PARSLEY (FLOYD), ET AL. VS. MCCAULEY (LEROY B.)
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RENDERED: OCTOBER 29, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000454-DG
FLOYD PARSLEY; DELORES PARSLEY;
AND PARSLEY REVOCABLE TRUST
APPELLANTS
ON DISCRETIONARY REVIEW FROM HARRISON CIRCUIT COURT
v.
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 08-XX-00004
LEROY B. MCCAULEY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND COMBS, JUDGES; LAMBERT,1 SENIOR
JUDGE.
CAPERTON, JUDGE: The Appellants, Floyd and Delores Parsley, appeal the
November 21, 2008, order of the Harrison District Court, following a trial of the
same date, which was ultimately affirmed by the Harrison Circuit Court in an order
1
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.
entered on February 10, 2009. Therein, the court held that the fence between the
property of the Appellants and the Appellee, Leroy B. McCauley, was not a lawful
fence and must be removed, with each party assuming half of that responsibility,
and further set forth the boundary lines and guidelines under which new fencing
was to be constructed. Following a review of the record, the arguments of the
parties, and the applicable law, we remand this matter to the circuit court with
instruction to vacate the order of the Harrison District Court.
The Parsleys and McCauley own farms that border each other at the
east-west and north-south boundary lines near Cynthiana in Harrison County,
Kentucky. After studying the deeds of his property, as well as the properties of his
neighbors on both sides of Gray’s Run Pike, Floyd Parsley determined that the
fences on these boundaries encroached on his property. Parsley commenced to
move the fences between the properties, and placed rock, dirt, and other material
against a second portion of the division line fence. This resulted in a dispute with
McCauley about the placement of the fences.
Both McCauley and Parsley had licensed surveyors survey the
properties. The surveyors placed markers where they determined that the
boundary between the properties should be. According to Parsley, those surveys
essentially established the boundaries in the original position which Parsley
disagreed with prior to building the fence. Parsley refused to move the fence he
had constructed. This eventually led to an action in Harrison District Court filed
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by McCauley for the purpose of determining the propriety of the established
fences.
McCauley filed the action under the Kentucky Boundary Line Fence
Act, set forth at KRS 256.030 and KRS 256.042. Following a bench trial on
November 14, 2008, the trial court issued an order establishing the east-west and
north-south boundary lines between the two properties based upon testimony and
surveys by licensed surveyors who had surveyed the properties, and set standards
for the type of fence to be constructed. As noted, the court ordered that the fences
constructed by Parsley be removed, and that the boundaries be re-established in
accordance with the court’s order.2
Parsley appealed to the Harrison Circuit Court, which affirmed the
trial court’s order on May 12, 2009. Parsley then sought discretionary review from
this Court on March 12, 2009, asserting that the district court did not allow Parsley
himself to testify, but instead heard testimony from expert surveyors on both sides,
which placed the boundary lines of the property at issue contrary to what was set
forth in Parsley’s deed. Parsley thus asserted that the court’s order, based upon the
opinion of the surveyors, lessened his acreage and qualified as a taking of his
property without due process or just compensation.
Discretionary review was granted, and this Court’s motion panel
reversed and remanded to the circuit court on June 29, 2009, with the directive that
2
Specifically, the court indicated that the survey and findings of Allen Patrick Darnell were the
more credible, and it ordered that the boundaries be established in accordance with the boundary
lines set forth in his survey.
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it vacate the order of the district court due to lack of subject matter jurisdiction.
McCauley then moved this Court for reconsideration of that order, asserting that
portions of the order of the district court which were vacated, specifically the
portions concerning the labor, debris removal, and materials to be utilized for the
construction of a boundary line fence, as well as the obligations of the parties with
regard thereto, were within the jurisdiction of the district court.
This Court granted Parsley’s motion for reconsideration on December
30, 2009, and ordered that the previous order of June 29, 2009, issued by its
motion panel be withdrawn. In addition to the issues presented to the circuit court
for review, this Court ordered the parties to brief the issue of the district court’s
subject matter jurisdiction. We now address these issues herein.
On appeal, Parsley makes one argument, namely, that neither the
Kentucky Boundary Line Fence Act, nor any other circumstance gave the Harrison
District Court subject matter jurisdiction to change the boundaries of the two
properties at issue in the matter sub judice. In so arguing, Parsley relies primarily
upon KRS 24A.120(1), and upon the opinions issued by this Court in Coffey v.
Kehoe Rock and Stone, LLC, 270 S.W.3d 902 (Ky. App. 2008), and Emmons v.
Madden, 781 S.W.2d 529, 530 (Ky. App. 1989).
While Parsley acknowledges that KRS 256.030 and KRS 256.042
give the district courts of the Commonwealth jurisdiction over the maintenance and
construction of fences between properties, he asserts that such authority does not
extend to the movement of boundary lines between properties. He notes that KRS
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24A.120(1) specifically excludes “matters affecting title to real estate” from the
jurisdiction of the district court.
In response, McCauley asserts that during the course of this action, he
took the deposition of three different surveyors who had been employed by Parsley
to support his determination of the division line fence. McCauley also had his own
surveyor, Pat Darnell, confirm the correct location of the earlier standing fence,
which was removed by Parsley. McCauley states that after a review of the deeds at
issue and preliminary field measurements, all three surveyors agreed with
Darnell’s determination that the proper location of the division line was
“basically”3 where it had originally been prior to Parsley’s removal and relocation
of the fence.
McCauley further states that until the pretrial conference conducted
ten days prior to trial, Parsley continued to claim that he would put forth testimony
by a surveyor which would support his placement of the fence. McCauley asserts
that had Parsley put forth such evidence, he would have considered the boundary
line location to be in dispute, and would have sought to transfer the action back to
circuit court. However, he argues that as no evidence in that regard was submitted,
the circuit court would have been without authority to accept the action, as it was
still within the purview of the Kentucky Boundary Line Fence Act.
McCauley also argues that the Kentucky Boundary Line Fence Act,
which gives a statutory grant of exclusive jurisdiction to the district court for
3
See Appellee’s Brief, p. 3.
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actions arising under KRS 256.030 and KRS 256.042, is in conflict with KRS
24A.120, which gives a general grant of jurisdiction to the district courts. He
asserts that because of the jurisdictional wording of KRS 256.042(1), both parties
and the district court judge believed the district court to have been the proper
forum for the action.
McCauley asserts that at the time this case was originally filed, the
boundary line was not in dispute, and that the purpose of the litigation was to
compel the construction of a lawful fence. McCauley asserts that the dispute
concerning the location of the boundary line only arose after the action was filed.
He argues that this Court has previously extended the jurisdiction of the district
court beyond the limitations of KRS 24A.120(1),4 and that when more specific
statutes have been enacted granting it exclusive jurisdiction, insofar as when two
statutes conflict, the more specific should control.
In the alternative, McCauley argues that if this Court determines
reversal to be appropriate, we should reverse and remand only that portion of the
district court’s order fixing the boundary line, and uphold the remainder of the
order concerning actual construction of the fence as proper under the Kentucky
Boundary Line Fence Act. McCauley argues that the determination that the
existing fence was not lawful was a determination which could only be
appropriately made by the district court, particularly in light of its specific
4
McCauley refers specifically to our decision in Abell v. Reynolds, 191 S.W.3d 1 (Ky. App.
2006), wherein this Court expanded the jurisdiction of the district court in a case involving the
Kentucky Boundary Line Fence Act, even though the damages sought exceeded the District
Court’s jurisdictional limit as set forth in KRS 24A.120.
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direction as to the materials of fence to be utilized, the respective responsibilities
of the parties for cost and construction, and removal and disposition of debris.
McCauley argues that such determinations are within the exclusive authority of the
district court, and that another trial on these issues would be redundant, and an
inefficient use of judicial resources.
Having reviewed the record, the arguments of the parties, and the
applicable law, this Court is of the opinion that the District Court was without
jurisdiction to make a determination as to the correct location of the disputed
boundary line between the properties at issue. The Kentucky Boundary Line Fence
Act consists of two substantive statutes, KRS 256.030, and KRS 256.042.
Certainly these statutes make clear that the district court does have exclusive
jurisdiction over matters arising under the act. See also Abell v. Reynolds, 191
S.W.3d 1 (Ky. App. 2006). However KRS 24A.120(1), which provides a general
grant of jurisdiction to the circuit court in civil matters, specifically excludes from
the purview of the district court matters affecting title to real estate. In the matter
sub judice, the district court not only determined the rights and obligations of the
parties under the Kentucky Boundary Line Fence Act, but also determined the
location of the boundary line itself. Such a determination is clearly beyond the
bounds of the district court’s subject matter jurisdiction.
McCauley argues that the portions of the order of the district court
should be upheld which address the cost of construction of the fence, obligations of
the parties with regard to the manner in which it is constructed, and allocation of
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cost between the parties. In reviewing the course of the proceeding before the
district court, the cost of construction of the fence and allocation of cost between
the parties, as well as the obligations of the parties with regard to materials to be
supplied and manner in which the fence would be constructed, would necessarily
flow from the district court’s subject matter jurisdiction to decide the controversy.
However, in that the district court did not have the authority to determine the
boundary, and thus lacked subject matter jurisdiction to decide the controversy, it
follows that any decision based on its erroneous assumption of jurisdiction over the
controversy, particularly its decisions concerning the construction of the fence and
allocation of cost, must also be reversed.
While McCauley argues that this Court should extend our holding in
Abell to the facts of the matter sub judice, we find Abell distinguishable. Abell
concerned a situation properly under the purview of the Kentucky Boundary Line
Fence Act, namely, a situation wherein the parties agreed on the correct boundary
between the properties at issue, and disagreed as to the manner in which the fence
should be constructed and who should bear the costs. Thus, although the amount
at issue ultimately exceeded the jurisdictional limit of $4,000.00 as set forth in
KRS 24A.120, the subject matter of the case itself was one which was within the
exclusive province of the district court.
Certainly, the legislature foresaw that the cost of fence construction
may exceed the $4,000.00 jurisdictional limit of the district court when it enacted
the statute. Nevertheless it gave the exclusive jurisdiction of such matters to the
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district court. Thus, in enacting such a statute, the legislature gave the district
court the exclusive subject matter jurisdiction to handle the controversy and it
naturally flows that the district court has the jurisdiction to decide the damages.
By contrast, in the matter sub judice, the parties have disputed the
appropriate boundary line from the beginning. Indeed, this matter arose when
Parsley began to relocate the east-west boundary line fence, “encroaching on
[McCauley’s] property”.5 The parties, prior to even filing suit, hired respective
surveyors in an attempt to determine the correct location of the boundary line and
were still embroiled in that dispute when litigation was commenced. This was a
dispute that the district court was without subject matter jurisdiction to resolve, and
clearly, pursuant to KRS 24A.120(1), was a matter within the purview of the
circuit court. Unlike our decision in Abell, wherein the jurisdiction to decide
damages flows from the subject matter jurisdiction to decide the controversy, the
reverse premise that a court with jurisdiction to decide the damages must
necessarily have the subject matter jurisdiction to decide the controversy is not
true.
Lastly, the mere fact that the parties chose the district court forum
does not give the chosen court the subject matter jurisdiction to decide the
controversy. Stated simply, the parties are without authority to confer subject
matter jurisdiction on the court. See Coffey v. Kehoe Rock and Stone, LLC, 270
S.W.3d 902 (Ky. App. 2008). While it is argued that the portion of the order
5
See Respondent’s Response to Movant’s Motion for Discretionary Review, April 08, 2009.
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pertaining to the construction of the fence itself should not be vacated, we decline
to divide the order in this manner. Certainly, should the circuit court determine a
different location for the boundary line at issue, the cost, location of, and materials
needed for construction of the fence at issue are subject to change. Accordingly, it
is necessary that the order be vacated in its entirety.
Wherefore, for the foregoing reasons, the February 10, 2009, order of
the Harrison Circuit Court is hereby reversed and this matter is remanded to the
circuit court with instructions to vacate that November 21, 2008, order of the
Harrison District Court.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Michael D. Triplett
Erlanger, Kentucky
Sam W. Arnold, III
Cynthiana, Kentucky
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