Wood v. Starko

Decision Date12 April 2006
Docket NumberNo. M2004-02774-COA-R3-CV.,M2004-02774-COA-R3-CV.
PartiesJack WOOD et ux Vickie E. Wood v. Dan G. STARKO, et ux Laurie D. Starko, et al.
CourtTennessee Court of Appeals

James A. DeLanis, Nashville, Tennessee, for the appellants, Dan G. Starko and Laurie D. Starko.

Wayne Detring, Hendersonville, Tennessee, for the appellees, Jack Wood and Vickie E. Wood.

OPINION

WILLIAM B. CAIN, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., and FRANK G. CLEMENT, JR., J., joined.

This action seeks a declaration placing the boundary between two adjacent properties and a claim for damages by one landowner against the other. The trial court placed the boundary line based on pins marking the Corps of Engineers' line, an adjacent landowner, and denied the award of damages. We reverse the judgment of the trial court.

This case concerns a boundary dispute between two adjoining landowners in the Winston Place subdivision on Old Hickory Lake in Sumner County, Tennessee. The subdivision was developed in 1973 and the subdivision plat was recorded the same year. At that time, James Jackson owned the two adjoining lots, 4 and 5, which are at issue in this case. In 1990, Mr. Jackson retained Wayne Diel to survey both properties and based upon that survey, Mr. Jackson built a concrete sidewalk along what he believed to be the boundary line on lot 5, providing lot 5 with access to the lake, the dock, and the side yard.

In January 1997, Dan and Laurie Starko bought lot 5 from Mr. Jackson. In August 1999, Jack and Vickie Wood bought lot 4 from Bob and Beth Pritchard, who had previously purchased lot 4 from Mr. Jackson. The disclosure statement provided by the Pritchards to the Woods at closing noted that the Starkos' rear sidewalk was an encroachment on the property which may affect their ownership interest. Relying on this assertion, Mr. Wood hired a surveyor, Steven Artz, to determine the boundary line between lots 4 and 5 and the ownership of the sidewalk. Mr. Artz ultimately determined that the entire sidewalk was on the Woods' property. At this time, the Starkos were building a pool in their backyard, and an agreement regarding the use of the sidewalk was reached between the parties so that construction could continue.

However, civilities between the parties apparently ceased on November 30, 2001, when Mr. Starko and Mr. Wood met to discuss the sidewalk. Although the details of the discussion are disputed, it is uncontroverted that the next morning, Mr. Wood had a crew destroy the 30-foot section of the sidewalk which was allegedly on lot 4 and erect chicken wire along the believed boundary line. The Starkos assert that while tearing out the sidewalk, Mr. Wood's crew damaged underground electrical wiring for security lights and an irrigation system and that the crew's demolition increased the costs of building the pool because the Starkos' men and equipment were no longer permitted to traverse between the homes.

After the destruction of the sidewalk, the Starkos employed Mr. Diel to re-survey the properties. Mr. Diel concluded that based on the original recorded subdivision plat and the developer's original concrete monuments, the sidewalk was located completely on the Starkos' property. However, in March 2002, the Woods employed Bruce Rainey to survey the properties. Mr. Rainey concluded that the original subdivision boundaries had to be shifted in order to meet the pins in the Corps of Engineers' line, an adjacent landowner, and in doing so, the sidewalk was located on the Wood's property.

Finally, the Starkos commissioned Jackie Dillehey to study the findings of Mr. Diel, Mr. Artz, and Mr. Rainey and to determine the proper placement of the boundary line. Mr. Dillehey concluded that the rear boundary line of the lots and the Corps of Engineers' line clearly did not meet but that the original recorded plat had to control. By maintaining the boundary line established in the original subdivision plat and merely extending the line to meet the Corps of Engineers' line, the entirety of the sidewalk remained on the Starkos' property.

On July 30, 2002, the Woods filed a suit in the Sumner County Chancery Court seeking a declaration placing the boundary line between lots 4 and 5. The Starkos filed a counterclaim asking the trial court to recognize the property boundaries in the original recorded plat and seeking damages for the removal of the sidewalk. After a bench trial, the court determined that the boundary line should be drawn consistent with Mr. Rainey's testimony. Although the trial court dismissed the Starkos' counterclaim in its final order, the court made a provisional oral ruling that if the Court of Appeals were in disagreement as to where the court placed the boundary line, then the Starkos proved damages of $2,225 for the destruction of the sidewalk. The Starkos filed a timely notice of appeal.

On appeal, the Starkos contend that (1) the trial court erred in determining that the sidewalk was on the Woods' property by drawing the boundary line consistent with Mr. Rainey's testimony; and, (2) the trial court's statements concerning the Starkos' damages should not be given effect because the statements were superceded by a subsequent written order.

The review of a decision rendered in a boundary dispute is de novo upon the record with a presumption of correctness as to the trial court's findings of fact, unless the evidence preponderates against those findings. Boarman v. Jaynes, 109 S.W.3d 286, 290 (Tenn.2003). In order for the evidence to preponderate against the trial court's findings of fact, the evidence must support another finding of fact with greater convincing effect. Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.Ct.App.2001).

The Starkos first assert that the trial court improperly applied the priority of markers and that such application was contrary to the intent of the developers of the subdivision. The trial court stated in its oral ruling on June 11, 2004:

To the issue of the property line between Lots 4 and 5. Of course, the Court examined the testimony of the four expert witnesses, those of Mr. Wood and Mr. and Mrs. Starko. The Court also examined the exhibits. The Court also looked at several cases. One of those cases, Thornburg v. Chase 606 S.W.2d 672 (1980). In that case, that's a Tennessee Appeals case, in that case at page 672 reads: "In determining disputed boundaries resort is to be made first to the natural objects or landmarks, because of their very permanent character. Next, the artificial monuments or marks. Then, the boundary lines of adjacent land owners. And then, the courses and distances."

There is no evidence in this case of any natural objects or landmarks. The artificial monuments are concrete monuments and iron pins that have been set by surveyors. The Court did not overlook originally found broken concrete monument or consider the testimony somehow that it was wrongly set. I considered that by Mr. Rainey. I considered that testimony, did not necessarily find that it was somehow erroneously set or who set it. What the Court finds is that there is a T-bar, Corps of Engineers' pin just below that broken concrete monument that was found recently.

In looking at the testimony of these expert witnesses, the Court does, even looking and disregarding these erroneously setting testimony, the Court accepts the testimony of Bruce Rainey as it relates to the boundary line between Lots 4 and 5. To do otherwise, is to have land at the rear of Lots 4 and 5, owned by Dotson & Rhoten Development Company Incorporated. In other words, the Court makes a finding that it was the intent of Dotson & Rhoten that the rear boundary of Lots 4 and 5, extends to the Corps of Engineers' property lines. And this is keeping with Thornberry & Chase, where we do take a look in that order, the boundary line of adjacent land owner. I look at the boundary line of adjacent land owner which is the Corps of Engineers.

It was not the intent of the corporation to retain land between the Corps' line and the rear of lot Line 4 and 5. Mr. Starko obtained a Quitclaim Deed from Dodson & Rhoten Development Incorporated conveying any of that land to him. His counter-complaint also states that it was the intent of Dodson & Rhoten to extend the boundary line to each of its lots to the Corps of Engineers' property. It appears that both parties would be in agreement on that issue.

Having established that the boundary line as that drawn by Mr. Rainey, then the counter-complaint is dismissed.

The priority of markers in a boundary dispute is well settled in Tennessee. As the trial court noted in its oral ruling, in Thornburg v. Chase, 606 S.W.2d 672, 675 (Tenn.Ct.App.1980), this Court stated that "[i]n determining disputed boundaries, resort is to be had first to natural objects or landmarks, because of their very permanent character; next, to artificial monuments or marks, then to the boundary lines of adjacent landowners, and then to courses and distances."

Based on the testimony of Mr. Rainey and the Thornburg case, the court concluded that the boundary line between lots 4 and 5 should be re-drawn according to the Corps of Engineers' pin, which is an adjacent landowner boundary line created 11 years after the subdivision plat at issue in this case. In doing so, the court showed no regard for the priority of the original concrete marker and erroneously placed the importance of original artificial markers secondary to the boundary line of an adjacent owner.

Relying on Thornburg, the court reasoned that the developers must have intended to align the boundary line between lots 4 and 5 with the Corps of Engineers' pin, otherwise, the developers retained the land between the Corp of Engineers' line and the rear lines of lots 4 and 5. While we agree that the developers...

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