                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                     October 6, 2003 Session

 DUDLEY STOVALL, SR., ET AL. v. WILLIAM THOMAS BAGSBY, JR., ET
                                AL.

                    Appeal from the Chancery Court for Williamson County
                           No. 25000 Russ Heldman, Chancellor



                   No. M2002-01901-COA-R3-CV - Filed November 24, 2003


This twice-tried boundary line litigation, spanning five years, involves a small square-footage of a
long-existing private roadway, five surveyors-engineers, and a host of lay witnesses. The Chancellor
adopted the expert opinion of one of the surveyors with respect to the precise location of a crucial
corner of the roadway. We affirm except as modified with respect to discretionary costs, which
requires a remand for determination.

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

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., and
WILLIAM B. CAIN , JJ., joined.

Christopher D. Cravens, Nashville, Tennessee, attorney for Appellants, William Thomas Bagsby, Jr.
and Velma K. Bagsby.

Douglas S. Hale, Franklin, Tennessee, attorney for appellees, Dudley Stovall, Sr., and Betty Carolina
Stovall.

Julia E. Stovall, Franklin, Tennessee, attorney for appellee, Martha Oakley

                                              OPINION
                                                 I.

        This a boundary dispute, at the core of which is a private roadway identified as Jackson Lane,
which was created in 1932 as “a strip of land 16 feet in width” to serve the Stovall property as the sole
means of access to a public roadway. This private roadway has been used by the Stovalls for more
than twenty years, and title thereto was decretally awarded to the Stovalls according to the equitable
principle of adverse possession. This adjudication is not questioned on appeal except as to its exact
location.
                                                 II.

        The property of Oakley bounds Jackson Lane on the east; the Bagsby property bounds Jackson
Lane on the west. The lane is 1096 feet in length, straight-line measure, or 1102.29 feet, according
to conflictive measurements. At issue is the portion of Jackson Lane abutting the eastern boundary
of the Bagsby land extending from the public road to a point where it intersects with Bagsbys’
northeast corner and physically widens to twenty-one feet.

         From 1936 to 1984 the width of Jackson Lane was not changed and Bagsbys’ northeast corner
was rounded along its western margin until it was gradually “squared off” and the corner relocated
by defendants in accordance with Ronnie Brown’s survey in 1984. Stovall objected to this relocation
of Bagsbys’ northeast corner although it did not interfere with the use of Jackson Lane. Mr. Bagsby
testified that prior to retaining the services of Randolph Chapdelaine, none of the other surveyors,
who had been retained to relocate his northeast corner, had opined that Jackson Lane encroached on
the Bagsby Tract.

        Thereafter, the Bagsbys removed the fence along the entire western margin of Jackson Lane,
which was the eastern boundary of their land, and announced their intentions to erect a new fence that
would encroach upon the asphalt surface of the lane. Stovall objected because the new fence Bagsby
planned to erect would interfere with the use of Jackson Lane since it would extend approximately
five feet into the asphalt pavement at the northeast corner.

        Evidence was presented that Jackson Lane had been in existence for over fifty years, and that
it had always existed between the Oakley fence and the Bagsby fences in such the same location as
it presently exists and that the northeast corner of the Bagsby Tract was always rounded.

                                                 III.

        This case was tried twice before different trial judges. The first trial proceeded to final
judgment and a new trial was awarded after a procedural morass developed involving conflicting
decretal provisions. The testimony at the first trial was preserved and presented, at least in part, at
the second trial. A host of witnesses testified, five of whom were licensed surveyors. The Chancellor
ruled that the Stovalls had acquired title to Jackson Lane together with “a twenty-one and one-half
foot area in its northeast corner” by adverse possession, and prohibited the Bagsbys from establishing
their eastern line to interfere with Jackson Lane. Decretal provisions were again questioned, resulting
in the adoption by the Chancellor of the survey performed by Ron Lowery, who was initially retained
by Mr. Bagsby to identify and locate a “property line, a deed line” on the east side of Jackson Lane.
Lowery believed a boundary survey was required in order to identify the precise line. Mr. Bagsby
objected to Lowery’s site selection of the northwest corner of his property, but not the southeast
corner, because it should have referenced an existing stump. Mr. Bagsby thereupon instructed
Lowery to set no pins and leave the premises.




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       Lowery testified that Mr. Bagsby believed his northeast corner should have been located with
reference to a stump called for in the Stovall deed, but Lowery disagreed. The Chancellor approved
and adopted the survey of Lowery and decreed accordingly. The Chancellor found, inter alia:

                The 16-foot right of way for Jackson Lane was first reserved [created]
                in 1932, the physical boundaries of which were established in 1937.
                The Stovalls have exercised sufficient control over the entire length of
                Jackson Lane together with the 21.5 -foot area at its NS corner for
                more than 20 years, and that such control was open, continuous,
                actual, adverse and notorious. The NE corner of the Bagsby Tract is
                1096 linear feet from the NW corner of the tract. The survey by
                Chapdelaine is not an accurate description of the land owned by
                Bagsby. The Oakley fence is an ancient monument establishing the
                western boundary of the Oakley property and, consequently, the
                eastern boundary of Jackson Lane.

                                                   VI.

        The Bagsbys appeal and present for review two issues: (1) whether the trial court erred in
establishing their eastern boundary and northeastern corner according to the survey of Tom Lowery,
and (2) whether it was error to allow Stovall discretionary costs of $8000.00.

                                                   V.

         As a preliminary matter, we turn to the applicable standard of review. Because this is an
appeal from a decision made by the court following a bench trial, the standard set forth in Tenn. R.
App. P. 13(d) governs our review. Thus, we must examine the record de novo and presume that the
findings of fact are correct “unless the preponderance of the evidence is otherwise.” Tenn. R. App.
P. 13(d). Furthermore, great weight must be given to the factual findings made by the trial court that
rest on determinations of credibility. See Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996).
The presumption of correctness requires us to accept the trial court’s findings of fact unless the
aggregate weight of the evidence demonstrated that a finding of fact other than the one found by the
trial court is more probably true. See Estate of Haynes v. Braden, 835 S.W.2d 19, 20 (Tenn. Ct. App.
1992) (holding that an appellate court is bound to respect a trial court’s findings if it cannot determine
that the evidence preponderates otherwise). For the evidence to preponderate against a trial court’s
finding of fact, it must support another finding of fact with greater convincing effect. See The Realty
Shop, Inc. v. RR Westminister Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). Questions
of law receive plenary review. See Malone & Hyde Food Servs. v. Parson, 642 S.W.2d 157, 159
(Tenn., Ct. App. 1982).

       This standard also applies in boundary disputes when the trial court, as the finder of fact, is
required to choose between two competing surveys. See, e.g., Horne v. Warmath, No. 02A01-9509-
CH-00201, 1996 WL 465546 (Tenn. App. Aug. 16, 1996) perm. app. denied (Tenn. Jan 16, 1997);


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McMahan v. Douglas, 1988 WL 20542 (Tenn. App. March 4, 1988), perm. app. denied (Tenn. May
23, 1988).

                                                  VI.

         Defendants argue that in establishing the Bagsbys’ northeast corner and the western margin
of Jackson Lane, the trial court erred in adopting the survey of Ron Lowery, because he failed to give
priority to natural monuments over courses and distances, relying on the well-settled rule that in
determining disputed boundaries, resort is to be had first to natural objects or landmarks; next to
artificial monuments or marks; then to boundary lines of adjacent landowners; and finally to courses
and distances. Prichard v. Rebori, 186 S.W.121 (Tenn. 1916).

        The Bagsbys take issue with the failure of Lowery to recognize an old stump in determining
the margins of Jackson Lane, because the lane itself is only required to be sixteen (16) feet wide, and
is significantly wider as it corners the Stovall Tract. Contrary to all but one surveyor, the Bagsbys
insist that the “Lowery survey cannot be relied on as an accurate depiction of the location of the
Bagsbys’ northeastern corner or eastern line, because the establishment of both is dependent upon the
correct establishment of the location of Jackson Lane.” This contention is contrary to the testimony
of Lowery and another surveyor, Fuqua, that the Bagsbys’ northeast corner does not require the prior
location of Jackson Lane. The Bagsbys had no quarrel with Lowery’s location of their southeastern
and northwestern corners, and the basic agreement among all experts participating in this trial was
that the northwest corner of defendants’ property was appropriately located. Mr. Bagsby testified
otherwise, but it is clear that the trial court rejected portions of his testimony.

       The judgment does not preponderate against the trial court’s findings and therefore is
affirmed, Rule 13(d) Tenn. R. App. P., except as hereafter noted.

                                                 VII.

       The second issue concerns the award of $8,000.00 discretionary costs to the Stovalls. Rule
54.04(2) Tenn. R. Civ. Pro. Rule 54.04(2) provides:

               Rule 54.04 Costs

                 (1) Costs included in the bill of costs prepared by the clerk shall be
               allowed to the prevailing party unless the court otherwise directs, but
               costs against the state, its officer, or its agencies shall be imposed only
               to the extent permitted by law.

                 (2) Costs not included in the bill of costs prepared by the clerk are
               allowable only in the court’s discretion. Discretionary costs allowable
               are: reasonable and necessary court reporter expenses for depositions
               or trials, reasonable and necessary expert witness fees for depositions


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               or trial, and guardian ad litem fees; travel expenses are not allowable
               discretionary costs. Subject to Rule 41.04, a party requesting
               discretionary costs shall file and serve a motion within thirty (30) days
               after entry of judgment. The trial court retains jurisdiction over a
               motion for discretionary costs even though a party has filed a notice of
               appeal. The court may tax discretionary costs at the time of voluntary
               dismissal.

                 (3) The court may appoint an interpreter of its own selection and
               may fix reasonable compensation. The compensation shall be paid out
               of funds provided by law or by one or more of the parties as the court
               may direct, and may be taxed ultimately as costs in the discretion of
               the court.

        The motion for discretionary costs as amended included court-ordered surveying and
engineering expenses owing to Ragan-Smith Associates in the amount of $6696.52. These expenses
should be taxed as court costs, rather than as discretionary costs. Invoices from other surveyors do
not distinguish fees for field and administrative work from fees for testifying, and we are unable to
make the distinction.

       The rule is made clear in Miles v. Voss Health Care Center, 896 S.W.2d 773 (Tenn. 1995):

               However, the rule specifically limits discretionary costs with regard to
               expert witnesses to their fees for testifying. The record reveals that Dr.
               Colvin met with the employee one time for the purpose of evaluating
               her disability. He also spent time reviewing the medical proof as part
               of his evaluation. He testified in person at the trial. He charged $750
               for his services. The employee’s motion for discretionary costs does
               not indicate how much of Dr. Colvin’s fee was for his evaluation, and
               how much was for his appearance and testimony at trial. Since, as
               indicated above, the portion of the fee charged for evaluating the
               employee is not recoverable under Rule 54.04(2), but the portion of
               the fee charged for his trial testimony is recoverable as discretionary
               cost, the case must be remanded to the trial court to make this
               determination.

See, also, Shahrdar v. Global Housing, Inc., 983 S.W.2d 230 (Tenn. Ct. App. 1998) holding that “
. . . . recovery of expert fees under the rule is limited to fees incurred for actual deposition or trial
testimony. (Emphasis added). Fees for preparation time are not recoverable.”

        As in Miles, supra, the case must be remanded to the trial court to make this determination.




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      The judgment is affirmed, except as modified with respect to the discretionary costs, and
remanded to the trial court. Costs on appeal are assessed to the appellants.



                                                    ___________________________________
                                                    WILLIAM H. INMAN, SENIOR JUDGE




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