RENDERED: JULY 1, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001152-MR
JOHN S. LEWIS, III; AND
BONNIE LEWIS
v.
APPELLANTS
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 04-CI-00321
JOHN MCCAULEY; AND
PATSY MCCAULEY
APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: DIXON AND NICKELL, JUDGES; SHAKE,1 SENIOR JUDGE.
DIXON, JUDGE: Appellants, John and Bonnie Lewis, appeal from a judgment of
the Taylor Circuit Court establishing the boundary line between the parties’
respective properties and awarding a disputed tract of land to Appellees, John and
1
Senior Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110 (5)(b) of the Kentucky Constitution and KRS 21.580.
Patsy McCauley. Because we conclude the judgment was erroneous, we reverse
and remand.
In September 1998, the McCauleys purchased from Edward Sebastian
property located on Dutton Creek Road in Campbellsville, Kentucky. The deed
granted to the McCauleys all of Sebastian’s property except a 10.34-acre tract that
had previously been conveyed to Sebastian’s daughter, Yvonne. Yvonne Sebastian
subsequently conveyed her tract to Valco Industries, Inc., who later conveyed the
same property to the Lewises in December 1999.
At some point during the first few months after the Lewises purchased
Yvonne Sebastian’s property, the McCauleys became concerned about the actual
location of the boundary line between the properties and retained Donald Dabney
to survey their own property. Ultimately, the Lewises disagreed with Dabney’s
survey and filed the instant quiet title action in the Taylor Circuit Court.
A bench trial was conducted on March 13, 2006, wherein the central issue
concerned the interpretation of the 1988 deed conveying the property from Edward
to Yvonne Sebastian (hereinafter referred to as the “Sebastian deed”). The legal
description of the property was set forth in the deed as follows:
Beginning at a point in the center of the Dutton’s Branch
Road (chapel to Wooleyville) in Whitney’s line thence
along the center of the road; N 57 [degrees] 15’ W 251.5
feet; N 60 [degrees] 24’ W 111.8 feet; N 65 [degrees] 22’
W 167.1 feet; N 74 [degrees] 00’ W 146.0 feet; N 84
[degrees] 16’ W 139.0 feet; S 88 [degrees] 48’ W 183.8
feet; S 87 [degrees] 40’ W 526.3 feet; thence leaving the
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road with division lines S 1 [degree] 17’ W (passing an
iron pin at 21.2 feet) 188.1 feet to an iron pin; S 74
[degrees] 54’ E 44.5 feet to an iron pin; S 63 [degrees]
38’ E 257.8 feet to an iron pin; S 41 [degrees] 42’ E
190.4 feet to an iron pin; thence with the outside line N
81 [degrees] 04’ E 1054.4 feet (passing an iron pin at
1018.2 feet) to the point of beginning containing 10.34
acres subject to road right of way.2
Attached to the deed was a plat prepared by surveyor Richard Montgomery, which
showed a boundary line different from the legal description found in the Sebastian
deed.
The McCauley’s expert, Donald Dabney, testified that his survey accurately
represented the boundary line as it was described in the Sebastian deed and,
subsequently, the McCauley deed. On cross-examination, however, Dabney
conceded that the survey, based strictly upon the calls contained in the deed’s legal
description, resulted in 10.2206 acres rather than the stated 10.34 acres.
The Lewises’ expert, surveyor Dan Anzelmo, testified that his survey of the
property was consistent with the Montgomery plat and was exactly 10.34 acres.
Anzelmo opined that part of the discrepancy between the deed and the plat was the
result of a missing call in the legal description. All parties agreed that if the
language of the Sebastian deed was controlling, the McCauleys prevailed; if the
Montgomery plat controlled, the Lewises prevailed.
On May 25, 2010, the trial court entered a judgment and order ruling that the
boundary line was established by the written legal description contained in the
2
This is same legal description contained in the deed conveying the property from Yvonne
Sebastian to the McCauleys.
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Sebastian deed. The court concluded that because the deed did not specifically
incorporate or refer to the Montgomery plat, such was not part of the deed and had
no legal effect. Thus, the court found that the plat did not create an ambiguity
since the calls set forth in the deed clearly established the boundary. The Lewises
thereafter appealed to this Court as a matter of right.
Findings of fact made by a trial court following a bench trial shall not be set
aside unless clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01.
This rule is equally applicable in boundary disputes. Croley v. Alsip, 602 S.W.2d
418, 419 (Ky. 1980). Such findings are not clearly erroneous if supported by
substantial evidence. Id. Substantial evidence is evidence “that a reasonable mind
would accept as adequate to support a conclusion.” Moore v. Asente, 110 S.W.3d
336, 354 (Ky. 2003) (citation omitted). Moreover, the trial court “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.” Webb v. Compton, 98 S.W.3d 513, 517 (Ky. App. 2002) (quoting
Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184–85 (Ky. App. 1987)).
On the other hand, the construction of a deed is a matter of law, and the trial
court’s legal determinations are reviewed de novo. Gosney v. Glenn, 163 S.W.3d
894, 898 (Ky. App. 2005). The intention of the parties is to be gathered from the
four corners of the instrument. Phelps v. Sledd, 479 S.W.2d 894, 896 (Ky. 1972).
The entire instrument is to be considered in the light of attendant circumstances
and it is to be presumed that no clause or word in a deed was used without meaning
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or intent. Dennis v. Bird, 941 S.W.2d 486, 488 (Ky. App. 1997) (citing Sherman
v. Petroleum Exploration, 280 Ky. 105, 132 S.W.2d 768 (1939)). A court may not
substitute what the grantor may have intended to say for what was said. The rule is
well settled that words in a deed that are not technical must be construed as having
their ordinary connotation. Phelps, 479 S.W.2d at 896.
The Lewises argue that the trial court erred in disregarding the Montgomery
plat because (1) it was attached to the Sebastian deed and thus part of the
document; and (2) was necessary to explain an ambiguity within the deed itself.
After reviewing the relevant documents and caselaw, we agree.
In Bevins v. West, 242 S.W.2d 868 (Ky. 1951), an action was brought by the
appellees to quiet title after the appellants had removed a fence dividing the
properties. In arguing over the boundary line, the appellants relied upon a plat to
establish the boundary, whereas the appellees’ survey was based upon the deed
description of the property. In upholding the lower court’s judgment in favor of
the appellees, our predecessor Court agreed that where a plat was not recorded or
referred to in the deed, it was not a part of the conveyance. Accordingly, where
there is a conflict between a plat and a deed description, and there being no
ambiguity in the latter, the deed controlled. Id. at 869. See also Webb v. Compton,
98 S.W.3d at 516. Similarly, in the instant case, the trial court found that that the
Montgomery plat was not specifically referred to in the Sebastian deed and thus
had no legal effect. We disagree.
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The Sebastian deed was entered into on March 9, 1988, and was
subsequently filed in Deed Book 198 at pages 754-756 in the Taylor County
Courthouse. The Montgomery plat indicates that the survey was prepared for
Edward Sebastian on February 20, 1988, and is also filed in Deed Book 198 at
page 757. We find it significant that not only was the Montgomery plat prepared
immediately prior to the conveyance of the property, but also that there is only one
recording stamp located on the front page of the deed. Contrary to the trial court’s
finding, we believe that it is reasonable to conclude that the deed and the plat were
filed together as a single document.
Notwithstanding whether the Montgomery plat is part and parcel of the
Sebastian deed, we are also of the opinion that the deed description itself contains a
latent ambiguity. The deed unequivocally states that the property conveyed is
10.34 acres. Yet both experts agreed that the boundary line established by the calls
contained in the legal description results in a conveyance of only 10.2206 acres, a
difference of .1194 acres. However, the boundary established by the calls located
on the Montgomery plat conveys exactly 10.34 acres.
Kentucky law is settled that extrinsic evidence cannot be admitted to vary
the terms of a written instrument in the absence of an ambiguous deed. Hoheimer
v. Hoheimer, 30 S.W.3d 176, 178 (Ky. 2000); Sword v. Sword, 252 S.W.2d 869
(Ky. 1952). Moreover, evidence is admissible only to explain a latent ambiguity in
a deed. A latent ambiguity is one which does not appear upon the face of the
words used, and it is not known to exist until the words are considered in light of
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the collateral facts. Thornhill Baptist Church v. Smither, 273 S.W.2d 560, 562
(Ky. 1954) (citing Carroll v. Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W. 186,
190 (1916)).
We believe that the expressed intent of Edward Sebastian was to convey
10.34 acres to Yvonne Sebastian. Yet all parties agreed that a survey based upon
the calls contained in the deed’s legal description contradicted the amount of stated
property that was conveyed in the deed. Clearly then, a latent ambiguity existed
within the legal description itself. Therefore, even if the trial court did not believe
that the Montgomery plat was part of the Sebastian deed, it should have
nonetheless considered it to resolve the ambiguity. See Smither, 273 S.W.2d at
562-63 (citing Tarr v. Tarr's Executor, 259 Ky. 638, 82 S.W.2d 810, 811(1935)).
We conclude that the Taylor Circuit Court erred as a matter of law in its
interpretation of the Sebastian deed and its refusal to consider the legal effect of
the Montgomery plat in determining the proper boundary between the parties’
property. As such, we reverse the decision herein and remand the matter for
further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel Todd Spalding
Lebanon, Kentucky
Jonathan G. Hieneman
Campbellsville, Kentucky
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