WILLIAM HITCHCOCK AND KIMBERLY HITCHCOCK v. IRENE CASTLE DICKERSON; MICHAEL CASTLE; AND GARRY CASTLE
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RENDERED:
OCTOBER 7, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002609-MR
AND
NO. 2004-CA-000096-MR
WILLIAM HITCHCOCK AND
KIMBERLY HITCHCOCK
APPELLANTS
APPEALS FROM LAWRENCE CIRCUIT COURT
HONORABLE DANIEL R. SPARKS, JUDGE
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 99-CI-00249
v.
IRENE CASTLE DICKERSON;
MICHAEL CASTLE; AND GARRY CASTLE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE. 1
JOHNSON, JUDGE:
William Hitchcock and his wife, Kimberly
Hitchcock, (the Hitchcocks) have appealed from an order of the
Lawrence Circuit Court entered on May 30, 2002, which adopted a
Master Commissioner report filed on May 15, 2001, and from an
order of the Lawrence Circuit Court entered on December 23,
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2003, which denied their CR 2 60.02 motion. 3
Having concluded
that the circuit court’s judgment establishing the boundary line
between the parties is not clearly erroneous as it is supported
by substantial evidence and that the circuit court did not abuse
its discretion by denying the CR 60.02 motion, we affirm.
This case arises from a boundary line dispute between
adjoining landowners, the Hitchcocks and the appellees, Irene
Castle Dickerson and her sons, Garry Castle and Michael Castle
(collectively the Castles).
The property at issue in this
litigation was originally owned by Lewis Borders in the early
1900’s.
There is no dispute as to the validity of the parties’
recorded deeds; the dispute concerns the descriptions contained
in the deeds.
The property claimed by the Hitchcocks was originally
inherited by Kimberly 4 upon the death of her father, William R.
Whitaker, on or about August 30, 1995.
The description of this
land, as set out in Whitaker’s deed, indicates that it began at
a point on the Old County Road, then ran northwest for a
distance of 147 feet to a point, then north 398 feet to a point,
2
Kentucky Rules of Civil Procedure.
3
The two appeals were consolidated for our review by an order entered by this
Court on March 22, 2004.
4
At the time Kimberly inherited this land from her father, she was not
married. She married William Hitchcock before this action commenced.
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then east 50 feet to point, then south 487 feet to the Old
County Road, then west 95 feet to the beginning. 5
Irene was deeded her parcel of land on or about
September 5, 1968.
Then, on or about October 20, 1993, she
conveyed it to her sons, Michael and Garry, reserving for
herself a life estate. 6
This property description is as follows:
Beginning on the south side at the corner of Ed
Preston line and the Big Sandy River; thence up
the river in a westerly direction to the mouth
of Dean Branch; thence up the branch in a
northwesterly direction to the middle road at
an iron stake; thence following the middle road
in a northeasterly direction to the main
Lawrence County road at an iron stake; thence
following the old main road to the Ed Preston
line; thence following the Ed Preston line in a
southerly direction to the river, the point of
beginning [emphases added].
The Johnson County Fiscal Court had previously conveyed to Irene
by quit claim deed 7 “[a]ll of that certain county road which goes
5
The description of the Hitchcock property contained in a deed dated June 9,
1973, between Kermit and Beatrice Wallen and Estill and Roma Stepp and
recorded in Deed Book 158, page 507, in the Lawrence County Court Clerk’s
Office reads as follows:
BEGINNING at the old County Road on Dean Branch; thence
running N. W. 147 feet to a rock marked with an “X”;
thence running North 398 feet to a rock marked with an
“X”; thence running east fifty (50) feet to a rock
marked with an “X”; thence running South 487 feet to the
County Road; thence running with the County Road West 95
feet back to the beginning.
6
This deed is recorded in Deed Book 324, page 258, in the Johnson County
Court Clerk’s Office.
7
This deed, dated December 30, 1981, is to an abandoned road referred to in
this case as the “middle road”.
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through the property of the Grantees as described by deed dated
September 5, 1968 . . . .”
This action commenced on October 19, 1999, when the
Hitchcocks filed a complaint in the Lawrence Circuit Court after
Michael placed a mobile home on property the Hitchcocks claim to
own.
A hearing was held before a Master Commissioner on
September 19, 2001, to determine the proper boundary line
between the parties’ land.
Evidence was introduced that three
roads have existed on the land now owned by the Hitchcocks and
the Castles.
The first road, the Old County Road, 8 was in use
when Borders owned the property and conveyed his interests
therein through the 1919 9 and 1925 10 deeds.
The second road, the
“middle road,” ran through the center of the Castles’s property
and around an old barn. 11
The third road, State Route 581, was
constructed in 1968, and is the main thoroughfare currently in
use near the properties.
The disputed parcel of land is
approximately a one and one-half acre tract situated north of
the “middle road” and south of the Old County Road.
It is
8
Sections of this road are still visible on the aerial photographs; however,
the entire road is no longer in existence.
9
The 1919 deed was from Lewis Borders to Ham and Miranda Wallen; the land is
now owned by the Hitchcocks.
10
The 1925 deed was from Lewis Borders to John and Wrae Meek; the land is now
owned by the Castles.
11
This barn was used by the Castles to store their tobacco crop. The barn
was torn down in the late 1970s; however, the stone footers used as the
foundation of the barn still remain.
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located along the southern portion of the Hitchcocks’s land and
the northern portion of the Castles’s land.
The Hitchcocks contend that the Castles’s property
extends only to the “middle road” as described in the 1968 12 and
1993 13 deeds, and that the Castles do not own any land north of
the “middle road”.
The Castles, on the other hand, argue that
the northern boundary line of their land is the center of the
Old County Road since it was the only county road that existed
in this area at the time the original deeds were written.
Two land surveyors, Larry Fitch and Randall Thompson,
testified that the deeds at issue were not written according to
metes and bounds, with reference to any bearings or distances
that can be located on the land today.
Instead, the deeds used
trees and rocks as landmarks which are no longer in existence.
Thus, because of the language contained in the deeds, the
surveyors in determining the boundary line had to rely on
additional information, including aerial photographs of the
subject real estate and statements made by residents who have
knowledge of the land in dispute.
The Hitchcocks introduced testimony regarding a deed
which conveyed a small parcel of the Hitchcock land, previously
12
The 1968 deed was from Cora Meek to Irene.
13
The 1993 deed was from Irene to her sons.
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owned by Estill and Roma Stepp, to Elizabeth Ward. 14
The
description of the land contained in the deed to Ward reads as
follows:
BEGINNING at an iron stake at the Old County
Road; thence a straight line running back from
the road a distance of 100 feet to an iron
stake; thence a straight line down the creek a
distance of 100 feet to an iron stake; thence a
straight line back to the Old County Road and
iron stake a distance of 50 feet; thence
following the Old County Road a distance of 100
feet to the iron stake, the point of beginning
[emphases added].
Thompson testified that, usually, if a parcel of land owned by
one person joins another person’s land, the deed will state the
name of the owner of the common boundary line.
The Hitchcocks
emphasized the fact that the description of the Ward land does
not indicate that its southern boundary line was shared with the
Castles’s northern boundary line.
Instead, the deed states that
the boundary line is the Old County Road.
However, Robert Page 15 testified that he had helped
Stepp 16 put stakes into the ground to mark off the boundary line
of the Ward land.
Page testified that, to his knowledge, the
Ward boundary was also the Castles’s boundary, and that there
was not any land retained by Stepp situated between Ward and the
14
This deed is dated August 25, 1983, and is of record in Deed Book 231, page
305, in the office of the Johnson County Court Clerk. The Ward property was
approximately 100 feet by 50 feet in size.
15
Robert Page is a resident in the area who lived across the road from Irene
for approximately eight years.
16
Estill Stepp was deceased at the time the hearing was held.
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Castles.
In assessing the testimony by Page, the Commissioner,
and the circuit court by its adoption, stated:
The most convincing testimony was that of
Robert Page who testified he assisted Estill
Stepp in the placement of the boundary stakes
for the Ward property. His testimony was that
the Ward property adjoined that of the
[Castles]. 17
The circuit court made the following findings:
1.
The Plaintiffs, William and Kimberly
Hitchcock, do not own any farther toward
the Defendants than the location of the old
county road as placed and located on the
map of surveyor Larry Fitch. The
[Hitchcocks] provided no proof or evidence
consistent with the claim of adverse
possession.
2.
The [Castles], by history, hold title
extending out to the old county road which
was in existence in 1925, the time in which
their portion was transferred by the common
grantor of these two tracts. No deed or
conveyance in the chain of [the Castles’s]
title since that time lists the property to
be conveyed as being “a part of” the
property conveyed in 1925 or any other
similar language which would suggest the
property to be conveyed was less than that
conveyed in 1925. The use of the property
by the [Castles] since 1968 is consistent
with this conclusion.
3.
The boundary line between the parties is
the old county road as marked on the Larry
Fitch survey plat. Deeds to each of the
parties should be made through the Master
Commissioner consistent with this finding.
. . .
17
The Ward property was subsequently reacquired by the Hitchcocks and their
predecessors.
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It is the [ ] Judgment of the
[Lawrence Circuit Court] that the boundary
line between the [Hitchcocks] and [the
Castles] be located in the area of the
survey map of Larry Fitch delineating the
center of the Old County Road as marked on
said map.
On November 26, 2001, the Hitchcocks filed exceptions to the
Commissioner’s recommendations.
In an order dated May 29, 2002,
the circuit court overruled the exceptions and accepted the
Commissioner’s recommendations as the circuit court’s final
judgment.
On June 6, 2002, the Hitchcocks filed a motion to
alter or amend 18 the circuit court’s judgment, asserting that
they should be granted an easement across the disputed land to
allow access to their private driveway. 19
On June 7, 2002, the
Hitchcocks filed a supplemental motion to alter, amend, or
vacate, arguing that the Commissioner’s recommendations were not
supported by the evidence presented at the hearing.
In their
supplemental motion, the Hitchcocks claim to have obtained a
deed to the land between the “middle road” and the Old County
Road. 20
The Castles argue that the submission of this deed as
evidence was untimely.
18
The circuit court, in an order entered
This motion is not an issue on appeal before this Court.
19
The private driveway is the only access the Hitchcocks have to their
residence and to a family cemetery located on their land.
20
This deed is from the heirs of John and Wrae Meek, and it is dated January
28, 2002.
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on November 21, 2003, denied the Hitchcocks’s motions to alter,
amend, or vacate.
This appeal in Case No. 2003-CA-002609-MR
followed. 21
Meanwhile, on December 3, 2003, the Hitchcocks filed a
motion pursuant to CR 60.02(c), 22 asserting that when Fitch
testified before the Commissioner, his surveying license had
been suspended.
The Hitchcocks claim that since Fitch testified
falsely that he was a licensed surveyor, the circuit court’s
judgment should be set aside because of the perjured testimony.
In an order entered on December 23, 2003, the circuit
court denied the Hitchcocks’s CR 60.02(c) motion.
The circuit
court reasoned that at the time Fitch performed the survey for
the Castles, he was in good standing with the Kentucky State
Board of Licensure for Professional Engineers and Public Land
Surveyors; his license had been suspended afterwards only
because he did not attend the required continuing education
courses.
In support of its decision to deny the Hitchcocks’s
motion, the circuit court stated that when Thompson testified
before the Commissioner his surveying license had also been
21
This Court granted a motion by Lawrence County to file an amicus curiae
brief.
22
CR 60.02(c) states:
On motion a court may, upon such terms as are
just, relieve a party or his legal representative from
its final judgment, order, or proceeding upon the
following grounds: . . . (c) perjury or falsified
evidence[.]
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suspended by the Board of Licensure.
The circuit court reasoned
that since both surveyors were licensed at the time they
completed their survey, but each had his license suspended when
he testified before the Commissioner, each party was similarly
situated, and vacating the court’s judgment was not warranted.
This appeal in Case No. 2004-CA-000096-MR followed.
This Court cannot disturb a lower court’s finding of
fact unless the judgment is clearly erroneous. 23
We cannot
substitute our judgment for that of a lower court if the lower
court’s decision is supported by substantial evidence. 24
Substantial evidence is evidence of sufficient probative value
to induce conviction in the mind of a reasonable person. 25
In its findings the circuit court indicated that it
was persuaded by evidence from Robert Page, who testified that
the southern boundary of the Ward property as an off-conveyance
from the Hitchcock property shared a common boundary line with
the Castles’s northern boundary line.
The circuit court also
relied on Michael’s testimony that “an old ditch line” had been
the proper boundary line between the Castles’s property and the
Ward property that had been conveyed by the Hitchcocks’s
23
CR 52.01. See also Hoffman v. Russell Federal Savings & Loan, 390 S.W.2d
644, 647 (Ky.App. 1965).
24
Leveridge v. Leveridge, 997 S.W.2d 1, 2 (Ky. 1999)(citing Combs v. Combs,
787 S.W.2d 260, 262 (Ky. 1990)). See also Reichle v. Reichle, 719 S.W.2d 442
(Ky. 1986).
25
Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62, 64 (Ky. 1970).
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predecessor; and that the ditch is in the location of the Old
County Road. 26
Further, Michael stated that this boundary line
was recognized by both the Castles and by Ward.
Based on the extensive review by the circuit court,
and the testimony given during the Commissioner’s hearing, we
conclude that the circuit court’s judgment is supported by
substantial evidence and it did not err in determining that the
proper location for the boundary line was the Old County Road.
In the second appeal, the Hitchcocks claim the circuit
court abused its discretion by denying their CR 60.02(c)
motion. 27
To be entitled to relief under CR 60.02, a party must
demonstrate “some significant defect in the trial proceeding or
evidence at trial, . . . such that ‘a substantial miscarriage of
justice will result from the effect of the final judgment.’” 28
The Hitchcocks claim that since the surveyor hired by
the Castles testified that he was a licensed land surveyor,
when, in fact, his license had been suspended at the time he
testified, the circuit court relied on perjured testimony in
making its judgment.
However, as noted by the circuit court,
since both parties were similarly situated and neither was
26
As indicated previously, the Ward property was subsequently reacquired by
the Hitchcocks and their predecessors.
27
Schott v. Citizens Fidelity Bank & Trust Co., 692 S.W.2d 810, 814 (Ky.App.
1985).
28
Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky.App. 1985) (quoting Wilson v.
Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966)).
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disadvantaged by permitting the testimony into evidence, the
final judgment did not result in a substantial miscarriage of
justice.
Both surveyors were allowed to testify as to their
observations and opinions regarding the location of the boundary
line; and both were clearly qualified to provide expert opinion
even though they subsequently encountered licensing problems due
to their failure to obtain the required continuing education
credits.
Therefore, the circuit court did not abuse its
discretion in denying the Hitchcocks’ motion, and we affirm the
circuit court’s decision.
In addressing the amicus curiae brief filed on behalf
of Lawrence County, we conclude that the circuit court did not
move the boundary line of Lawrence County, instead it moved the
boundary line of the parties in the action, regardless of which
county the property lies in.
Therefore, we find no merit in the
arguments raised in the amicus curiae brief.
Having concluded that the circuit court judgment
setting the boundary line was based on substantial evidence and
not clearly erroneous; and that the circuit court did not abuse
its discretion by denying the Hitchcocks’s motion pursuant to CR
60.02(c), the Lawrence Circuit Court’s judgment and order are
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
John David Preston
Paintsville, Kentucky
Michael S. Endicott
Paintsville, Kentucky
AMICUS CURIAE BRIEF FOR
LAWRENCE CO., KENTUCKY:
Michael T. Hogan
Lawrence County Attorney
Louisa, Kentucky
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