                      IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT NASHVILLE
                                                               FILED
                                                              November 19, 1997
ANDREW D. MITCHELL and wife,     )
VIRGINIA K. MITCHELL,            )
                                                               Cecil W. Crowson
                                 )
                                                             Appellate Court Clerk
    Plaintiffs/ Appellants,      )           Cannon Circuit No. 2960
                                 )
v.                               )
                                 )           Appeal No. 01A01-9605-CV-00226
MELVIN C. RENO and wife, ALTA M. )
RENO, and EDDIE ALFORD,          )
                                 )
    Defendants/Appellees,        )
                                 )


               APPEAL FROM THE CIRCUIT COURT OF CANNON COUNTY
                          AT WOODBURY, TENNESSEE


                    THE HONORABLE ROBERT E. CORLEW, III, JUDGE



For the Plaintiffs/Appellants:        For the Defendants/Appellees:

John B. Melton, III                   Frank Buck
Murfreesboro, Tennessee               Smithville, Tennessee



                                      AFFIRMED



                                      HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.


DAVID R. FARMER, J.
                                             OPINION

        This is a boundary line case. The litigants are adjacent landowners. Appellants initiated

proceedings against Appellees for the wrongful cutting of timber. Appellees then filed a counter-

claim asking the trial court to establish the boundary between the adjacent tracts of land. The trial

court established the boundary line in favor of Appellees but found that Appellants were entitled to

damages for timber cut from their property. We affirm.

        In 1995, Appellants Andrew D. and Virginia K. Mitchell (“Mr. and Mrs. Mitchell”),

purchased a tract of land in Cannon County, Tennessee. In 1988, Appellees Melvin and Alta Perkins

Reno ( “Mr. and Mrs. Reno”) purchased an adjacent tract of land from Mrs. Reno’s mother, Pearl

Perkins. Defendant Eddie Alford is the timber cutter the Renos hired to cut timber on the land in

dispute.

        Both the Renos and the Mitchells claim ownership of a 23 acre tract of land along the border

of their properties. The land in dispute is extremely steep and uneven and cannot be cultivated. The

only economic use for the land appears to be for timber cutting. Near the southern boundary of the

property in dispute is a unique geological formation known as a “windcave” or “blowhole.” During

winter, water flowing from the windcave unites with the cool air, forming a thick bank of fog which

rises into the air above the blow hole. This creates the effect of smoke rising.

The initial deeds covering the property in question date back over 100 years and provide for specific

distances and courses in the description of the real estate. However, these descriptions disappear in

deeds executed after in 1911. More recent deeds describe the land by reference to adjacent tracts of

land.

        Two fences are located on the disputed tract, and those two fences form the northern and

southern boundaries of the disputed territory. Generally, the Mitchells’ land lies to the south of the

land owned by the Renos. The Mitchells contend that the northern fence is the correct boundary

line; the Renos claim the southern fence as the correct boundary. It is undisputed that an accurate

survey of the land, following only the courses and distances referred to in the old deeds, establishes

the boundary along the northern fence row and in favor of the Mitchells’ claim.

        The Perkins, Mrs. Reno’s parents, owned the property from 1922 until it was sold to the

Renos in 1988. For a period of over 30 years, from the 1940's to the early 1970's, the Perkins

occupied and used the disputed land and operated as though the boundary was the southern fence

line. During that time, Mr. Perkins cut timber on the land and parceled out the land for
sharecropping. Melvin Reno testified that, during that period, he had cut timber on the property at

the direction of Mr. Perkins and had also made repairs to the southern fence row. From the early

1970' s until December, 1993, the disputed land was not used for grazing, cultivation or harvesting

of crops or for any other purpose that would indicate a possessory interest by any party.

        Harold Foster was reared on the Mitchell property, and he testified that the windcave was

located on the tract now owned by the Renos. Other witnesses testified that it was generally believed

in the community that the windcave was located on land belonging to the Renos and their

predecessors in title.

        In 1966, O.B. Harper bought from a Mr. Duke the tract of land now owned by the Mitchells.

Duke did not know the location of the boundary; therefore, prior to the sale, Duke, O.B. Harper, Jim

Perkins, Mr. Stacey, who was Perkins’ sharecropper, and Norris Perry went onto the property. At

that time, Duke and Perkins, the property owners, ascertained and agreed upon the boundary line.

The men set an iron pin in the ground near a maple tree and set the boundary as an imaginary line

running from the maple tree to the fence, along the southern fence row to the western side of the

disputed land to a point where the Underwood, Duke and Perkins properties met. The pin is still in

place, and a photograph of the pin was introduced at trial. All those present at the time the boundary

was established in 1966 have died except for Norris Perry. At trial, Mr. Perry testified as to the

existence of the 1966 agreement among the landowners.

        After considering the evidence, the trial court determined that the evidence of both the 1966

agreement and the possession and use of the land by prior owners preponderated over the courses

and distances descriptions contained in the older deeds. Therefore, the trial court determined that

the boundary line between the Mitchell and Reno tracts was that asserted by the Renos. Nonetheless,

the trial court found that Alford and Reno had cut some timber belonging to the Mitchells and

awarded the Mitchells a judgment against Alford and the Renos for $4,800.00. The Mitchells now

appeal the decision of the trial court.

        On appeal, the Mitchells argue that the decision of the trial court is contrary to the

preponderance of the evidence. Our review of this case is de novo upon the record with a

presumption of correctness of the findings of fact by the trial court. Absent error of law, the trial




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court’s decision will be affirmed, unless the evidence preponderates against the factual findings.

Tenn. R. App. P. 13(d). No presumption of correctness attaches to the trial court’s conclusions of

law. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

       The Mitchells argue that the trial court erred in recognizing the boundary line established in

the 1966 agreement. They maintain that a boundary was established by a deed dated in 1878 and

recorded in 1881. They argue further that the same boundary was established by a court sale in 1905

and set forth in a deed recorded in 1908. Therefore, the Mitchells assert that the Renos had notice

of the correct boundary line. In Tennessee, adjacent property owners may establish their boundary

lines by agreement when there is no certain and established line known to them. King v. Mabry, 71

Tenn. (3 Lea) 237, 245 (1879); Franks v. Burks, 688 S.W.2d 435, 438 (Tenn. App. 1984); Winborn

v. Alexander, 279 S.W.2d 718, 726 (Tenn. App. 1954). The Mitchells contend that since there was

an established boundary line, the previous landowners could not establish a different boundary line

by oral agreement in 1966. However, even if the previous landowners could have easily ascertained

the correct boundary, the testimony at trial established that they in fact did not know the boundary,

and entered into the 1966 agreement in order to resolve the dispute. Such an agreement may be

enforced where there was an “honest ignorance” among the landowners regarding the location of the

boundary. Galbraith v. Lunsford, 87 Tenn. 89, 98-99, 9 S.W. 365, 368 (1888).

       Generally, contracts and agreements concerning real estate are governed by the Statute of

Frauds and must be reduced to writing. However, oral agreements governing disputed boundary

lines are not subject to the Statute of Frauds, and such agreements are binding upon the parties and

their successors in ownership. Franks v. Burks, 688 S.W.2d at 438; Thornburg v. Chase, 606

S.W.2d 672, 674 (Tenn. App. 1980); Webb v. Harris, 315 S.W.2d 274, 277 (Tenn. App. 1958). The

oral agreements need not be reduced to writing in order to be binding. Webb, 315 S.W.2d at 277.

Parties to oral agreements establishing property lines and their successors are estopped to question

the line so established even if it is determined afterward that the line was erroneously fixed.

Galbraith, 87 Tenn. at 99, 9 S.W. at 368; Hendrix v. Yancy, 355 S.W.2d 453, 460 (Tenn. App.

1960); Rogers v. S.W. Taylor & Co., 2 Tenn. App. 445 (1926). Parties are bound by the acts and




                                                 3
declarations of their predecessors in title. As the Tennessee Supreme Court stated in Davis v. Jones,

40 Tenn. (3 Head) 602, 606 (1859):

                We understand, that for purposes of ascertaining the true line of a
                disputed and uncertain boundary between adjacent tracts, the acts and
                declarations of the former owners and proprietors, which took place
                and were made during such ownership, especially if accompanied
                with possession, conducing to establish the common line, are
                admissible as original evidence. [Citations omitted.] This is so,
                whether they be dead or alive, admissible or inadmissible as
                witnesses in the controversy. They do not stand upon the same
                footing as the declarations of third persons. [Citations omitted.]

Id. at 606; See also, Norman v. Hoyt, 667 S.W.2d 88, 90 (Tenn. App. 1983).

       In this case, Norris Perry testified that he was present in 1966 when the previous property

owners, Mr. Duke and Jim Perkins, in the presence of Harper, Stacey and Perry, ascertained and

agreed upon the boundary line. To memorialize their agreement, the men planted an iron stake in

the ground at the base of a maple tree and declared that the boundary line between their property

should run from that pin to the southern fence, along the fence row above the windcave and back to

the western side of the disputed property to the corner where the Underwood, Duke and Perkins

properties met.

       Declarations of former owners which took place during their ownership, especially when

accompanied with possession, are admissible to establish boundary lines. Such declarations may

be testified to by third parties who heard the declarations. Davis v. Jones, 40 Tenn. (3 Head) at 606;

Norman v. Hoyt, 667 S.W.2d at 90. In this case, Mr. Perry was competent to testify as to the

existence of the oral agreement regarding the ownership of the disputed property. Therefore, the

agreement between Perkins and Duke is binding on their successors in title. See Winborn v

Alexander, 279 S.W.2d at 727. Consequently, the trial court did not err in finding the 1966

agreement binding upon the Mitchells and the Renos as successors in title to Duke and the Perkins.

       The testimony of residents in the surrounding community further supports the determination

of the trial court. Harold Foster, a previous resident of the Mitchells’ tract, and other members of

the surrounding community testified that the windcave was located on the tract now owned by the

Renos. Norris Perry, who worked on the land for O.B. Harper, the Mitchells’ predecessor in title,

testified that the windcave was located on the tract formerly owned by the Perkins and now owned

by the Renos.

       Upon review of the record, we cannot find that the evidence preponderates against the


                                                  4
determination of the trial court. Despite the courses and distances set forth in the old deeds, as well

as the more recent boundary deeds, the undisputed testimony at trial established that the parties’

predecessors in title were uncertain as to the boundary between the properties and resolved the

dispute by agreement. Further testimony established that the boundary in the 1966 agreement was

regarded as the boundary by the parties and the surrounding community. Under these circumstances,

we find that the evidence does not preponderate against the decision of the trial court.

       The decision of the trial court is affirmed. Costs should be taxed against the Appellants, for

which execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.


CONCUR:



W. FRANK CRAWFORD, P.J.,W.S.




DAVID R. FARMER, J.




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