Thornburg v. Chase
| Decision Date | 03 April 1980 |
| Citation | 606 S.W.2d 672 |
| Court | Tennessee Court of Appeals |
| Parties | B. B. THORNBURG et ux., and James D. Crowley, et ux., Plaintiffs-Appellees, v. Charles D. CHASE and wife, Mary Chase, Defendants-Appellants. |
E. Patrick Hull, Wilson, Worley, Gamble & Ward, Kingsport, for defendants-appellants.
Lon V. Boyd, Boyd & Everett, Kingsport, for plaintiffs-appellees.
This is a boundary line dispute. Defendants own a tract of land adjoining tracts of land owned by plaintiffs. Plaintiffs in their complaint and defendants in their cross-action asked the trial court to establish their common boundary line pursuant to T.C.A., §§ 16-607 and 16-608.
The property owned by the parties at one time was owned by I. P. Chase, grandfather of defendant, Charles Chase. I. P. Chase devised the property to his sons, Nathan and Charles Ritter Chase, who later orally partitioned the property. Subsequently, the property of Nathan Chase was subdivided into Hemlock Park Subdivision, which was surveyed by O. O. Graham, and a plat based on that survey was recorded in 1946. The Crowleys acquired their lots, a part of the Hemlock Park Subdivision, in 1959, and the Thornburgs acquired their lots, also contained in the subdivision, in 1971. Charles R. Chase conveyed a part of his property by deed dated November 6, 1970 to defendants herein.
Prior to the development of the Hemlock Park Subdivision and at the time Nathan and Charles R. Chase orally divided the property, 1 a fence was constructed between the properties and remained for many years and portions were intact at the time plaintiffs purchased their lots.
The disputed boundary is depicted on the recorded plat of the Hemlock Park Subdivision as a straight line between two set stones, running North 55 degrees, 30 minutes West, over a distance of approximately 1,059.5 feet. The basis for the dispute between the parties originated when, in 1971, defendant Chase engaged Daniel Saxon, a surveyor, to survey defendants' property. Saxon, following the plat, surveyed a straight line between the two set stones; however, the distance marked on the plat is greater than the straight line between the set stones by approximately 9 feet. Each set stone is in the fence line but the fence line bows slightly and at the apex of the bow the straight line is some 10 to 12 feet from the fence.
Subsequent to the survey, plaintiffs began exercising some control over the disputed area and this suit was precipitated in 1977, when defendant constructed a new fence along the line of the old fence. Plaintiffs' suit contended the 1971 Saxon survey established the boundary between the plaintiffs' properties and defendants' property and that defendant Chase had agreed at the time of the survey that the line surveyed by Saxon was the actual boundary line.
The case was tried in April, 1978, and the chancellor rendered judgment in favor of plaintiffs, stating:
(T)he proof shows and indicated conclusively that these parties did agree upon the boundary line.
The Court ... is of the opinion that the Plaintiffs ... established the correctness of the boundary line and that the boundary line is where the official surveyor placed the boundary line, and that from these iron posts along the straight boundary line as contended by the Plaintiffs in this case is the true and correct boundary line in this case.
On appeal, defendants contend that the evidence preponderates against the chancellor's decision.
An unascertained or disputed boundary line dividing the lands of adjoining property owners may be permanently and irrevocably established by a parol agreement between the landowners and the agreement does not fall within the prohibition of the statute of frauds. Webb v. Harris, 44 Tenn.App. 492, 315 S.W.2d 274 (1958); Windborn v. Guinn, 7 Tenn.App. 60 (1928); Rogers v. Taylor & Co., 2 Tenn.App. 445 (1926); 12 Am.Jur.2d, Boundaries, § 78; 11 C.J.S. Boundaries § 67. However, there is no evidence in the record establishing a parol agreement to accept the line established by the Saxon survey as the true boundary line between the parties. The evidence, in fact, supports the opposite conclusion. On cross-examination, Thornburg testified thusly:
Q. (I)n the complaint (you) allege that ... Mr. Chase agreed that (the Saxon survey line) would be the property line. Now who was there when that happened?
A. Are you referring to the date that I talked with Saxon and Scott?
Q. You did not ever talk to Mr. Chase about it?
A. I had never met Mr. Chase before that time.
Q. ... I assume it was during that time that you have alleged that he agreed to something about the property line; did that ever happen?
A. I don't recall saying that he agreed, or I-
Q. In actuality, all he said was, 'I just want what is legally mine'?
A. That's correct; yes, sir.
Q. And there was never any agreement that from now on we will say this is the line or that is the line?
A. No, sir.
Q. That was the only statement of that kind that was made; is that correct?
A. Yes, sir.
Plaintiff Crowley was also unable to recall any conversation wherein Chase agreed to a boundary line:
Q. Now you I believe have related having a conversation with Mr. Chase during the time that the survey was being made. Actually, all that Mr. Chase said was that he wanted what was legally his. Isn't that correct?
A. That's correct.
Q. And that is about all you remember him saying about that?
A. That is the only specific comment that I remember.
Q. Are you actually sure that you even talked to him out there that day?
A. Yeah, I feel very sure of that.
Q. Who was there when you talked to him?
A. Let me withdraw that. I said I was sure that I talked with him. Let me say I am sure I heard him say that, put it that way.
Q. But it wasn't necessarily in conversation with you, was it?
A. Well I don't recall whether it was or not. I was there when the operation was going on, and I suppose that I was talking to those people.
Q. Was there any time that Mr. Thornburg, and you, and Mr. Chase were all down there together and talked this over?
A. I don't recall it.
Defendant Chase testified:
Q. Now, while you were making the survey, I say you were making the survey, you were there and Mr. Saxon was there, did Mr. Crowley or Mr. Thornburg ever talk with you?
A. While we was making the survey?
Q. While you were in that general area?
A. No, sir.
Q. Did you say anything to them?
A. No, sir.
Q. Did they ever point out a proposed boundary line and ask you if you agreed to it?
A. No, sir.
Q. Did you ever make any agreement with them, Mr. Crowley or Mr. Thornburg, as to the location of that boundary?
A. No, sir.
We conclude that the evidence preponderates against the findings of the chancellor, T.R.A.P., Rule 13(d), and this issue is resolved in favor of appellants.
Defendants further contend that plaintiffs failed to prove clearly that they are the owners of the land in dispute, as required in boundary disputes by T.C.A., § 16-607. To prove clearly that the parties are the true owners, simply means:
(T)hat the complainant must prove that he is the true owner or that he had become entitled to the possession of land adjacent to the boundary which he undertakes to have established, ...
Carr v. Wilbanks, 45 Tenn.App. 372, 386, 324 S.W.2d 786, 792 (1958).
The chancellor did not address whether plaintiffs clearly proved they were the true owners of the land. Our review is de novo upon the record of the trial court and the parties are entitled to re-examination of the whole matter of law and fact appearing in the record. Where the evidence preponderates against the finding of the chancellor, it is our duty to enter such decree as the law and evidence warrant. Cultra v. Douglas, 60 Tenn.App. 116, 444 S.W.2d 575 (1969); Loftis v. Stuyvesant Insurance Company, 54 Tenn.App. 371, 390 S.W.2d 722 (1964).
Defendants acquired their property from Charles R. Chase by deed dated November 6, 1970, which described the...
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