                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 15, 2002 Session

                    WILLA BELL HUSKEY v. JERRY MARTIN

                     Appeal from the Chancery Court for Monroe County
                         No. 12,939 Jerri S. Bryant, Chancellor

                                      FILED JULY 12, 2002

                                 No. E2001-02312-COA-R3-CV



This is a property line dispute. The defendant Jerry Martin appeals the trial court’s finding that the
parties’ shared boundary line is as alleged in the original complaint. Martin argues that the evidence
preponderates against the trial court’s factual findings regarding the location of the boundary line.
We affirm the trial court’s judgment.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD,
P.J., and D. MICHAEL SWINEY , J., joined.

Steven B. Ward, Madisonville, for the appellant, Jerry Martin.

Clifford E. Wilson, Madisonville, for the appellee, Willa Bell Huskey.



                                             OPINION

                                                  I.

      The property line in dispute is a portion of the southern boundary of the plaintiff Willa Bell
Huskey’s property. Huskey filed her complaint on April 20, 2000. It alleges as follows:

               That approximately four (4) years ago, the Defendant began removing
               portions of the line fence which was located on the common
               boundary as between the Plaintiff and the Defendant. That in
               approximately 1997, the dispute arose as between the parties as to
               whether or not the Defendant should be removing the fence posts and
                  the attempts by the Defendant at that time to encroach on the
                  Plaintiff’s property.

                                  *               *            *

                  That in early March, 2000, the Defendant, without permission of the
                  Plaintiff, had a large mobile home pulled from Country Side Lane
                  across property belonging to the Plaintiff, after which the mobile
                  home was located across the boundary line of the two properties,
                  leaving the mobile home protruding onto the property belonging to
                  the Plaintiff in the area where the fencing had been removed by the
                  Defendant.

Huskey asked the court to establish and declare the boundary line, and to order Martin to remove his
mobile home from the portion of the property declared to be hers.

        This dispute proceeded to a bench trial on May 17, 2001. The trial court held that “the
Plaintiff had sustained the averments of the Complaint.” It established the boundary line as alleged
in the complaint. The court also ruled that Martin “shall have thirty (30) days from the entry of this
Order within which to remove his mobile home and any other of his personal property from the
property determined to be the property of the Plaintiff.”

                                                      II.

       In this non-jury case, our review is de novo upon the record of the proceedings below, with
a presumption of correctness as to the trial court's factual determinations, unless the evidence
preponderates against those findings. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995).
The trial court's conclusions of law, however, are accorded no such presumption. Campbell v.
Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859
(Tenn. 1993).

                                                      III.

        A statement of the evidence was filed in this Court pursuant to Tenn. R. App. P. 24(c). It
reveals that the parties agree as to the location of the northwest corner of Martin’s property. They
also agree that the northwest corner is located in the southern boundary of Huskey’s property, and
that the line in dispute begins at a one-half inch diameter aluminum pipe marking the aforesaid
corner and proceeds generally east, terminating at the recently-renamed Country Side Lane.1 They
disagree vehemently as to the direction of the disputed line. Huskey argues that the line runs straight


       1
           The earlier name was Old Highway 68.

                                                      -2-
east as a continuation of her southern boundary line, which line actually commences at a point west
of the aluminum pipe. Martin argues that the property line changes direction at the aluminum pipe,
proceeding in a slightly more northeasterly direction than the line claimed by Huskey. The boundary
line claimed by Martin would give him approximately 26 additional feet of frontage on Country Side
Lane.

         In May, 1995, Martin had his property surveyed by Luther D. Hayes. See Appendix. Hayes
testified that he utilized the deeds of the parties to conduct his survey. Hayes further testified, as
recited in the statement of the evidence,

                  that he did find a partial fence which went in a Westerly direction
                  from an existing 1/2" aluminum cap which was shown on the plat he
                  prepared as being a corner of Martin, Huskey, and Bowater, and that
                  extending that line in a straight line in an Easterly direction was along
                  the line claimed by the Plaintiff ... He further testified that there
                  seemed to be something across [Country Side Lane] that tied in with
                  that same straight line claimed by the Plaintiff and that the district
                  line is the line claimed by the Plaintiff.

       Huskey’s deed calls for an eastern boundary line of 744 feet, fronting Country Side Lane.
The line terminates “in the western edge of [Country Side Lane] at a corner with Rankin Holcomb
and a culvert.” Hayes testified that he started at “the ditch or culvert” and measured 744 feet
generally south along the road. According to him, his measurement terminated at the point claimed
by Martin as his northeast corner.

         Huskey testified that she and her husband moved to her property in 1985. She testified that
there were old fence posts that ran in a straight line along the boundary line at issue. Huskey
testified that Martin had removed some of the fence posts, and that in March, 2000, he brought in
a mobile home that extended onto her property some 25 feet.

        Huskey’s son, James A. Huskey, testified at the trial below. The statement of the evidence
reflects his testimony as follows:

                   [T]hat the Southern boundary line of the property began at a pipe at
                   its Southwestern corner and ran in a straight line with both Bowater
                   and Martin along an old fence to a marker which is located on the
                   East side2 of [Country Side Lane]. Mr. Huskey further testified that
                   he had two discussions with Mr. Martin, the second one around 1989,


         2
          It is true that the statement of the evidence reflec ts that M r. Huskey alluded to the “East side” of the road.
This is curious sinc e both the Hu skey and Martin trac ts lie entirely on the west side of that ro ad. In any even t, this
“marker” is not critical to the decision in this case.

                                                           -3-
                  at which time Mr. Martin had removed some of the fence posts and
                  had started mowing some of the property belonging to the Plaintiff[.]

       Travis Holcomb, Martin’s neighbor to the south, testified that he had known the property in
question since 1947. Holcomb stated that his brother had once owned the property now owned by
Huskey. He further testified that

                  it was his recollection that there was a fence which started at the road
                  and went in a straight line passing the Martin property and then the
                  Bowater property in a Westerly direction to Huskey’s Southwestern
                  corner. He further testified that this was a straight line and that it did
                  not change direction and that the fence was definitely there in 1947
                  and that there was a cedar tree in the fence row at the highway.3

       The following excerpt from Martin’s deposition was read as a part of Huskey’s proof:

                  Q: Okay, there was a fence, was there not, or at least a line of posts
                  that ran all the way from [Country Side Lane] all the way back to the
                  western corner?

                  A: Not as long as I can remember. I mean I can’t remember no fence
                  a being there.

                  Q: Well, sir, there were posts there, were there not?

                  A: No, there wasn’t posts there.

                  Q: Did you take some of them down?

                  A: No.

                  Q: You never took a single post down?

                  A: Not except just where I fenced in the front yard and I took them
                  down, but no line fence or anything. I didn’t know there was a line
                  fence there.

       A county tax map was introduced that shows the boundary line at issue running in a
continuous straight line with the district line, a position consistent with the description of the



       3
           No evidence remains of the cedar tree to which Holcomb referred.

                                                       -4-
southern boundary line in Huskey’s deed. The line shown on the tax map is the boundary line
argued for by Huskey.




                                            -5-
                                                 IV.

        Martin contends on appeal that the trial court erred in finding that the evidence preponderates
in favor of Huskey’s position. More specifically, Martin argues the following, as quoted from his
brief:

               The Chancellor gave undue weight to the existence of the district line
               and the disputed testimony about the old fence. The only undisputed
               testimony was the ditch on Plaintiff’s opposite boundary and the call
               for 744 feet from that ditch in Plaintiff’s deed ... The Chancellor
               should have given the greatest weight to the uncontested proof.

       The general rule regarding the disposition of a property line dispute is as follows:

               When determining a boundary line that is in dispute, the court must
               look first to the natural objects or landmarks on the property, then to
               the artificial objects or landmarks on the property, then to the
               boundary lines of adjacent pieces of property, and finally to courses
               and distances contained in documents relevant to the disputed
               property.

Mix v. Miller, 27 S.W.3d 508, 513 (Tenn. Ct. App. 1999). Martin, while acknowledging this
general rule, cites the Supreme Court case of Pritchard v. Rebori, 135 Tenn. 328, 333, 186 S.W.
121, 122 (Tenn. 1916), where the court noted that “this general rule, as to the relative importance
of these guides to the ascertainment of a boundary of land, is not an absolute or inflexible one.” Id.

         We find nothing in the record to support Martin’s contention that the trial court applied the
rule in Mix in an “inflexible” manner. Rather, the record supports the opposite conclusion, i.e., that
the trial court carefully considered and weighed all of the evidence in a manner consistent with the
principles set forth in Mix and Pritchard. Due to the conflicting testimony regarding the existence
of fence poles along the alleged property line, the credibility of the various witnesses was an
important consideration in this case. “When the trial judge has seen and heard a witness's testimony,
considerable deference must be accorded on review to the trial court's findings of credibility and the
weight to be accorded to that testimony.” Cutler-Hammer v. Crabtree, 54 S.W.3d 748, 753 (Tenn.
2001). Based on our review of the record, we find that the evidence does not preponderate against
the trial court’s factual findings underpinning its holding in this case.

                                                  V.

         The trial court’s judgment is affirmed. Costs on appeal are assessed to the appellant, Jerry
Martin. This case is remanded to the trial court for enforcement of the judgment and for collection
of costs assessed below.


                                                 -6-
      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




-7-
