                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    January 10, 2002 Session

      JOE MORGAN, ET AL. v. BARBARA NELL GOOD (GRIMES)
                   Appeal from the Chancery Court for Rutherford County
                          No. 99CV-820    Don R. Ash, Chancellor



                   No. M2001-00683-COA-R3-CV - Filed September 3, 2002


Plaintiffs filed suit against Defendant in order to determine the true boundary line and ownership
of one-half acre of property adjacent to both Plaintiffs’ property and Defendant’s property. The trial
court determined that the boundary line cut diagonally across the disputed property giving
approximately one-quarter acre to Plaintiffs and one-quarter acre to Defendant. Plaintiffs appealed
asserting that they are the true owners of the entire one-half acre and that the trial court was in error
when it established the diagonal boundary line splitting the disputed property. We agree with the
trial judge’s determination of the boundary line and affirm the chancery court’s opinion.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Affirmed and Remanded

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J. and
IRVIN H. KILCREASE , JR., SP . J., joined.

Robert G. Wheeler, Jr., Nashville, Tennessee, for the appellants, Joe Morgan and Donna Morgan.

John H. Baker, III, Murfreesboro, Tennessee, for the appellee, Barbara Nell Good (Grimes).

                                              OPINION

I.      Factual History.

        This dispute arose over one-half acre of property lying between real property owned by
Plaintiffs, Joe and Donna Morgan, and Defendant, Barbara Nell Good. Plaintiffs own approximately
five acres of land purchased in 1996. Defendant owns approximately one and one-half acre of land
purchased in 1993. The disputed one-half acre lies along the boundary between properties owned
by Plaintiffs and Defendant, on Plaintiffs’ east side and Defendant’s west side.


        Plaintiffs claim title to the disputed one-half acre based on their 1996 deed. The description
in this deed was based on a 1976 survey that showed the one-half acre to be included in the
approximately five acres purchased by Plaintiffs. Defendant bases her claim to the one-half acre on
the allegation by the former owner of both parcels of property, Mr. B. M. Hall, that he retained
ownership of the one-half acre until 1999, at which time he quit claimed the one-half acre to
Defendant.

        The dispute over this property arose following a new 1998 survey. An old, partially torn
down, barbed wire fence ran between the one and one-half acre parcel owned by Defendant and the
half acre parcel in question. Plaintiffs believed the half acre to be theirs and had the land surveyed
in order to establish the appropriate boundary lines and re-fence the property. Following the survey,
they determined that a structure owned by Defendant was on “their side” of the property line, within
the half acre in question. They requested that Defendant move this building. Defendant claimed that
the building and the property in question belonged to Mr. B. M. Hall, her grandfather. Thus, after
the dispute arose, Mr. Hall quit claimed this disputed area to Defendant. Plaintiffs then sued for a
determination of ownership and correct boundary lines.

        All of the land owned by Plaintiffs and Defendant, including the one-half acre in question,
was, at one time or another, owned by Mr. B. M. Hall. Various parcels owned by Mr. Hall were
deeded back and forth between family members numerous times over the years. The five acre parcel
was once part of a ten acre tract of land purchased by Mr. Hall sometime between 1960 and 1963.
The deed showing his purchase of this land was not included in the record; however, the boundary
lines of the original ten acre parcel are not in dispute.

       The one and one-half acre parcel of land was once a part of a two acre parcel purchased by
Mr. Hall in 1960. The boundary lines of the original two acre parcel are also not in dispute and are
designated in Mr. Hall’s 1960 deed by merely referencing the roads and other properties bounding
the two acres. In 1963, Mr. Hall owned both the five and two acre parcels of land and deeded the
two acre parcel for the first time. This deed contained a more detailed property description than his
1960 deed, establishing the northern and southern property lines to run 420 feet west from Buckeye
Bottoms Road. This deed reads as follows:

       Fronting 210 feet on the west side of Buckeye Bottoms Road, and running back
       westward between parallel lines 420 feet to B. M. Hall property; bounded on the
       north by Percy Hall; on the east by Buckeye Bottoms Road; on the south by private
       roadway leading from Buckeye Bottoms Road to the residence of B. M. Hall; and on
       the west by B. M. Hall, containing two (2) acres, more or less and being the same
       lands conveyed to the undersigned by J. T. Davenport and wife by deed of record in
       book 134, page 472, Register’s Office, Rutherford County, Tennessee.

        The same two acres were deeded back to Mr. Hall in 1967. At this point, Mr. Hall once again
owned both the ten acre plot and the two acre plot adjoining it. The one half acre in question was
then a part of the two acre plot adjoining the east boundary line of the ten acre parcel. On the same
day, Mr. Hall conveyed to his daughter, Ruth Good, one and one-half acres of the two acre plot. The


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deed evidences the northern and southern boundary line of the one and one-half acre plot to be then
running 300 feet westward from Buckeye Bottoms Road. Thus, Mr. Hall retained one-half acre
between the parcel deeded to his daughter and the ten acres he also owned. The one-half acre in
question had a northern and southern boundary approximately 120 feet long and a eastern and
western boundary approximately 210 feet long. The property description of the one and one-half
acres given to his daughter read as follows:

         Fronting 210 feet on the west side of Buckeye Bottoms Road, and running back
         westward between parallel lines 300 feet; bounded on the north by Percy Hall; on the
         east by Buckeye Bottoms Road; on the south by a private roadway leading from
         Buckeye Bottoms road (sic) to the Hall residence; on the west by B. M. Hall1;
         containing one and one/half (1 ½) acres, more or less, and being a part of the lands
         conveyed to B. M. Hall and wife, Mindia Hall by Bobby Young and wife, Evelyn
         Marie Young, by deed dated April 18, 1967, and of record in Deed Book No.174,
         page 524, Reg. Office, Rutherford County, Tennessee.

        The testimony in the record reflects that in 1968 Mr. Hall and his wife Mindia Hall separated
and he deeded approximately ten acres to her and his son, Randy Hall, on November 21, 1968. This
transfer is the point where problems began regarding ownership of the one-half acre, as the 1968
deed apparently includes the one-half acre in the ten acres deeded to Mindia Hall and Randy Hall.
The property description states as follows:

         Bounded on the north by Percy Hall, John Good, and Davenport; on the east by Percy
         Hall, John Good2, and Buckeye Bottoms Road3; on the south by Patton and Stockard;
         on the west by John Stockard; containing 10 acres, more or less, and being a part of
         the lands conveyed to B. M. Hall and wife, Mindia Hall, by James T. Alsup and wife
         by deed of record in Deed Book 137, page 359, Register’s Office, Rutherford County,
         Tennessee.

The one-half acre in question is on the east side of this parcel of land and would have been between
the ten acres and property owned by John Good.

        The one and one-half acre changed hands three times between 1969 and 1993, when
Defendant obtained the property. In all three deeds, 1969, 1974, and 1993, the property description
is essentially the same:



         1
          This west bo unda ry adjo ins the east boundary of the o ne-half ac re. The prope rty owned by Plaintiff
adjoins the west boundary of the one-half acre.

         2
             John Go od o wned the one and one-half acre parcel to the east.

         3
          B. M . Hall is no t listed as an owne r of pro perty anywhere on the east sid e of the ten acres as he would be if
he had retained the one-half acre.

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        Fronting 210 feet on the west side of Buckeye Bottoms Road and running back
        westward between parallel lines 300 feet; bounded on the north by Percy Hall; on the
        east by Buckeye Bottoms Road; on the south by a private roadway leading from
        Buckeye Bottoms Road to the Hall residence; and bounded on the west by Mindia
        Hall, formerly B. M. Hall, containing one and one-half (1-½) acres, more or less,
        ...

         In 1974, Mindia Hall and Randy Hall deeded five of the ten acres to a Mr. William Murray.
In this deed, the final call of the description extends eastward and does not appear to turn back south
to close the property description. In order to close the description as written, the property line would
have to run southeastward “to the beginning.” This southeast running boundary is the same property
line drawn by Judge Ash in deciding this case. The 1974 deed states as follows:

         Bounded on the north by property now, or formerly owned by Davenport and Percy
         Hall; on the east by Hall and John Good; on the south by a road and Hall and on the
         west by Hall; containing five (5) acres more or less; and more particularly described
         as follows: Beginning on a stake at the SE corner of this tract, and the SW corner of
         John Good lot, thence with road and Hall property, westward 617.6 feet to a stake in
         line of Hall Property; thence with Hall lands northward 395 feet to a stake in line of
         said Davenport property; thence eastward with said Davenport line 489.6 feet to a
         stake in the west line of Percy Hall property; thence with said Percy Hall line
         southward 208 feet to a stake; thence eastward 137 feet to the beginning; . . .

        In 1976, the same five acre piece of property was conveyed to Mr. Everett Baute using the
same property description as the 1974 deed. Mr. Baute had a survey performed after he purchased
the property in 1976, and, when he sold this property in 1980 to Mr. Frank Keeling, he used the 1976
survey description encompassing the entire one-half acre. In 1996, Plaintiff purchased the five acre
parcel based on the 1976 survey showing the whole one-half acre to be included.

        After a hearing, the judge found that “[t]he boundary line between the parties’ property shall
run diagonally from the Northwest corner of the land owned by Percy Hall to the Northeast4 (sic)
corner of the land owned by John Good as reflected by the attached survey.” He based his ruling on
the 1974 deed conveying the five acres to Mr. Murray out of Mindia Hall and Randy Hall’s ten acres.
He determined that the final call directing “thence eastward 137 feet to the beginning” was a mistake
in distance and that “to the beginning” intended to close the property regardless of the exact distance
or direction. He then drew the line diagonally approximately 239 feet southeastward, “to the
beginning.” In this regard, the court stated as follows:
                        This is what I’m going to do. Mr. and Mrs. Morgan, now it’s Mrs.
        Grimes, the problem I’ve got is - - Mr. and Ms. Morgan, this isn’t your fault, to be
        quite honest. I had a deed back here in 1974, right around there, and it says clearly


        4
         As evidenced by the judge’s “attached survey,” this description should state the “southeast” corner of John
Good’s land.

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         what the land’s supposed to be. And we can argue about whether it’s 137 yards or
         200 yards, but the deed says clearly it goes back thence eastward 137 feet to the
         beginning. It doesn’t say straight down, it doesn’t say anything like that. It says to
         the beginning. And I’m going to take that at its word. I’ve got to do that, because
         all of us have different memories.
                           And then I’ve got the same problem over here with Ms. Grimes,
         because her deeds, they just changed them too. As the deed says, it goes up to this
         onep rt ,anddoesn’thavethedistanceon it. Thenthenexttimeitgoesto412feet. AndIaskedwhochangedit,nobodyknowswhochanged
             rope y
it. It just got changed. And that’s the problem. So what - - and I don’t believe adverse possession
is appropriate. I’m not going to find that’s an appropriate remedy in this case.
                           So what I’m going to do is, I’m going to find that Mr. and Ms.
         Morgan, you-all own the property from this corner point right up here, diagonally
         across to the other part. That means you get the property where the trailer was. You
         may have a problem with this metal building or metal house, or whatever that is out
         there. That may be a problem. I’m going to find that, in fact, should be the property
         line.

With regard to the claim of adverse possession, the court went on to find:

                         It wasn’t open, it wasn’t continuous, there’s no way they got
         knowledge of it, it’s - - if I take your theory, if I take your theory out in the country,
         and a lot of this space used to be country, if somebody does a wrong survey - - and
         I’m going to find specifically that this survey that this fellow came up with was
         wrong, there’s no basis for it, based upon my reading of this - - and that if I take your
         theory, somebody goes out and makes a wrong survey, and it lays there for 20 years,
         it becomes somebody else’s property. I may be wrong, but I don’t think that’s what
         the law is.

       Plaintiffs presented three issues for review claiming that (1) they are the true owners of the
disputed property since Mr. Hall divested himself of the one-half acre in 1968 and there is no
evidence that Hall retained ownership of the disputed property after 1968; (2) the trial court erred
in drawing the diagonal boundary across the disputed land, and (3) even if Plaintiffs were not the
lawful owners of the disputed one-half acre, they have subsequently acquired this land by adverse
possession.

II.      Standard of Review.

        Boundary disputes are determined by the chancery court based on Tennessee Code Annotated
section 16-11-106. This section states “it shall be sufficient to establish title in complaint where the
complainant proves clearly that the complainant is the true owner of the lands described in the
complainant’s bill.” Tenn. Code Ann. §16-11-106(b)(2001).

                   In a suit brought pursuant to T.C.A. § 16-11-106, the complainant is not


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       required to prove a complete deraignment of title from the state nor to prove a
       common source of title but is required to prove clearly that he is the true owner of the
       property described in the complaint. As pointed out in Carr v. Wilbanks, 45 Tenn.
       App. 372, 386, 324 S.W.2d 786, 792 (1958), this 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. . . .

               Since this case was tried by the court sitting without a jury, we review the
       case de novo upon the record with a presumption of correctness of the findings of
       fact by the trial court. Unless the evidence preponderates against the findings, we
       must affirm, absent error of law. T.R.A.P. 13(d).

               Any conflict of testimony requiring a determination of the credibility of
       witnesses rests in the first instance with the trial court and will be given great weight
       by the appellate court, unless other real evidence compels a contrary conclusion.

Franks v. Burks, 688 S.W.2d 435, 437-38 (Tenn. Ct. App. 1984).

        Thus, unless the evidence preponderates against the trial court’s findings, we must affirm the
trial court’s ruling, but “[w]here the evidence preponderates against the finding of the chancellor,
it is our duty to enter such decree as the law and evidence warrant.” Thornburg v. Chase, 606
S.W.2d 672, 675 (Tenn. Ct. App. 1980).

III.   Determination of Boundary Lines.

      The law of boundary line disputes is well settled and was eloquently explained by the
Tennessee Supreme Court in 1916.

                The general rule is that in determining boundaries resort is to be had, first, to
       natural objects or landmarks, because of their very permanent character, next, to
       artificial monuments or markers, then to boundary lines of adjacent owners, and then
       to courses and distances. But this general rule, as to the relative importance of these
       guides to the ascertainment of a boundary of land, is not an inflexible or absolute one.

               The use of the rule is as a means to the discovery of the intention of the
       parties. To arrive at the intention of the parties to the instrument is the purpose of all
       rules of construction, and this applies to the description of premises conveyed as well
       as to other parts of the instrument.

Pritchard v. Rebori, 186 S.W. 121, 122 (Tenn. 1916).



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               The primary and fundamental rule to which all others relate and must yield
       is that the intention of the parties gathered from the whole instrument, taken in
       connection with surrounding circumstances, must control.

                We must therefore, in arriving at the true intention of the parties, conform to
       those rules which have been long recognized as best calculated to accomplish that
       end, bearing in mind, too, that there are exceptions to these rules, and that sometimes
       it is apparent that the true intention of the parties does not conform to the conclusion
       which a strict adherence to the rules of interpretation would require.

               ....

               A just and reasonable rule which the courts have long followed in
       harmonizing conflicting calls in a deed or survey is to ascertain which calls are
       locative, and which are merely directory, and conform the lines to the locative calls.
       Directory calls are those which merely direct the neighborhood wherein the different
       calls may be found; whereas locative calls are those which serve to fix the
       boundaries. Therefore locative calls control in case of conflict. It is less likely that
       a surveyor or the parties to the instrument under interpretation would make a mistake
       in describing the exact boundaries than when merely calling attention to the
       neighborhood in which they should be found.

               If the conflict be between locative calls, then those referring to natural or
       fixed objects prevail over those for course and distance, unless this results in an
       absurd conclusion, and one which from the whole instrument and other competent
       evidence was one that was manifestly not intended. This is upon the principle that
       in determining the boundaries of a tract of land it is permissible to disregard calls
       when they cannot be applied and harmonized in any reasonable manner, and thus
       reject a call which is manifestly false or mistaken.

Cates v. Reynolds, 228 S.W. 695, 696 (Tenn. 1921) (citations omitted).

        It should also be noted that “the overriding purpose of all rules of construction is the
ascertainment of the intention of the parties. This is done by considering the deed as a whole without
regard to formal divisions and parts, and by giving all words in the deed their usual and appropriate
meaning.” Rolen v. Rolen, 423 S.W.2d 280, 282 (Tenn. Ct. App. 1967) (citations omitted). It is also
a well settled rule that “in the absence of ambiguity or irreconcilable conflict in the provisions of a
deed, parole evidence is not admissible to contradict, add or explain the provisions of the deed.”
Id.

       The difficulty begins with the March 11, 1974 conveyance from Mindia and Randy Hall to
William Murray and wife. The last call in the description is “thence eastward 137 feet to the
beginning.” In order for this line to get to the beginning, which was “a stake in the SE corner of this


                                                  7
tract, the SW corner of John Good lot, . . .” the distance in this call would have to be 239 feet rather
than 137 feet. This same problem was carried forth in the September 21, 1976 deed from Murray
to Everett Baute and wife. Shortly after he purchased the property, Everett Baute had the land
surveyed, and his surveyor ran this last call line, not to the beginning as the Hall and Murray deeds
had provided, but rather 136.9 feet in an easterly direction to a “pin in F.C.” From this latter point,
in order to close to the beginning, the surveyor added a final call “south 16 degrees 43 minutes west
194.1 feet” to reach the beginning. In so doing, the surveyor encompassed within the Baute tract the
entirety of the one-half acre in issue. Baute then, in his conveyance in 1980 to Frank Keeling, used
the 1976 survey description in conveying the property rather than the description contained in the
deed from Murray to Baute. In the December 18, 1996 conveyance from Frank Keeling to Plaintiff,
Joe Morgan, the same description from the 1976 survey was used.

        Thus, we have a deed to Baute that either left out a final call and distance to close or
erroneously stated the distance to close to be 137 feet rather than 239 feet. There is no evidence in
the record to support the action of the 1976 surveyor enclosing the property description by adding
an additional call not included in the deed of conveyance by which Baute received the property.

        The chancellor made his determination based on the 1974 deed from Hall to Murray and the
1976 deed from Murray to Baute, thus running the final call diagonally across the disputed land 239
feet “to the beginning.” The chancellor correctly applied the rules of deed construction and parol
evidence in an effort to determine the true boundary line, determined that “to the beginning”
prevailed over the 137 feet distance as reflected in the final call, and ran the line 239 feet to the point
of beginning.

       Defendant bases her claim to the entire one-half acre on the allegation that her grandfather,
B.M. Hall, retained this one-half acre. But, due to the unambiguous property description in the 1968
deed conveying ten acres to his wife and son, it is obvious that Mr. Hall retained no such portion of
the property.

       The scant evidence in the record relative to the possession and use of this disputed property
during the years is insufficient to provide a basis for open, notorious, exclusive, adverse use that
would support adverse possession, and the chancellor correctly so held.

       The judgment of the trial court is in all respects affirmed and costs are assessed to the
appellant.

                                                         ___________________________________
                                                         WILLIAM B. CAIN, JUDGE




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