Morrison v. Jones
| Decision Date | 29 March 1968 |
| Parties | Olin F. MORRISON and wife Dorothy Y. Morrison, Appellants, v. W. D. JONES and wife Ozella Jones, Appellees. |
| Court | Tennessee Court of Appeals |
Thurman Thompson, Lewisburg, Womack & Mason, Fayetteville, for appellants.
Stevens & Bagley, Fayetteville, for appellees.
The appellees, W. D. Jones and wife, Ozella Jones, were the complainants below and the appellants, Olen F. Morrison and wife, Dorothy Y. Morrison, were the defendants below, so we will refer to the parties as complainants and defendants in addition to referring to them by name.
On June 18, 1966, the complainants, W. D. Jones and wife, Ozella Jones, filed their original bill in the Chancery Court of Lincoln County, Tennessee, against the defendants, Olen F. Morrison and wife, Dorothy Y. Morrison, and two other defendants who are not now involved in the case, alleging in the bill that the complainants are owners of a certain lot with two houses located thereon situated on West Edison Street in the town of Fayetteville, Tennessee; that the defendants, Olen F. Morrison and wife, Dorothy Y. Morrison, are the owners of a certain lot on West College Street, in the town of Fayetteville, which lies immediately south of the lot owned by complainants; that the property of both complainants and defendants was, at one time, owned as a whole by Mrs. Vallie T. Sloan.
The bill further alleges that, beginning in September, 1965, the defendants constructed a building on their property which building encroached to the extent of three to ten feet over the boundary line between the properties of complainants and defendants and therefore, encroached upon the property of complainants by constructing a portion of their building upon same, also by digging and tearing away six feet of complainants' lot and leaving an embankment or drop-off of approximately nine feet.
The bill further alleges that such encroachment by the defendants on property of complainants was in absolute disregard of complainants' property rights and that the defendants were advised not to encroach upon complainants' property.
The bill prays for proper process, for a mandatory injunction requiring and commanding the defendants to restore complainants' property to its original condition insofar as possible, to remove that portion of the building and drainage structure thereof located upon complainants' property; that the complainants be awarded damages for the injury done to their property and for general relief.
To this bill the defendants, Morrison and wife, filed an answer generally admitting that they owned a lot or parcel of land on West College Street upon which they constructed a building; that the complainants owned a lot or parcel of land on Edison Street, and that the complainants' land and defendants' land adjoined each other.
In such answer, the defendants denied that they had encroached upon complainants' property and specifically alleged that the building constructed by them was wholly upon their own property and further alleging that, although they did, in the process of constructing their building, pile some dirt upon the property of complainants, they aver that this was done with the express consent of complainants.
This answer generally denies that the boundary line between the property of defendants and complainants is located as the complainants allege in their bill.
The case was tried before the Chancellor on December 14th and 15th, 1966, upon oral and documentary evidence, with the exception of discovery depositions of defendant, Olen F. Morrison, and complainant, William D. Jones.
The Chancellor wrote a memorandum opinion which showed that he carefully and thoroughly considered all of the evidence as a result of which he reached the following conclusions:
That beginning in 1964 the defendants acquired land from various owners in Fayetteville, on which the construct a shopping center, which construction work was done by a contractor by the name of Cartwright during the year 1965; that part of the defendants' land fronts on the north side of College Street and runs back north toward the next parallel street called Edison Street, the land in dispute fronting 80 1/2 feet on College Street and running back to a lot supposed to be of the same width owned by the complainants, which lot of complainants fronts on Edison Street.
That in 1946 lots belonging to complainants and defendants composed one parcel owned by Mrs. Sloan, who at that time conveyed the lot fronting on College Street to a Mrs. Diemer and the lot fronting on Edison Street to the complainants Jones and wife, and that the lot fronting on College Street was conveyed to the defendants, Morrison and wife, in 1965.
The conclusion reached by the Chancellor as to the general location of the boundary line between property of complainants and defendants was expressed in the memorandum opinion in the following language:
Then, further on in the opinion, the Chancellor established the boundary line between complainants' and defendants' lots as follows:
In this memorandum opinion the Chancellor further reached the following conclusion:
Pursuant to the conclusions reached by him in this memorandum opinion, the Chancellor entered a decree granting complainants the following relief:
'It is, therefore, ordered, adjudged and decreed by the Court that the boundary line between the property of the complainants, W. D. Jones and wife, Ozella Jones, and the defendants Olen F. Morrison and wife, Dorothy Y. Morrison, begins at an iron pin in the center of the boid d'arc tree and runs in a straight line in a westerly direction to a point in the old Sloan and Muse line one foot North of the North wall of the Morrisons' building occupied by the defendants Brooks and Powers, which point is also 88 inches east of the east wall of the building occupied by A & P and owned by Morrison.
It is further ordered, adjudged and decreed that all of said building and drainage structure lying North of said line between the bois d'arc tree and said point in the old Muse and Sloan line encroaches on complainant's property, which encroachment includes but is not limited to generally the northeast corner of said building and generally all of the drainage structure.
It is further ordered, adjudged, and decreed that a mandatory injunction will issue commanding the defendants Olen F. Morrison and wife, Dorothy Y. Morrison, to remove all of said encroachments from complainants' property and restore complainants' property substantially to its original condition before said encroachments within ninety (90) days from the entry of this decree.' (Tr. pp. 73, 74)
From this decree, the defendants, Morrison and wife, have prayed and perfected their appeal to this Court and filed four assignments of error as follows:
1.
'The Court erred in holding that: 'The northeast corner is designated as a bois d'arc tree which is still there and is agreed to be the tree spoken of in the deed.'
2.
The Court erred in holding that: The building caused to be erected by Morrison or any part thereof, is located on the land of William D. Jones and wife, Ozella Jones.
3.
The Court erred in holding that: Morrison encroached wilfully and intentionally, or at least in such a reckless manner as to amount to a wilful and intentional encroachment.
4.
The opinion of the Court and the decree do not agree.'
It is not necessary for us to burden this opinion with a summary of all of the evidence in the case, but one outstanding fact is that the descriptive calls in both the Jones deed and the Morrison deed mention the bois d'arc tree as being the southern terminus of Jones' eastern boundary and the northern terminus of Morrisons' eastern boundary.
However, this bois d'arc tree is actually 86 feet from Edison Street instead of 79 feet, as called for in the Jones' deed, and is actually 207 1/2 feet from College Street, instead of 210 feet, as called for in the Morrison deed. It is this discrepancy in distances which is the root of this unfortunate controversy.
This makes the case a classic example of necessity for application of the rule that courses and distances must yield to natural monuments, as was held by this Court in Minor v. Belk (1962), 50 Tenn.App. 213, 360 S.W.2d 477; Doss v. Tennessee Products & Chemical Corp. (1960), 47 Tenn.App. 577, 340 S.W.2d 923; Montgomery v. Nicely (1956), 42 Tenn.App. 223, 301 S.W.2d 379.
Many other cases could be cited in support of this rule, although it is generally not applied with as much force in settling disputes involving boundaries of town lots as it is in disputes involving boundaries of...
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Tindell v. West
...on the merits, we are not convinced by the Defendants' argument. Following is a short excerpt from their argument:Morrison v. Jones, 58 Tenn. App. 333, 430 S.W.2d 668 (1968) is probably the fountainhead case. In Morrison, the plaintiffs filed an action against defendants, alleging that defe......
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...(emphasis added). Here, Appellees assert that the trial court followed the precedent set forth in Morrison v. Jones, 58 Tenn. App. 333, 430 S.W.2d 668 (Tenn. Ct. App. 1968), in allowing the offending driveway to remain. In Morrison, the parties disputed the ownership of a piece of property ......
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