From Casetext: Smarter Legal Research

Stalker v. Means

Commonwealth of Kentucky Court of Appeals
Jan 13, 2017
NO. 2015-CA-001072-MR (Ky. Ct. App. Jan. 13, 2017)

Opinion

NO. 2015-CA-001072-MR

01-13-2017

ALBERT STALKER AND SHIRLEY STALKER APPELLANTS v. STEVEN MEANS AND JO ANN MEANS APPELLEES

BRIEF FOR APPELLANTS: Harold M. Johns Lora Lee Robey Elkton, Kentucky BRIEF FOR APPELLEES: Stephen E. Underwood Hopkinsville, Kentucky


NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 07-CI-01676 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: A trial court's finding of fact in a bench trial which are supported by substantial evidence will not be set aside. The sole issue we must resolve in this case is whether the Christian Circuit Court erred in determining the boundary line between two parcels of property based on the testimony of one party's surveyor. We hold that the trial court did not err, and therefore affirm its judgment in favor of Steven and Jo Ann Means.

Judge Laurence B. VanMeter authored this opinion prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.

I. Factual and Procedural Background.

Albert and Shirley Stalker, husband and wife, brought this action against their neighbors, Steven and Jo Ann Means, also husband and wife, to resolve a dispute as to the legal boundary between the parties' respective property. The boundary line is a line that runs almost due north and south, with the Stalkers' property on the west and the Means' property on the east. The trial court conducted a bench trial at which the expert testimony consisted of the testimony of two licensed surveyors, Charles Billingsley on behalf of the Means and Billy Ray Suiter on behalf of the Stalkers.

Billingsley had originally surveyed and prepared a plat of the family farm owned by Kenneth Murray in 2001; Murray in turn used this survey as the basis to divide his farm and convey the resulting parcels to his children. Jo Ann Means is a daughter of Murray.

Following the bench trial, the trial court entered the Findings of Fact, Conclusion of Law and Judgment. We quote and summarize significant parts of the trial court's judgment:

[A] gravel road is located on the far western part of the Means' property. The Stalkers maintain, pursuant to the deed by which they acquired title to their property, that the west side of the road constitutes the boundary line. The Means, however, maintain that the boundary line is located to the west of the gravel road, as depicted on . . . Billingsley's plat. The disputed area is approximately 2.6 acres and all agree that the disputed area is untillable ground, and essentially unusable for any practical purpose.

The trial court summarized the basis of Suiter's survey as two factors. First, Suiter relied on language in the Stalkers' source deed that described the boundary as running along the west side of a farm road. And second, Suiter found some old fencing that ran along the gravel road, about 8 to 10 feet from its edge. The court noted that Suiter acknowledged that his line did not match the legal description in any deed. The court also noted 1) that Suiter's survey would result in the Stalkers' property containing 118 acres, whereas their deed reflected the tract as containing only 115.32 acres, and 2) that if the disputed area, 2.6 acres, is removed from Suiter's survey based on Billingsley's survey, then the Stalkers' property contains almost the exact acreage as stated in their source deed.

Next, the trial court summarized the testimony of Jo Ann Means. Jo Ann, who grew up on her family farm, testified that she never thought of the road as a boundary. Rather, her sisters and she were permitted to play on the disputed property, and go west of the gravel road, but not beyond a second fence line. Jo Ann understood the second fence line, west of the first fence line, was the boundary line between her family's property and the Stalkers' property.

Billingsley testified that he researched the deeds in the Stalkers' chain of title and none referred to a road. As a part of his 2001 work, Billingsley located remnants of what Jo Ann referred to as the second fence line, based on calls in the Stalkers' deed. The trial court noted, "[u]tilizing the calls from the Stalker deed, and the monumentation of the remnants of fencing located in various trees, [] Billingsley established what he believed to be the common boundary line, which he reflected on his 2001 plat." Billingsley further described the fencing was very deeply embedded in a number of trees, indicating presence for a very long period of time.

The trial court noted some discrepancies in all the deeds, instruments and surveys, such as following the calls in the Stalkers' deed could result in their owning some property on the east side of the gravel road, which no one claimed, or that a boundary line on the west side of the gravel road, from one end of the property to the other, constituted significant deviation from the legal description and resulted in acreage adjustments inconsistent with source deeds, tax bills, or other known documents.

The trial court concluded, as follows:

For these reasons, the court finds and concludes that the boundary line established by Mr. Billingsley in his 2001 plat is the boundary line separating the parties' properties. . . .

WHEREFORE, based on the foregoing Finding of Fact and Conclusions of Law, it is hereby ordered and adjudged that the boundary line established by Charles Billingsley in his 2001 recorded plat (Plat Cabinet 7, File 491 in the Office of the Christian County Clerk) shall be and hereby declared to be the legal boundary separating the properties of the Stalkers and the Means. . . .

The Stalkers filed a Motion to Alter, Amend or Vacate, which the trial court denied. This appeal follows.

II. Standard of Review.

Because this appeal is from a bench trial without a jury, the trial court's findings of fact are "not [to] be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses." Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995) (citing CR 52.01). Factual findings are not considered clearly erroneous if they are "supported by substantial evidence." Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005) (citations omitted). Appellate review of legal determinations and conclusions from a bench trial is de novo. Id. (citations omitted). These standards apply to our review of boundary line disputes. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). Furthermore, "[a] fact finder may choose between the conflicting opinions of surveyors so long as the opinion relied upon is not based upon erroneous assumptions or fails to take into account established factors." Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184-85 (Ky. App. 1987) (citing Gatliff v. White, 424 S.W.2d 843, 844 (Ky. 1968)).

Kentucky Rules of Civil Procedure.

III. Issue on Appeal.

The Stalkers argue that the trial court's findings of fact were not based on substantial evidence since the trial court adopted the Billingsley's survey, and Billingsley failed to follow the established boundary hierarchy, as established by case law. We disagree.

In Metro. Life Ins. Co. v. Hoskins, 273 Ky. 563, 117 S.W.2d 180, 182 (1937), Kentucky's highest court held that "[i]n determining boundaries, the general rule is that natural and permanent monuments are the most satisfactory evidence and control all other means of description. Artificial marks, courses, distances, and area follow in the order named, area being the weakest of all the means of description." (internal citations omitted). Conceivably, a monument, whether natural or artificial, may be lost, destroyed, or appreciably altered such that it cannot be accurately located. "[N]atural objects cannot prevail when they are doubtful, and in that case recourse is had to artificial marks or monuments or other calls of an inferior degree of accuracy." Duff v. Fordson Coal Co., 298 Ky. 411, 416, 182 S.W.2d 955, 957 (1944); Mullins v. Commonwealth, Dept. of Highways, 487 S.W.2d 937, 938 (Ky. 1972) (reasonable to disregard monuments identified in a deed when "the objects on which appellants rely no longer exist and the evidence as to their former locale is conflicting").

Contributing to the difficulty in this case is that the source deed to the Means' immediate predecessors in title, the Murrays, contained a property description which only referred to property owned by others: on the north, on the east, on the south and on the west, i.e., containing no metes and bounds descriptions. The deeds to the Stalkers' predecessors contain more information, but neither testifying surveyor was able satisfactorily to plot those earlier descriptions. The Stalkers' 1979 deed does contain metes and bounds description. Significantly, calls made toward the end of the description, provide:

. . . thence South 84 degrees 41 minutes 12 seconds East 513.81 feet to a fence post, thence North 87 degrees 12 minutes 30 seconds East 453.16 feet to a dead snag in the West edge of a farm road, thence with West edge of said road the following: South 04 degrees 53 minutes 52 seconds West 147.35 feet to a 14 inch oak, South 19 degrees 50 minutes 58 seconds East 101.72 feet to a 3 inch sassfras, South 42 degrees 14 minutes 31 seconds East 99.93 feet to a 10 inch oak, South 54 minutes 13 degrees 27 seconds West 95.64 feet to a 4 inch sassfras, South 07 degrees 01 minute 07 seconds West 149.52 feet to a 4 inch sassfras, & South 01 degree 15 minutes 03 seconds West 1602.37 feet to a king post in the North right of way of the Clark Store Road, . . .
Emphasis added. The parties agreed, the surveyors agreed, and the trial found, that the Stalkers do not own any property on the east side of the farm road. To that point, a problem in the Stalkers' description is that the two initial calls quoted above, 513.81 feet and 453.16 feet, end up far to the east of the farm road. No natural monuments are referred to in the property description.

Two artificial, albeit somewhat permanent, monuments are referred to: the west edge of a farm road and the Clark Store Road. Both surveyors agreed on the initial western edge of the farm road and the king post in the North right of way of the Clark Store Road as monuments. Suiter found the remnants of a fence immediately to the west of, but adjacent to, within 5 to 10 feet of the length of the farm road, whereas Billingsley found the remnants of an older fence farther to the west of the farm road. Suiter found the farm road fence to be the boundary, whereas Billingsley found the more westerly fence to be the boundary. This is the dispute in this case: whether the boundary is the western edge of the farm road, as testified to by Suiter, or the more westerly, old fence line, as testified to by Billingsley.

Billingsley's reason for disregarding the west edge of the farm road as the boundary was that none of the deeds to the Stalkers' predecessors refer to a farm road. In addition, Billingsley expressed a critical view of the surveyor's work product which resulted in the Stalkers' description. A complete review of the record and the hearing disclose several errors with that survey and property description. Finally, Billingsley testified that the older fence, which he believed to be the property line, was just as much a monument as the farm road. See Croley, 602 S.W.2d at 419 (stating that 40 to 45 year old fence that one party had removed was the boundary line between two parcels); Wagers v. Wagers, 238 S.W.2d 125, 126 (Ky. 1951) (stating that "the location of the dividing line is governed to a great extent by the location of the foot of the hill and the fence[]").

Billingsley was not critical of Suiter's survey work, but of that of the surveyor who performed the survey which resulted in the deed description when the Stalkers were conveyed the property in 1979. Suiter similarly testified as to the inaccuracies in that survey and description. --------

In sum, the trial court is entitled to choose between the conflicting opinions of surveyors, but, as noted above, the "opinion relied upon [must] not [be] based upon erroneous assumptions or fail[] to take into account established factors." Howard, 729 S.W.2d at 185. Kentucky case law has long established the surveyor's hierarchy, but under the facts of this case, Billingsley amply testified as to the indicia of unreliability in the Stalkers' 1979 property description. Billingsley's testimony described his work in establishing the boundary line, finding the old fence between the properties, and calling into question the survey work which resulted in the deed description to the Stalkers property.

IV. Conclusion.

We hold that the trial court did not err in choosing to rely on Billingsley's opinion. The Christian Circuit Court's Judgment is affirmed.

ALL CONCUR. BRIEF FOR APPELLANTS: Harold M. Johns
Lora Lee Robey
Elkton, Kentucky BRIEF FOR APPELLEES: Stephen E. Underwood
Hopkinsville, Kentucky


Summaries of

Stalker v. Means

Commonwealth of Kentucky Court of Appeals
Jan 13, 2017
NO. 2015-CA-001072-MR (Ky. Ct. App. Jan. 13, 2017)
Case details for

Stalker v. Means

Case Details

Full title:ALBERT STALKER AND SHIRLEY STALKER APPELLANTS v. STEVEN MEANS AND JO ANN…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 13, 2017

Citations

NO. 2015-CA-001072-MR (Ky. Ct. App. Jan. 13, 2017)