Friday, May 29, 2009

Court supports land surveyor who found that a creek divided to properties instead of a fence erected for "convenience" rather than boundary purposes

RICHARD LAFEVER ET AL. v. LLOYD B. LAFEVER ET AL. (Tenn. Ct. App. January 26, 2009).

In this boundary dispute, the trial court found in favor of the plaintiffs. Although we have concluded that the trial court erred in applying a presumption based upon the payment of taxes, the evidence does not preponderate against the trial court's determination of the proper boundary line. We therefore affirm.

Opinion may be found at the TBA website:

“In determining disputed boundaries resort is to be made first to the natural objects or landmarks, because of their permanent character.  Next, the artificial monuments or marks.  Then, the boundary lines of adjacent land owners.  And then, the courses and distances.” Id.

"Mr. Bartlett determined that the creek, a natural landmark, was the proper boundary line between the two properties.  Mr. Helton determined that an old fence line, an artificial monument, divided the two properties.  It is also significant that Plaintiffs put on evidence of a previous oral agreement between predecessor landowners that the creek would be the boundary line between their properties.  Such agreements are enforceable with proper proof.  Jack v. Dillehay, 194 S.W.3d 441, 447 (Tenn. Ct. App. 2005).  If parties enter into such an oral agreement, “they and their successors are estopped from challenging the line, even if it is later discovered that the parties were mistaken as to the location of the line at the time of the agreement.”   Id.

"Given the evidence concerning the condition of the fence and the conflicting theories as to whether or not it was a boundary fence, we cannot find that the evidence preponderates against the trial court’s conclusion that this was a fence of convenience and not a boundary fence." Id.