                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      May 12, 2003 Session



     WILLIS EDWARDS, ET AL. v. KATHERINE L. HECKMANN, ET AL.


                    Appeal from the Chancery Court for Claiborne County
                          No. 13,270   Billy Joe White, Chancellor

                                       FILED JUNE 25, 2003

                                  No. E2002-02292-COA-R3-CV


This appeal involves a boundary line dispute between Willis Edwards and Wendall Edwards
(“Plaintiffs”) and Katherine and Gregory Heckmann (“Defendants”). Plaintiffs and Defendants
presented proof from their respective surveyors regarding the appropriate boundary line for the
disputed area of land. The surveyors testified in detail regarding the natural and artificial landmarks,
etc., they relied upon in arriving at their differing conclusions. The Trial Court concluded
Defendants’ surveyor was accurate and entered judgment accordingly. Plaintiffs appeal. We affirm.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.


Timothy P. Webb, Jacksboro, Tennessee, for the Appellants Willis Edwards and Wendell Edwards.


Lee Dan Stone, III, Tazewell, Tennessee, for the Appellees Katherine L. Heckmann and Gregory
Heckmann.
                                                        OPINION

                                                       Background

                Plaintiffs own land in Speedwell, Tennessee. Defendants own an adjoining tract of
land. According to the complaint, Plaintiffs learned in February of 2000, that Defendants were about
to start cutting timber on an eight acre area of land whose ownership was disputed. Although
Plaintiffs requested Defendants not cut timber on the disputed area, Defendants “logged the entire
area in dispute.” Plaintiffs claimed to have exercised control over the disputed area for the past 78
years, and alleged Defendants trespassed onto their property. Plaintiffs maintained they were the
actual owners of the disputed area by deed or, in the alternative, adverse possession.1 Plaintiffs
sought to have title to the land quieted and a restraining order prohibiting Defendants from further
trespassing onto their property. Plaintiffs also sought compensation for the value of the timber.

                Defendants answered the complaint, generally denying the allegations contained in
it. Defendants also filed a counterclaim, seeking a declaration that they were the owners of the
property in question. Defendants also sought $10,000 as damages for their inconvenience caused
by Plaintiffs’ improper actions, as well as costs and attorney fees.2

                Defendants filed a motion to bifurcate the trial, asking the Court first to determine
ownership of the disputed property. Then, depending on the outcome of that particular issue, the
parties could litigate the issue of damages if necessary. The Trial Court granted the motion and the
sole issue of ownership of the disputed property was tried on July 10, 2002.

                 Plaintiffs’ only witness during their case in chief at trial was Dennis Fultz (“Fultz”).
Fultz has been a licensed surveyor for twenty-seven years. Fultz originally was contacted by
Defendant Katherine Heckmann about surveying the property. Although Fultz obtained copies of
several deeds and information from the Tax Assessor’s office, he never undertook to survey the
property. Plaintiffs later hired him to survey the property in question. At that time, Fultz was
presented with a “preliminary” survey prepared by a Mr. Crutchfield (“Crutchfield”). Fultz provided
Plaintiffs with the information he had compiled after his previous conversation with Mrs. Heckmann,
and told Plaintiffs to give this information to Crutchfield and have him complete the survey he
already had started. After Plaintiffs were unable to get Crutchfield to complete his survey, Fultz
agreed to survey the property in question.


         1
             Plaintiffs do not pursue their ad verse possession claim o n app eal.

         2
            Although no t directly pertinent to this appeal, Plaintiffs also sued C oy W atson (“W atson”), who was hired
by Defendants to cut the timber. Wa tson filed a cross-claim against Defendants and a third-party complaint against
Mark Comparoni, who prepared the survey upo n which W atson relied w hen logging the disputed area. In a nutshell,
Watson maintained he relied upon Com paroni’s survey and De fendants’ representations that they were the actual owners
of the pro perty and, as a result, he was entitled to indem nification in the eve nt Plaintiffs recovere d a judgment. Because
the Trial Court eventually con clude d D efendants were the owners of the disputed property, the complaint against Watson
and his claims for indemnification were dismissed .

                                                             -2-
                 Fultz testified to the various deeds he relied upon in preparing the survey. Fultz also
relied upon Crutchfield’s preliminary survey, as well as completed surveys prepared earlier by Mark
Comparoni and William Parsons. In arriving at his conclusions as to the appropriate boundary line,
Fultz noted that the Crutchfield, Comparoni, and Parsons surveys all contained a particular stone as
a reference point. The Crutchfield and Parsons surveys (but not the Comparoni survey) also
contained a second stone as a point of reference. Fultz testified to various errors he believed were
contained in the initial survey prepared many years ago and various subsequent deed divisions. For
example, Fultz testified there was what he assumes to be a “clerical” error in which a division line
was changed from “twenty-seven poles” to “forty-seven poles,” which he claims improperly added
330 feet in distance to Defendants’ property. Fultz opined the proper reference to twenty-seven poles
would be consistent with a fence boundary and a stone. Interestingly, Fultz also testified that a
portion of the disputed property was not owned by either Plaintiffs or Defendants according to his
interpretation of the relevant deeds. More specifically, Fultz claimed this particular area, which
comprises approximately 2.83 acres, actually was owned by either the family of Jordan Hopper or
Iverson Graves. Fultz acknowledged that there is a fence located on the boundary line which the
Comparoni and Crutchfield surveys indicate is the proper boundary between the property of
Plaintiffs and Defendants.3

                Defendants’ first witness was Tom Jessee (“Jessee”), a field engineer employed by
William Parsons. Jessee assisted with a June 2000 survey on what was referred to at trial as the
“Iverson Graves/C.J. Hopper” property. While conducting the survey, Jessee was shown the location
of two corners of this property by C.J. Hopper. Jessee identified a fence row which, according to
the Parsons survey, divides the property between Plaintiffs and Defendants, with Defendants owning
the property to the south of this fence. Jessee stated this information was “represented to [him] at
the site” by C.J. Hopper. Based on the location of the two corners C.J. Hopper identified to Jessee,
the “Iverson Graves/C.J. Hopper” property does not include the 2.83 acres of land which Fultz
claimed one of them owned, and is consistent with the boundary as claimed by Defendants. Jessee
admitted neither Plaintiffs nor Defendants personally identified to him their property lines and,
therefore, he did not know whether Plaintiffs or Defendants actually owned the land at issue in the
lawsuit.

                The next witness was Mark Comparoni (“Comparoni”), a licensed surveyor in four
states, including Tennessee. Defendants initially contacted Comparoni in 1999 about surveying their
property. Defendants indicated they were having trouble with relatives who owned adjoining land,
and they might have a boundary overlap and needed their property surveyed. Comparoni identified
the survey he prepared for Defendants and the various deeds he relied upon in preparing the survey.
According to Comparoni, the deeds which were created when the property was initially divided in
1902 contained many errors and were not very reliable, and so he placed more emphasis on recent
deeds. Because certain information on the deeds was not very reliable, Comparoni testified he also
relied on “what was on the ground.” Specifically, Comparoni stated in his opinion, the surveyors
who divided the original estate in 1902 were not competent. Comparoni then added:


       3
           It is this fence which Defendants also claim to be the proper boundary line.

                                                         -3-
               But, every surveyor, including Mr. Fultz, Mr. Parsons, and myself,
               when we go to the field, we leave evidence in the field of where
               we’ve been. We cut out lines. We flag lines. We stake lines,
               whether we’re capable of bringing that information back into the
               office and accurately plotting it.… But, we do always leave evidence
               in the field of where we’ve been. And, in my opinion, the surveyor
               that divided the … [original] estate in 1902 left quite a bit of evidence
               of where he had been.

                Comparoni asserted Defendants’ property was enclosed by a fence on the northeast
side, as was the property of several adjoining landowners. Comparoni then discussed the various
natural landmarks, artificial landmarks, and other indicia he used to identify the various stations
which set forth the boundaries of Defendants’ property, such as trees, fences, stones, etc. Comparoni
concluded Defendants’ property line ran along a fence line going northeast from a red oak tree which
was located at an intersection between two fences. Comparoni testified he disagreed with Fultz’
conclusions regarding the location of the property line, stating the forty-seven pole call is correct,
and the twenty-seven pole call “is based on a very erroneous estate division.”

                The next witness was Larry Edwards, Defendant Katherine Heckmann’s father. Larry
Edwards obtained this land from his parents, and was familiar with the boundaries of the land
obtained from his parents and later deeded to his daughter. Larry Edwards testified the boundary was
the fence line identified in Comparoni’s survey. Larry Edwards claimed that he never had any
dispute with Plaintiffs over what was the proper boundary line when he owned the property. Larry
Edwards claimed Plaintiffs never made any use of this property. Larry Edwards further testified that
in 1976, he cut down as many as 30 trees to build a house. Some of these trees were located on the
now disputed area, and Plaintiffs never objected. At the time of trial, Larry Edwards was sixty-two
years old, and stated the fence which divided the property had “been there as far back as I can
remember.”

                The Trial Court issued a memorandum opinion from the bench. The Trial Court
stated both surveyors were “real good.” Nevertheless, the Trial Court stated, correctly, that its duty
was to weigh all of the proof and facts, and not look at any one single item. According to the Trial
Court, it believed an important item of proof was the Parsons survey because the Parsons survey did
not support Fultz’ claim that 2.83 acres of the disputed property belonged neither to Plaintiffs nor
Defendants but instead to Iverson Graves or the family of Jordan Hopper. After discussing the
testimony of Comparoni and Fultz, the Trial Court concluded the preponderance of the evidence was
that Defendants’ surveyor, Comparoni, was correct. On August 15, 2002, the Trial Court entered
a Judgment incorporating its July 10 memorandum opinion, declaring the boundary of the disputed
property to be in accordance with the Comparoni survey, and dismissing Plaintiffs’ complaint.

               Plaintiffs appeal, claiming the Trial Court erred by not following the framework set
forth in Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct. App. 1980), and in relying on the Parsons
survey when Parsons never testified at trial. Defendants claim Plaintiffs’ appeal is frivolous.


                                                 -4-
                                              Discussion

                Our review of findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

             We first address Plaintiffs’ argument that the Trial Court erred by not following the
framework established in Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct. App. 1980). In
Thornburg, we stated as follows:

                        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. Pritchard v. Rebori, 135 Tenn. 328, 186 S.W. 121 (1916);
                Minor v. Belk, 50 Tenn. App. 213, 360 S.W.2d 477 (1962); Doss v.
                Tenn. Prod. & Chem. Corp., 47 Tenn. App. 577, 340 S.W.2d 923
                (1960). 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. Dearing v. Brush Creek Coal Co., 182 Tenn. 302,
                186 S.W.2d 329 (1945); Cates v. Reynolds, 143 Tenn. 667, 228 S.W.
                695 (1920).

Thornburg, 606 S.W.2d at 675.

                  Plaintiffs argue the Trial Court erred in not making reference to the various factors
set forth in Thornburg when it determined the location of the boundary line. We disagree. The proof
at trial was, for the most part, a battle of the experts. Plaintiffs and Defendants presented proof from
their respective surveyors explaining where they believed the boundary line to be and exactly how
they arrived at that conclusion. Fultz and Comparoni even went so far as to explain why they
believed each other’s conclusion was inaccurate. Fultz and Comparoni detailed the natural
landmarks they believed established boundaries of the disputed property and adjoining land. When
natural landmarks were not present, artificial landmarks (such as the fence) were discussed. The
Parsons survey and testimony of Jessee pertaining to the boundary line of an adjacent landowner also
were introduced at trial. When the Trial Court concluded the survey by Comparoni was accurate,
the Trial Court implicitly adopted the conclusions made by Comparoni which encompassed the
relevant factors set forth in Thornburg.

                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).


                                                  -5-
A trial court's findings regarding the credibility of witnesses is binding on this Court unless they are
contrary to the preponderance of the evidence. Id. In the present case, the Trial Court was
confronted with conflicting testimony by Fultz and Comparoni. The Trial Court found both
witnesses competent in their profession and thorough in their testimony. This made the ultimate
decision all the more difficult for the Trial Court. We also note that our review of the trial transcript
disclosed numerous times when witnesses in answering a question would point to something on the
survey. Often there is nothing in the transcript or on the exhibit to show us in our review of the
record exactly what the witness pointed to on the survey. The Trial Court, of course, had the benefit
of seeing the witness indicate exactly what it was he was pointing to, while this Court does not.

                 Based on our review of the complete record in this case, we cannot conclude that the
preponderance of the evidence is against the Trial Court’s finding that the Comparoni survey was
the accurate one. See Mix v. Miller, 27 S.W.3d 508, 514 (Tenn. Ct. App. 1999)(“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.”); Slack v. Antwine, No. W2000-00961-COA-R3-CV, 2001 Tenn. App.
LEXIS 24, at * 19 (Tenn. Ct. App. Jan. 11, 2001), no appl. perm. appeal filed, (“Two surveyors
testified in this case and the chancellor had the benefit of observing the surveyors as they testified
with regard to their activity in locating boundary lines.… Considering the testimony of both
surveyors with deference to the determination of credibility by the chancellor, we cannot say that the
evidence preponderates against the finding of the trial court.”).

                 Plaintiffs’ second issue is their claim that the Trial Court erred in relying on the
Parsons survey when Parsons never testified at trial. The Parsons survey was discussed at trial first
by Fultz, who was Plaintiffs’ witness. Fultz expressly stated he found the Parsons survey useful and
that he utilized this survey, among others, in arriving at his conclusions. During Jessee’s testimony,
Plaintiffs never objected to any discussions about the Parsons survey. In fact, Plaintiffs never
objected at any point during the trial to the introduction of this survey, presumably because it was
their witness who first discussed this survey and his reliance on same. In light of the foregoing,
Plaintiffs cannot now complain that the Trial Court erred in relying on the Parsons survey. See Tenn.
R. App. P. 36 (a)(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to prevent
or nullify the harmful effect of an error.”). We, therefore, need not decide whether any error actually
was committed by the Trial Court when it relied, at least in part, on the Parsons survey.

                The final issue is Defendants’ claim that Plaintiffs’ appeal is frivolous. We decline
to hold that the appeal is frivolous.




                                                  -6-
                                           Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for further proceedings as necessary, if any, consistent with this Opinion, and for collection
of the costs below. Costs on appeal are assessed against the Appellants Willis Edwards and Wendell
Edwards, and their surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                                -7-
