COMBS BROTHERS INVESTMENTS COMPANY () VS. YOUNG (TRULA), ET AL.

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RENDERED: OCTOBER 16, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001550-MR COMBS BROTHERS INVESTMENTS COMPANY v. APPELLANT APPEAL FROM PIKE CIRCUIT COURT HONORABLE DANNY P. CAUDILL, JUDGE ACTION NO. 96-CI-00622 TRULA YOUNG; ELMA STRATTON; DEWITT AND DELANE CRIDER; BERNIECE YOUNG; RICHARD STRATTON; AND TERRI PASQUIN APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON AND THOMPSON; LAMBERT,1 SENIOR JUDGE. CLAYTON, JUDGE: This is an appeal from a decision of the Pike Circuit Court 1 Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. finding that a property line extended to the top of a knob rather than to a spot several yards below. We affirm the decision of the trial court. BACKGROUND INFORMATION This case involves two deeds that were executed by John and Angelina Davis, husband and wife. The first was to their daughter Willdia Younge2 recorded on September 13, 1926, (the Willdia Deed) and the second to their daughter Mary Young (also spelled Mary Younge) recorded on April 5, 1927, (the Mary Deed). The appellant, Combs Brothers Investment Company (Combs) traces its title to the Willdia deed and filed this action in the Pike Circuit Court to quiet the title. The Willdia Deed provides the following property description: A tract of land in Pike County, Ky. Beginning on a white oak near the mouth of the Mudey Gut, then running up the Mudey Branch to a beech and Hickory, then leaving main Branch and Running up the hill to the top of a beech and chestnut oak and maple, then down the ridge with back line to a iron wood . . . . (Emphasis added). The Mary Deed provides the following property description: Tract of land in Pike County, Ky. Beginning on white oak near the mouth of the Muddy Gut Branch then running up said branch to a beech and hickory then with Willdia Youngs line up the Hill to the top to Beech and chestnut oak and maple then to A. Youngs line . . . . At trial, Combs proffered the testimony of Robert P. Combs, an attorney. Mr. Combs introduced the deeds in Combs’ chain of title. The appellant 2 Willdia Younge’s name is also spelled Willdia Young, Wildia Young and Wilda Younge. -2- also introduced the expert testimony of Donald Hughes, a licensed surveyor. Mr. Hughes stated that he was familiar with the dispute at issue given his work in the early nineties with a mining operation in the area. Mr. Hughes testified that he mapped the area including property lines and any evidence of the objects set forth in the deed prior to the commencement of the mining operation. Mr. Hughes also testified that he located a prior survey performed by G.H. Moore on behalf of United Fuel and Gas Company (United) in July of 1949. The purpose of Mr. Moore’s survey was to establish the location of an oil and gas well to be drilled on the Willdia property by United. Mr. Hughes testified that the three trees called for in the Willdia Deed were actually located by Mr. Moore. His survey showed a small chestnut, maple and beech located on a ridge. It was Mr. Hughes’ opinion that Combs owned the disputed area. The appellees proffered the testimony of James W. Young and Dewitt Crider as evidence of their claim. Mr. Young was the son of Luther Young and he became the owner of the Combs’ tract after his father died. Mr. Young testified that his father went out with Mr. Hughes when the latter was surveying the property to help him locate the property lines. Mr. Crider testified that he owned a portion of the tract set forth in the Mary Deed. Mr. Crider had married Mary’s granddaughter and Mary’s son, Ballard Young, gifted the property to the couple. He also testified that Ballard showed him the property lines in the 1970’s. He stated that Ballard showed him a -3- chestnut oak at the top of the hill with marks on it, but did not testify as to the exact placement of the tree. The bench trial was held in April 26, 2000, before Judge Charles E. Lowe, Jr. Judge Lowe, however, did not enter a judgment and his successor, Judge Steven D. Combs, was a stockholder in Combs, thus he recused himself. Special Judge Danny P. Caudill was appointed to decide the case. Judge Caudill made his findings and conclusions after considering the tapes of the bench trial, the exhibits and arguments by counsel. As a result of his findings and conclusions, he dismissed the case that Combs had brought. As explained below, we affirm the decision of the trial court. STANDARD OF REVIEW The appellate standard of review in cases tried before a court without a jury is well established. “Findings of fact shall not be set aside unless clearly erroneous[.]” Kentucky Rules of Civil Procedure (CR) 52.01. In Webb v. Compton, 98 S.W.3d 513 (Ky. App. 2002), this rule was held to apply to boundary disputes. With this standard in mind, we will examine the issue before us. DISCUSSION Pursuant to KRS 411.120: Any person having both the legal title and possession of land may prosecute suit, by petition in equity, in the circuit court of the county where the land or some part of it lies, against any other person setting up a claim to it. If the plaintiff establishes his title to the land the court shall order the defendant to release his claim to it and to pay the plaintiff his costs, unless the defendant by his answer -4- disclaims all title to the land and offers to give such release to the plaintiff, in which case the plaintiff shall pay the defendant's costs, unless for special reasons the court decrees otherwise respecting the costs. In this action, the trial court defined the issue involved as whether the boundary line between the parties went to the top of the knob of the mountain or stopped at a point several hundred feet below the top. The trial court found that the boundary line went to the top of the mountain and dismissed the action in favor of the defendants. In determining where property boundary lines are located, the court should consider any natural and/or permanent monuments. Metropolitan Life Ins. Co. v. Hoskins, 273 Ky. 563, 117 S.W.2d 180, 182 (Ky. 1937). The term “monuments” includes both natural and man-made markers. Forrester v. Terry, 357 S.W.2d 308 (Ky. 1962). In the present action, the trial court determined that the language within the deed, which provided that the boundary went “to the top,” referenced a natural monument, namely, the top of the knob. In determining the location of lost monuments, the court may consider the testimony of individuals who observed them when they were visible. Wagers v. Wagers, 238 S.W.2d 125 (Ky. 1951). In the present action, the trial court relied on the testimony of James W. Young, who testified that his father showed him the boundaries as set forth in the deeds. We agree with the trial court’s interpretation of the deed and the trial court’s finding was not clearly erroneous. -5- Clearly, the trial court relied upon testimony and evidence set forth in the record and correctly applied the law to the conclusions he drew from the evidence presented. Thus, we affirm the decision of the trial court dismissing the action. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEES: Donald H. Combs Pikeville, Kentucky Lawrence R. Webster Pikeville, Kentucky -6-

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