                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                             June 14, 2005 Session

                           NANCY CRITTENDEN v. JERRY GREEN

                  A Direct Appeal from the Chancery Court for Hamilton County
                  No. 03-0767   The Honorable W. Frank Brown, III, Chancellor




                           No. E2004-02270-COA-R3-CV - FILED JULY 8, 2005


         This is a boundary line case. Appellant appeals from the judgment of the Hamilton County
Chancery Court establishing the boundary line as shown by the survey of Appellee’s expert. Finding
that the survey adopted by the trial court is not in line with Appellee’s deed and/or Appellant’s deed
conveying an additional triangular piece of land, we affirm in part, reverse in part, and remand.


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

W. FRANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. FARMER ,
J., joined.

Robert S. Burns of Sewanee, Tennessee for Appellant, Jerry Green

Nancy Crittenden, Pro Se

                                                        OPINION


        This case arises from a boundary line dispute between two adjacent neighbors Jerry Green
(“Defendant,” or “Appellant”) and Nancy Crittenden (“Plaintiff,” or “Appellee”). There are no natural
boundaries or landmarks between the parties’ properties. On April 25, 2003, Ms. Crittendon filed a
Civil Warrant in the General Sessions Court of Hamilton County against Mr. Green for allegedly
mowing down monkey grass that she had planted along the assumed property line. On May 2, 2003,
Mr. Green filed a Counter-Claim against Ms. Crittendon for “[t]ree limbs...encroaching onto [his]
roof,” and because Ms. Crittendon had allegedly “dug a ditch from her guttering [sic] / down spout so
that the water runs from her property onto my property in two places.”

        By Order of July 3, 2003, this matter was transferred to the Chancery Court of Hamilton
County after a determination that the matter involved a dispute over boundary lines between the
parties’ respective properties. Following a non-jury trial, on June 2, 2004, the trial court issued its
“Memorandum Opinion and Order” (the “First Order”), which reads, in relevant part, as follows:


                                III. FACTUAL DISCUSSION

              *                                   *                              *

                      The Crittenden land was surveyed on May 3, 1990 by Paul
              Glenn Jones, a land surveyor. Mr. Jones performed a boundary survey.
              Mr. Jones’ survey was introduced as Trial Exhibit 1. He located the
              front corner on the common boundary line by making certain that Mr.
              [Green] had 94 front feet as called for in his deed. The location of the
              new pin meant the Crittendens lost between 2-3 inches from their front
              property line.
                      Mr. Green’s land was surveyed on May 8, 2003 by Jim Copp.
              He used the same front corner location, as did Mr. Jones. However,
              Mr. Copp used a different common corner location in the rear of their
              lots. There is, therefore, some difference in the location of the
              boundary line. Mr. Copp’s survey was done as preparation for Mr.
              Green’s purchase of the triangular piece of land from Pravin N. Patel
              and Jyotip Patel, Trustees, on June 30, 2003. Trial Exhibit 8 is a copy
              of the deed from the Patels to Mr. Green.

                                    IV. LEGAL ANALYSIS

              *                                    *                             *

              B. The Property Line.
                      The court is called upon to determine the common boundary
              between these parties. The court was presented with two surveys, plus
              the original subdivision plat.
                      Mr. Jones, the expert surveyor for Mrs. Crittenden, testified
              that he chose the corner boundary for the front lines of the
              Green/Crittenden corner by giving Mr. Green 94 feet across his front
              yard as called for in his deed. The placement for the iron pin meant
              that Mrs. Crittenden’s front yard line decreased from 79.57 on the plat
              to 79.3 by measurement. Mr. Jones said that the [Green] deed was
              more senior and also contained a metes and bounds legal description.
              It appears that Mr. Jones also located the rear corner by also measuring
              94 feet along the back line for Mr. Green’s property. Mr. Jones had to
              place new iron pins (IPN) in both corners.
                      Mr. Jones’ survey (Trial Exhibit 1) shows two new iron pins
              placed in the ground between the two corners on both sides of the

                                                -2-
Crittenden lot. Mr. Crittenden testified that he placed pvc pipe and
other concrete around these iron pins to identify the property line.
         Mr. Copp said he surveyed the Crittenden lot in accordance
with the Plat of record. In his survey one of the Green sidelines is
150.03 feet and the line common to Mrs. Crittenden is 148.97 feet.
According to the [Green] deed, these lines are supposed to be 150 feet.
Mr. Copp’s backline for the Crittenden’s is per the plat while his
measurement for the front line is not shown.
         Mr. Copp said it best. When you boil it down, Mrs. Crittenden
lost a very little front footage by the Jones survey and picked up some
extra land along the rear line. It is a “wash”. The Copp common line
was measured on S 79° 48' 30" East and Jones measured on S 79° 45'
East. The Plat of record says 79° 45' East.
         Because the Jones’ survey matches the direction (degrees and
feet) for the plat and his boundary line was reinforced by two markers
along the line, the court will accept the Jones’ survey as the correct line
that divides the Crittenden property from the Green property....

*                                     *                             *

       The foregoing constitutes the court’s findings of fact and
conclusions of law. Based upon such, it is hereby ORDERED,
ADJUDGED and DECREED:

        1. That Mrs. Crittenden’s claim to own one-half (½) of the
triangular area by adverse possession is denied;
        2. That the common boundary line between the Crittenden and
Green lots is the line shown on Trial Exhibit 1, the survey line as
determined by Paul Glenn Jones;
        3. That Mrs. Crittenden’s claim for $720.29 damages to her
monkey grass is denied; however, she is awarded a judgment against
Jerry Green for $50.00 as nominal damages for which execution may
enter;
        4. That Jerry Green’s monetary damage claim against Nancy
Crittenden for $5,000.00 more or less, is denied except that Nancy
Crittenden is mandatorily enjoined to place a french drain or plastic
piping on her down spouts and place such on her property in order not
to channel water onto Mr. Green’s property;
        5. That Jerry Green, his agents and representatives are enjoined
from cutting or damaging in any way the monkey grass growing on
Mrs. Crittenden’s side of the common border as determined by this
court or an appellate court;
        6. That Nancy Crittenden’s claim of champerty is denied;

                                   -3-
        On June 17, 2004, Mr. Green filed a “Motion to Alter or Amend Judgment,” which reads,
in pertinent part, as follows:

              Comes the Defendant, Jerry Green...and moves this Honorable Court
              for an order amending the Judgment of this Court entered on June 2,
              2004, to clarify the boundary line in dispute, and order that a new
              survey be performed by both Mr. Jones and Mr. Copp, the surveyor
              experts who testified at the trial in this matter....

        In response to the “Motion to Alter or Amend Judgment,” the trial court issued a
“Memorandum Opinion and Order” (the “Second Order”) on August 17, 2004. The Second Order,
reads, in relevant part, as follows:

                       Mr. Green’s Motion requested that the court order both parties’
              surveyors to resurvey the area in order that the parties could be certain
              of the location of the boundary line. At the hearing on August 2, 2004
              counsel for Mr. Green stated the court erred on page 8 by saying that
              Mr. Jones’ survey followed the original plat when it was actually Mr.
              Copp’s survey (for Mr. Green) that followed the original plat. Counsel
              also argued the merits of the written motion that additional survey
              work should be required.
                       Ms. Crittenden appeared and argued that the markers from her
              initial survey by Mr. Jones were still present. Therefore, she saw no
              need for any new survey. She wanted the opinion affirmed and the
              case ended....

                                        II. DISCUSSION

              ...The Court has re-read page 8 of the Memorandum Opinion and
              Order and has not found the statement that Mr. Jones’ survey was
              selected because his survey matched the plat. Mr. Copp’s survey is
              probably closer to the plat than is Mr. Jones’ survey. However, there
              [are] also considerations of the deed reference, the length of time the
              Jones’ boundary markers have been in the ground, etc. that persuade
              the court to adopt Mr. Jones’ survey. Mr. Copp’s survey, Trial Exhibit
              2, does not have the lengths of all of the property lines of the two
              litigants. Mr. Green’s deed, Trial Exhibit 7, is based upon metes and
              bounds and does not refer to the subdivision plat, Trial Exhibit 10.
                       It is unfortunate that surveying work is not rocket science.
              From the testimony of the surveyors, each party gained and lost a little
              land on the front or back. It is only the parties’ (one or both)
              personalities that make this such a big deal. The court, for the reasons



                                                -4-
                   expressed in the Memorandum Opinion and here, confirms the initial
                   decision and order as to the common boundary line.

        Mr. Green appeals from both the First Order and the Second Order and raises two issues
for review as stated in his brief:

                   I. Whether the Trial Court erred in disregarding monumented
                   subdivision plat boundary lines in favor of a survey line using courses
                   and distances which would change the boundaries, lot dimensions and
                   configuration of two lots from those of the recorded, monumented
                   subdivision plates.

                   II. Whether the Trial Court erred in applying adverse possession
                   theory in determining the mutual side yard boundary in disregard of the
                   monumented subdivision plats and Appellant’s deed.1

        This is a case dealing in minutia (i.e. 3-4 inches of land). The only issue before this Court is
the question of where the common boundary line between these parties’ respective properties is
located. However, since no issue has been raised concerning the trial court’s ruling on damages,
the outcome of this question will render no real gain for either party. That being said, we embark
on our discussion by first noting that, since this case was tried by a 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. See Tenn. R. App. P. 13(d).

       According to the proof, Mr. Green acquired Lot 4 of Hamill Subdivision (the “Green
Property”) by “Warranty Deed” recorded at Book 3821 Page 808 in the Register’s Office of
Hamilton County and dated February 27, 1991 (the “Green Deed”).2 The Green Deed describes
the conveyance to Mr. Green in metes and bounds as follows:

                   Beginning at a point in the Western line of Northern Hills Road at the
                   Southeast corner of Lot Forty-four (44), Northern Hills Subdivision;
                   thence North 82 degrees West along the Southern line of Lot 44 and 57
                   of said Subdivision, 150 feet to a point; thence South 14 degrees 58
                   minutes East 94 feet to a point; thence South 82 degrees East 150 feet
                   to a point in the Western line of Northern Hills Road; thence
                   Northwardly along the Western line of said road, 94 feet to the point
                   of beginning.



        1
            Ms. Crittenden filed no responsive brief in this appeal.

       2
            The Green Deed was entered into the record as Trial Exhibit 7.

                                                           -5-
This metes and bounds description, however, does not comply with the plat map of Hamill
Subdivision recorded at Plat Book 33 Page 74 in the Register’s Office of Hamilton County and
admitted into evidence as Trial Exhibit 10 (the “Plat Map”). Specifically, the Plat Map lists the
length of the common boundary line between the Green Property and Lot 2 of Hamill Subdivision
(the “Crittenden Property”) as 148.92 feet while the Green Deed lists that boundary at 150 feet.
Also, the Green Deed lists the Southern boundary of the Green Property at 94 feet while the plat
map shows the Southern boundary to be 94.05 feet.

        Ms. Crittenden acquired the Crittenden Property by “Warranty Deed” recorded at Book
5987 Page 367 in the Register’s Office of Hamilton County and dated September 12, 2001 (the
“Crittenden Deed”). The Crittenden Deed makes the following conveyance to Ms. Crittenden:

               Lot Two (2), Hamill Subdivision, as shown by plat of record in Plat
               Book 33, page 74, in the Register’s Office of Hamilton County,
               Tennessee.

       Turning to the Plat Map as reference in the Crittenden Deed, Ms. Crittenden’s Southern
boundary is set at 96.9 feet while the common boundary between the Crittenden Property and the
Green Property is set at 148.92 feet.

        On June 30, 2003, after this suit was filed, Mr. Green purportedly purchased a triangular
section of property along the Southern boundary of the Green Property and extending along the
Southern boundary of the Crittenden Property. This conveyance, from Ashokkumar N. Patel and
Nalinaben A. Patel et al., was made by “Warranty Deed” recorded at Book 6737 Page 641 in the
Register’s Office of Hamilton County (the “Patel Deed”). The Patel Deed reads, in relevant part,
as follows:

               Lot 4 (revised) of the Hamill Subdivision Lots 1 and 4 on Hwy. 153 (a
               Subdivision of Lots 1 and 4 of Hamill Subdivision on Hwy. 153, of
               record in Plat Book 33, Page 74, in the Register’s Office of Hamilton
               County, Tennessee), as shown on revised plat of Cobb Engineering
               Group, drawing number 02-394B dated 5-8-03, of record in Plat Book
               P3 71, , Page 195, and at Instrument Number 2003052800301, both in
               the Register’s office of Hamilton County, Tennessee; and being more
               particularly described as follows: Commencing at a point in the west
               right-of-way of Northern Hills Road and at the southeast corner of Lott
               44, Northern Hills Subdivision (Plat Book 21, Page 51); thence North
               79°49'41" West, a distance of 150.03 feet to an iron pin, said point
               being the northwest corner of said Lot 4 (revised); thence South
               07°09'22" West, a distance of 179.82 feet to a point, said point being
               the southwest corner of said Lot 4 (revised); thence North 26°31'00"
               East, a distance of 96.90 feet to a point; thence South 79°45'00" East,
               a distance of 148.92 feet to a point, said point being the southeast

                                                -6-
                 corner of said Lot 4 (revised); thence North 12°48'00" West, a distance
                 of 94.00 feet to the point of beginning; said Lot 4 (revised) containing
                 0.36 acre, more or less. [This conveyance includes the triangular
                 portion of land from the said northwest corner of the existing Green
                 property thence South 07°09'22" West, 179.82 feet; thence North
                 26°31'00" East, 96.90 feet; thence North 12°48'51" West (calculated),
                 94.06 feet (said call being abandoned in the revised plat); and the said
                 triangular portion containing 0.0663 acre, more or less, which has been
                 added to the preexisting Lot 4 to form the said Lot 4 (revised)].3

        From all of the above, it appears to this Court that the original Green Deed was erroneous
in its metes and bounds description of the Green Property. Nonetheless, while the Green Deed
does not agree with the Plat Map, it is clear that the Green Property does not encroach upon the
Crittenden Property since the Crittenden Deed only conveys what is represented on the Plat Map.

        Consequently, the boundary line between these parties’ respective properties should be
established as the line shown on the Plat Map because, regardless of what the Green Deed or the
Jones survey reflects, Ms. Crittenden, by virtue of the Crittenden Deed, is entitled to no more or no
less property than that reflected in the Plat Map.

        The Jones survey, Trial Exhibit 1, follows the metes and bounds description of the Green
Deed and deviates from the Plat Map by making the common boundary between these parties 150
feet as opposed to the 148.92 feet reflected in the Plat Map and by making the Southern boundary
of the Crittenden Property 96.7 feet as opposed to the 96.9 feet conveyed in the Plat Map. On the
other hand, the Copp survey, Trial Exhibit 2, more accurately reflects the apportionment of land
according to the Plat Map. Since the Copp survey complies with the Plat Map and with the metes
and bounds description contained in the Patel Deed, it gives Ms. Crittenden exactly what she is due
under the Crittenden Deed and gives Mr. Green exactly what he assumedly bargained for under the
Patel Deed.

        For the foregoing reasons, we reverse the Orders of the trial court to the extent that they
adopt the Jones survey and to the extent that they set the Crittenden Property boundaries in any
dimensions other than those reflected in the Plat Map (which is the property description used in the
Crittenden Deed). The Orders of the trial court are affirmed in all other respects, and the case is
remanded for such further proceedings as may be necessary consistent with this Opinion. Costs of
this appeal are assessed one-half to appellant, Jerry Green, and his surety, and one-half to Appellee,
Nancy Crittenden.




        3
          Although the Patel Deed purports to transfer the disputed triangular piece of land from Lot 1 of Hamill
Subdivision to Mr. Green, as described by these metes and bounds, the Patel Deed also includes the Green Property.
Consequently, this Court is not sure of the relevance of the Patel Deed.

                                                       -7-
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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