RALPH DAVIS, ET AL. v. DANIEL CUEL, ET AL. (Tenn.Ct.App. December 27, 2007).
In this boundary line dispute, Ralph Davis and his wife Jackie Davis ("the Davises") sued Daniel Cuel and Francine Cuel ("the Cuels"), alleging that the Cuels had improperly claimed a portion of the Davises' property as their own. Existing surveys supported the Cuels' claim, but the Davises asserted that a prior agreement gave them the right to an additional 0.42-acre tract ("the southern disputed area") on the Cuels' side of the survey boundary. The Cuels, meanwhile, believed that they were entitled to more land than the existing surveys indicated, so they hired a surveyor, Dave Bruce, to conduct a new survey ("the Bruce survey"). The Bruce survey indicated that the Cuels are entitled not only to the southern disputed area, but also to an additional area north of it ("the northern disputed area"), on what the earlier surveys had regarded as the Davises' side. The Bruce survey further indicated that an additional tract claimed by the Davises, immediately north of the northern disputed area, is actually a county right-of-way.
The trial court adopted the Bruce survey and awarded both the northern and southern disputed areas to the Cuels. As a consequence of this ruling, the Davises, the plaintiffs in this case, actually end up with less land than they started with. They appeal, claiming that the evidence preponderates against the court's factual findings, and also that they should have prevailed on a theory of estoppel or acquiescence. We hold that the evidence does not preponderate against the court's findings, and, even assuming that the Davises did not waive their alternative theories of recovery at trial, the evidence does not support those theories. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/davisr_122707.pdf
"Disregarding the deposition, we find no merit in the Davises’ claim that the evidence preponderates against the trial court’s findings. The Davises note that the Bruce survey contradicts four earlier surveys, including Mr. Crutchfield’s, which all showed the boundary line at the same place. However, as noted earlier, Mr. Bruce testified that his was a “virgin” survey, and the court was entitled to credit it over the prior, non-virgin surveys; the number of previous surveys reaching a contrary conclusion certainly does not create a preponderance where those earlier surveys were, according to testimony that the court was entitled to accept, all built upon one another. Similarly, it is not dispositive that the parties’ own deeds lack any reference to the right-of-way that the Bruce survey defines as the boundary. The testimony indicated that Mr. Bruce relied on documents which pre-dated those deeds, including deeds that preceded them in the chains of title. The court was entitled to believe that the “virgin” Bruce survey, based in part on early deeds and tax maps that Mr. Crutchfield did not consider, more accurately describes the boundary in question than the Crutchfield “retracing” survey does." Id.
