U.S. v. Kubalak

• Court: U.S. District Court — Western District of North Carolina
• Writing for the Court: Thornburg
• Citation: U.S. v. Kubalak, 365 F.Supp.2d 677 (W.D. N.C. 2005)
• Decision Date: 15 April 2005
• Docket Number: No. CIV. 1:03CV220.,CIV. 1:03CV220.
• Parties: UNITED STATES of America, Plaintiff, v. Herbert E. KUBALAK; Troy Steven Messer; J. Randy Herron; Herron Land Surveying, PC, a/k/a Herron Surveying, PC; Amy R. Murray, in her official capacity as Register of Deeds for Haywood County, North Carolina; Norman Doyle Green, Jr.; Rickey Ogle and wife, Crystal D. Ogle; Thurman A. Evans, Jr., and wife, Brenda Evans; United Community Bank; and Gavin A. Brown, Trustee, Defendants.

365 F.Supp.2d 677

UNITED STATES of America, Plaintiff, v. Herbert E. KUBALAK; Troy Steven Messer; J. Randy Herron; Herron Land Surveying, PC, a/k/a Herron Surveying, PC; Amy R. Murray, in her official capacity as Register of Deeds for Haywood County, North Carolina; Norman Doyle Green, Jr.; Rickey Ogle and wife, Crystal D. Ogle; Thurman A. Evans, Jr., and wife, Brenda Evans; United Community Bank; and Gavin A. Brown, Trustee, Defendants.

No. CIV. 1:03CV220.

United States District Court, W.D. North Carolina, Asheville Division.

April 15, 2005.

Paul B. Taylor, Asheville, NC, for Plaintiff.

Russell L. McLean, III, Jeffrey W. Norris, Waynesville, NC, for Defendants.

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THIS MATTER is before the Court on Plaintiff's motion for summary judgment filed November 23, 2004.

The case arises out of a boundary dispute, claims of trespass, and the filing of survey maps and deeds of conveyance by the Defendants on public records, which Plaintiff alleges include Government land. Other acts of alleged trespass are the building of fences and new roads, and the widening and use of an existing U.S. Forest Service (Forest Service) road on Government lands without authority. Plaintiff seeks declaratory and injunctive relief as well as damages. Defendant Troy Steven Messer ["Defendant" or "Messer"] has responded and denies Plaintiff's right to the relief sought.

I. STANDARD OF REVIEW

Under the Federal Rules of Civil Procedure, summary judgment shall be awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As the Supreme Court has observed, "this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."

Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir.2003) (quoting Fed.R.Civ.P. 56(e) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (citing Anderson, supra). "Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat, 346 F.3d at 522 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If this showing is made, the burden then shifts to the non-moving party who must convince the Court that a triable issue does exist. Id.

A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denial of [his] pleadings," but rather must "set forth specific facts showing that there is a genuine issue for trial." Furthermore, neither "[u]nsupported speculation," nor evidence that is "merely colorable" or "not significantly probative," will suffice to defeat a motion for summary judgment; rather, if the adverse party fails to bring forth facts showing that "reasonable minds could differ" on a material point, then, regardless of "[a]ny proof or evidentiary requirements imposed by the substantive law," "summary judgment, if appropriate, shall be entered."

Id. (quoting Fed.R.Civ.P. 56(e) and Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987)) (other internal citations omitted). Moreover, in considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Other than Defendant Messer, no other Defendant has filed a response to the Plaintiff's motion for summary judgment. Thus, as to these Defendants, the Court determines that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show there is no genuine issue as to any material fact [and] the [Plaintiff] is [therefore] entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

II. DISCUSSION

The parties have agreed that Plaintiff's chain of title is correctly set forth in its Exhibits 3-A through 3-L and that Defendant's chain of title is correctly set forth in Plaintiff's Exhibits 4-A through 4-S. See Exhibits 3-A through 3-L and 4-A through 4-S, attached to Plaintiff's Motion for Summary Judgment ["Plaintiff's Motion"], filed November 23, 2004; Defendant Messer's Brief in Support of Opposition to Summary Judgment ["Defendant's Brief"], filed December 8, 2004, at 4. These instruments reflect that both parties rely on titles originating in a common source known as the James R. Love lands.

A standard and acceptable method of proving superior title to real estate in North Carolina is accomplished by a plaintiff "connect[ing] the defendant with a common source of title, and show[ing] in himself a better title from that source." Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889); Brothers v. Howard, 57 N.C.App. 689, 691, 292 S.E.2d 139, 141 (1982).

A description of both Plaintiff's and Defendant's lands first appears in the March 1890 decree recorded in Haywood County, North Carolina, Register of Deeds, in Deed Book 1 page 1, known as the Scottish Timber Reserve. Plaintiff's Exhibit 3-A. This decree conveys "a tract of forty five hundred acres of land" to the Scottish Carolina Timber & Land Co., Ltd. Id, at 1. It excepts from this conveyance "a tract of fifty acres known as the Messer tract ... situate on the long arm of said Mt. Sterling, lying on the top and extending over on both sides thereof, and embraced within marked lines [.]" Id, at 2-3. No metes or bounds are given or references otherwise designated to locate the Messer tract on the ground. A small hand drawing shown on a survey map of the 4,500-acre tract attached to the March 1890 decree does not attempt to show a precise location. Id. Thus, "at the time of the Scottish Timber Decree[,] not enough information existed of record to adequately and accurately locate the Messer Tract of record, although such Decree was sufficient to define the U.S. Tract, subject to the Messer Tract being rendered certain." Exhibit 1, Expert Report of Steven I. Goldstein, attached to Plaintiff's Motion, at 2; see also, Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); State v. Brooks, 279 N.C. 45, 181 S.E.2d 553 (1971); Foreman v. Sholl, 113 N.C.App. 282, 439 S.E.2d 169 (1994).

The Plaintiff's chain of title continues by successive deeds recorded in the Haywood County Register of Deeds. See, Plaintiff's Exhibits 3-B, Deed recorded at Deed Book 1, Page 56, on December 13, 1890; 3-C, Deed recorded at Deed Book 20, Page 562, on July 15, 1905; 3-D, Deed recorded at Deed Book 21, Page 32, on July 15, 1905; 3-E, Deed recorded at Deed Book 30, Page 94, on February 24, 1910; 3-F, Deed recorded at Deed Book U, Page 301, on January 30, 1914; 3-G, Deed recorded at Deed Book 60, Page 84, on June 3, 1921; 3-H, Deed recorded at Deed Book 65, Page 427, on January 29, 1924; 3-I, Deed recorded at Deed Book 65, Page 445, on February 2, 1924; 3-J, Deed recorded at Deed Book 73, Page 613, on May 3, 1927 (This deed is a conveyance out to Carolina Power & Light Co. for 100.24 acres out of the larger tract subsequently conveyed to Plaintiff and not a part of this dispute between the parties.); 3-K, Deed recorded at Deed Book 82, Page 245, on December 16, 1929 (This deed conveys back 51.3 acres of the 100.24 acres no longer needed for power line and tunnel use.); 3-L, Deed recorded at Deed Book 97, Page 203, on December 22, 1936. The December 22, 1936, deed conveys to the Plaintiff 21,513.70 acres and includes the 4,500 acres first described in the Scottish Timber Reserve Decree recorded in Haywood County in March 1890 at Deed Book 1, Page 1. Plaintiff's Exhibit 3-L; Exhibit 3-A, supra.

Up to this point in Plaintiff's chain of title, the Defendant's land was simply referred to as the Messer Tract exception. Neither of the aforementioned deeds sought to convey the Messer Tract, nor did any deed describe the Messer exception by metes and bounds or other reference to a specific description. However, in this last deed identified as Plaintiff's Exhibit 3-L, the Messer Tract exception is described by metes and bounds as follows:

to Corner 12, a point at intersection of Carolina Power and Light Company line with W.D. Messer line.

Thence with four lines of W.D. Messer, N. 50 04' W. 7.60 chains¹ to corner 13, a 3" chestnut (dead) growing from a 48" chestnut stump on south slope of spur ridge, 1.00 chain Northeast of branch. Bearing tree: a 12" black gum S. 27 W. 0.18 chain.

S. 37 58' W. 24.40 chains to Corner 14, a stake on west slope of spur ridge. Bearing tree: a 5" chestnut N. 24 E. 0.20 chain, a 3" locust S. 36 E. 0.09 chain and a 3" sourwood S. 78 E. 0.10 chain.

S. 51 50' E. 18.55 chains to Corner 15, a planted stone on south slope of spur ridge. Bearing trees: an 8" chestnut N. 44 E. 0.25 chain, a 16" chestnut S. 14 E. 0.25 chain and an 8" black gum S. 66 W. 0.40 chain.

N. 38 34' E. 17.54 chains to Corner 16, a point at intersection of W.D. Messer's line with line of Carolina Power and Light Company. Corner 5 of Tract # 31a bears N. 38 34' E. 3.57 chains.

Plaintiff's Exhibit 3-L, at 223-24 (footnote added). This excepted Messer Tract is also shown on the plat attached to Goldstein's report. See, Plat of U.S.F.S. Surveys Pisgah N.F. Haywood Land & Timber Company, dated April 6, 1937, included in Exhibits, attached to Plaintiff's Exhibit 1, Goldstein Report, supra. The field notes of the surveyors...