                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 4, 2006 Session

        EUGENE L. LAMPLEY, ET AL. v. MELVIN D. ROMINE, ET AL.

                    Appeal from the Chancery Court for Dickson County
                        No. 7792-02    Leonard W. Martin, Judge



                No. M2005-01726-COA-R3-CV - Filed on December 15, 2006


In a boundary dispute, the trial court refused to find estoppel by deed since the party raising the
estoppel had not relied on the erroneous deeds. We affirm.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK
G. CLEMENT , JR., JJ., joined.

Aubrey T. Givens, Nashville, Tennessee, for the appellants, Melvin T. Romine and wife Maxine M.
Romine.

Henry F. Todd, Jr., Dickson, Tennessee, for the appellees, Eugene L. Lampley and wife, Nancy
Lampley.

                                            OPINION

        This boundary dispute between the Lampleys and Romines concerns ownership of a .07 acre
piece of land bordering Turnbull Creek that was used as a swimming hole. Mr. and Mrs. Lampley
maintain that their property line extends to the center of Turnbull Creek thus including the swimming
hole. The property owned by Mr. and Mrs. Lampley has been in the Lampley family for generations.
Mr. and Mrs. Romine purchased the adjoining tract and commissioned a survey showing that the
swimming hole was on their property. After a disagreement between the families arose, Mr. and
Mrs. Lampley filed a complaint to bar any claims by the Romines to the .07 acre swimming hole.

       At the trial of this matter, the court was presented with conflicting surveys and witnesses
from the community with years of experience with the swimming hole. The trial court found that
the deeds to the parties were ambiguous and that the Romines never exerted control over the
property. Based on numerous witnesses and particularly the credibility of a 90 year old gentleman,
the trial court found the Lampleys owned the property. The trial court found no merit to the Romines
argument that the Lampleys were estopped from claiming the property.

        The sole ground raised by the Romines on appeal is that the trial court erred in finding that
the estoppel defense was without merit. On appeal, the Romines do not dispute the trial court’s
underlying finding that the Lampleys owned the parcel in question. Instead, the Romines argue that
the Lampleys are estopped from now claiming the parcel because the deed whereby the Lampleys
acquired title and the quitclaim deed they executed to redesignate title between them both omitted
the .07 acre parcel in their descriptions.1 With regard to the Romines’ estoppel argument, the trial
court found:

         It appears to this Court that the defense theory of estoppel does not apply because the
         [Lampleys’] subsequent signing of a deed was to convert their tenancy to a tenancy
         in common and it did not create new or additional rights and it did not affect anyone
         else adversely or otherwise.

        Therefore, the question presented on this appeal is whether the acceptance and subsequent
execution by the Lampleys of deeds containing descriptions that omitted the parcel in question estops
the Lampleys from claiming the parcel. Absent estoppel, for purposes of this appeal, the Romines
have not questioned the Lampleys’ ownership of the parcel. Consequently, we will not review the
trial court’s findings about the Lampleys’ ownership of the parcel.

        The facts surrounding the estoppel argument are not in question. Mr. Lampley’s mother,
Mrs. Myrtle Lampley, deeded approximately 77 1/2 acres to her five (5) children in 1975. In 1995,
the heirs obtained a survey to formulate a legal description to be used by the heirs to divide Mrs.
Myrtle Lampley’s property. Thereafter, in 1995, the children divided the property amongst
themselves, deeding approximately twenty (20) acres to the plaintiffs herein, Mr. and Mrs. Lampley.
The deed by which Mr. and Mrs. Lampley took title did not include the .07 acre swimming hole
parcel. Thereafter, in May of 2001, the Lampleys executed a quitclaim deed for estate planning
purposes. The “express purpose” of the quitclaim was to terminate the Lampleys’ ownership as
tenants by the entirety and to create ownership in the Lampleys as tenants in common. The quitclaim
deed provided:

         New legal descriptions were not prepared for this transaction. The legal descriptions
         are the same as the previous instruments of record.

       The theory relied upon by the Romines is estoppel by deed. The Romines argue that since
the Lampleys represented that they did not own the .07 acre parcel in the 1995 and 2001 deeds, then

         1
          W e must distinguish between two possible consequences of the Lampleys’ acts. First, in the trial court below,
the deeds were evidence supporting the position that the Lampleys never considered this parcel to be theirs. The trial
court, however, concluded otherwise, and that finding is not appealed. Second, the Romines argue on appeal that the
Lampleys’ acts prevent them from claiming the parcel. These are two (2) distinct consequences, and only the latter is
on appeal.

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they are estopped from taking a contrary position and claiming ownership of the parcel. Our
Supreme Court has described estoppel by deed thusly:

       [a] bar which precludes one party to a deed and his privies from asserting as against
       the other party and his privies any right or title in derogation of the deed or from
       denying the truth of any material facts asserted in it.

Denny v. Wilson County, 198 Tenn. 677, 281 S.W.2d 671, 675 (1955); Smith v. Sovran Bank Central
South, 792 S.W.2d 928, 930 (Tenn. Ct. App. 1990). As the language suggests, estoppel is generally
available only to the other party to the deed or transaction.

       Before establishing estoppel by deed, the parties relying on the estoppel must prove that they:

       a. lacked knowledge of the true facts without fault of their own;
       b. relied upon the untrue facts; and
       c. took action based on the untrue statement or misrepresentation.

Smith, 792 S.W.2d at 931.

       The trial court held that the deeds to the Lampleys “did not affect anyone else adversely or
otherwise.” The deeds in question that the Romines claim estopped the Lampleys were dated 1995
and 2001. The record shows, however, that Mr. and Mrs. Romine acquired title to their property in
1979. In other words, the Romines owned their property before the Lampleys’ deeds existed. Based
on these facts, the trial court correctly held that the Romines did not rely or act on the Lampleys’
1995 or 2001 deeds. Consequently, there can be no estoppel by deed.

         The Romines cite Mix v. Miller, 27 S.W.3d 508 (Tenn. Ct. App. 1999), for the proposition
that if a party adopts a survey he is bound by its term. Apparently, they see a distinction between
estoppel by deed and estoppel to challenge a survey incorporated in a deed and apparently would
argue that while reliance is an element of estoppel by deed, it is not required for estoppel by survey.
Examination of the court’s decision in Mix does not, however, support the Romines’ conclusion.
On appeal, the court in Mix found no estoppel existed because there was no proof the party against
whom estoppel was asserted ever recognized or adopted any survey. Id. at 514. Consequently, the
Mixes, in that case, were not estopped from “challenging their own deed.” Id. Since there was no
adoption of a survey, the court never ruled on whether reliance was a required element either way.
Very early cases applied estoppel to deny a survey in cases where reliance was apparent, as in an
agreed-upon mutual boundary or a representation from seller to buyer.

        Furthermore, trying to differentiate between estoppel by deed and estoppel by survey is a
distinction without a difference. Surveys provide the property descriptions that are in deeds. Finally,
as a practical matter, a blanket requirement binding a party to a survey or deed that is erroneous
would, in effect, prevent parties from correcting mistakes in recorded instruments. Reliance must



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be shown in order to claim estoppel by deed or survey regardless of the label used to describe the
estoppel claim.

      The trial court is affirmed. Costs of appeal are taxed to Mr. Melvin Romine and Mrs. Maxine
Romine for which execution may issue if necessary.



                                                     ____________________________________
                                                     PATRICIA J. COTTRELL, JUDGE




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