                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    January 8, 2002 Session

                      THE CITY OF OAK HILL v. AAMP, ET AL.

                    Appeal from the Chancery Court for Davidson County
                         No. 00-807-II  Carol McCoy, Chancellor



                   No. M2001-00688-COA-R3-CV - Filed December 11, 2002


This appeal concerns the City of Oak Hill’s efforts to enforce its exclusively residential zoning
restrictions over a parcel of land situated at the city’s eastern border. The city appeals the trial
court’s finding that “parcel 109” was located outside of Oak Hill’s city boundary and, therefore, not
subject to the city’s zoning ordinances. We affirm the action of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., and DON
R. ASH , SP . J., joined.

Douglas Berry, Nashville, Tennessee, for the appellant, The City of Oak Hill.

Karl F. Dean, Philip D. Baltz and John L. Kennedy, Nashville, Tennessee, for the appellee, The
Metropolitan Government of Nashville and Davidson County.

                                              OPINION

         On March 7, 2000, AAMP, LLC and Mark Marshall began the grading and construction for
a fruit and flower stand on a piece of real property sixty feet by two hundred feet, fronting a section
of Franklin Pike near that road’s intersection with Old Hickory Boulevard. As a direct result of
AAMP’s commencement of construction, the City of Oak Hill, on March 14, 2000, filed an
application in Davidson County Chancery Court seeking a temporary restraining order and
permanent injunction against further construction on that property. As grounds, the city alleged that
its exclusively residential zoning restrictions prohibited commercial construction on the site, and that
AAMP had violated the municipal ordinances of Oak Hill by commencing construction without the
required building permits issued by the city.

        On March 14, 2000, the trial court issued a temporary restraining order based upon Oak
Hill’s application, enjoining AAMP, LLC, and Mark Marshall from doing or performing “any further
grading, filling, stripping, excavation, or other disturbance to the natural ground, or work of any kind
for which a building permit is required under the ordinances of the City of Oak Hill, on or within the
property known as the AAMP, LLC subdivision, final plat dated July 7, 1997, and as approved by
the City of Oak Hill on July 17, 1997, without first having obtained a valid, building permit from
the city.”1

         After the issuance of the temporary injunction, the City of Oak Hill filed the supplemental
affidavit of Barnett Williams and the affidavit of Roger Fuqua. In his affidavit, Mr. Fuqua opined,
in part: “In my opinion, Parcel 109, although excess land owned at one time by the State of
Tennessee Department of Transportation, was never considered by the state to be a part of the right-
of-way of Franklin Pike, but lies entirely to the west of this right-of-way and thus within the City of
Oak Hill.” For its part, AAMP, LLC responded attaching, inter alia, the affidavit of Lon West, who
opined that the parcel as described in Mr. Fuqua’s affidavit was actually within the municipal
boundaries of the Metropolitan Government of Nashville and Davidson County. The trial court
subsequently modified its temporary restraining order pending a full hearing to be held on November
29, 2000. After a full hearing, in which the court heard from both Mr. Roger Fuqua and Mr. Lon
West, in addition to Freddy Stroupe and Roger Payne, the court specifically found that the subject
parcel was outside the jurisdiction of the City of Oak Hill and not subject to the city’s zoning
restrictions. Fuqua gave one opinion as to the location and description of Oak Hill’s boundary, while
West, Stroupe and Payne gave differing opinions. The court specifically relied upon the opinions
of Stroupe and Payne.

        The city argues that the court’s construction of the Petition for Incorporation is incorrect as
a matter of law, in that it fails to presume that the members of Oak Hill in their petition intended to
take as within the boundary of the City of Oak Hill property including the center line of Franklin
Pike. In determining the intent of the petition, the court looked to all of the surrounding
circumstances, including the several maps stipulated by the parties below and the testimony of the
experts. Of particular significance in the trial court’s inquiry are the following findings of fact.

                 1.       The central part of this litigation is a determination as to whether a
         small triangular piece of land referred to as Parcel 109 is within the jurisdiction of
         the City of Oak Hill, or is within the jurisdiction of the Metropolitan Government of
         Nashville.
                 2.       In 1928, the Interurban Railroad owned Parcel 109 and in 1929, the
         Railroad quitclaimed to the Tennessee Department of Transportation the right of way
         for certain real property, including Parcel 109.
                 3.       The Tennessee Department of Transportation did not record this
         quitclaim deed until 1977. During the time period between 1929 and 1977, the State
         of Tennessee used portions of the quitclaimed property to widen Franklin Pike.
                 4.       In 1952, the City of Oak Hill was chartered as a municipal corporation
         and as part of its corporation, Oak Hill sought to preserve its residential character and


         1
                  The disputed parcel 109 was originally included in the final plat indicated in the restraining order.
Inasmuch as this appeal concerns only parcel 109, the remaining provisions of the injunction are not related herein.

                                                         -2-
adopted certain zoning which permitted only residential use of property within the
city limits of Oak Hill. This zoning plan map reflects a triangular notch along
Franklin Pike and specifically excludes this notch from the city limits of Oak Hill.
         5.      At the time of the incorporation, the City of Oak Hill also adopted a
major street plan which also reflects a specific triangular notch outside the city limits
of Oak Hill.
         6.      Oak Hill recorded the major street plan in the Register’s Office for
Davison County, Tennessee, and this documents stays of record as of the date of this
hearing.
         7.      On April 1, 1963, Nashville and Davidson County consolidated their
government, and the City of Oak Hill, located within the boundaries of the newly
consolidated Metropolitan Government, continued as an independently governing
satellite city operating within the geographical boundaries of Nashville.
         8.      By 1960, the Interurban Railroad no longer existed. During the
1960's, the Metropolitan Tax Assessor decided to declare land previously owned by
the then defunct Interurban Railroad would belong to property owners adjacent to the
Railroad’s real property. Some of the adjacent property owners knew that the Tax
Assessor was assigning them ownership in such real estate and some did not. Since
the quitclaim deed to Parcel 109 had not been put to record by the State, the adjacent
property owners to Parcel 109 appeared to have an ownership interest in Parcel 109
by the actions of the Metropolitan Tax Assessor.
         ....
         11.     On December 6, 1996, Mr. Lon F. West, Metro Zoning Administrator,
wrote Mr. Summar and stated that Parcel 109 was zoned for commercial use and
further that Parcel 109 was within the jurisdiction of the Metropolitan Government
of Nashville and not within the jurisdiction of Oak Hill. In reaching this conclusion,
Mr. West examined a number of documents including a 1944 City and County
Planning Map (Exhibit 29) which indicated that the triangular notch as indicated on
Franklin Pike was part of the State right of way.
         ....
         22.     The primary issue before this Court is whether Parcel 109 is properly
within the city limits of Oak Hill or within the city limits of the Metropolitan
Government of Nashville. A careful and thorough review of the maps introduced
into evidence revealed some maps reflecting Parcel 109 within the city limits of Oak
Hill, and some maps with Parcel 109 within the Metropolitan Government of
Nashville.
         23.     The Charter for the metropolitan Government of Nashville and
Davidson County, Section 1.01 states, in part, that the governmental and corporate
functions now vested in the City of Nashville, a municipality, are hereby consolidated
with the government and corporate functions of the County of Davidson. Such
consolidation was pursuant to the constitutional power granted by the Tennessee
Constitution and T.C.A. 7-1-108. Said consolidation resulted in the creation and



                                          -3-
       establishment of a new Metropolitan Government of Nashville and Davidson County,
       Tennessee.
               24.       Metro Code, Section 1.02, states that the territory embraced in the
       Metropolitan Government shall be the total area of Davidson County as the same
       may be based and established upon the effective date of its charter, which was April
       1, 1963. The Charter of the Metropolitan Government, Section 18.15, states that any
       city in Davidson County not abolished by this Charter shall continue to exist and
       function the same as prior to adoption of this Charter, except that no such city shall
       extend its boundaries by annexation of any area of the Metropolitan Government.
       Therefore, the boundaries of Oak Hill, as set forth in its Charter, could not be
       extended.
               25.       Tennessee Code Annotated 7-1-106 addresses excluded smaller cities
       and Section 18.15 of the Metropolitan Charter follows this same provision.
       Tennessee Code Annotated 6-51-302 allows municipalities to adjust their common
       boundaries by contract between themselves, so as to avoid confusion and uncertainty
       about the location of the contiguous, or to form a contiguous boundary to existing
       right of way.
               26.       The City of Oak Hill recorded maps at the time of its incorporation
       which reflected that Parcel 109 is outside the city limits of Oak Hill. Tennessee
       Department of Transportation held title to that notch which appears to be Parcel 109,
       from 1929 to 1979. Oak Hill did not include Parcel 109 within its city limits when
       it incorporated in 1952, and was unable to do so since the property belonged to the
       State of Tennessee and was outside the incorporated limits of the City of Oak Hill.
                27.      The State of Tennessee acquired Parcel 109 for right of way, and
       during the time the State owned Parcel 109, it was designated by the State for use as
       right of way. Parcel 109 was owned and used by the State for right of way purposes
       until the State of Tennessee quitclaimed its interest in Parcel 109 to Mr. Summar in
       1978.
                28.      The Court heard testimony from various individuals who gave
       opinions as to the importance of the maps that were introduced into evidence, but the
       Court gave the most significant weight and credibility to the testimony of Freddie
       Stroupe and Lon West of the Metropolitan Government, and to a lesser degree, the
       testimony of Mr. Payne of the Tennessee Department of Transportation.
                29.      The City of Oak Hill did not include Parcel 109 within its jurisdiction
       when it incorporated in 1952. The City of Oak Hill could not acquire Parcel 109
       within its city limits and jurisdiction through a new zoning map done in 1988 without
       a written agreement with Metro, nor could it acquire jurisdiction of Parcel 109 within
       its city limits by approval of Mr. Marshall’s subdivision plat which erroneously
       included Parcel 109.

These findings of fact come to the Court accompanied by a presumption of correctness, and this
Court finds that the evidence does not preponderate against those findings. T.R.A.P. 13(d).



                                                 -4-
         Appellant raises four issues with the ultimate finding of the trial court. First, the city urges
that the trial court erred in its conclusion that parcel 109 was outside of Oak Hill’s boundary.
Second, Appellant urges that the trial court erred in holding that Oak Hill could not have legally
included property owned by the Tennessee Department of Transportation within its city limit. Third,
the trial court erred in applying Tennessee Code Annotated section 6-51-302 and fourth, that the trial
court erred in holding that Oak Hill could not extend its boundaries.

       Oak Hill’s petition for election to incorporate, as filed with the Davidson County Election
Board, describes the boundaries of the territory to be incorporated as the City of Oak Hill:

                Beginning in the southerly margin of Thompson Lane where same intersects
        Franklin Pike, said beginning point being the northwest corner of the north line of the
        Liggett property easterly to a point in the westerly margin of the right-of-way of the
        main line of the Louisville and Nashville Railway; thence southwardly along the west
        margin of the right-of-way line to a point in the intersection of said right-of-way and
        Old Franklin Pike, being the northwest corner of said intersection and at the junction
        of the overpass of said Old Franklin Pike over said railroad right-of-way; thence
        westwardly from said point across the Franklin Pike to a point in the southwest
        corner of intersection of Redwood Drive and Franklin Pike; thence southerly along
        the west margin of Franklin Pike to a point in said margin 250 feet north of the
        northwest intersection of said Franklin Pike and Old Hickory Boulevard; thence at
        right angles westwardly 150 feet; thence southwardly and parallel with Franklin Road
        to the northerly margin of Old Hickory Boulevard; thence with the north margin of
        Old Hickory Boulevard westwardly to a point in the north margin of said Boulevard
        5280 feet from the northwest corner of the intersection of the Franklin Pike and Old
        Hickory Boulevard; . . .

        The trial court, therefore, was faced with a petition that used the word “margin”
interchangeably with “right-of-way.”

       Every one of these issues involves the location of the easterly boundary of the City of Oak
Hill. Along these lines this Court finds the following instructive, “Generally speaking the
determination as to whether or not boundaries exist, and what they are is a matter of law for the
court. Their location is a matter of fact for the determination of the trier of facts.” Dennis Jensen,
McQuillin Municipal Corporations, § 7.05 (3d ed. 1996) (footnote omitted).

        Our Supreme Court has expanded upon this general statement, holding that “We of the courts
determine what are the corporate limits already established and we determine by our inquiry whether
or not these boundaries as attempted to be established by the municipal power comply with the law.
We have no authority to act for the municipal body in its legislative capacity.” City of Johnson City
v. State, ex rel. John Maden, et al.; 202 Tenn. 318, 327, 304 S.W.2d 317, 322 (1957).




                                                  -5-
        The city’s first argument on appeal concerns the determination of the existence and
description of the city boundaries. “When a deed calls for a boundary along a street it is generally
held that where it appears clearly from the whole instrument, in conjunction with the surrounding
circumstances, that the grantor intended to reserve the fee in the street, such intent will be given
effect; when it does not so appear, it will be presumed that the grantee takes to the middle of the
street. City of Nashville v. Lawrence, (1925) 153 Tenn. 606, 284 S.W. 882. See also, Vanderbilt
University v. Williams (1925) 152 Tenn. 664, 280 S.W. 689; Reeves & Co. v. Allen, (1898) 101
Tenn. 412, 47 S.W. 495.” Patrick v. Curtis Person Inv., Inc., 603 S.W.2d 148, 150 (Tenn. Ct. App.
1980).

        Appellant would urge the adoption of the center line doctrine to extend the boundary of Oak
Hill into the middle of Franklin Pike. It is well to note at this point that, since as this Court is
reviewing a question of law, no presumption of correctness attaches to those findings. See Tennessee
Farmers Mutual Ins. Co. v. American Mutual Liability Ins. Co., 840 S.W.2d 933, at 936 (Tenn. Ct.
App. 1992).

        When applied to deeds and conveyances the center line presumption requires two predicate
determinations. The first involves the call of the deed. The deed must call for a description bounded
by or along the side of a street. The second predicate determination is that the conveyor of the real
property so bounded have title to the property conveyed. In other words, a grantor could not convey
property to the center line of a street without first having title to that street. In reviewing the call of
the petition, this Court notes first the ambiguous use of the word margin, second, the particular
monument noted in the petition, and third, the actual course of the eastern boundary of Oak Hill.
The resultant ambiguity in the description when viewed in light of the contemporaneous maps filed
therewith suggests no intent on the part of the incorporators to “convey” to themselves territory
including the center line of Franklin Pike.

       Since this Court finds that the citizens of Oak Hill did not intend to draw the city’s
boundaries over the center line of Franklin Road, we therefore must determine where the line is to
be drawn in light of the attendant circumstances, exercising our review in light of the presumption
of correctness of factual findings on appeal. The court found as a fact that maps filed
contemporaneous with the petition for election indicated the omission of parcel 109 from the city
boundaries. The trial court also found as a fact that at the time of Oak Hill’s incorporation, parcel
109 was owned by the state highway department. The court heard testimony from three experts
concerning the meaning of the word “margin” as it is used in the petition. The court heard evidence
as to what the “right-of-way” for Franklin Road entailed at the location of parcel 109 and, the
evidence heard below does not preponderate against the trial court’s findings.

       Appellant argues that the incorporators of Oak Hill could indeed include a state right-of-way
within the city boundaries, and thus takes issue with the trial court’s holding to the contrary.
However, this Court’s decision hinges upon whether the incorporators of Oak Hill intended to
include parcel 109 within the city boundaries. Since we hold they did not so intend, the question of
whether they could is not necessary to the decision.


                                                   -6-
        Likewise, the Court’s application of Tennessee Code Annotated section 6-51-302 is not
necessary to the determination of the intent of the city incorporators at the time of Oak Hill’s
incorporation. As for the expansion or contraction of boundaries, our holding that Oak Hill’s
original boundaries excluded parcel 109 necessitates a holding that any later maps drawn to include
parcel 109 within Oak Hill were, by definition, an attempt to expand those boundaries in violation
of the Metropolitan Charter section 18.15. Inasmuch as section 18.15 prohibits such expansion,
parcel 109 cannot be included within the City of Oak Hill. As such, the 1988 reissue of the city
zoning and street maps to include parcel 109 are ineffective in their purpose.

        In the final analysis, we are seeking the intention of the City of Oak Hill at the time of its
incorporation as to whether or not parcel 109 was included within its corporate limits.
Contemporaneous documents filed, at or near the time of the original charter of incorporation,
included a zoning plan map and a major street plan, both of which clearly indicated that parcel 109
was not within the corporate limits. Nothing has happened since the charter of incorporation that
could suffice to expand the corporate limits of Oak Hill. To the extent that parol evidence is
admitted as to the meaning of the terms “margin” and “right-of-way,” the trial court accepted the
factual evidence offered by the appellees. The evidence does not preponderate against the factual
findings of the chancellor.

       The finding of the trial court that parcel 109 is outside the limits of Oak Hill and therefore
not subject to Oak Hill’s restrictive zoning is affirmed and the cause is remanded for further
proceedings as necessary in the trial court.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




                                                 -7-
