                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                             September 30, 2002 Session

         WILLIAM C. DUTY and wife WANDA DUTY, v. JOSEPH R.
               DAUGHERTY and LORENE DAUGHERTY

                     Direct Appeal from the Chancery Court for Scott County
                             No. 8568    Hon. Billy Joe White, Judge

                                       FILED NOVEMBER 13, 2002

                                 No. E2001-02861-COA-R3-CV



In this boundary line dispute, the Trial Court established the boundary line between the parties’
properties based on testimony that prior owners had agreed on the location of the boundary, which
altered the boundary established by an accurate survey. We reverse.

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

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and CHARLES D. SUSANO, JR., J., joined.

Harold G. Jeffers, Oneida, Tennessee, for Appellants, William C. Duty and wife, Wanda Duty.

Max E. Huff, Oneida, Tennessee, for Appellees, Lorene Daugherty and Joseph Daugherty.



                                             OPINION


               In this dispute over the location of a boundary line between the parties’ properties,
after hearing evidence, the Trial Court said:

               . . . I think Mr. Reed’s survey [plaintiffs’ surveyor] correctly shows the deed
               boundaries. Barring everything else, barring some other theory, that would correctly
               make the boundary between these properties.

               ...

                        If there is a legal boundary agreement as testified to by Raney Daugherty, the
               Court will set the boundary line between the angle iron and the black gum.

               In the Final Decree, the Trial Court established a boundary in accordance with an
agreement testified to by Raney Daugherty.

               On appeal, plaintiffs argue that the evidence relating to the verbal agreement to
establish a boundary between the tracts was in violation of the parol evidence rule, and that
defendants are estopped under their Deed from claiming the boundary line established by the Court.

                Everett and Roy Daugherty were brothers. In 1961 they purchased approximately
4 ½ acres of land carved out of the Pemberton Estate. Roy, now deceased, was married to Lorene
Daugherty; his son is Joseph Daugherty, a defendant herein. Everett, now deceased, was Wanda
Daugherty Duty’s father, a plaintiff herein. In 1962 Everett and Roy decided to partition their
property. Roy took the northern portion; Everett the southern. Deeds were drawn to make the
partition, but no survey was done at the time. In 1998 plaintiffs hired Jim Reed to survey their
property. In making his survey, he talked to the adjoining landowners and found no dispute as to any
surrounding boundaries.

                 Reed testified he established the boundary using the relevant deed descriptions. First,
he located all four corners of the original 4 ½ acre tract which was clearly marked and are not
disputed. The plaintiffs purchased their property from Wanda’s father in 1968. Everett continued
to live on the property until his home place burned in 1970, and plaintiffs basically let their property
sit vacant while William Duty was stationed overseas in the military.

                In 1998, Joe Daugherty moved his mobile home onto the property, resulting in this
dispute. During the course of the trial, Wanda Duty testified that when Reed began his survey,
Lorene Daugherty advised her “I know that Joe is over on your property a few feet, but we’ll just
have to work it out”. Raney Daugherty, Roy’s brother, testified for defendants. The Trial Court
found Raney credible and pivotal in deciding where the boundary line was located. Raney testified
that he had understood Roy and Everett to have switched land back and forth several times.
However, this is not borne out by the deeds of record. Raney was not familiar with any of the deeds,
but he had been shown the line as a child. He testified that when he was 12 or 13 years old, Roy and
Everett got into a fist fight over the boundary line. They resolved it by walking down through the
area and then driving an angle iron in the western line, which he witnessed, and they also designated
a black oak or gum tree in the back as the eastern corner. He further testified that it was “always
known by other family members” that the line was at the iron stake, and that it was rumored
throughout the family that plaintiffs did not make a claim when Roy was alive, because they were
afraid of him. When this dispute arose, Joe asked his advice and Raney advised Joe that he should
come to an agreement or buy it, rather than go into court.

                Surveyor Tony Crutchfield surveyed the Daugherty property at Joe Daugherty’s
request in December of 2000. He used the subject deeds and those of adjoining property owners,
and located all of the corner markers, confirming Reed’s survey. He did not find the iron pin Reed


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had placed on the eastern line, but was able to locate the exact place where it should have been by
using Reed’s survey.

                 Crutchfield testified the old Daugherty and Duty deed descriptions only used
distances, and the two parcels’ distances didn’t fit together, again confirming Reed’s findings.
Crutchfield’s survey locates the Daugherty southern line as running from the angle iron to the black
gum tree. Significantly, he essentially based this line from meeting with Joe Daugherty who showed
him the angle iron and also pointing out what he contended to be the dividing line. Crutchfield
testified that he could not conclusively determine the line.

               Q.      In your opinion, what is the Daugherty line, based upon what you’ve seen at
                       the scene - I mean, the land, the deeds?

               A.      My honest opinion on the dividing line between Daugherty and Duty is one
                       where I - I cannot take these warranty deeds and give you an honest
                       assessment about where this property line is located. As I have noted on this
                       exhibit, on the survey that I’ve done for Mr. Daugherty, this is a - basically
                       this where he’s claiming to by occupation and possession, and that it overlaps
                       the Duty survey that was performed by Reed.

               ...

               A.      I found that - basically, I - what Mr. Reed placed in there was based on
                       probably the best available evidence given what he had to work with on that.
                       It does overlap. Like I said, it’s difficult to mesh his - the deeds that he had
                       to work with, the deeds that were - that I had to work with as my subject
                       piece. I that it was - to me it was inconclusive.

                On cross examination, Crutchfield admitted that except for the line in dispute, he does
not take issue with any other lines in Reed’s survey. He admitted deviating his line south of Reed’s
line as he approached the mobile home, and he based this on meeting with Joe Daugherty.
Significantly, Crutchfield testified:

               Q.      So you have no basis by deed or title instrument for locating a line south of
                       the Reed line, other than what Mr. Daugherty has told you and his claim for
                       possession?

               A.      Yes. Well, that’s - that’s essentially what my testimony was, that I answered
                       to previously. . . .

                Our review in boundary line disputes is de novo with a presumption of correctness
of the trial court’s factual determination. Thornburg v. Chase, 606 S.W.2d 672, 675 (Tenn. App.
1980); Tenn. R. App. P. 13(d). However, the interpretation and legal effect of a deed is a matter of


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law, and the Trial Court’s determination on such matters creates no presumption of correctness in
the appellate court. Brown v. Brown, 320 S.W.2d 721 (Tenn. 1958).

               Plaintiffs did not object to the admission of Raney Daugherty’s testimony regarding
Roy and Everett’s fist fight and then driving an angle iron and designating a black gum tree as the
line markers for a boundary. However, the parol evidence rule is not a rule of evidence but a rule
of substantive law. No exception or assignment of error is necessary to ensure its application.
Maddox v. Webb, 562 S.W.2d 198 (Tenn. 1978). The deeds involved in this case do not contain
ambiguous language, nor do they contain “irreconcilable conflicts”; that cannot be resolved by
applying the rules of construction for deeds. The survey in 1998 revealed some inaccurate distances
in the deed descriptions, but otherwise, the language of the deeds themselves is clear and consistent
and needs no interpretation to ascertain the intent of the grantors. These deeds enabled the surveyor
to determine the boundaries. In this connection, see Moon v. Webb, 584 S.W.2d 803 (Tenn. Ct. App.
1979); also see Muray v. City of Red Boiling Springs, 1985 Tenn. App. Lexis 3281).

                The parol evidence of Raney Daugherty, upon which the Trial Court relied, was
inadmissible. Raney’s testimony, as well as defendants, varied and/or contradicted the written
language of the deeds in placing the eastern point at a black oak or black gum tree. All of the deeds
unambiguously place the eastern point “to a set stone in Pemberton’s line”– not to a tree and the
western side is clearly described as twelve feet north of the Burress Tract. The testimony altering
these points was, therefore, inadmissible. An unascertained and disputed boundary line dividing the
lands of adjoining property owners may be established by parol agreement and is not within the State
of Frauds. See Thornburg v. Chase, 606 S.W.2d 672, 674 (Tenn. App. 1980). Inasmuch as Everett
and Roy originally partitioned this property, they would be presumed to have known and agreed
upon the instruments they drew. Their deeds to each other are consistent and complimentary in the
line description. Clearly, the evidence shows that the Reed survey correctly “shows the deed
boundaries” as found by the Trial Court. Since the parties’ deeds established the boundary line, there
was no basis to resort to parol evidence to establish a boundary line at a different place.
Accordingly, we reverse the Judgment of the Trial Court and remand with instructions to establish
the boundary line between the parties as determine by the Reed Survey.

               The costs of the appeal are assessed to defendants Joseph R. Daugherty and Lorene
Daugherty.




                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS , J.




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