Opinion
NO. 2015-CA-001736-MR
03-23-2018
THURL COMBS APPELLANT v. ANCIL CONLEY, BRENDA CONLEY, BERNEICE HOLLIDAY, AND MICHAEL HOLLIDAY APPELLEES
BRIEFS FOR APPELLANT: James Bates Hindman, Kentucky BRIEF FOR APPELLEE: Jeffrey R. Morgan Hazard, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE KIMBERLY CHILDERS, JUDGE
ACTION NO. 14-CI-00092 OPINION
AFFIRMING
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BEFORE: CLAYTON, JONES, AND NICKELL, JUDGES. NICKELL, JUDGE: Thurl Combs appeals from the Knott Circuit Court's judgment entered November 2, 2015, following a bench trial regarding a boundary line dispute with Ancil Conley, Brenda Conley, Berneice Holliday, and Michael Holliday (collectively "Conley"). We affirm.
Berneice Holliday is the sister of Ancil Conley. She is married to Michael Holliday. The Hollidays owned part of the Conley property when this action commenced, but Ancil purchased the Hollidays' interest in the property at some point during litigation.
The parties own adjoining tracts of rural wooded property in Knott County, Kentucky. Both tracts are traceable to farmland owned by David Sturgill in the early 1900s. When Sturgill died, court-appointed commissioners measured and divided his real property into eight parcels, to be divided among his heirs. The commissioners executed metes-and-bounds deeds for the parcels on April 15, 1907, which were filed in the Knott County Clerk's Office. In 2012, surveyor Eddie Childers prepared a plat of survey identifying Combs' property as Lot 5 of that division and Conley's property as Lot 4.
After 1907, the property deeds used descriptive language to define the boundaries. The parties now dispute the exact location of their shared boundary line. Relevant to this case, the deed to Ancil and Brenda Conley, dated June 10, 1976, describes the property line between their tract and the Combs' tract as follows:
Beginning on a walnut tree in the corner of the yard of Ira Gamble; thence running with the line of May Gamble and Jay Combs, south course to a high knob on top of the ridge to John L. Triplett's line[.](Footnote added.) Similarly, the deed to Combs, dated May 4, 1992, describes the property line, in relevant part, as follows:
BEGINNING on one marked black walnut tree where Ira Gambill now lives, on right bank of [the Horse Mill Branch of Troublesome Creek], thence southward up the hill a straight line to a marked chestnut oak tree on top of the hill[.]Both parties agree on the location of the marked black walnut tree described in the deeds as a common point of beginning. The parties disagree, however, as to the course of the line as it heads southward, as well as the exact location of the line's terminus at the "high knob" or "marked chestnut oak tree on top of the hill."
Based on signatures affixed on other deeds submitted into evidence, this family name is actually spelled "Gambill," not "Gamble."
The exact location of the property line became a subject of controversy when Combs hired Randy Gayheart to harvest timber on his property. Combs, an absentee landowner, described the boundary line to Gayheart in a telephone conversation as running from a black walnut tree to the high knob. After consulting the descriptive deeds, Gayheart entered the property at some point in 2011 and began logging. Gayheart later testified Ancil Conley and Michael Holliday prevented him from continuing his logging activity.
Shortly thereafter, the Conleys hired Childers, a licensed surveyor, to perform a survey to locate the boundary line between the properties. As a result of previous employment surveying for gas and oil wells, Childers was already thoroughly familiar with this part of Knott County. In performing his work for the Conleys, he consulted the 1907 commissioner deeds for the David Sturgill property before walking the property line and creating his plat. Childers' plat conforms to metes-and-bounds calls he found in the 1907 deeds. He also found a marked chestnut oak on a cliff, corresponding to one noted in the 1907 deeds. Later, when asked why he did not rely on the more recent descriptive deeds, Childers strongly emphasized his preference always to follow a metes-and-bounds deed over a general descriptive deed.
Stressing the superiority of a numerical approach to surveying, Childers provided the following testimony on cross-examination: "Which would you trust more - numbers, or a person's say-so? If I told you two and two was five, would you believe me?" --------
Combs hired Kenneth Johnson, a licensed surveyor, to create his own survey of the property line. Johnson spoke with Combs and Gayheart in separate telephone conversations, then met with Gayheart on the property. Johnson consulted the Childers' plat and Combs' descriptive deed. After spending approximately eight hours on the property, Johnson drew the boundary between the properties as a perfectly straight line, running from the black walnut to what he perceived as the high knob. Johnson's plat and survey contains specific disclaimers, such as "[t]his survey was performed without the benefit of title work," and "[t]he purpose of this survey is to show the line between the property of Thurl Combs and Ancil Conley, as shown to surveyor by client." Johnson did not find the marked chestnut oak mentioned in Combs' deed.
At a bench trial, the trial court heard testimony and received exhibits illustrating the above facts. In its subsequent findings of fact, conclusions of law, and judgment, the trial court explicitly referenced the disclaimers on Johnson's survey. It found Johnson's survey lacked credibility and reliability because "the surveyor did no title work and merely drew a map showing the location of the line as shown to him by Plaintiff's logger." By comparison, the court noted Childers used the 1907 deeds as references and found the marked chestnut oak mentioned in those deeds. Ultimately, the court found:
the survey performed by Childers, and corresponding boundary line . . . relied upon by Defendants herein, are credible and reliable because the surveyor based his survey on his knowledge and prior, extensive surveying in the area; an objective review of the deeds in the parties' chain of title, including the original 1907 court deeds; and accepted surveying principles.The trial court then ruled in favor of the Conleys and Hollidays, finding the common boundary between the properties was the line established by the Childers' survey. This appeal followed.
Combs contends the trial court erred in finding Childers more credible than Johnson and by establishing the boundary line between the properties pursuant to the Childers' survey.
"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." [Kentucky Rule of Civil Procedure (CR)] 52.01. This rule is applicable to boundary disputes.Webb v. Compton, 98 S.W.3d 513, 517 (Ky. App. 2002) (citing Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980)). "[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." Id. (quoting Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184-85 (Ky. App. 1987)).
As a preliminary matter, we note Combs' brief fails to comply with CR 76.12(4)(c)(v), requiring "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." "The importance of this rule is to ensure that 'the trial court should first be given the opportunity to rule on questions before they are available for appellate review.'" Southside Real Estate Developers, Inc. v. Pike County Fiscal Court, 294 S.W.3d 453, 457 (Ky. App. 2009) (quoting Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990)). However, one exception to this rule is "when the record sufficiently demonstrates that the issue presented in the appellate court was contested before the trial court[.]" Id. (citing Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 481-82 (Ky. App. 2005)). Additionally, "[i]n actions tried by the court without a jury, the sufficiency of evidence to support the findings of fact may be raised on appeal without regard to whether there was an objection to such findings or whether there was a post-judgment motion." Eiland v. Ferrell, 937 S.W.2d 713, 715 (Ky. 1997) (citing CR 52.03). Because the record is very brief, and the central argument on appeal relates to the sufficiency of evidence presented to the trial court, we elect to ignore the absence of preservation statements in Combs' brief. However, counsel is cautioned such latitude may not be extended in the future.
Combs asserts the trial court lacked evidence to support its choice of Childers as the more correct surveyor. In one of his supporting arguments, Combs argues the trial court erroneously found Johnson's boundary line was based on where Gayheart showed him it should be. This argument merits consideration because, in our review of the record, we saw no direct testimony supporting the court's finding. Johnson gave testimony on the following facts: Combs telephoned Johnson, after which Johnson met Gayheart "on the site"; Gayheart showed Johnson the location of the black walnut tree; and Johnson thereafter surveyed the property.
However, it is important to note, as the trial court did, Johnson's plat contains a disclaimer stating "[t]he purpose of this survey is to show the line between the property of Thurl Combs and Ancil Conley, as shown to surveyor by client." (Emphasis added.) Despite an absence of direct testimony of Gayheart showing Johnson the property line, the trial court, acting as the finder of fact during the bench trial, could reasonably infer this point. See Berryman v. Commonwealth, 237 S.W.3d 175, 178 n.6 (Ky. 2007); Kubajak v. Lexington-Fayette Urban County Government, 180 S.W.3d 454, 459 (Ky. 2005). Johnson began his survey after conferring with Combs and meeting Gayheart on the property. Gayheart showed Johnson where the marked black walnut was located. After spending eight hours on the property, Johnson drew a perfectly straight boundary line, in keeping with where Combs and Gayheart believed it to be. Johnson then included a disclaimer on his plat admitting the line was "as shown to surveyor by client." The court's inference regarding the origin of the boundary was reasonable under the circumstances.
The trial court's other findings and conclusions supporting Childers' opinion over Johnson's remain valid, supported by trial testimony and other evidence in the record. When there are no erroneous assumptions or a failure to consider established factors, the "fact finder may choose between the conflicting opinions of surveyors[.]" Webb, 98 S.W.3d at 517. "The evidence in the record in this case is clearly sufficient to sustain the judgment of the trial court." Croley, 602 S.W.2d at 419. There was no error.
For the foregoing reasons, the judgment of the Knott Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: James Bates
Hindman, Kentucky BRIEF FOR APPELLEE: Jeffrey R. Morgan
Hazard, Kentucky