SPEARS (KAYE) VS. PING (JAMES R.)Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 03-CI-01282
JAMES R. PING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KELLER, JUDGE; HENRY, SENIOR
COMBS, CHIEF JUDGE: Kaye Spears appeals from a judgment of the Pulaski
Circuit Court involving a dispute over a property line. After our review, we affirm.
Spears and James R. Ping are owners of adjoining properties near
Burnside in Pulaski County. In December 2003, Ping filed a civil action against
Spears alleging that Spears habitually trespassed upon his property – despite the
fact that a well-defined boundary line separated the two parcels. Ping also alleged
that Spears had damaged a fence marking the boundary line and that she had
destroyed trees growing on his property. In her answer, she denied that the fence
marked the proper boundary between their properties. She also denied that she had
trespassed on Ping’s property. Spears stated that she had removed the fence in
order to provide access for heavy equipment to her backyard in order to repair
recurring sinkholes. According to Spears, there was a change to a call in a deed in
a prior conveyance that was included in her chain of title. She believed that new
call created a “buffer area” or a “pie-shaped no-man’s-land” between Ping’s
property and her own. While Spears made no claim to the “buffer area,” she
contended that Ping, who had acquired his property first, had no right to it either.
The matter was tried before the court. On July 9, 2007, the trial court
entered findings of fact, conclusions of law, and final judgment. The court
determined that the parties shared a common grantor. Based upon the testimony of
one of the surveyors, the court concluded that Ping had established that the
disputed property fell within his grant and not within any prior grant from the
parent tract. It concluded that Spears had failed to show that the revised call
appearing in her chain of title was an accurate description of the land conveyed to
her. As a result, the court ordered reformation of the property description
contained in Spear’s deed and quieted title to the disputed parcel in favor of Ping.
No monetary damages were assessed. This appeal followed.
Spears argues that the trial court erred in its determination of the
correct location of the disputed boundary line for three reasons: (1) the court
ignored relevant evidence presented by Bobby Hudson, a licensed surveyor; (2) the
court failed to acknowledge the importance of monumentation in establishing the
boundary; and (3) the court failed to consider that heavy equipment must be
accessible to Spears’s backyard to repair sinkholes that are a danger to her and to
other residents of the subdivision.
The standard of review in cases tried before the 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. This rule has been held to
apply to boundary disputes. Webb v. Compton, 98 S.W.3d 513 (Ky. App. 2002).
In its judgment, the trial court discounted the testimony of Bobby
Hudson, a land surveyor, in favor of expert testimony offered by Gary Girdler, also
a licensed land surveyor. Hudson testified that he had undertaken a survey of
property owned by James Vanhook. He had surveyed a parcel of Vanhook’s
property that was later conveyed to Ping in October of 1996. Hudson indicated
that the legal description included in the deed to Ping matched: (1) his survey, (2)
a survey undertaken by John Sturgill in 1983, and (3) the recorded plat.
Hudson later surveyed Vanhook’s remaining property. Separate tracts
were eventually conveyed to others, including the one to Spears’s predecessor in
title. In response to questioning by Ping’s attorney, Hudson denied that the legal
description of the property conveyed to Spears’s predecessor in title called for a
boundary line adjoining Ping’s property. He was steadfast in testifying that
because of the similar bearings and distances from a single point as described in
the deeds, a gap resulted between the parties’ properties.
In his testimony, Gary Girdler intimated that Hudson had erred in his
survey, and he offered a plausible explanation for the error. Girdler indicated that
during the course of his work at the site, he had located a concrete monument that
had been described in several deeds and that had been originally referred to by
John Sturgill in his 1983 survey. Girdler explained that the legal description
contained in Ping’s deed along with the concrete monument constituted an accurate
survey that would cause the disputed properties to adjoin at precisely the location
proposed by Ping; i.e., a common boundary line with no intervening space or gap
as urged by Spears.
Having reviewed this conflicting testimony, we must conclude that the
trial court’s judgment was based upon substantial evidence and that it was not
clearly erroneous. We are not persuaded that the trial court erred by relying on
Girdler’s survey and fieldwork or by accepting as correct the location of the
disputed boundary as determined by Girdler. “A fact finder 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.” Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184-185 (Ky. App.
Spears next argues that the trial court erred by failing to acknowledge
relevant monumentation identified on the ground by Bobby Hudson. We disagree.
Girdler testified that by using the concrete monument and the bearings and
distances calls included in Ping’s deed, his line coincided with the location of an
undisputed pin located across Skyview Drive, the road marking the boundary of
the property belonging to Ping and Spears. The trial court was persuaded by this
testimony, and its judgment was based upon substantial evidence. There was no
Spears last contends that the trial court erred by failing to take into
account her need to have heavy equipment enter her backyard. In her deposition,
Spears indicated that although she had not had the property surveyed before she
purchased it, the fence enclosing the backyard did not mark the property line.
Spears admitted during trial that the disputed fence had been destroyed by heavy
equipment used to deposit rock in a sinkhole on the property. Spears had admitted
in a deposition that she did not own the property that she sought to use. Based
upon the entirety of the evidence presented, we cannot conclude that the court
erred in ruling that Spears had no claim to the title or the use of the disputed
We affirm the judgment of the Pulaski Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew B. Dehart