                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                       November 27, 2000 Session

              MARY WILLIAMS SLACK, ET AL. v. BRYAN ANTWINE

                 A Direct Appeal from the Chancery Court for Henderson County
                     No. 11988     The Honorable Joe C. Morris, Chancellor



                                       No. W2000-00961-COA-R3-CV


Plaintiffs sued to quiet title to property and to establish boundary line. The trial court found that the
deed description of plaintiffs’ property established their title to the disputed property. Defendant has
appealed. We affirm the judgment of the trial court.



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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

David A. Riddick, Jackson, For Appellant, Bryan Antwine

M. Dianne Smothers, Jackson, for Appellee, Mary Williams Slack

                                                     OPINION

        On March 5, 1998, plaintiff, Mary Williams Slack1, filed a complaint in the Chancery Court
of Henderson County, Tennessee, against defendant, Bryan Antwine, to quiet title to real property.
The complaint alleges that the plaintiffs became equal co-owners of the subject property by virtue
of the Last Will and Testament of Willie Williams. The property is described in the complaint as
follows:

                  Located and being situated in the First (old 19th) Civil District of
                  Henderson Country, Tennessee and being more particularly described
                  as follows to wit:


         1
           The complaint alleges that plaintiff is co-owner of the property with five siblings. By order entered August
18, 1999, the siblings, W illie Melvin W illiams, Lee M olen W illiams, Etta M ae William s, and M ozella Williams, were
added as plaintiffs.
               BEGINNING at a stake, hickory and red oak pointers on Adams line;
               runs thence West 32 3/5 poles to a stake, red but pointer; thence
               South 6 and 7/25 poles to a stake with white oak pointer; thence West
               220 poles to a black oak, Adams Northwest corner; thence North 2
               degrees West 130 poles to a stake, two hickory pointers, Lewellings
               corner; thence East 74 1/5 poles to a stake, chestnut hickory and black
               oak pointers; thence North 18 and 23/25 poles to a chestnut stump,
               with poplar pointer, Oakley’s Southwest corner; thence with Oakley
               line North 87 degrees East 66 and 18/25 poles to a stake, chestnut and
               dogwood pointers, near the road; thence to and with said road South
               1 1/4 degrees East 30 4/5 poles South 75 degrees East 28 poles, South
               29 degrees East 16 poles, South 84 degrees East 40 poles; thence
               leaves the road runs North 81-3/4 degrees East 37-2/5 poles to a
               stake, three gums pointers on the East line of said Donnell tract;
               thence South 100 poles to the beginning and containing 194 acres,
               more or less.

               This being the same tract of land conveyed to Willie Williams by
               Warranty Deed of record in Deed Book 87, page 238-39 [entered in
               Note Book 7, page 494] of the Register’s Office of Henderson
               County, Tennessee.

        The complaint alleges that plaintiffs’ father, Willie Williams, acquired the land by a warranty
deed recorded on November 20, 1963 in Book 87, page 238-39 [entered in Note Book 7, page 494]
Register’s Office of Henderson County, Tennessee. The complaint further alleges that by Quitclaim
Deed of record at Deed Book 163, page 280-82, Register’s Office of Henderson County, Tennessee,
grantors Roger Lyons, Edna Lyons, Delores Martinez and Eddie D. Lyons quitclaimed their interest
in a tract of land contiguous to the Williamses’ property to Mike Johnson, James Johnson, Chris
Johnson and Earl Buice. The complaint avers that Mike Johnson, James Johnson, Chris Johnson,
and Earl Buice conveyed a part of said property to Bryan Antwine by warranty deed dated July 29,
1996, recorded in Deed Book 179, page 687-88 in the Register’s Office of Henderson County,
Tennessee. The complaint alleges that the deed purports to convey a part of the land owned by
plaintiffs. The complaint alleges irreparable harm unless Mr. Antwine and his agents or assigns are
restrained from continuing to trespass on plaintiffs’ land.

        A Temporary Restraining Order was entered prohibiting defendant, his agents or assigns from
making any entry upon said property. Defendant’s answer denies the material allegations of the
complaint and avers that the complaint fails to state a claim upon which relief can be granted. The
answer also avers that defendant and his predecessors in title have used, maintained and acquired
rights in the disputed property under the doctrine of adverse possession and/or prescription.




                                                 -2-
         A non-jury trial was held on September 23, 1999, and the case was taken under advisement.
On November 24, 1999, the Chancellor filed findings of facts and conclusions of law, which states
in part:

                     Plaintiff’s father, Willie Williams held said land by a
               Warranty Deed of record at Book 87, page 238 - 39 [entered in Note
               Book 7, page 494] of the Register’s Office of Henderson County,
               Tennessee, said deed being recorded on November 20, 1963.

                       The Defendant holds his interest in a certain tract of land by
               virtue of a warranty deed of record at Deed Book 179, page 687 - 88
               of the Register’s Office of Henderson County, Tennessee, which was
               executed in 1996 by Mike Johnson, James Johnson, Chris Johnson
               and Earl Buice.

                      Both Mr. Lyons and Mike Johnson consulted Paul New in
               1992 to survey the tract of land which Johnson intended to purchase
               from the Lyons family. Mr. New was hired by Mike Johnson to
               survey that tract.

                       Mr. Johnson wanted the corners of the Lyons property
               established.

                       Mr. New testified that the “next step” in the survey process is
               to determine the surrounding property owners and obtain copies of
               their currents deeds. He did this. Mr. Richard Dodds was hired by
               the Williams family in 1997 to check the western boundary line of the
               Williams property, to see if there were encroachments on that
               boundary. Mr. Dodds also obtained copies of adjoining landowners
               deeds.

                      Jeff Tulley, the Dodds survey party chief, found that the legal
               description in the 1992 deed to the Johnson’s and the 1996 deed to
               Antwine cause an “overlap” or discrepancy with the Williams deed
               of 1955. This overlap was verified by Richard Dodds, the licensed
               surveyor.

                       The “overlap” caused by the legal description set forth by Mr.
               New results in a loss of approximately 17 acres from the Williams
               tract and increases the Lyons [now Antwine] acreage from 97 acres
               to 115.62. Both surveyors found this change occurred in the 1992
               deed containing Mr. New’s description.



                                                -3-
       Prior to the deed of 1992 containing the description created by
Mr. New, the deeds in the Lyons chain of title would not close. Mr.
New himself found that the description in the Lyons chain would not
close.

        Mr. New made adjustments to the calls in the Lyons deed, at
the request of Mr. Lyons and Mr. Johnson in 1992, so that the calls
in the Lyons deed would close. The northern boundary was the only
boundary of the Lyons tract to which these persons agreed, and they
instructed Mr. New to mark the other boundaries of the Lyons tract
“as the (Lyons) deed calls it.” When the calls would not close he
made them “fit” as best he could, even though this resulted in an
overlap of approximately 17 acres into the Williams’ tract. At no
time did Mr. New survey or run the calls in the Williams deed chain,
to see if those calls would close.

        The only “natural monument” which Mr. New found in
making his survey of the Lyons tract in 1992 was a hole in the ground
where an oak stump might have been. Mr. New could not tell what
kind of tree had grown there and there were other such holes in that
same area.

        Mr. New found no other man placed monuments other than
some fence remains, which would show the boundary between the
Lyons tract and the Williams tract. Mr. Tully and Mr. Dodds found
no such standing fences at the western boundary of the Williams tract,
using the calls as set forth in the Williams’ deed. Mr. Dodds found
a fence remnant close to where the Williams’ tract western line, but
no continuous tree line or fence line. The disputed line is hilly, gully
woodland.

        When a deed’s calls will not close and the calls of other
adjoining tracts will close, the surveyor would use one of the deeds
that will close as the determining description.

         When a surveyor finds two contiguous deeds which both close
but which have a true overlap in their calls, the more senior deed
should prevail. The Williams’ deed is senior to the earliest deed in
the Lyons’ chain of title by over 40 years. Both Mr. New and Mr.
Dodds found the Williams’ chain to precede the Lyons’ chain by over
40 years. According to Mr. New, original deed seldom close very
tightly, especially if they[’re] old. Mr. Dodds found that the calls in
the Williams’ description and deeds did close.


                                  -4-
        None of the persons whose land presently adjoins the Lyons
and Williams tract have independent knowledge of the boundaries of
their tracts, other than the descriptions in their deeds. Mr.
Yarborough showed Mr. New where he thought his boundary with the
Lyons tract was, and the Gowans did not know where their boundary
was. Mr. New never went on site with any of the Williams heirs to
determine where they thought their line was.

      The legal description created by Mr. New in 1992 as a result of
his survey which was incorporated into the quitclaim deed from the
Lyons to the Johnsons did not disclose any discrepancy with any
adjoining landowners calls, although Mr. New was aware of such
discrepancy.

        Mr. Dodds found an old hedge row running east-west across
the road at the northern boundary of the Williams tract which
matched the calls on the Williams’ deeds. The northern boundary set
by Mr. New for the Lyons tract does not match this old hedge row,
and in fact, again overlaps the Williams tract, resulting in less road
frontage for the Williams’ tract. Mr. New’s northern boundary of the
Lyons tract comes to rest where there is no marker of any kind. Mr.
Dodds found old hedge rows to mark the south boundary, north
boundary of the Williams’ tract. Mr. Jeff Tulley (working as crew
chief for Dodds Surveying) found a good fence line running north
from the point of beginning on the Williams’ southeast corner to the
northeast corner which contained trees of up to 30 inches in diameter.
This fence row marks the eastern boundary of the Williams’ tract.
Mr. Tulley also found the hedge row at the northern boundary of the
Williams tract and the calls of the Williams deeds match with this
northern boundary hedgerow. Mr. Tulley found old hedgerows to
mark three of the four ‘sides’ of the Williams’ tract, with only the
disputed western boundary not being so marked. Using these
monuments, the calls of the Williams deeds close.

        Jeff Tulley ran the entire boundary of the Williams’ tract on
foot and found hedgerows and/or old fences to mark the southern,
eastern and northern boundary of the tract. He found no monuments
to mark the disputed western boundary, no trees, no fences or other
markers. He turned north when the deeds calls instructed such a turn.
He found only some fence remnants where Mr. New had placed the
disputed line, but could not determine which way those remnants had
been running. Mr. Tulley ran his instruments in the disputed area for
about four hours and did not find an existing fence running north and


                                 -5-
south on Mr. New’s boundary. He did find the iron pins set by Mr.
New in 1992. Mrs. Mary Slack, one of the Williams heirs, did not
speak with either the Lyons grantors or with Mr. New about the
boundary of the Williams tract in 1992. Mrs. Slack remembered an
old wire fence which was on the western boundary of the Williams
tract in 1985, and which was already down on the ground in 1985.
When Mr. New surveyed the land in 1992, he did not look for fencing
in the area where Mr. Tulley found the disputed boundary. Mr.
Tulley found some other fence that ran in a different direction. If this
fence remnant is used as the disputed boundary, it does not match the
calls in the Williams’ deeds. Mr. New never looked for any man-
made monuments where Mr. Tulley found the disputed boundary to
lie, as Mr. New was going a certain distance as called for by the
Lyons deed and he was moving from west to east from the creek
(Gourley Creek). Mr. New never ran the calls on the Lyons deed
from east to west, to see if the calls would match what he believed the
Lyons’ western boundary to be, the creek.

       WHEREFORE, based upon the foregoing findings of fact, the
Court reaches the following CONCLUSIONS OF LAW:

1.      That the boundaries of two tracts of land located in
Henderson County, Tennessee, are in dispute and have been brought
before the Court for resolution;

2.     That the Defendant has not raised nor proven any claim of
 adverse possession to any portion of the disputed tract.

3.      That both the Plaintiffs and the Defendants obtained
 surveyors who ran the calls and descriptions that [sic] parties
respective tracts. Further, that only Dodds Surveying ran on the
ground and by computer the calls of the Williams deeds.

4.     That the Court must begin with the legal description of the
two tracts of land in determining the actual boundaries of each tract.
Further, that in this case, none of the corners of the two tracts are
bounded by a natural monument or marker. Further, that artificial
marks or monuments mark three of the four boundaries of the
Williams tract. Further, that the courses and distances of the
Williams tract description will close and return to the point of
beginning.

5.      Further, the evidence shows that Jeff Tulley of Dodds


                                  -6-
                Surveying relied not only on the existing old hedgerows on three
               sides of the Williams tract for guidance, but shows that he found that
               the landowner to the east of the Williams tract had worked the land
               up to the easternmost boundary of the Williams tract, and had stopped
               at the north-south hedgerow.

               6.      That all of the surveyors found that the calls in the Lyons
               tract, (which became divided into the Antwine tract) would not close
               back to the point of beginning. Further, that only by making
               adjustments to said calls and thus changing the description could Mr.
               New make such calls close.

               7.      That the changes and adjustments made by Mr. New result
                in an encroachment onto the land contained in the Williams tract,
               which tract description has been unchanged for almost a hundred
               years.

               8.     That the disputed portions of the tracts, containing
        depicted by crosshatching in acres and contained in several areasare part and parcel
               approximately 17.34 the plat made by Dodds Surveying
       of the Williams tract. Further, that the deed of Antwine should be reformed to reflect
       such boundaries and properly recorded.

        By an order entered nunc pro tunc on March 23, 2000, the chancellor decreed that the
Williamses are the lawful owners of the tract of land in dispute, that defendant remove any
encroachments which have been placed upon the land, and cease from any attempted possession or
use of such tract. The chancellor further ordered that defendant shall take such action as necessary
to reform his deed of record to conform with the court’s order and to record the reformed deed in the
Register’s Office of Henderson County, Tennessee.

       Defendant appeals the order of the chancellor, presenting one issue as stated in his brief:
“Whether the chancellor properly set the boundary between the parties given all the evidence
presented at trial?” Since this case was tried by the trial court sitting without a jury, we review the
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 the findings, we must affirm, absent error of law.
T.R.A.P. 13(d).

       Mr. Antwine contends that the wrong criteria was used to determine the disputed boundary
line. He asserts that the boundary line set by Mr. New, his surveyor, is based on a man-made
monument, fence remnants running north and south, as evidence of the boundary, and that the
Williamses’ boundary determination relied upon calls and distances contained in a deed almost one
hundred years old. Mr. Antwine contends that the evidence in this case fails to support the
chancellor’s ruling regarding the boundary, and the ruling is therefore in error.



                                                 -7-
        We begin by reviewing the law in Tennessee with regard to disputed boundary lines. The
court in Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct. App. 1980) stated:

                      In determining disputed boundaries, resort is to be had first to
               natural objects or landmarks, because or their very permanent
               character; next, to artificial monuments or marks, then to the
               boundary lines of adjacent landowners, and then to courses and
               distances. (Citations omitted).

Id. at 676. See also Minor v. Belk, 360 S.W.2d 477 (Tenn. Ct. App. 1962) (a fence line erected
prior to the boundary dispute, could not be used as a line from which to measure the boundary where
the deeds referred to fences that marked boundaries and were clear and unambiguous as to the proper
boundary marked by steel stakes and where no acquiescence of the fence as a boundary by the
predecessors of the present parties was shown.) However, calls in a deed which are most certain and
about which there is the least probability of mistake or inaccuracy prevail. See Richardson v.
Schwoon, 3 Tenn. App. 512, 528 (1925). The boundaries of a tract of land are not usually delineated
by the quantity or acreage, however, where boundaries are in doubt, the quantity may become an
important factor. 12 Am. Jur. 2d Boundaries § 10. See also Bynum v. McDowell, 3 Tenn. App. 340
(1926). Where there is a conflict, an older grant or deed will prevail over a younger grant or deed.
See Hitchcock v. Southern Iron & Timber Co. , 38 S.W.588 (Tenn. Ct. App. 1896)(an older grant
will prevail over a younger grant that is founded on an older entry that was not in evidence.)

         Mr. Antwine argues that under the holding in Thornberg v. Chase, supra, resort to an
artificial monument, in this case fence remnants indicating a fence line running north and south, by
Mr. New was proper in the determination of the disputed boundary. In Thornburg, supra, the Court
determined that in resolving a boundary dispute, a crooked fence line, an artificial marker, controlled
over a straight line protracted on the disputed property. Important to the decision of the court was
that the subject fence was in existence at the time that the plaintiffs acquired their property and the
bow in the fence line was not ascertainable except through sophisticated surveying equipment which
the evidence inferred was unavailable to the surveyor at the time that plat was prepared. Id. at 676.

          In the instant case there is no dispute that the Williamses’ deed is older than the earliest
deed in the Lyons chain of title describing property encompassing the Antwine tract. With regard
to the disputed boundary, the trial court found that “[t]he only ‘natural monument’ which Mr. New
found in making his survey of the Lyons’ tract in 1992 was a hole in the ground where an oak stump
might have been” however, Mr. New was unable to testify with certainty what kind of tree had
actually grown there. In addition, there were a number of other such holes in the area. The
chancellor further found that Mr. New located some “man placed monuments”consisting of some
old fence remnants, which he claim showed the boundary between the Lyons’ tract and the
Williamses’ tract. However, the chancellor found that Mr. Dodd found no continuous fence line
running in this direction to denote a boundary fence.




                                                 -8-
        We distinguish the facts of this case from those in Thornberg, supra, where the existence
of the fence line in question was not a controverted fact. The testimony of Mr. New regarding the
validity of his boundary lines is controverted by the testimony of Mr. Dodd and Mr. Tulley. In
making his survey, Mr. Dodd found a hedgerow running east to west across the road at the northern
boundary of the Williamses’ tract matching the calls on the Williamses’ deeds. Mr. New’s northern
boundary does not run along the hedgerow and comes to rest where there is no marker, giving the
Williamses’ tract less road frontage than indicated by their deed. Mr. Dodds also found an old
hedgerow marking the Williamses’ southern boundary and Mr. Tulley, crew chief for Dodds
Surveying, found a fence line marking the eastern boundary of the Williamses’ tract. Mr. Tulley also
found old hedgerows marking three of the four boundaries of the Williamses’ tract, with only the
disputed western boundary not so marked. Using the hedgerows, the calls and distances of the
Williamses’ deeds close. Mr. Tulley found no monuments to mark the western boundary. Mr.
Tulley testified to spending about four hours in the disputed area, yet did not find an existing fence
running north and south marking Mr. New’s boundary, but he did locate the pins set by Mr. New in
1992. Mr. New never ran the calls and distances on the Williamses’ deed from east to west to see
if the calls matched what he thought was the Lyons’ western boundary, Gourley creek.

        Where there is a conflict in testimony requiring a determination of the credibility of witnesses
the decision of the trial court will be given great weight on appeal, unless other real evidence
compels a contrary conclusion. Franks v. Burks, 688 S.W.2d 435, 437-38 (Tenn. Ct. App. 1984).
(Citations omitted). 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. As
did this Court in Franks, supra, we must consider the weight to be given the trial court’s
determination of the credibility of the witness. The chancellor found that the changes and
adjustments in the description made by Mr. New caused an encroachment onto the Williamses’ tract
consisting of approximately 17.34 acres and that the Antwine deed should be reformed to reflect the
boundaries depicted on the plat made by Dodds Surveying. 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.

         A party may not, by an ex parte survey and marking of lines, fix the boundary of his land
differently than that called for in his deed. Woodfolk v. Cornwell, 38 Tenn. 272, 1 Head 272 (1858).
 In that case the plaintiff and his seller surveyed and marked the lines of land claimed without the
knowledge of adjoining landowners, and departed from the calls in the deed. The Woodfolf Court
held that the deed controlled the boundary, and the plaintiff was not entitled to the land included by
his ex parte survey.

        The chancellor also rejected Mr. Antwine’s claim to having acquired the approximately 17.34
acres in dispute through adverse possession, stating: “the Defendant has not raised nor proven any
claim of adverse possession to any portion of the disputed tract.” The evidence does not
preponderate against this finding.




                                                  -9-
       Accordingly, the order of the trial court is affirmed, and the case is remanded to the trial court
for such further proceedings as may be necessary. Costs of this appeal are assessed against the
Appellant, Bryan Antwine, and his surety.



                                                __________________________________________
                                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                  -10-
