             IN THE COURT OF APPEALS OF TENNESSEE
                        AT KNOXVILLE
                                                             FILED
                                                               August 6, 1998

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
ANNA LEE CRISP,                        )
                                       )      BLOUNT CIRCUIT
      Plaintiff/Appellant                     )
                                       )      NO. 03A01-9711-CV-00527
v.                                     )
                                       )      HON. W. DALE YOUNG
ORVILLE C. BORING and wife,            )      JUDGE
WANDA SUE BORING,                      )
                                       )
      Defendants/Appellees             )      AFFIRMED



Phillip Reed, Maryville, for Appellant.
David R. Duggan, Maryville, for Appellees.



                                 OPINION

                                              INMAN, Senior Judge

      This is a boundary dispute. The plaintiff alleges that the location of the

boundary line between her property and the adjoining land of the defendants is

shown by a survey made by Sterling Engineering, Inc.

      The defendants on the other hand allege that the proper boundary is

shown by a survey made by Everett Land Company. They also claim title to the

disputed area, a small triangular tract, by estoppel by deed, adverse possession

including the payment of taxes for more than 30 years, and other pro-forma

defenses.

      A bench trial resulted in a finding that the plaintiff is a predecessor in

title to the defendant’s property, and that it was she who, by deed, established

the now-disputed boundary. The trial judge applied the principle of estoppel by
deed to the findings, “found the issues in favor of the defendants,” and

dismissed the case.

      The parties agree that the judgment leaves the controversy but not the

case in limbo, since the location of the disputed boundary was not determined.

      Restated, the issue is whether the plaintiff is estopped to challenge a call

and distance in a deed she executed, superimposed upon proof that the

defendants paid taxes on the disputed area for thirty (30) years. The defendants

present as an issue whether “the trial court should be affirmed in finding that the

boundary line in dispute should be established along the line as testified to by

the defendants’ surveyors.”1

      The plaintiff and her husband acquired 100 acres in 1946. On March 15,

1946 they conveyed 46 acres (which included the disputed area) to

Blankenship. This deed included a call and distance of “South 72 deg. East 373

feet,” and was prepared from a survey made by a registered land surveyor.

      Blankenship, in 1971, conveyed a portion of this tract, 17.95 acres, to

another Blankenship. This deed included the disputed area, and utilized the call

and distance of South 72 deg. East 373 feet. This 17.95 acre tract was conveyed

to the defendants in 1993. Again, the same call and distance, later disputed,

was utilized. It will be seen from the foregoing that the plaintiff is the

defendant’s predecessor in title.

      It is not entirely clear from the record when this controversy arose. The

area in dispute was created in 1946 when the plaintiff conveyed 46 acres to

Blankenship. The complaint was filed July 23, 1996, more than fifty years later,

and after title to the disputed area was transferred three times.



      1
          The trial court made no such finding.

                                                  2
        Charles Sterling was employed by the plaintiff to survey her remaining

land, together with the disputed area. None of the descriptions in the various

relevant deeds would close, a common-enough discovery, and Mr. Sterling

conceded that in such instances it was necessary to consider the title history, old

fences and other monuments and the topographical aspects. It is perhaps

noteworthy that Mr. Sterling did not himself conduct the survey, but relied on

his field crew for the requisite information; somewhat strangely, he never

discussed the survey with the plaintiff.2

        Much of the expert testimony was given over to assumptions and pure

speculation about the call “South 72 deg. East 373 feet.” Mr. Sterling made two

assumptions, the first of which was based on a survey by Everett and the second

of which involved an asserted transposition error in the 1946 deed to

Blankenship. These assumptions were made by Mr. Sterling in his efforts to

prove that the call “South 72 deg. East 373" was erroneous and unintended.3

But with all the assumptions favorable to the plaintiff, Mr. Sterling conceded

that the description in the initial deed to Blankenship would not close.

        The defendants’ surveyor, Mr. Everett, agreed that the descriptions would

not close, and testified that the most feasible solution was to connect the two

known points which would do the least damage to the deed descriptions and

would not compound the closure error. He also opined that Mr. Sterling’s

assumptions were not reasonable in the science of surveying, and that his, Mr.

Everett’s, reliance upon a 50-year-old fence was reasonable and professional

under the circumstances.

        2
            He was employed by the plaintiff’s son. The plaintiff was not aware that her property was being
surveyed.
        3
          His rationale included the reliance on a fence which had been in existence for about 25 years. Other
proof established that a fence should be about 50 years old before it may safely be relied upon as a line
monum ent. In any even t, the fence was no t continuous.

                                                        3
      Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness

of the finding, unless the preponderance of the evidence is otherwise. TENN. R.

APP. P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.

1996).

      While the defendants advanced various legal theories in the advocation of

their case, we think the preponderance of the evidence supports a finding that

the disputed boundary should be established in accordance with the testimony

of surveyor Everett.

      It was in her deed to Blankenship in 1946 that the disputed call first

appeared, and she testified that “we put the line where we wanted it.” Estoppel

by deed is a bar which precludes one party to a deed, and privies, from asserting

as against the other party, and privies, any right or title in derogation of the deed

or from denying the truth of any material facts therein asserted. Davidson

County v. Beauchesne, 281 S.W.2d 266 (Tenn. App. 1955); Denny v. Wilson

County, 281 S.W.2d 671 (Tenn. 1955). We agree with the appellees that since

the plaintiff created the call and distance in her deed to Blankenship she is now

concluded with respect to that call and cannot aver against it.

      The evidence does not preponderate against the judgment of the trial

court and is accordingly affirmed. But as we heretofore stated, the judgment

was based solely on a finding that the plaintiff was estopped to deny the

averments of her deed, which did not wholly resolve this controversy. To

resolve it, we reference the drawing prepared by Mr. Everett, and the two points

therein marked ‘B’ and ‘A’. These points should be connected with a straight



                                         4
line, and the closure problem will be resolved. This line will be described as “N

04-18-05 S 270.52 feet to the Boring Boundary.”

      Costs are assessed to the appellant.



                                      _______________________________
                                      William H. Inman, Senior Judge
CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Charles D. Susano, Jr., Judge




                                        5
