LARRY FIELDS v. JUANITA LOWE THACKER
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RENDERED:
October 12, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001546-MR
LARRY FIELDS
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 95-CI-00458
v.
JUANITA LOWE THACKER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Larry Fields has appealed a judgment entered by
the Pike Circuit Court on March 8, 2000, in a boundary dispute
case.
Fields claims there was an agreement between the parties
determining the boundary to be at a location different from where
the trial court found it to be, and that the trial court
erroneously quieted title to the disputed property in favor of
the appellee, Juanita Lowe Thacker.
Having concluded that the
findings of the trial court are not clearly erroneous and that
the trial court correctly applied the law, we affirm.
In July 1964, Juanita Thacker purchased a tract of land
on Chloe Creek in Pike County.
Fields purchased an adjoining
parcel of land in September 1989.
The primary survey exhibit in
this case is Exhibit One to the Phillip Potter deposition.
This
exhibit is a plat for the “Young Subdivision Lower Section No.
Three.”
The exhibit depicts a plat of 43 lots numbered one
through 43.
According to the deed descriptions, Juanita Thacker
owns lots 22 through 34 and Fields owns lots 35 through 43;
hence, pursuant to the deeds, the boundary between the Thacker
and Fields property would correspond to the boundary between lots
34 and 35.
The boundary area was low-lying, and both Thacker and
Fields had plans to fill the area.
Larry Thacker, Juanita’s son,
testified that he had been occasionally and slowly working on
filling the low-lying areas of Juanita Thacker’s property.
When
it became apparent that Fields was going to fill his adjoining
property, Fields and Larry Thacker decided that it would be in
their collective best interests to fill the adjoining property at
the same time.
To this end, Fields, Larry Thacker, Phillip
Potter, a land surveyor frequently used by Larry Thacker in his
cemetery operations and Michael Davis, Fields’ property engineer,
met at the property site to discuss the fill project.
In his deposition testimony, Larry Thacker testified
that at this meeting he did not actually agree to a boundary
line, but rather, that he merely opined where he thought the
boundary line was, and that he warned Fields that he should not
rely upon this opinion and should independently determine for
himself where the actual line was through his own survey.
Fields, on the other hand, testified that at this meeting a
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boundary line was identified and agreed to by Larry Thacker, and
that the boundary was staked based upon the agreement.
Surveyor Philip Potter, in his deposition,
substantially corroborated Fields’ testimony.
Potter testified
that at the meeting Larry Thacker produced a map and mistakenly
identified the boundary line between lots 33 and 34 as lying 25
feet to the north of the actual line.
This misidentification
would have excluded lot 34 from Juanita Thacker’s tract of land.1
In his deposition, Larry Thacker acknowledged that at
the meeting he misidentified the boundary line, but he contended
that when the mistake was eventually caught “quiet some time
later,”
he timely notified Fields of the mistake.
Fields
testified that a considerable period of time elapsed between the
meeting and the time he was notified of the mistake and that, in
the meantime, in reliance upon the agreed upon boundary, he
incurred the expense of filling the property and erecting a fence
at the agreed upon boundary between lots 33 and 34.
Exact, or
even approximate, dates concerning the relevant events in this
controversy are conspicuously absent from the record; however,
Fields contends that the fence was erected “two or three years
after the agreement.”
It is uncontested that Juanita Thacker
objected to Fields’ placement of the fence shortly after it was
erected.
In her deposition, Juanita Thacker testified that she
was unaware of the meetings between Larry Thacker and Fields
regarding the fill work or of any purported agreement concerning
1
Lot 34 measures approximately 25 feet by 113 feet.
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the boundary between her property and Fields’ property.
Juanita
Thacker testified that she first became aware of Fields’
assertion as to the boundary line when she began examining the
property more closely after Fields erected the chain link fence.
According to Juanita Thacker, based upon Fields’ placement of the
fence, it was very apparent that Fields was claiming part of her
property.
On March 21, 1995, Juanita Thacker filed a complaint in
Pike Circuit Court alleging that Fields had encroached upon and
caused damage to her property; requesting that Fields be enjoined
from encroaching upon her land; requesting that title to the
disputed property be quieted in her favor; and requesting
trespass damages.
On April 4, 1995, Fields filed an answer and
counterclaim denying the allegations contained in Juanita
Thacker’s complaint and alleging that based upon the placement of
the boundary as agreed to by Larry Thacker, he was the actual
owner of the disputed property.
Following discovery and the taking of depositions, the
matter was submitted for final decision to the trial court by
deposition.
On March 8, 2000, the trial court entered a judgment
wherein it found Juanita Thacker to be the owner of the disputed
property and required Fields to remove the fence he had erected.
On March 14, 2000, Fields filed a motion to alter, amend or
vacate the judgment and requested the trial court to make a
finding as to whether Juanita Thacker or Larry Thacker had agreed
to a boundary line at a time when there was a dispute about the
location of the boundary.
On June 6, 2000, the trial court
entered an order denying the motion.
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This appeal followed.
In cases tried by deposition,2 the trial court is the
finder of fact, and its findings may not be reversed unless the
findings are clearly erroneous.3
We review questions of law de
novo and, thus, without deference to the interpretation afforded
by the circuit court.4
Fields does not contest the trial court’s finding that
surveyor Phillip Potter has correctly determined that the proper
boundary between the Fields tract and the Thacker tract as
reflected in the deeds lies between lots 34 and 35 and not
between lots 33 and 34 and that the deeds reflect that Juanita
Thacker is the owner of lot 34, the disputed property.
However,
Fields contends that pursuant to Bringardner Lumber Co. v.
Bingham,5 the factors necessary to enforce an agreed boundary
line have been met, and that he should be adjudged the owner of
the disputed property.
Bringardner recapitulates the agreed boundary doctrine,
which provides that (1) there must be a bona fide controversy
between the owners at the time of the agreement concerning the
true location of the property line; (2) the line claimed to have
been agreed upon must be marked; (3) actual possession must be
taken in accordance with such agreement; and (4) there must be a
2
Kentucky Rules of Civil Procedure (CR) 43.04.
3
Largent v. Largent, Ky., 643 S.W.2d 261, 263 (1982);
CR 52.01.
4
Cinelli v. Ward, Ky. App., 997 S.W.2d 474, 476 (1999).
5
Ky., 251 S.W.2d 273 (1952).
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continuing acquiescence or mutual recognition by the contiguous
landowners for a considerable length of time.6
Even assuming, arguendo, that the boundary line was
agreed upon and staked as claimed by Fields, that Fields took
actual possession in accordance with the agreement, that there
was a mutual recognition of the boundary line for a “considerable
length of time”, and that Larry Thacker was Juanita Thacker’s
agent and Larry’s actions were binding on Juanita; nevertheless,
we are not persuaded that Fields is entitled to a judgment in his
favor under the agreed boundary line rule identified in
Bringardner Lumber.
In particular, Fields has failed to show
that there was a bona fide controversy between the owners as to
the boundary line at the time of the meeting between him and
Larry Thacker.
In fact, the admissions made by Fields in his
deposition testimony are fatal to his claim that there was a bona
fide controversy between the owners at the time of the meeting
respecting the true location of the property line:
Q3.
You have
relative
there to
lines of
heard the testimony here today
to a meeting that occurred out
try to determine the boundary
that property?
A.
Yes.
Q4.
Just describe - Tell us what the purpose
of that meeting was. Well, let me go
back a little further than that. Why at
that point were you having Mike Davis
look at the property and why were you in
a meeting with Larry Thacker?
6
Bringardner, 251 S.W.2d at 274-75 (citing Cline v.
Blackburn, 292 Ky. 713, 168 S.W.2d 15 (1943); Steele v.
University of Ky., 295 Ky. 187, 174 S.W.2d 129 (1943); Wagers v.
Wagers, Ky., 238 S.W.2d 125 (1951); and Redman v. Redman, Ky.,
240 S.W.2d 553 (1951)).
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A.
We were filling the property and wanted
to establish our property lines.
Q5.
Had a question come up about it?
A.
No. It just seemed to be the thing to
do at the time.
Q6
Had anybody challenged anybody else’s
version of the property line?
A.
No.
Based upon Fields’ own deposition testimony, there was
no actual dispute regarding where the boundary line was located.
For example, the deeds were not overlapping or ambiguous; there
was no adverse possession dispute; nor were there missing plats,
maps, stakes or landmarks so as to call into question the
location of the actual boundary.
In fact, it appears that with
minimal investigation and research, either Fields or Juanita
Thacker could have easily determined the correct boundary between
the two tracts.
In summary, we are persuaded that the “bona fide
dispute” element of the agreed boundary line doctrine was not met
in this case and, accordingly, Fields’ attempted reliance upon
the doctrine must fail.7
For the foregoing reasons, the judgment
of the Pike Circuit Court is affirmed.
7
While it is unfortunate that Fields apparently incurred the
expense of filling property that he did not own based upon a
misunderstanding regarding the proper boundary line, that is
irrelevant to the quiet title issue. There may be other legal
theories available to Fields to address Juanita Thacker’s
apparent windfall in this regard. However, such alternative
theories were not pursued before the trial court and are not
before us. See Clinkinbeard v. Poole, Ky., 266 S.W.2d 796, 798
(1954) (The general rule is that one who receives benefit from
the labor of another, or who acquires property of another under
an unenforceable contract, must pay on a quantum meruit basis the
value of the benefits thus received).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lawrence R. Webster
Pikeville, Kentucky
Carole Friend Conway
Bruce A. Levy
Pikeville, Kentucky
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