                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                            May 4, 2004 Session

                 ARVELL EZELL, ET AL. v. ALVIN E. DUNCAN, ET AL.

                           Appeal from the Chancery Court for Perry County
                             No. 3902 & 3903   Timothy L. Easter, Judge



                      No. M2003-00081-COA-R3-CV - Filed December 15, 2004


This appeal involves a boundary line dispute between neighbors. The trial court found in favor of
the plaintiffs’ boundary line description, and defendants appeal. We affirm the decision of the trial
court.

     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 C. KOCH , JR., P.J.,
M.S., and WILLIAM B. CAIN , J., joined.

Bobby A. McGee, Linden, Tennessee, for the appellants Alvin E. Duncan and Wife, Hazel Duncan.

Douglas Thompson Bates, III, Centerville, Tennessee, for the appellees, Arvell Ezell and Lance
Duncan.

                                          MEMORANDUM OPINION1

        Neighbors Arvell Ezell and Alvin and Hazel Duncan share a common border on three tracts
of land. The parties refer to the two Ezell tracts as the Home Tract and the Thompson Tract, and the
Duncans’ tract is simply called the Duncan tract. Mr. Ezell is the owner of the Home Tract, east of




       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
the Duncan property, and a co-owner with Lance Duncan to be of the Thompson Tract, south of the
Duncan property.2

        In 1984, Mr. Ezell hired Thomas White to prepare a survey plat to establish the exact
common boundary line. Key to the determination of the boundary line was the location of a “white
oak with hickory pointers” which is referenced in all the deeds and was used by Mr. White to
establish the common boundary line for the three tracts. Once the White survey was complete and
the Duncans declined to offer a viable alternative,3 Mr. Ezell recorded the White survey in the Perry
County Register’s Office on December 19, 1985.

        In 1997, when Mr. Ezell began cutting timber on the Thompson Tract on what he believed
to be his property as established by the White survey, the Duncans hired F & M Surveying to conduct
another survey. Not liking the result, Mr. Duncan took it upon himself to personally survey his
property with a compass. While conducting his own survey, Mr. Duncan began painting a new
boundary line, cutting down trees supposedly blazed by Mr. Ezell,4 and using them as posts for his
new boundary which shifted the common boundary to the east in his favor, adding fifteen acres to
the Duncan Tract when compared with the White survey.

                                               I. TRIAL PROCEEDINGS

         In September 1998, Mr. Ezell and Mr. Lance Duncan filed suit against the Duncans in an
effort to settle the parties’ boundary line dispute. Specifically, plaintiffs requested the line between
the parties be set in accordance with the White survey. The Duncans counterclaimed, requesting the
court to establish the true boundary and to compensate them for the timber improperly cut on their
property by Mr. Ezell. Following the filing of the lawsuit, the Duncans hired yet another surveyor,
Devon Acheson, to survey the disputed boundary line. Mr. Duncan led the Acheson crew himself
during the survey. The Acheson survey disagreed with the White survey’s boundary line placement.
The disagreements in the two surveys amounted to a dispute over roughly fifteen acres.

        Following a bench trial spanning three days, the trial court found the White survey more
credible than the Acheson survey. The trial court also rejected the Duncans’ argument that the
parties had acquiesced that the boundary lines were controlled by the steel fence posts put in place
in the 1940's by Mr. Duncan and Mr. Harper. The trial court ordered the Register of Deeds to correct



         2
             Lance Duncan died during the pendency of this matter, and his heirs have been substituted as parties.

         3
          Mr. W hite invited the Duncans to a meeting to discuss his work while still in progress. Throughout the process,
Mr. Ezell encouraged the Duncans to hire their own surveyor so the parties could reach an amicable agreement regarding
their common boundary. Instead, the Duncans offered a partial survey conducted by a Mr. Beasley and Mr. Lawson.

         4
         The trial court found Mr. Ezell’s testimony “unimpeached and credible” concerning his denial of blazing or
marking trees along the disputed boundary line. The trial court found that if any trees cut were painted, they had been
painted by Mr. Duncan over the years during his homemade surveys and had contributed to the confusion.

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the plats at issue to conform to the White survey in favor of the Ezells. The trial court made specific
factual findings which set out the evidence and the history of the dispute:

       1. Alvin E. Duncan (Duncan) obtained interest in his property (Duncan property) by
       inheritance in 1948. This property is more particularly described by deed filed on
       November 23, 1962, with the Perry County Register’s Office, describing the property
       as being situated on the waters of Brush creek in the Third Civil District of Perry
       County, Tennessee, to-wit:

               “Beginning at a set rock with white oak pointers; thence east 88 poles
               to a stake in a hollow at Dena Harper’s southwest corner; thence
               north 10 degrees west, 101 poles to a white oak with a hickory
       pointer;ptoien ee;noetn 10 d sgre0 s olestt,o1a 2 oro eeatm a stakeb netch field; thence _____
                 h ntcr thr hce wee t 1 e p we       4 h p nlb s o with a ie he
       15 degrees east, 35 poles to a black walnut near the foot of the hill; thence ____ 10
       degrees east, 8 poles to a hickory; thence north 10 degrees west, 217 poles to a
       chestnut, with a hickory pointer at the Pleasantville Road; thence west with the
       meanders of the said road, 103 poles to a chestnut oak; which is the northeast corner
       of Maye Qualls line; thence south with the meanders of the said Maye Qualls line to
       the beginning, containing ______ acres, more or less.”

               (Trial Exhibit 1);

       2. Plaintiff Arvell Ezell (Ezell) obtained interest in property adjoining the eastern
       boundary of Duncan property in May 1957, from Olen Harper and wife. This
       property is described in a deed filed on May 6, 1957, with the Perry County
       Register’s Office, as being property situated in the Third (old 4th) Civil District of
       Perry County, Tennessee, on the waters of Brush Creek to-wit:

               “Tract No. 1: Beginning at a stake with beech pointer near the old
               school house on the bank of Brush Creek; thence south 30 degrees
               west, 10 poles to a stake; thence north 85 degrees west, 8 poles to a
               mulberry tree; thence north 65 degrees west, 10 poles to a stake;
               thence north 40 degrees west, 27 poles to Beulah Duncan’s line;
               thence south 15 degrees west, 9 poles to a stake on hill; thence south
               10 degrees east, 142 poles to a hornbeam with beech pointers at the
               branch; thence east 10 poles to a white oak with hickory pointers;
               thence south 10 degrees east, 101 poles to a stake in Eli Duncan’s
               north boundary line; thence east 42 poles to a stake in Gibbon’s line;
               thence north 5 degrees east, with Gibbon’s line 94 poles to a stake in
               Qualls’ line: thence north 24 degrees west, with Qualls’ line 12 poles
               to a stake on ridge; thence south 82 degrees west, 8 poles to a white
               oak; thence west 46 poles to a large chestnut stump, J. W. Qualls’
               corner; thence north 7 degrees west, 12 poles to a black oak; thence


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       north 5 degrees east, 34 poles to a white oak on ridge; thence north 44
       poles to a stake at falls on the branch; thence north 7 degrees east, 17
       poles to a stake on point of the hill; thence north 13-1/2 degrees east,
       23 poles to the beginning, containing 40 acres, more or less.

       (Trial Exhibit 1) This property was referred to at the trial as the
       “home tract;”

3. Ezell acquired interest in real property which borders the southern boundary of
Duncan’s property by inheritance in the 1960's. This property was referred to at trial
as the “Thompson tract.” Plaintiff Lance Duncan (now deceased) also had an interest
in the Thompson tract;

4. For a number of years (over 40), none of the parties have been certain as to the
exact boundary line location separating the home tract from the Duncan property and
the Thompson tract from the Duncan property;

5. The key determination of both boundary lines is directly tied to the location of the
“white oak with hickory pointers” described in both the Olen Harper & Wife to
Arvell Ezell & Wife Deed and the Smith Thomas Duncan to Alvin Eunis Duncan &
Wife Warranty Deed. (Trial Exhibit 1);

6. At some period of time prior to Ezell’s purchase of the disputed property, Duncan
and Olen Harper had a discussion concerning the corners and common boundaries
of the home place and Mr. Harper’s property. Without the benefit of the deeds or
compass, Mr. Harper and Duncan erected metal fence posts to mark what Harper
believed the location of the boundary line to be. Duncan testified that he had no idea
where the boundary line was supposed to be;

7. Over many years, Duncan has painted blazes and made hack marks and blazes on
the ground, trees and posts setting out the boundaries as he believed them to be.
Duncan alleges that Ezell also was guilty of painting lines and making hack marks
at inappropriate locations. Both Ezell and his son, Chester Ezell, deny that they (the
Ezells) ever painted lines or produced hack marks or blazes on their property. The
Court finds that Ezell’s testimony that neither he nor any other members of his family
painted or produced these hack marks and blazes to be unimpeached and to be
credible. The trees that Ezell allegedly painted were cut down by Duncan and used
for posts. Duncan admitted to painting lines on both tracts. Duncan’s painting,
marking and covering up boundary markers has to a large extent resulted in this
confusing property dispute;

8. As a result of the boundary uncertainty, in 1984 or 1985, Ezell employed Thomas
White, Registered Land Surveyor, to prepare a survey plat that would establish the


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boundary lines. As a result of his investigation and survey work that lasted over a
year, White completed a plat of the Arvell Ezell property and filed it with the
Register’s Office of Perry County on December 19, 1985 (Trial Exhibits 2 and 6).
In completing this survey, White located a common corner to begin his survey. To
locate this corner, White was able to locate a large white oak which he determined
to be the large white oak marked as a corner called for in both deeds. He further
went the 101 poles called for in the deeds and found a white oak with corner marks
on it. All of these locations and markings appeared to White to be consistent with
both deeds;

9. A portion of White’s survey in Exhibit 6 has been adjudicated to be inaccurate.
This Court finds that the inaccurate portion involved boundaries not in dispute in this
matter and as such does not affect White’s survey as to the boundary line
determination between the Ezell and Duncan properties;

10. White notified Duncan that he was about to mark the line that he had determined
by his survey. In January 1985, the parties met along with White and Joe George
Beasley. Duncan, through Mr. Beasley, presented a partial survey signed by a
Thomas E. Lawson (Trial Exhibit 5). This survey did not agree with the White
survey. The Court finds the White survey to be superior to the Beasley/Lawson
survey;

11. After thirteen (13) years of no action, Ezell began cutting timber from the
Thompson tract on what he believed to be his property. It was at that time that
Duncan hired F & M Consultants to survey his property. In September 1997, F & M
Consultants presented Duncan with a survey plat. Duncan disagreed with the survey
submitted by F & M claiming they failed to use a proven corner to run the survey and
the survey failed to follow the calls in his deed. As a result, Duncan fired F & M
Consultants by letter of November 5, 1997 (Trial Exhibit 19);

12. On September 11, 1998, Duncan procured the services of Acheson Land
Surveying to prepare a survey;

13. Devon Acheson, a licensed surveyor, testified at trial without the benefit of his
full file. His employees visited the property in dispute and obtained the data he
needed to prepare his survey by use of a GPS system. While he could not remember
the full names of his crew who gathered the survey data, the survey was performed
under his direct supervision. Prior to his completion of the survey, Acheson did not
visit the property site. Acheson prepared a plat of survey of the Alvin and Hazel
Duncan property which was dated March 24, 1999 (Trial Exhibit 27).

14. Acheson’s survey (Trial Exhibit 27) is inconsistent with White’s surveys
(Exhibits 2 and 6);


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        15. The area in controversy on both tracts is approximately fifteen (15) acres;

        16. In June 1999, Duncan entered into boundary line agreements with other
        neighboring property owners (Trial Exhibits 20 and 21). To the extent these
        agreements conflict with the property descriptions of the home tract and the
        Thompson tract, the property descriptions as set forth in the deeds to these properties
        control.

        After making these factual findings, the court stated that under Tenn. Code Ann. § 16-11-
106, the court was to establish a boundary line based on proof of true ownership. The court also
found applicable well-established rules of priority of references; rules for harmonizing calls in deeds
or surveys; and the requirement that the court consider all the evidence. Applying these rules to the
evidence, the court determined that the White survey controlled, that it more accurately set forth the
boundary, and that it set forth the true boundary. The court found significant Mr. White’s conclusion
that the white oak referenced in both deeds was the corner boundary of the tracts and Mr. White
located the tree. “This monument is a natural or fixed object which is a locative call, served to fix
the boundaries. It is not unreasonable in determining this boundary dispute that this white oak is the
fixed object which, when applied, harmonizes the Ezell and Duncan deeds.”

                                   II. THE ISSUES AND THE LAW

        The Duncans appeal, arguing the trial court erred in accepting the White survey over the
Acheson survey. Specifically, five of the issues raised by the Duncans are challenges to findings of
fact made by the trial court: (1) that for over 40 years, the parties have been uncertain as to the exact
boundary; (2) that the key to determination of the correct boundary is the location of the “white oak
with pointers” described in both deeds; (3) that the Ezells did not blaze or mark trees; (4) that the
Duncans did not take action to contest the White survey for 13 years; and (5) that the survey
produced by White was more credible than the survey produced by Acheson and more accurately set
forth the boundaries.

        In resolving a boundary line dispute, the trier of fact must evaluate all of the evidence and
assess the credibility of the witnesses. Mix v. Miller, 27 S.W.3d 508, 514 (Tenn. Ct. App. 1999).
The question of where the correct boundary lies is generally a question of fact. The usual standard
of review applicable to bench trials applies in boundary disputes. Thornburg v. Chase, 606 S.W.2d
672, 675 (Tenn. Ct. App. 1980). Under that standard, we must review this 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 these findings. Tenn. R. App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403,
404 (Tenn. 1999). For the evidence to preponderate against a trial court’s finding of fact, it must
support another finding of fact with greater convincing effect. The Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999).




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         Where there is conflict in testimony, the trial court is in a better position than this court to
observe the demeanor of the witnesses and evaluate their credibility. McCaleb v. Saturn Corp., 910
S.W.2d 412, 415 (Tenn.1995). Consequently, appellate courts afford considerable deference to the
trial court’s findings of credibility and the weight to be given testimony; Cutler-Hammer v. Crabtree,
54 S.W.3d 748, 753 (Tenn. 2001). These standards apply in boundary disputes where the trial court,
as the finder of fact, is required to choose between two competing surveys. See Mix, 27 S.W.3d at
514 (“Based on our review of the record in the instant case, we cannot say that the evidence
preponderates against the trial court’s conclusion that the Mix deed and Mr. Barrett’s survey are
preferable to the Miller deed and Mr. Coleman’s survey.”); see also Stovall v. Bagsby, No. M2002-
01901-COA-R3-CV, 2003 WL 22768677, at *2 (Tenn. Ct. App. Nov. 24, 2003) (listing cases where
trial judge chose between competing surveys); Edwards v. Heckmann, No. E20020-02292-COA-R3-
CV, 2003 WL 21486987, at *4-5 (Tenn. Ct. App. June 25, 2003) (where proof was a battle of the
experts, i.e., surveyors, reviewing court applied Tenn. R. App. P. 13(d)) and found the evidence did
not preponderate against the trial court’s findings).

         The rules on how a court is to approach a boundary line dispute are well settled in Tennessee:

         In determining disputed 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 the boundary lines of adjacent landowners, and then to courses and
         distances. This rule of construction is to aid in determining the intention of the
         parties to a deed which is to be determined, if possible, from the instrument in
         connection with the surrounding circumstances.

Thornburg, 606 S.W.2d at 675; see also Pritchard v. Rebori, 135 Tenn. 328, 186 S.W. 121, 122
(Tenn. 1916).

                                                   III. ANALYSIS

        The trial court herein applied the appropriate legal principles. Our review of the entire record
leads us to conclude that the evidence does not preponderate against the trial court’s findings of fact
relative to the correct boundary. Both deeds referenced a white oak with hickory pointers. The trial
court found the common boundary line established by the White survey more credible because it
located the white oak with hickory pointers and used it to locate the deed calls. That method
harmonizes the deeds.

        In contrast, Mr. Acheson did not locate the tree,5 but Mr. Acheson did not visit the site until
the survey was completed. Instead of using the more traditional line of sight method employed by
Mr. White, Mr. Acheson employed a subcontractor to use GPS (global positioning satellite) to


         5
          The Duncans maintain that the original deed calls were made over a hundred years ago and that the tree at issue
would no longer exist. Nothing in the record refutes Mr. W hite’s testimony that he found the white oak mentioned in
the deeds.

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establish the coordinate values. Once those values were found, a field crew went to the property
under the direction of Mr. Duncan to collect further information. The crew then input the additional
data into the computer, and the survey was generated from that process. The crew member who
input the data was unavailable to testify and no longer worked for the company.

       The trial court found that:

       The Court has considered the testimony of the two surveyors at trial, the manner in
       which their surveys were performed, the surveyors reliance on the legal description
       set forth in the controlling deeds, the extent and the sophistication of the surveys, the
       training and experience of the two surveyors, as well as the deposition of Acheson.
       The Court therefore finds that White’s survey controls, and the Court relies on the
       White survey in finding that it more accurately sets forth the boundaries between the
       home tract and the Duncan tract. . . .

        We affirm the trial court’s adoption of the boundary line established in the White survey and,
therefore, its ruling in favor of the plaintiffs, Mr. Ezell and Mr. Lance Duncan.

                                        IV. ACQUIESCENCE

        The Duncans also argue that the location of the boundary between the Home Tract and their
property is fixed by the fence posts placed by the previous owner of Mr. Ezell’s property, Olen
Harper, in 1948. They argue that the trial court erred in failing to give credence or precedence to the
agreement or acquiescence as to the boundary line of Mr. Duncan and Mr. Harper as evidenced by
the fence posts. The court considered this argument, but did not agree that acquiescence controlled
the location of the boundary, noting that when the poles were placed Mr. Harper had not consulted
any deeds and Mr. Duncan “had no idea if the location of these poles was correct or incorrect.”
Consequently, the trial court gave “no weight to the placement of these poles as acquiescence by
Ezell that the poles marked the boundary between Duncan and the home tract.”

        The boundary line between adjoining property owners can be established by acquiescence.
Roane County v. Anderson County, 89 Tenn. 259, 14 S.W. 1079 (1890). However, while adjoining
owners may agree upon the exact location of their common property line when there is doubt about
the location of the true line, Houston’s Heirs v. Matthews, 9 Tenn. 116, 118-19 (1826); Winborn v.
Alexander, 39 Tenn. App. 1, 17, 279 S.W.2d 718, 725 (1954), they cannot change a boundary by
parol agreement when the deed’s calls are definite and well understood, May v. Abernathy, 23 Tenn.
App. 236, 242, 130 S.W.2d 135, 139 (1939). Where the deed clearly establishes the line, there is
no basis to resort to parol evidence to establish a different boundary, since only an unascertained and
disputed line may be established by parol agreement. Thornburg, 606 S.W.2d at 674.

        In any event, where there is a claim that the boundary line was established by acquiescence,
the proof must show that the acquiescence was mutual and that both parties must have knowledge
of the existence of a line as a boundary line. Duren v. Spears, 1990 WL 59396, at *2-3 (Tenn. Ct.


                                                  8
App. May 10, 1990). Whether acquiescence is shown depends on the facts of the case. Taylor v.
Carlin, No. W2003-00640-COA-R3-CV, 2004 WL 3679699, at *3 (Tenn. Ct. App. Feb. 26, 2004)
(perm app. denied Nov. 15, 2004). Mutual recognition and knowledge of the line as a boundary is
required. Id; see also Brooks v. Brake, No. 01A01-9508-CH-00365, 1996 WL 252322, *5 (Tenn.
Ct. App. May 15, 1996) (no Tenn. R. App. P. 11 application filed)(finding that to establish the
existence of a boundary line by agreement, the party making the assertion must prove among other
factors that there was an agreement of the parties or their predecessors to the location of the
boundary).

        The evidence does not preponderate against the trial court’s factual findings surrounding the
posts set by Mr. Harper. We agree with the conclusion that there was no acquiescence to a line other
than the one established in the deeds and proved by the White survey.

                                        V. FRIVOLOUS APPEAL

       Mr. Ezell ask this court to find the appeal frivolous under Tenn. Code. Ann. § 27-1-122
which provides:

        When it appears to any reviewing court that the appeal from any court of record was
        frivolous or taken solely for delay, the court may, either upon motion of a party or on
        its own motion, award just damages against the appellant, which may include, but
        need not be limited to, costs, interest on the judgment, and expenses incurred by the
        appellee as a result of the appeal.

However, an award of damages under § 27-1-122 is discretionary. Banks v. St. Francis Hosp., 697
S.W.2d 340, 343 (Tenn. 1985).

        It is well settled that neither a party, nor this court, should have to bear the costs and vexation
of a meritless appeal. Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999) (citing Davis
v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977). An appeal is considered frivolous if there
is no reasonable chance of success or if it is devoid of merit. Id. The competing surveys of Mr.
White and Mr. Acheson presented a non frivolous factual dispute in this case. Therefore, we find
that this appeal was not completely without merit and was, therefore, not frivolous.

                                             CONCLUSION

        For the foregoing reasons, we affirm the decision of the trial court and remand the case for
any further proceedings consistent with this opinion. Although we find that this appeal is not
frivolous, we tax costs of the appeal to the appellants, Alvin and Hazel Duncan.


                                                         ___________________________________
                                                         PATRICIA J. COTTRELL, JUDGE


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