                    IN THE COURT OF APPEALS
                          AT KNOXVILLE


                               FILED
                             December 1, 1999

                             Cecil Crowson, Jr.
                            Appellate Court Clerk




STEVEN R. LINN, SUSAN D. LINN,            )    CAMPBELL COUNTY
DAVID L. LINN and WILMA        )          03A01-9903-CH-00080
R. LINN       )
                                         )
    Plaintiffs-Counter-          )
    Defendants-Appellees         )
                                     )
    v.   )
                                     )
VERA E. ELROD and                              )    HON. BILLY JOE
                                          WHITE,
OLIN D. ELROD                             )    CHANCELLOR
                                     )
    Defendants-Cross- )
    Claimants/Counter- )
    Claimants-Appellants         )
                                     )
    v.   )
                                     )
ANNA LEE LEINART GROSS, )
Trustee of the Anna     )
Lee Leinart Gross Trust )
                                     )
                                          Cross-Defendant    )
                                          REVERSED AND REMANDED




T. SCOTT JONES OF KNOXVILLE FOR VERA E. ELROD and OLIN D. ELROD

VIC PRYOR and KATHY PARROTT OF JACKSBORO FOR STEVEN R. LINN,
SUSAN D. LINN, DAVID L. LINN and WILMA R. LINN

J. PHILLIP HARBER OF CLINTON FOR ANNA LEE LEINART GROSS




                                                                     Page 1
                         O P I N I O N



                                                Goddard, P.J.




         The suit presently on appeal originated by Steven R.

Linn and his son, David L. Linn, and their wives filing suit

against Vera E. Elrod and Olin D. Elrod, seeking a mandatory

injunction requiring removal of a fence erected upon property

the Linns claim to be owned by them.     Upon the filing of an

answer and the counter-complaint by the Elrods and the adding

of a third-party, Anna Lee Leinart Gross, as a Defendant, it

resolved itself into a property line dispute.



         The Chancellor found that a survey by Tony

Crutchfield of the Lindsay Mill Subdivision, in which all

parties own lots, correctly set out the location of the parties

’ property lines which resulted in a decree favoring the Linns

and the Third-Party Defendant Gross.



         The Elrods appeal raising two issues.     They insist

that the evidence preponderates against a finding by the Trial

Court that the Crutchfield survey accurately disclosed the

property lines rather than that of their surveyor, Sam Bruner.

They also insist that Mr. Crutchfield, the surveyor relied

upon by the Linns whose survey was accepted by the Chancellor,

was not at the time he made his survey a registered licensed



                                                                  Page 2
surveyor and, consequently, incompetent to testify regarding

his survey.



          The parties, as already noted, all owned lots within

the Lindsay Mill Subdivision recorded in Map Book 2, Page 26,

in the Register’s Office of Campbell County.    The Linns own

lot number 19, which describes the property conveyed by metes

and bounds and does not reference the lot number or the

recorded plat. 1   The Defendant Olin D. Elrod owns lot number

21, the Defendant Vera E. Elrod lot number 18, and the

Defendant Gross lot number 20 (see appendix).     None of these

deeds contain a metes and bounds description, but instead

refer only to the recorded plat.    Although three surveys were

introduced as exhibits--Easter, 2Crutchfield and Bruner--only

Mr. Crutchfield and Mr. Bruner testified.    The deed to the

Linns describes the property as being a part of TVA tract

XNR-41 on the right bank of the Cove Creek embayment of Norris

Lake and begins “on an iron pin on 1020 contour line 3of Norris

Lake, being 560 feet more or less northeast of TVA concrete

monument number 517.6.”4



          Mr. Crutchfield’s plat shows the Linn lot does not

reach contour 1020, but, rather, the southeast corner is

approximately at contour 1029, which point is some 29 to 30

linear feet northwest of the 1020 contour line.    Mr.

Crutchfield does, however, insist his survey of the property

lines of lots 18 and 21 and his plat of lots 19 and 20 are



                                                                  Page 3
accurate because of several iron pins and angle irons he found

in the approximate location of some of the corners he

established.   He does concede, however, that the pins were not

uniform, some being angle irons and others rebar pins.     He

also conceded that he did not know the origin of the pins,

although Mr Crutchfield assumed they were     placed there by the

person who originally surveyed the subdivision:



     Q.    Now, relative to the pins that you actually
discovered in the ground that you relied upon, you have no
idea personally who actually placed those pins or where those
pins came from, they just appear to correspond with what you
feel are the corner points? I’m talking about the pins that
you found.

    A.    That’s correct.



         The fallacy of Mr. Crutchfield’s survey is that

neither lot 18 nor 19 reach contour line 1020 as called for in

the Linn deed and shown on the recorded plat.     Moreover, a

portion of lots 18 and 21 would encroach upon the Tennessee

Valley Authority transmission line easement (see appendix),

although the recorded plat clearly shows that this easement is

a boundary of the subdivision.     Having said this, we recognize

that the survey introduced by Mr. Crutchfield does not show

lots 18 and 21 encroaching upon the easement, but that the

easement adjoins these lots.     This discrepancy is explained by

the fact that Mr. Crutchfield assumed the transmission line

was the center line of the easement, when in fact it was

southwest of the center line, as shown by the appendix.




                                                                    Page 4
         We would further observe that notwithstanding Mr.

Crutchfield’s testimony that the pins placed on the property

would prevail over the recorded plat, we are of the opinion

that when property is conveyed by lot numbers and the corners

of the lots can by survey be established on the ground, the

plat would prevail.



         On the other hand, Mr. Bruner first established the

beginning corner of the Linn lot by surveying the line from

TVA concrete monument number 517-6, the exact location of

which is undisputed northeast to contour line 1020.   This

point is mentioned in the tract conveyed to the subdivider of

the subdivision by the United States of America, acting as

agent of the Tennessee Valley Authority.   The deed to the

subdivider makes a portion of the property subject to certain

conditions relative to commercial and recreational use.      One

point in this restricted tract is the same as the beginning

point of the Linn tract and refers to TVA monument 517-6:

     Beginning at a point in the 1020-foot contour on the
northwest shore of an inlet of the Cove Creek Embayment and in
the boundary of the above described tract of land from which
US-TVA Monument 517-6 in the boundary of the above described
tract of land bears S10 NW5 at a distance of approximately 560
feet; thence from the point of beginning N44 NW, approximately
580 feet to a point.



         It is also noteworthy that the last call above set

out has the same bearing (N44 NW) as the first call in the Linn

deed.



                                                                   Page 5
            Although Surveyor Bruner found no stakes, pins or

other markings at the corners he established, his survey did

conform to the Linn deed and the recorded plat which showed

lots 18 and 19 adjoining the 1020 contour line.



            The Chancellor, as already noted, accepted the

Crutchfield survey.



            It is true, as found by the Chancellor, that the

lots, if established in accordance with the Bruner survey,

would be different from that insisted upon by the Plaintiffs

and the Defendant Gross.    However, as already noted, a

determination in favor of the Crutchfield survey would place a

portion of lots 18 and 21 both on a TVA transmission line

easement.



            Our Supreme Court, in the case of Pritchard v. Rebori

, 135 Tenn. 328, 332, 186 S.W. 121, 122 (1916), states the

general rule with reference to boundary line disputes, as

follows:



     The general rule is that in determining boundaries resort
is to be had, first, to natural objects or landmarks, because
of their very permanent character, next, to artificial
monuments or marks, then to boundary lines of adjacent owners,
and then to courses and distances. But this general rule, as
to the relative importance of these guides to the
ascertainment of a boundary of land, is not an inflexible or
absolute one.




                                                                    Page 6
            Applying the foregoing to the facts of the case at

bar, we find that contour line 1020 is somewhere between a

natural object or landmark and an artificial monument.      We say

this because we understand that should an excavation or fill

occur along the lake bank it would affect the location of

contour line 1020, extending the length of a piece of property

if a fill occurred and reducing its length should soil be

removed.



            In the case at bar there is no definite proof that

any excavation or fill occurred.     The only evidence on the

matter is the testimony of Mr. Linn as follows:



    A.       Now, wait a minute.

        THE DEPONENT:   Your Honor, can I sort of make a question
here?

     A.    If the 1020 line, I’ve heard that it changes, you
know, silt washes down in and the 1020 line is supposed to be
the water level when it’s at full pool. But just like across
from us they graded down and graded out into the water. That
changed the 1020 line all the way around his property. I don’t
know this. I’m just saying I’ve heard it.



            The above, of course, is hearsay; however, no

objection was made and Mr. Linn’s source of information is not

revealed.    Additionally, it might be argued when he uses the

words “over there,” he was speaking of the other side of the

embayment.

Moreover, Mr. Linn concedes that a pin placed by Surveyor



                                                                     Page 7
Easter represents the current 1020 contour line.



          As to the Chancellor’s determination, he recognized

that under his finding none of the parties would have direct

access to the lake because the lots do not reach contour line

1020.   He attempted to rectify this problem as follows:



     If we now move the established lots forward to comply
with the Bruner survey we skew all the lot lines. We will be
encroaching across established lot lines that have been marked
on the ground and established by usage of over thirty years.

     The recognition of the Crutchfield survey and the well
established lot lines create a slight problem in that there
are six to eight feet from the lot lines to the 1020 contour
marker. I believe the ownership of this sliver of land would
be in the adjoining lot by claim and usage and would not
create a problem. The worst problem would be to move all the
lot lines long established in order to attempt to cover the
eight feet along the 1020 contour. This would create havoc on
all the lots.

     It is, therefore, my opinion that the Crutchfield survey
should establish and recognize the long recognized lot lines
and let adverse possession control the eight feet left by the
mistake of a surveyor of long ago.



          In all deference to the Chancellor, we find no

evidence in the record to support any adverse use by any party

to the suit.



          Before concluding, we are aware that the Chancellor

made reference to “long-recognized lot lines.”     However, also

in all deference to the Chancellor, our review of the record

does not disclose any such proof.   Indeed, it is undisputed

that Ms. Elrod, who had earlier employed Mr. Crutchfield to



                                                                   Page 8
perform a survey for her, disputed his finding as to the

boundary line between lots 18 and 19.



          We accordingly conclude, upon the record before us

in this case that the location of the boundary lines between

lot 18 and lot 19 and between lot 20 and lot 21, is as shown

by the Bruner survey.   Our determination, of course, only

binds lot owners who are parties to this litigation.

          In light of our disposition of the first issue, it

is unnecessary that we address the second.



          For the foregoing reasons the judgment of the Trial

Court is reversed and judgment is entered as to the dispute in

accordance with the dictates of this opinion.   The case is

remanded for further proceedings, if any, as may be necessary

and collection of costs below.   Costs below and on appeal are

adjudged one-half to the Linns and one-half to Ms. Gross.



                                  ____________________________
                                  Houston M. Goddard, P.J.


CONCUR:



____________________________
Charles D. Susano, Jr., J.



____________________________
D. Michael Swiney, J.




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