFFIRMED
Phillip Reed, Maryville, for Appellant.
David R. Duggan, Maryville, for Appellees.
OPINION
INMAN, Senior Judge
This is a boundary dispute. The plaintiff alleges that the location of the
boundary line between her property and the adjoining land of the defendants is
shown by a survey made by Sterling Engineering, Inc.
The defendants on the other hand allege that the proper boundary is
shown by a survey made by Everett Land Company. They also claim title to the
disputed area, a small triangular tract, by estoppel by deed, adverse possession
including the payment of taxes for more than 30 years, and other pro-forma
defenses.
A bench trial resulted in a finding that the plaintiff is a predecessor in
title to the defendant’s property, and that it was she who, by deed, established
the now-disputed boundary. The trial judge applied the principle of estoppel by
deed to the findings, “found the issues in favor of the defendants,” and
dismissed the case.
The parties agree that the judgment leaves the controversy but not the
case in limbo, since the location of the disputed boundary was not determined.
Restated, the issue is whether the plaintiff is estopped to challenge a call
and distance in a deed she executed, superimposed upon proof that the
defendants paid taxes on the disputed area for thirty (30) years. The defendants
present as an issue whether “the trial court should be affirmed in finding that the
boundary line in dispute should be established along the line as testified to by
the defendants’ surveyors.”1
The plaintiff and her husband acquired 100 acres in 1946. On March 15,
1946 they conveyed 46 acres (which included the disputed area) to
Blankenship. This deed included a call and distance of “South 72 deg. East 373
feet,” and was prepared from a survey made by a registered land surveyor.
Blankenship, in 1971, conveyed a portion of this tract, 17.95 acres, to
another Blankenship. This deed included the disputed area, and utilized the call
and distance of South 72 deg. East 373 feet. This 17.95 acre tract was conveyed
to the defendants in 1993. Again, the same call and distance, later disputed,
was utilized. It will be seen from the foregoing that the plaintiff is the
defendant’s predecessor in title.
It is not entirely clear from the record when this controversy arose. The
area in dispute was created in 1946 when the plaintiff conveyed 46 acres to
Blankenship. The complaint was filed July 23, 1996, more than fifty years later,
and after title to the disputed area was transferred three times.
1
The trial court made no such finding.
2
Charles Sterling was employed by the plaintiff to survey her remaining
land, together with the disputed area. None of the descriptions in the various
relevant deeds would close, a common-enough discovery, and Mr. Sterling
conceded that in such instances it was necessary to consider the title history, old
fences and other monuments and the topographical aspects. It is perhaps
noteworthy that Mr. Sterling did not himself conduct the survey, but relied on
his field crew for the requisite information; somewhat strangely, he never
discussed the survey with the plaintiff.2
Much of the expert testimony was given over to assumptions and pure
speculation about the call “South 72 deg. East 373 feet.” Mr. Sterling made two
assumptions, the first of which was based on a survey by Everett and the second
of which involved an asserted transposition error in the 1946 deed to
Blankenship. These assumptions were made by Mr. Sterling in his efforts to
prove that the call “South 72 deg. East 373" was erroneous and unintended.3
But with all the assumptions favorable to the plaintiff, Mr. Sterling conceded
that the description in the initial deed to Blankenship would not close.
The defendants’ surveyor, Mr. Everett, agreed that the descriptions would
not close, and testified that the most feasible solution was to connect the two
known points which would do the least damage to the deed descriptions and
would not compound the closure error. He also opined that Mr. Sterling’s
assumptions were not reasonable in the science of surveying, and that his, Mr.
Everett’s, reliance upon a 50-year-old fence was reasonable and professional
under the circumstances.
2
He was employed by the plaintiff’s son. The plaintiff was not aware that her property was being
surveyed.
3
His rationale included the reliance on a fence which had been in existence for about 25 years. Other
proof established that a fence should be about 50 years old before it may safely be relied upon as a line
monum ent. In any even t, the fence was no t continuous.
3
Our review of the findings of fact made by the trial Court is de novo upon
the record of the trial Court, accompanied by a presumption of the correctness
of the finding, unless the preponderance of the evidence is otherwise. TENN. R.
APP. P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.
1996).
While the defendants advanced various legal theories in the advocation of
their case, we think the preponderance of the evidence supports a finding that
the disputed boundary should be established in accordance with the testimony
of surveyor Everett.
It was in her deed to Blankenship in 1946 that the disputed call first
appeared, and she testified that “we put the line where we wanted it.” Estoppel
by deed is a bar which precludes one party to a deed, and privies, from asserting
as against the other party, and privies, any right or title in derogation of the deed
or from denying the truth of any material facts therein asserted. Davidson
County v. Beauchesne, 281 S.W.2d 266 (Tenn. App. 1955); Denny v. Wilson
County, 281 S.W.2d 671 (Tenn. 1955). We agree with the appellees that since
the plaintiff created the call and distance in her deed to Blankenship she is now
concluded with respect to that call and cannot aver against it.
The evidence does not preponderate against the judgment of the trial
court and is accordingly affirmed. But as we heretofore stated, the judgment
was based solely on a finding that the plaintiff was estopped to deny the
averments of her deed, which did not wholly resolve this controversy. To
resolve it, we reference the drawing prepared by Mr. Everett, and the two points
therein marked ‘B’ and ‘A’. These points should be connected with a straight
4
line, and the closure problem will be resolved. This line will be described as “N
04-18-05 S 270.52 feet to the Boring Boundary.”
Costs are assessed to the appellant.
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Houston M. Goddard, Presiding Judge
_______________________________
Charles D. Susano, Jr., Judge
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