Opinion
NO. 2012-CA-001131-MR
2013-10-04
BYRON DALE CREECH AND JOYCE KAY CREECH APPELLANTS v. CARL STEELE APPELLEE
BRIEF FOR APPELLANT: Gordon T. Germain Monticello, Kentucky BRIEF FOR APPELLEE: John Paul Jones, II Monticello, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 09-CI-00116
OPINION
AFFIRMING
BEFORE: CAPERTON, MAZE AND THOMPSON, JUDGES. THOMPSON, JUDGE: Byron Dale Creech and Joyce Kay Creech (the Creeches) appeal the trial court's judgment determining the location of a property boundary line.
The Creeches own land in Wayne County (lot six) which shares a straight boundary line with Carl Steele's land (lot five). Lots five and six were originally divided as part of a simultaneous division of several lots as described in an 1897 plat.
The Creeches and Steele agree that the southeast end of their boundary line begins at a corner marked by a poplar tree. From there, it runs southeast to the northwest approximately one mile until it intersects a back line. This back line is the property line of an adjoining landowner, and runs roughly north-south, along the western boundary of their properties. The intersection of the boundary line with the back line is not marked.
The Creeches and Steele disagree as to the depths of their respective properties. They disagree as to the course of the boundary line from the poplar tree to its intersection with the back line. Each party locates the intersection of their boundary line with the back line at a different point based upon conflicting evidence.
To resolve their boundary dispute with Steele, on April 7, 2009, the Creeches filed a petition for declaration of rights as to the boundary line. At a bench trial held on February 24, 2012, the Creeches and Steele presented evidence on the proper location of the boundary line through testimony by Mr. Creech, Steele, and their respective surveyors, James Upchurch and Greg West. Both surveyors relied on the poplar tree as a corner, but then diverged on the other types of evidence they considered and relied upon to determine where the boundary line intersected the back line.
The trial court determined while both surveyors used appropriate evidence, West's survey was more accurate. The court ordered the boundary line be established as set forth in West's survey and quieted title between the parties.
After the Creeches' motion to alter, amend or vacate the judgment was denied, they appealed. The Creeches claim the court erred in accepting West's methodology.
We will not set aside findings of fact made by a trial court in a boundary dispute unless they are clearly erroneous. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). The finder of fact may choose between conflicting opinions of surveyors, so long as the opinion relied upon was not based upon erroneous assumptions and did not result from the failure to take into account established factors. Gatliff v. White, 424 S.W.2d 843, 844 (Ky. 1968); Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184-185 (Ky.App. 1987).
We find no error in the methodology used. The trial court relied on substantial evidence which used established factors in determining the location of the boundary line. See Metro. Life Ins. Co. v. Hoskins, 273 Ky. 563, 117 S.W.2d 180, 182 (1937). The court was acting within its discretion to prefer West's survey over Upchurch's survey.
Accordingly, we affirm the judgment of the Wayne Circuit Court determining the parties' mutual boundary according to West's survey.
ALL CONCUR. BRIEF FOR APPELLANT: Gordon T. Germain
Monticello, Kentucky
BRIEF FOR APPELLEE: John Paul Jones, II
Monticello, Kentucky