Opinion
NO. 2015-CA-001710-MR
01-13-2017
DONALD E. BRYSON AND SUE BRYSON APPELLANTS v. THE ALMA D. ROBERTS REVOCABLE LIVING TRUST, HELEN DEESE, TRUSTEE APPELLEE
BRIEF FOR APPELLANTS: James M. Frazer Monticello, Kentucky BRIEF FOR APPELLEE: John T. Mandt Somerset, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 11-CI-00049 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT AND MAZE, JUDGES. LAMBERT, D., JUDGE: This is a boundary dispute case. The issues presented are whether the circuit court properly accepted the opinion of appellee's ("Roberts") surveyor as to the boundary of certain real property in Wayne County, Kentucky, and whether the circuit court appropriately awarded Roberts treble damages after finding appellants ("Bryson") intentionally harvested timber from property they did not own. Upon careful review, and without finding reversible error, we affirm.
Although there are two named appellants, we will refer to Bryson in the singular for the remainder of this opinion. The record shows Donald Bryson was the individual involved in the case. --------
I. BACKGROUND
The parties to this appeal are adjoining landowners who can trace their respective titles to a common grant in 1899. That year, R.S. Denney divided certain real property in Wayne County, Kentucky, into two tracts, each of which serves as the first tract in the parties' respective chains of title. In dividing his property, Denney created a dividing line which is described differently in the parties' respective deeds. The deed to Bryson's tract, which Denney originally granted to R.R. Maxwell, describes the dividing line as continuing "to a black oak; thence S 34 E 60 poles to three witch-hazels[.]" The deed in Roberts' chain of title, on the other hand, states that the dividing line extends "to a black oak; R.R. Maxwell's corner in the gap of the ridge; thence Southeast with Maxwell's line to the mouth of Deer Lick Branch, the corner being a witch hazel[.]" The location of this dividing line led to the present dispute between the parties.
When Bryson was in the process of buying his tract in the mid-1990s, he hired surveyor James West ("James") to conduct a boundary survey. From the record, James traced most of the tract's boundary lines and prepared an exhibit drawing that was never intended to be recordable plat. James testified that he did not feel comfortable tracing the western border of Bryson's tract (the dividing line) and that he planned to finish the survey and prepare a recordable plat once Bryson made the purchase. Bryson eventually bought the tract; however, he never retained James to perform a final survey.
Years later, in 2010, Roberts scheduled to sell several tracts, including the property at issue, at auction. In preparation of the sale, Roberts hired surveyor Greg West ("Greg") to survey the land. As part of his survey, Greg located and flagged the common line between Bryson and Roberts. After Greg completed his survey, Bryson noticed the surveying pins and consulted Greg. He did not consult James. Bryson later attended the auction and openly asserted ownership of the disputed property. A potential sale of the disputed property was cancelled.
After the cancellation, Roberts notified Bryson that it was claiming ownership of the disputed property. In the same notification, Roberts also informed Bryson that it was going to harvest the timber growing on the disputed property. Bryson, in response, proceeded to cut the timber in question.
Roberts initiated a quiet title action in the circuit court. Roberts maintained it was the owner of the disputed land and alleged that Bryson converted the timber by cutting it. The parties tried the case by deposition and tendered briefs to the trial court. After comparing Greg's survey to James' incomplete survey, the trial court sided with Roberts. The trial court found that Greg had sufficiently explained how he had found every line and corner described in Roberts' deed, including the "gap", "ridge", and "mouth of Deer Lick Branch." The trial court then considered Bryson's act of cutting the timber and found he did so intentionally. The trial court consequently awarded Roberts three times the stumpage value of the timber, as calculated by forester Christopher J. Will, and additional costs. Following the trial court's decision to deny his motion to alter, amend or vacate the judgment and damages award, Bryson brought this appeal.
II. STANDARD OF REVIEW
Appellate courts review questions of fact under the clearly erroneous standard. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). That is, the trial court's factual determinations must be supported by substantial evidence, which is evidence sufficient to persuade a reasonable person. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). When the question is one of law, however, appellate courts do not owe deference to the trial court's decision. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998). Instead, appellate courts review those decisions under a de novo standard. KL & JL Invs., Inc. v. Lynch, 472 S.W.3d 540, 544 (Ky. App. 2015).
III. DISCUSSION
1. The trial court properly determined that the disputed property belonged to Roberts.
It is well-settled in this Commonwealth that the finder of fact may choose between conflicting surveyor's opinions "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, 185 (Ky. App. 1987) (citation omitted). And here, there were no such defects in Greg's survey. The trial court found that Greg followed the deed descriptions both in locating the dividing line and in performing his overall survey. The trial court specifically observed that the property corners corresponded to several natural monuments, which were "dramatic and unmistakable when viewed," and determined that Greg precisely located each of these natural monuments in accordance with the language contained in the deeds. The trial court also observed that Greg's survey, unlike James', actually located the 80-foot, vertical rock formation referred to in the deed as the "mill-stone cliff." The trial court then concluded James' failure to locate this natural monument caused him to trace the boundary line at that location 160 feet below where it should have been. Given these findings and the rule that a natural monument controls all other means of describing the property, Metro. Life Ins. Co. v. Hoskins, 117 S.W.2d 180, 182 (1937), the trial court properly disregarded James' survey and quieted title in Roberts' favor.
2. The trial court's damages award was appropriate.
Kentucky Revised Statutes (KRS) 364.130 sets forth the measure of damages when one commits timber piracy, i.e., enters another's land with the intent to convert the timber growing thereon and does so without legal right or color of title to either the land or the timber. Under that statute, the trespasser must pay the rightful owner "three (3) times the stumpage value of the timber and . . . three (3) times the cost of any damages to the property as well as any legal costs incurred by the owner of the timber." KRS 364.130(1). Importantly, though, these damages are only available if the fact finder determines the trespasser "intended to cut timber which he [knew] he [was] unauthorized to cut." Penix v. Delong, 473 S.W.3d 609, 615 (Ky. 2015).
Here, the trial court specifically found that Bryson intended to convert Roberts' timber "to his own use . . . without legal right or without color of title." The trial court then supported this finding with substantial evidence from the record. In addition to pointing out that Bryson had already relied on James' incomplete survey to thwart a potential land sale, the trial court explained that Bryson only decided to cut the timber after receiving Roberts' notice and that he did so without consulting James. Accordingly, the damages award was appropriate. The judgment of the Wayne Circuit Court is hereby affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: James M. Frazer
Monticello, Kentucky BRIEF FOR APPELLEE: John T. Mandt
Somerset, Kentucky