August 13, 2008

Conflicting surveys are subject to Court's review of the ambiguous and contradictory evidence supporting them

BART LAY ET AL. v. HOWARD HOLMES ET AL. (Tenn.Ct.App. August 13, 2008).

In this boundary dispute, the trial court had to choose between conflicting surveys. After a trial, the court determined that the survey for the defendants was correct due to the failure of the plaintiffs' surveyor to locate a landmark beech tree. We affirm.

Opinion may be found at TBA website:

"[This case] contains conflicting evidence, the recollections of elderly members of the community, errors in deeds, deeds describing the property boundaries by who borders the property rather than by landmarks, and boundary descriptions using landmarks such as trees which may or may not exist today." Id.

"The court made a factual determination that the beech tree identified ... was the tree mentioned in the deeds. It is the oldest in the hollow, it is clearly old enough to be the one in the deeds, and it is located near a spring. This is a crucial factual determination that is central to the dispute. ...The spring located near the beech tree was identified by Mitchell Adcock as Boles Spring. While others identified a spring to the north as Boles Spring, the presence of the beech tree by this spring lends much credence to the trial court’s decision that this spring is indeed Boles Spring." Id.

"The second point implicit in the trial court’s endorsement of the Denny survey is that the old fence line upon which the Bradley survey relies is not a boundary. Bradley believed it was a boundary because it ran northward as the Lay deed recited, it had no gates, and it ended up around the area where the boundary agreements came together. The error in the deeds undercuts Bradley’s first reason. Testimony indicated that the fence was built by Mr. Baker, the prior owner of the property, to fence in his goats. This makes sense, in light of the fact that while a steep hollow may deter cows from wandering, steep terrain will not deter a goat. To keep the goats from wandering away up or down the hollow, a fence was a necessity. The fact that the fence ended up around the area where the boundary agreements came together is not a determinative factor. The apparent lack of gates is not determinative either. " Id.