Opinion
NO. 2012-CA-000637-MR
06-21-2013
VIRGINIA LUTTRELL APPELLANT v. COLIN COX AND BRENDA COX APPELLEES
BRIEFS FOR APPELLANT: Leonard H. Brashear Hyden, Kentucky BRIEF FOR APPELLEES: Frank C. Medaris, Jr. Hazard, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 04-CI-00246
OPINION
VACATING AND REMANDING
BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Virginia Luttrell brings this appeal from a March 5, 2012, judgment of the Perry Circuit Court adjudicating a boundary line dispute with Colin Cox and Brenda Cox. We vacate and remand.
Luttrell and the Coxes are adjoining property owners in Perry County. A dispute arose between Luttrell and the Coxes concerning the proper location of their common boundary line. Luttrell filed a quiet title action in the Perry Circuit Court against the Coxes to resolve the boundary line dispute. Luttrell claimed legal title through her deed to a boundary line as established in a survey of her property. The Coxes answered and asserted that Luttrell's location of the boundary line was improper. Instead, they argued that the boundary line as established by their deed was farther south of Luttrell's purported boundary and offered a survey to specifically set forth its location. Alternatively, the Coxes alleged that they adversely possessed the real property affected by the boundary dispute.
The circuit court heard this matter without a jury pursuant to Kentucky Rules of Civil Procedure (CR) 52.01. By judgment entered March 5, 2012, the circuit court held that the Coxes adversely possessed the disputed property and so fixed the boundary line in accordance with their agreement. This appeal follows.
We begin our analysis by noting that the circuit court is required to separately set forth its findings of fact and conclusions of law under CR 52.01. As a reviewing court, the circuit court's findings of fact will not be set aside unless clearly erroneous. CR 52.01; Stephanski v. Stephanski, 473 S.W.2d 806 (Ky. 1971). A finding of fact is clearly erroneous if not supported by substantial evidence of a probative value. Phelps v. Brown, 295 S.W.2d 804 (Ky. 1956). We, of course, review issues of law de novo.
Luttrell contends that the circuit court erroneously fixed the boundary line between the parties' properties. She raises various contentions of error attacking the court's decision as to the location of the common boundary line.
In its March 5, 2012, judgment, the circuit court specifically located the boundary line as follows:
The boundary line between the property of [Luttrell] and [the Coxes] shall run with the left edge of the driveway leading to the Spencer mobile home, angles to the left at the end of the drive and runs in a straight line to a point at the edge of a concrete pad which is visible on the left of the two storage buildings behind the Spencer mobile home, thence running with the edge of the concrete pad and in a straight line from there to the river.
In a judgment resolving a boundary line dispute, it is the duty of the circuit court to locate and to describe the true boundary line with reasonable certainty and with sufficient particularity to establish its physical placement on the disputed property. 12 Am. Jur. 2d Boundaries § 113 (2013); 11 C.J.S. Boundaries § 226 (2013). Simply stated, the court must locate the true boundary line with sufficient specificity so that it may be physically located on the disputed property. See Ballew v. Denny, 296 Ky. 368, 177 S.W.2d 152 (Ky. 1944).
In this case, the circuit court's location of the boundary line utilizes artificial monuments as calls and uses no objective measurements in its description. At one call, the circuit court states that the boundary line "angles to the left," then "runs in a straight line to a point at the edge of a concrete pad," and from this point in a "straight line" to the river. In this description, there is no objective measurement as to the "angle" to the left; consequently, there is no method of specifically identifying the "point" referred to at the edge of the concrete pad. And, the concrete pad is not indicated on any survey in the record.
Upon consideration of the whole, we conclude that the circuit court's description of the boundary line is not sufficiently precise to enable this Court to physically locate it upon the disputed property. Accordingly, we hold that the circuit court failed to locate the true boundary line with reasonable certainty and with sufficient particularity. Upon remand, the circuit court shall reconsider its March 5, 2012, judgment and shall locate the common boundary line with reasonable certainty and sufficient particularity to enable the boundary line to be physically located upon the disputed property.
We view Luttrell's remaining contentions of error as moot.
For the foregoing reasons, the judgment of the Perry Circuit Court is vacated and this case is remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Leonard H. Brashear
Hyden, Kentucky
BRIEF FOR APPELLEES: Frank C. Medaris, Jr.
Hazard, Kentucky