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In 1990, James Jackson owned Lots 4 & 5 of Winston Place subdivision, in Sumner County, Tennessee. That year he hired Wayne Diel to survey the lots and establish the line between them. In accordance with the sur-vey, Jackson built a sidewalk on what he believed to be Lot 5, along the common boundary, in order to be able to access the rear of the lot and the boat dock on Old Hickory Lake. SEE SKETCH In 1997, Starko bought Lot 5 from Jackson. In 1999, Wood purchased Lot 4 from Pritchard, who had previ-ously (no date given) purchased it from Jackson. In the real estate disclosure, Pritchard advised the Woods that the sidewalk was an encroachment upon Lot 4 that could affect their ownership interests. How Pritchard knows this is not revealed. Subsequent to the closing, Wood hired Steven Artz to survey the common bounda-ry line. The Artz survey revealed that the sidewalk was located on Lot 4. Wood and Starko met to discuss the sidewalk issue and trouble soon began. The next day Wood had a crew of workers destroy about 30 feet of the sidewalk and erect a “chicken wire” fence on the boundary line determined by Artz. This action effectively closed Starkos' outside access to his backyard and workers who were installing a new pool in Starkos' backyard were likewise cut off from their project. Starko employed Diel to re-survey the property boundaries. “Mr. Diel concluded that based on the original recorded subdivision plat and the developer’s original concrete monu-ments, the sidewalk was located completely on the Starkos' property” (i.e., Lot 5). Not happy with these results, Wood employed Bruce Rainey to survey the property. The conflict is with the Army Corps of Engineers’ coincident boundary around the impounded lake not matching up with the subdivi-sion boundary along the water-side rear of Lots 4 and 5. Artz and Rainey both held the Army Corps’ monu-ments in an attempt to “correct” the discrepancy between the Corps’ boundary and the subdivision boundary. Holding the Corps monuments put the sidewalk on Lot 4. “Mr. Rainey concluded that the original subdivision boundaries had to shift in order to meet the pins of the Army Corps of Engineers’ line ….” Starko next commissioned Jackie Dillehey to study all three surveys and to determine the proper placement of the common boundary line. “Dillehey concluded that the rear boundary line of the lots and the Corps of Engineers’ line clearly did not meet but that the original recorded plat had to control. By maintaining the bound-ary line established in the original subdivision plat and merely extending the line to meet the Corps … line, the … sidewalk remained on the Starkos' property.” Artz and Rainey both relied heavily on the Army Corps’boundary markings. Diel and Dillehey relied on the original monuments of the subdivision. At trial, Rainey was presumably a very credible witness and the trial judge ruled in favor of Wood. Starko appealed. Who wins?

Judge & Jury: Retracement IV The Case: Wood v. Starko - Tennessee Court of Appeals 2006

Important Stuff: THIS MONTH:

We are looking at retrace-ment issues along with the rules of construction and location doctrines.

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Inside this issue:

Judge & Jury 1

The Legal Angle 1

Points to Ponder 2

The Verdict Is In 2

Head Notes 3

Opinion 5 The Legal Angle: By Jeff Lucas, Editor

This is a case we went over back in 2009 on the issue of retracement surveying. It is an interesting case that deserves another look not only on the issue of retracement, but also on the issues related to the rules of con-structions and the boundary location doctrines. The rules of construction are simply rules that the courts have been handing down over the centuries for the interpretation of written documents. We are primarily interested in the rules for construing deeds, and in particular, the rules for interpreting prop-erty descriptions or legal descriptions as they are sometimes called. Many of these rules are familiar to surveyors such as the priority of calls in a description of property. Natural monuments are superior to artificial monu-ments, which are superior to calls for adjoiners, then to course, distance and finally area. The priority of calls is a universal rule but not universally applied. All jurisdictions recognize some form of the priority of calls. However, in some jurisdictions a call for an adjoiner has been elevated to natural monument status. Other jurisdictions do not list calls to adjoiners in the priority of calls. In yet other jurisdictions distances are superior to bearings, and so on. However, it is almost a universal application that monuments will be superi-or to bearings and distances. This makes it curious that when there is a conflict between bearings & distances and monuments found at the property corner, many surveyors honor the measurements above the monuments. I believe this has to with our inherent trust in our measurements over correct practice. This is the conflict that often sends these cases to court where we read about nonsensical surveying practice and the abandonment of common sense on the part of at least one of the surveyors—in this present case two. Another important rule of construction is that when a deed calls for a map or plat of survey (recorded or not), everything appearing on the face of the map is just as if written into the deed. This renders monuments depicted on the map ‘called-for monuments’ even though the deed description is by lot and block. That is a dis-tinction with a difference in those jurisdictions that place more value on such monuments. JNL

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March 2021 Volume 14, Issue 3

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Artz and Rainey relied heavily on the Army Corps’ bounda-ry lines and markings. There was clearly a conflict between the Corps line and the subdivision boundary. Who is the original surveyor relative to Lots 4 & 5, the Army Corps or someone else?

The theory underlying the Artz-Rainey survey is that it was the original developer’s intent that the subdivision bounda-ry adjoin the Army Corps boundary, therefore, the lines must be corrected in order to conform to that intent.

The theory underlying the Diel-Dillehey survey is that the original monuments establishing the subdivision are con-trolling for Lots 4 & 5, and nothing needs to be corrected.

Which theory is the correct retracement theory.

In the testimony at trial, it was revealed that the Army Corps had marked it’s boundary 11 years after the subdivi-sion plat was recorded and property corners monumented. Is this a factor to be considered?

What does a boundary dispute between Lots 4 & 5 have to do with anyone else in the neighborhood, including the Army Corps.? GO TO OPINION

Points to Ponder:

The Verdict Is In: Wood v. Starko - Tennessee Court of Appeals 2006

We are given no information about the testimony at trial but presumably the trial court found Mr. Rainey’s testimony to be more credible than that of the other witnesses. As the Court of Appeals observed: “Indeed, it was the existence of this ‘no-man’s land’ which impelled the trial judge to accept Mr. Rainey’s survey.” At trial it is very important to be credible or you have no chance of winning the day. Even though Rainey was credible his ultimate demise was that his survey was not competent evidence. “It is generally held, therefore, that a resurvey that changes lines and distances and purports to correct inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat.” Credibility and competence are the key. On appeal, the appellate court overturned articulating rules of construction and boundary location doc-trines from courts in Tennessee, Florida, Ohio, Michigan, Minnesota, Montana, Pennsylvania, Washington, Wisconsin, the U.S. Supreme Court, and a U.S. Circuit Court. And secondary sources, Corpus Juris Secundum (C.J.S.), American Jurisprudence (Am.Jur.), Clark on Surveying and Boundaries, and Thompson on Real Property. This is how property boundary law in the United States has become homogenized. “Based on the testimony of Mr. Rainey and the Thornburg case, the [trial] court concluded that the boundary line between lots 4 and 5 should be re-drawn according to the Corps of Engineers' pin, which is an adjacent landowner boundary line created 11 years after the subdivision plat at issue in this case. In doing so, the court showed no regard for the priority of the original concrete marker and erroneously placed the importance of original artificial markers secondary to the boundary of line of an adjacent own-er. … This is a suit over a boundary line between adjacent lots in a platted subdivision. Neither the United States Corps of Engineers nor any other persons are parties to the lawsuit. The difficulty with the Woods' position in this case centers around their surveyors' heavy reliance on lines established according to a Corps of Engineers' survey made 11 years after the survey of the platted subdivision. The lines drawn by the Corps of Engineers are immaterial to the issues between these parties. Both the Starkos and the Woods purchased their respective lots in accordance with the platted survey of Winston Place….” “Mr. Rainey felt compelled to eliminate the ‘no-man's land’ by conforming the northern boundary of the two lots to the line established by the Corps of Engineers' 1984 survey. … These two land owners pur-chased their respective lots in reliance upon the subdivision plat, and the Diel survey reflects the lines as they appear on the subdivision plat. The original markers on the ground from the 1973 survey of Turner Engineering Company, from which the plat resulted, conformed to the lines es-tablished both in the subdivision plat and the Diel survey.” Not only is this correct practice, this is the common-sense solution. As well as rules of construction (discussed in The Legal Angle), the Court of Appeals gave us several principles of boundary location, to wit:

In making a resurvey it is the surveyor’s duty to relocate the original lines and corners at the places actually established and not to run inde-pendent new lines, even though the original lines were full of errors.

The line actually run is the true boundary, provided the essential survey can be found and identified as the one called for, and prevails over maps, plats, and field notes. The lines marked on the ground constitute the actual survey.

If the stakes and monuments set at the corners of the parcel in making the survey have disappeared, it is competent to show their location by parol evidence.

The distinction between a rule of construction and a boundary location doctrine is a fine one, to be sure. Generally, the former is used to inter-pret written words and latter to interpret the factual questions of location. Join us on our BLOG. JNL GO TO OPINION

Volume 14, Issue 3

“Indeed, it was the existence of this ‘no-man’s land’ which

impelled the trial judge to

accept Mr. Rainey’s survey.”

All Sketches Intended as an Approximation of the Case Scenario and Not an Actual Representation of the Case.


Lucas & Company, LLC © 2008-2021 Page 1 of 14

JACK WOOD ET UX VICKIE E. WOOD

v.

DAN G. STARKO, ET UX LAURIE D. STARKO, ET AL.

No. M2004-02774-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

197 S.W.3d 255

January 13, 2006, Session

April 12, 2006, Filed

LUCAS LETTER HEAD NOTES [LLHN]:i

Civil Procedure; Appeals; Standards of Review; De Novo Review: Civil Procedure; Appeals; Standards of Review; Presumption of Correctness: [LLHN1] The review of a decision rendered in a boundary dispute is de novo upon the record with a presumption of correctness as to the trial court’s findings of fact, unless the evidence preponder-ates against those findings.

Civil Procedure; Appeals; Standards of Review; Preponderance of Evidence: Civil Procedure; Appeals; Standards of Review; Sufficiency of Evidence: [LLHD2] In order for the evidence to preponderate against the trial court’s findings of fact, the evi-dence must support another finding of fact with greater convincing effect.

Real Property Law; Deeds; Legal Descriptions; Priority of Calls: [LLHN3] The priority of markers in a boundary dispute is well settled in Tennessee. In determining disputed boundaries, resort is to be had first to natural objects or landmarks, because of their very permanent character; next, to artificial monuments or marks, then to the boundary lines of adjacent landowners, and then to courses and distances.

Real Property Law; Boundaries; Surveys; Following in the Footsteps: Real Property Law; Boundaries; Rules for Locating Boundaries: Real Property Law; Deeds; Deed Interpretation; Surrounding Circumstances: [LLHN4] It has been declared that all the rules of law adopted for guidance in locating boundary lines have been to the end that the steps of the surveyor who originally projected the lines on the ground may be retraced as nearly as possible; further, that in determining the location of a survey, the fundamental principle is that it is to be located where the surveyor ran it. Any call, it has been said, may be disregarded, in order to ascertain the footsteps of the surveyor in establishing the boundary of the tract attempted to be marked on the land; and the conditions and circumstances sur-rounding the location should be taken into consideration to determine the surveyor’s intent.

Real Property Law; Boundaries; Evidence of Boundaries; Original Survey: Real Property Law; Boundaries; Evidence of Boundaries; Actually Run on the Ground: [LLHN5] The original survey must govern if it can be retraced. It must not be disregarded. So, too, the places where the corners were located, right or wrong, govern, if they can be found. In that case a hedge planted on the line established by original survey stakes was better evidence of the true line than that shown by a recent survey. In making a resurvey it is the surveyor’s duty to relocate the


original lines and corners at the places actually established and not to run independent new lines, even though the original lines were full of errors.

Real Property Law; Boundaries; Evidence of Boundaries; Actually Run on the Ground: Real Property Law; Boundaries; Evidence of Boundaries; Parol Evidence: [LLHN6] The line actually run is the true boundary, provided the essential survey can be found and identified as the one called for, and prevails over maps, plats, and field notes. The lines marked on the ground constitute the actual survey and where those lines are located is a matter to be deter-mined by the jury from all the evidence. If the stakes and monuments set at the corners of the parcel in making the survey have disappeared, it is competent to show their location by parol evidence.

Real Property Law; Deeds; Legal Descriptions; Priority of Calls: Real Property Law; Boundary Establishment; Doctrine of Monuments: [LLHN7 Marked corners are conclusive and will control over courses and distances. Although stakes are monuments liable to be displaced or removed, they control so long as it is certain that they mark the corners of the original survey.

Real Property Law; Boundary Establishment; Doctrine of Monuments: Real Property Law; Boundaries; Evidence of Boundaries; Original Survey: Real Property Law; Boundaries; Surveys; Following in the Footsteps: [LLHN8] It is the monuments laid out by the original surveyor, if they can be located, which gov-ern the boundaries, even if the actual survey used in the plat is in error. Moreover, in ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground by his monuments, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect.

Real Property Law; Boundaries; Evidence of Boundaries; Retracement Surveys: Real Property Law; Boundaries; Evidence of Boundaries; Best Available Evidence: Real Property Law; Boundary Establishment; Doctrine of Monuments: [LLHN9] Where a plat contains substantial mathematical errors and discrepancies and with the passing of time questions arise concerning the true boundaries among its component parcels, the question to be answered is not where new and modern survey methods will place the boundaries, but where did the original plat locate them. The main purpose of a resurvey is to rediscover the boundaries according to the plat upon the best evidence obtainable and to retrace the boundary lines laid down in the plat. Effort should be made to locate the original corners. Despite discrepancies in the original plat, the known monuments and boundaries of the original plat take precedence over other evidence and are of greater weight than other evidence of the boundaries not based on the original monuments and boundaries.

Real Property Law; Deeds; Deed Interpretation; Intent: Real Property Law; Boundaries; Evidence of Boundaries; Actually Run on the Ground: [LLHN10] Courts should ascertain and carry out the intention of the original platters. In case of discrepancy, however, between lines actually marked or surveyed on the ground and lines called for by plats, maps or field notes, the lines marked by survey on the ground prevail

Real Property Law; Boundaries; Evidence of Boundaries; Retracement Surveys: Real Property Law; Boundaries; Evidence of Boundaries; Competent Evidence: [LLHN11] In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines. The object of a resurvey is to furnish


proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. It is generally held, therefore, that a resurvey that changes lines and distances and purports to cor-rect inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat.

Real Property Law; Boundary Establishment; Common Grantor Doctrine: [LLHN12] Purchasers of town lots generally have the right to locate their lot lines according to the stakes as actually set by the platter of the lots, and no subsequent survey can unsettle such lines. In the event of a subsequent controversy the question becomes not whether the stakes were located with absolute accuracy, but whether the lots were purchased and taken possession of in reliance up-on them. If such was the case, the rule appears to be well established that they must govern notwith-standing any errors in locating them.

Real Property Law; Boundaries; Evidence of Boundaries; Actually Run on the Ground: Real Property Law; Boundaries; Evidence of Boundaries; Original Survey: Real Property Law; Boundaries; Evidence of Boundaries; Best Available Evidence: [LLHN13] It is a familiar principle of our system, and one in reason applicable to this species of title, as well as any other, that it is the work on the ground, and not on the diagram returned, which constitutes the survey, the latter being but evidence, and by no means conclusive, of the former. Original lines as found marked on the ground must govern, in determining the location and extent of the survey, is a well-established rule, in general applicable to all cases. The marks made on the ground at the time of making the survey are the original, and therefore the best evidence of what is done in making it; that everything that is committed to paper afterwards in relation to it intended and ought to be, as it were, a copy of what was done, and ought to appear on the ground, in the do-ing of which errors may be committed, which renders it less to be relied on than the work as it ap-pears by the marks made on the ground.

Civil Procedure; Judgments; Written Judgment: [LLHN14] It is a well-established principle of law in this jurisdiction that a Court speaks only through its written judgments, duly entered upon its minutes. Therefore, no oral pronouncement is of any effect unless and until made a part of a written judgment duly entered.

JUDGES: WILLIAM B. CAIN, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., and FRANK G. CLEMENT, JR., J., joined.

OPINION BY: WILLIAM B. CAIN [197 S.W.3d 256]

This action seeks a declaration placing the boundary between two adjacent properties and a claim for damages by one landowner against the other. The trial court placed the boundary line based on pins marking the Corps of Engineers’ line, an adjacent landowner, and denied the award of damages. We reverse the judgment of the trial court.

This case concerns a boundary dispute between two adjoining landowners in the Winston Place subdivision on Old Hickory Lake in Sumner County, Tennessee. The subdivision was developed in 1973 and the subdivision plat was recorded the same year. At that time, James Jackson owned the two adjoining lots, 4 and 5, which are at issue in this case. In 1990, Mr. Jackson retained Wayne Diel to survey both properties and based upon that survey, Mr. Jackson built a concrete sidewalk


along what he believed to be the boundary line on lot 5, providing lot 5 with access to the lake, the dock, and the side yard.

In January 1997, Dan and Laurie Starko bought lot 5 from Mr. Jackson. In August 1999, Jack and Vickie Wood bought lot 4 from Bob and Beth Pritchard, who had previously purchased lot 4 from Mr. Jackson. The disclosure statement provided by the Pritchards to the Woods at closing not-ed that the Starkos’ rear sidewalk was an encroachment on the property which may affect their ownership interest. Relying on this assertion, Mr. Wood hired a surveyor, Steven Artz, to determine the boundary line between lots 4 and 5 and the ownership of the sidewalk.ii Mr. Artz ultimately de-termined that the entire sidewalk was on the Woods’ property. At this time, the Starkos were build-ing a pool in their backyard, and an agreement regarding the use of the sidewalk was reached be-tween the parties so that construction could continue.

However, civilities between the parties apparently ceased on November 30, 2001, when Mr. Starko and Mr. Wood met to discuss the sidewalk. Although the details of the discussion are disput-ed, it is uncontroverted that the next morning, Mr. Wood had a crew destroy the 30-foot section of the sidewalk which was allegedly on lot 4 and erect chicken wire along the believed boundary line. The Starkos assert [197 S.W.3d 257] that while tearing out the sidewalk, Mr. Wood’s crew dam-aged underground electrical wiring for security lights and an irrigation system and that the crew’s demolition increased the costs of building the pool because the Starkos’ men and equipment were no longer permitted to traverse between the homes.

After the destruction of the sidewalk, the Starkos employed Mr. Diel to re-survey the properties. Mr. Diel concluded that based on the original recorded subdivision plat and the developer’s original concrete monuments, the sidewalk was located completely on the Starkos’ property. However, in March 2002, the Woods employed Bruce Rainey to survey the properties. Mr. Rainey concluded that the original subdivision boundaries had to be shifted in order to meet the pins in the Corps of Engineers’ line, an adjacent landowner, and in doing so, the sidewalk was located on the Wood’s property.

Finally, the Starkos commissioned Jackie Dillehey to study the findings of Mr. Diel, Mr. Artz, and Mr. Rainey and to determine the proper placement of the boundary line. Mr. Dillehey conclud-ed that the rear boundary line of the lots and the Corps of Engineers’ line clearly did not meet but that the original recorded plat had to control. By maintaining the boundary line established in the original subdivision plat and merely extending the line to meet the Corps of Engineers’ line, the en-tirety of the sidewalk remained on the Starkos’ property.

On July 30, 2002, the Woods filed a suit in the Sumner County Chancery Court seeking a decla-ration placing the boundary line between lots 4 and 5. The Starkos filed a counterclaim asking the trial court to recognize the property boundaries in the original recorded plat and seeking damages for the removal of the sidewalk. After a bench trial, the court determined that the boundary line should be drawn consistent with Mr. Rainey’s testimony. Although the trial court dismissed the Starkos’ counterclaim in its final order, the court made a provisional oral ruling that if the Court of Appeals were in disagreement as to where the court placed the boundary line, then the Starkos proved damages of $2,225 for the destruction of the sidewalk. The Starkos filed a timely notice of appeal.

On appeal, the Starkos contend that (1) the trial court erred in determining that the sidewalk was on the Woods’ property by drawing the boundary line consistent with Mr. Rainey’s testimony; and,


(2) the trial court’s statements concerning the Starkos’ damages should not be given effect because the statements were superseded by a subsequent written order.

[LLHN1] The review of a decision rendered in a boundary dispute is de novo upon the record with a presumption of correctness as to the trial court’s findings of fact, unless the evidence prepon-derates against those findings. Boarman v. Jaynes, 109 S.W.3d 286, 290 (Tenn. 2003). [LLHN2] In order for the evidence to preponderate against the trial court’s findings of fact, the evidence must support another finding of fact with greater convincing effect. Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.Ct.App.2001).

The Starkos first assert that the trial court improperly applied the priority of markers and that such application was contrary to the intent of the developers of the subdivision. The trial court stat-ed in its oral ruling on June 11, 2004:

To the issue of the property line between Lots 4 and 5. Of course, the Court examined the testi-mony of the four expert witnesses, those of Mr. Wood and Mr. and Mrs. Starko. The Court also examined the exhibits. The Court also looked at several cases. One of those [197 S.W.3d 258] cases, Thornburg v. Chase, 606 S.W.2d 672. In that case, that’s a Tennessee Appeals case, in that case at page 672 reads: “In determining disputed boundaries resort is to be made first to the natural objects or landmarks, because of their very permanent character. Next, the artificial monuments or marks. Then, the boundary lines of adjacent landowners. And then, the courses and distances.

There is no evidence in this case of any natural objects or landmarks. The artificial monuments are concrete monuments and iron pins that have been set by surveyors. The Court did not over-look originally found broken concrete monument or consider the testimony somehow that it was wrongly set. I considered that by Mr. Rainey. I considered that testimony, did not necessarily find that it was somehow erroneously set or who set it. What the Court finds is that there is a T-bar, Corps of Engineers’ pin just below that broken concrete monument that was found recently.

In looking at the testimony of these expert witnesses, the Court does, even looking and disre-garding these erroneously setting testimony, the Court accepts the testimony of Bruce Rainey as it relates to the boundary line between Lots 4 and 5. To do otherwise, is to have land at the rear of Lots 4 and 5, owned by Dotson & Rhoten Development Company Incorporated. In other words, the Court makes a finding that it was the intent of Dotson & Rhoten that the rear bounda-ry of Lots 4 and 5, extends to the Corps of Engineers’ property lines. And this is keeping with Thornberry & Chase, where we do take a look in that order, the boundary line of adjacent land-owner. I look at the boundary line of adjacent landowner which is the Corps of Engineers.

It was not the intent of the corporation to retain land between the Corps’ line and the rear of lot Line 4 and 5. Mr. Starko obtained a Quitclaim Deed from Dodson & Rhoten Development In-corporated conveying any of that land to him. His counter-complaint also states that it was the intent of Dodson & Rhoten to extend the boundary line to each of its lots to the Corps of Engi-neers’ property. It appears that both parties would be in agreement on that issue.

Having established that the boundary line as that drawn by Mr. Rainey, then the counter-complaint is dismissed.iii

[LLHN3] The priority of markers in a boundary dispute is well settled in Tennessee. As the trial court noted in its oral ruling, in Thornburg v. Chase, 606 S.W.2d 672, 675 (Tenn.Ct.App.1980), this


Court stated that “in determining disputed boundaries, resort is to be had first to natural objects or landmarks, because of their very permanent character; next, to artificial monuments or marks, then to the boundary lines of adjacent landowners, and then to courses and distances.”iv

Based on the testimony of Mr. Rainey and the Thornburg case, the court concluded that the boundary line between lots 4 and 5 should be re-drawn according to the Corps of Engineers’ pin, which is an adjacent landowner boundary line created 11 years after the subdivision plat at issue in this case. In doing so, the court showed no regard for the priority of the original concrete marker and erroneously placed the importance of original artificial markers secondary to the boundary of line of an adjacent owner.v

Relying on Thornburg, the court reasoned that the developers must have intended to align the boundary line between lots 4 and 5 with the Corps of Engineers’ pin, otherwise, the developers re-tained the [197 S.W.3d 259] land between the Corp of Engineers’ line and the rear lines of lots 4 and 5. While we agree that the developers intended for the rear lines of lots 4 and 5 to meet the Corp of Engineers’ boundary line, we disagree with the methodology used by the court to obtain an intersection with the Corps of Engineers’ line.

This is a suit over a boundary line between adjacent lots in a platted subdivision. Neither the United States Corps of Engineers nor any other persons are parties to the lawsuit. The difficulty with the Woods’ position in this case centers around their surveyors’ heavy reliance on lines estab-lished according to a Corps of Engineers’ survey made 11 years after the survey of the platted sub-division. The lines drawn by the Corps of Engineers are immaterial to the issues between these par-ties. Both the Starkos and the Woods purchased their respective lots in accordance with the platted survey of Winston Place section 1, recorded May 8, 1973, in plat book 8, page 40 in the Register’s Office of Sumner County, Tennessee. The survey of the subdivision was accomplished by Turner Engineering Co., Inc. It is agreed by all parties that the platted survey is based upon no natural ob-jects or landmarks. In order of priority, one must then look to artificial monuments or markers be-fore ever relying on boundary lines of adjacent landowners or courses and distances. Thornburg, 606 S.W.2d at 675.

The governing rules are near universal and are recited by the Court of Appeals of Ohio in Sell-man v. Schaaf, 26 Ohio App. 2d 35, 269 N.E.2d 60, 66 (Ohio Ct.App.1971).

In 11 C.J.S. Boundaries § 3, p. 540, it is said:

[LLHN4] “It has been declared that all the rules of law adopted for guidance in locating bound-ary lines have been to the end that the steps of the surveyor who originally projected the lines on the ground may be retraced as nearly as possible; further, that in determining the location of a survey, the fundamental principle is that it is to be located where the surveyor ran it. Any call, it has been said, may be disregarded, in order to ascertain the footsteps of the surveyor in estab-lishing the boundary of the tract attempted to be marked on the land; and the conditions and cir-cumstances surrounding the location should be taken into consideration to determine the sur-veyor’s intent.”vi

In Clark, Surveying and Boundaries (2d Ed.1939), it is said at page 727, Section 665:

[LLHN5] “The original survey must govern if it can be retraced. It must not be disregarded. So, too, the places where the corners were located, right or wrong, govern, if they can be found. In that case a hedge planted on the line established by original survey stakes was better evidence of


the true line than that shown by a recent survey. In making a resurvey it is the surveyor’s duty to relocate the original lines and corners at the places actually establishedvii and not to run inde-pendent new lines, even though the original lines were full of errors.”

In 6 Thompson, Real Property, 594, Description and Boundaries, Section 3047 (1962 replace-ment), the following is stated.

[LLHN6] “The line actually run is the true boundary, provided the essential survey can be found and identified as the one called for, and prevails over maps, plats, and field notes. … The lines marked on the ground constitute the actual survey and where those lines are located is a matter to be determined by the jury from all the evidence. If the stakes and monuments set at the corners of the parcel in making the survey have disappeared, [197 S.W.3d 260] it is competent to show their location by parol evidence.”viii

At page 599, Section 3049, it is further said that:

[LLHN7] “Marked corners are conclusive and will control over courses and distances. Alt-hough stakes are monuments liable to be displaced or removed, they control so long as it is cer-tain that they mark the corners of the original survey.”

Sellman, 26 Ohio App. 2d 35, 269 N.E.2d 60 at 66.

Clearly encompassed in this rule is the fact that [LLHN8] it is the monuments laid out by the original surveyor, if they can be located, which govern the boundaries, even if the actual survey used in the plat is in error.

Moreover, in ascertaining the lines of land or in re-establishing the lines of a survey, the foot-steps of the original surveyor, so far as discoverable on the ground by his monuments, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect. Vaught, 116 Mont. 542 at 550, 155 P.2d 612 at 616 (citing Ayers v. Watson (1891), 137 U.S. 584, 11 S. Ct. 201, 34 L. Ed. 803; Galt v. Willingham (5th Cir.1926), 11 F.2d 757). See also Buckley v. Laird (1972), 158 Mont. 483, 491-92, 493 P.2d 1070, 1074-75.

Olson v. Jude, 2003 MT 186, 316 Mont. 438, 73 P.3d 809, 815 (Mont.2003).

In a dispute between adjacent lot owners in a platted subdivision, the Supreme Court of Wash-ington wrestled with differing opinions of professional surveyors and ultimately affirmed the trial court judgment reasoning:

[LLHN9] Where a plat contains substantial mathematical errors and discrepancies and with the passing of time questions arise concerning the true boundaries among its component parcels, the question to be answered is not where new and modern survey methods will place the bounda-ries, but where did the original plat locate them. The main purpose of a resurvey is to rediscover the boundaries according to the plat upon the best evidence obtainable and to retrace the bound-ary lines laid down in the plat.ix 12 Am.Jur.2d Boundaries § 61 (1964). Effort should be made to locate the original corners. Despite discrepancies in the original plat, the known monuments and boundaries of the original plat take precedence over other evidence and are of greater weight than other evidence of the boundaries not based on the original monuments and boundaries. Clark, Surveying and Boundaries § 258 (3d ed. 1959).

[LLHN10] Courts should ascertain and carry out the intention of the original platters.x In case of discrepancy, however, between lines actually marked or surveyed on the ground and lines


called for by plats, maps or field notes, the lines marked by survey on the ground prevail (Stew-art v. Hoffman, 64 Wn. 2d 37, 390 P.2d 553 (1964); 11 C.J.S. Boundaries § 49c (1938)).

Staaf v. Bilder, 68 Wn.2d 800, 415 P.2d 650, 652 (Wash.1966).

Analogous to the case at bar is Akin v. Godwin, 49 So. 2d 604 (Fla.1951). In that case, the par-ties were owners of adjacent lots in a platted subdivision with the plat of record prepared by A.L. Knowlton, engineer. The owner of lot 3 constructed a building supported by three concrete pillars along the boundary line between lots 3 and 4. Plaintiff bought lot 4 and, relying on a sketch pre-pared well after the subdivision was platted, concluded that the concrete encroached upon lot 4. He sued in ejectment and, following a jury verdict for Plaintiff, the owner of lot 3 appealed. In [197 S.W.3d 261] reversing and remanding, the Supreme Court of Florida held:

Both Lot Three and Lot Four were conveyed to their respective owners with reference to a plat made by A.L. Knowlton, C.E., in the year 1896 duly recorded in the public records of Dade County, Florida. Since this plat is, then, as much a part of the deeds as if copied therein,xi see Routh v. Williams, 141 Fla. 334, 193 So. 71, and Kahn v. Delaware Securities Corporation, su-pra, the real question in this case is: What is the boundary line between Lots Three and Four, according to the Knowlton plat?

The plaintiff based her claim of title squarely on the Garris survey of Lot Four; and, as hereto-fore stated, the verdict and judgment were likewise based thereon. Mr. Garris testified that he made his survey by first ascertaining the block boundaries, as marked by the city monuments es-tablishing the locations and boundaries of the streets on the four sides of Block Fifty; that he then prorated “any excess of [sic] deficiency in said block,” and that the sketch of Lot Four rep-resented the true dimensions of that lot “as prorated.” It appears that the city monuments were established by the so-called Klyce survey undertaken by the City of Miami in 1914 or 1915 for the purpose of establishing the location and marking the boundaries of the city streets, but there is nothing in the record to show what monuments or methods were pursued by Klyce in making his survey.

The plaintiff also adduced the testimony of one Elmore Cormack, a registered civil engineer and surveyor in the employ of the Dade County Surveyor, in an effort to establish the accuracy of the Garris survey. Cormack’s testimony showed, however, that he also used the city monuments established by the Klyce survey as the starting point in his survey, and he testified that his sur-vey did not necessarily “go back to the original Knowlton field notes.”

It is apparent that, as evidence of the true boundary of Lot Four according to the Knowlton plat, both the Garris and the Cormack surveys suffer from the same infirmity, that is, neither made any effort to retrace the Knowlton survey, nor does it appear that either survey is in any way, ei-ther directly or indirectly, related to or tied in with the Knowlton plat, insofar as the exact loca-tion, on the ground, of the boundary lines of Lot Four is concerned.xii

[LLHN11] In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines. Clark on Surveying and Boundaries, 2d Ed., Sec. 411, page 495; Kahn v. Delaware Securities Corporation, 114 Fla. 32, 153 So. 308; Le Compte v. Lueders, 90 Mich. 495, 51 N.W. 542; City of [197 S.W.3d 262] Ra-cine v. Emerson, 85 Wis. 80, 55 N.W. 177; Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384. As stated in 8 Am.Jur., Boundaries, Section 102, page 819: “The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to con-


trol the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it.”xiii It is generally held, therefore, that a resurvey that changes lines and distanc-es and purports to correct inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat. See Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384; Cragin v. Powell, 128 U.S. 691, 9 S. Ct. 203, 32 L. Ed. 566; City of Racine v. Emerson, 85 Wis. 80, 55 N.W. 177, 178. …

As stated in 8 Am.Jr., Boundaries, Sec. 59, page 78: [LLHN12] “Purchasers of town lots gener-ally have the right to locate their lot lines according to the stakes as actually set by the platter of the lots, and no subsequent survey can unsettle such lines. In the event of a subsequent contro-versy the question becomes not whether the stakes were located with absolute accuracy, but whether the lots were purchased and taken possession of in reliance upon them. If such was the case, the rule appears to be well established that they must govern notwithstanding any errors in locating them.”

Akin, 49 So. 2d at 606-07.

While these general rules apparently have their origin in surveys reflecting government grants, such rules are equally applicable to private surveys. Staub v. Hampton, 117 Tenn. 706, 101 S.W. 776, 781 (Tenn.1907).

[LLHN13] “‘It is a familiar principle of our system, and one in reason applicable to this species of title, as well as any other, that it is the work on the ground, and not on the diagram returned, which constitutes the survey, the latter being but evidence (and by no means conclusive) of the former . . . It is conceded that the patent may be rectified by the return of survey; and why not the return of survey by the lines on the ground, and particularly the numbered tree, which is the foundation of the whole?’ In the latter case, Kennedy, J., said: ‘That the original lines as found marked on the ground must govern, in determining the location and extent of the survey, is a well-established rule, in general applicable to all cases.’ … We know, in point of fact, that the marks made on the ground at the time of making the survey are the original, and therefore the best evidence of what is done in making it; that everything that is committed to paper afterwards in relation to it intended and ought to be, as it were, a copy of what was done, and ought to ap-pear on the ground, in the doing of which errors may be committed, which renders it less to be relied on than the work as it appears by the marks made on the ground.” 46 Pa., 484, 485.

Staub, 101 S.W. at 784.

It is well to note that the Diel survey of lot 5 conforms almost exactly to the recorded subdivi-sion lines. This conformity is buttressed by the late-found concrete marker located at the northwest corner of lot 4. The Rainey survey, on the other hand, establishes the northwest corner of Lot 4 and the northeast corner of lot 4, not by reference to original markers laid down in the 1973 plat of sur-vey, but rather by markers placed on the ground in 1984 by the Corps of Engineers at the time of its survey.

Reference to the original plat of the subdivision in 1973 discloses that from the northwest corner of lot 4 to the northeast corner of lot 5, the calls are North 88 degrees, 20 minutes East, 108.73 feet; South 79 degrees, 15 minutes East, 132.23 feet. The corresponding calls on the Diel survey are ex-actly the same. The calls on the Rainey survey reflecting the same northern boundary as to lot 4 are North 81 degrees, 58 minutes, 21 seconds East, 91.19 feet. Mr. Rainey begins this portion of his


survey in the northwest corner of lot 4, but his beginning marker is a Corps of Engineers’ T-Bar marker set in 1984, 11 years after the markers put down by the original surveyor. An elongation of this Rainey line for an additional 17.58 feet would reach another Corps of Engineers’ T-Bar marker from whence proceeding eastwardly with the Corps of Engineers’ [197 S.W.3d 263] line (not the original plat line) the call from this second Corps of Engineers’ marker to the northeast corner of lot 5 as such is disclosed by the Corps of Engineers’ map is South 74 degrees, 23 minutes, 45 second East, 130.66 feet. The difference between the calls in the Diel survey and the calls in the Rainey survey produce the “no-man’s land” existing between the northern boundaries of the lots reflected by the original survey and by the Diel survey and those same northern boundaries as reflected re-garding lot 4 by the Rainey survey and as to lot 5 by the Corps of Engineers’ survey.

Thus, all important becomes the concrete marker located by Mr. Diel shortly before the trial several feet to the south of the Corps of Engineers’ T-Bar marker used by Mr. Rainey as the north-west corner of lot 4. The concrete marker was used by Mr. Diel to reflect that same northwest cor-ner. The newly discovered concrete marker corresponds with the northwest corner of lot 4 as estab-lished both in the Diel survey and in the original plat of the subdivision.

It necessarily follows that in establishing the northern boundary of both lots, Mr. Rainey felt compelled to eliminate the “no-man’s land” by conforming the northern boundary of the two lots to the line established by the Corps of Engineers’ 1984 survey. Indeed, it was the existence of this “no-man’s land” which impelled the trial judge to accept Mr. Rainey’s survey in preference to the Diel survey. In this, the trial court erred. These two landowners purchased their respective lots in reli-ance upon the subdivision plat, and the Diel survey reflects the lines as they appear on the subdivi-sion plat. The original markers on the ground from the 1973 survey of Turner Engineering Compa-ny, from which the plat resulted, conformed to the lines established both in the subdivision plat and the Diel survey.

The very existence of the “no-man’s land” assumes the accuracy of the Corps of Engineers’ sur-vey, an assumption that is based upon no proof. If there is in fact a “no-man’s land,” it is a matter that addresses itself to both the Woods and the Starkos on the one hand and the United States Corps of Engineers on the other. The survey by the Corps of Engineers prepared 11 years after the original plat of survey cannot affect the boundary line between lots 4 and 5 as established by the very plat on which both parties relied in their original purchase.

Because the original subdivision plat delineates by metes and bounds the north boundary of both lots 4 and 5, and the later survey by the Corps of Engineers does not join the northern boundaries of these two lots as established by the subdivision plat, an “on-paper” no man’s land separates these properties from the lake front. Although, unquestionably the properties are intended to be lake front properties, the only person or entity with standing to complain of use by either the Starkos or the Woods of this “no man’s land” is the United States Government by way of the Corps of Engineers, and the United States Government is not a party to this case.

Because we have reversed the trial court’s determination concerning the boundary line, it is nec-essary to address the damages the Starkos are entitled to as a result of the wrongful destruction of their concrete sidewalk. The court made a provisional oral ruling on June 11, 2004, contemplating reversal by this Court. The court stated:


Having established the boundary line as that drawn by Mr. Rainey, then the counter-complaint is dismissed. Mr. [197 S.W.3d 264] Wood had no damages because of defendant counter-plaintiff.

The Court would point out, however, that if the Court of Appeals is in disagreement with where the Court has placed the boundary line, or in disagreement with the Court’s reasoning, the Court would find that Mr. Starko did suffer some damages because of the actions of Mr. Wood. It’s proven, he has, to the satisfaction of this Court, proven, $2,225 worth of damages. And I will state that that is the damages that were filed by the individual who testified concerning putting in a new sidewalk.

As far as the request for damages for delay caused by this boundary dispute, or in completion of the swimming pool, the Court finds that there is a lack of causation before the Court.

On the request for damages as far as the lighting and electrical wiring it’s just insufficient. There was no testimony concerning 12 lights until there was testimony from the witness who testified as far as putting in new lights, and putting in electrical wire. There was testimony that with the tearing up the sidewalk, there was some electrical wiring removed. The damages put into evi-dence by the electrician were the electrical wiring, more in the opinion of the Court, it didn’t ac-curately reflect, it was not sufficient testimony to carry the burden of proof as opposed to those damages. So we’ll have an order prepared reflecting the opinion of the Court. And this matter is in final disposition. The parties can make a decision about an appeal.

The Starkos challenge the provisional oral ruling, arguing that the court’s oral statements were superseded by a subsequent written order. The August 11, 2004, written order of the court stated:

This cause came on to be heard before the Honorable Tom Gray on the 12th day of June, 2004 upon the pleadings, the testimony of lay and expert witnesses, the arguments of counsel and the entire record, upon all of which it satisfactorily appears to the Court, and IT IS HEREBY OR-DERED, ADJUDGED, and DECREED that:

1. the mutual boundary between the parties’ properties is established in accordance with the tes-timony and plat of Bruce Rainey;

2. the counter-claim is dismissed;

3. costs are adjudged against the Defendants, for which execution may issue, if necessary.

[LLHN14] “It is a well-established principle of law in this jurisdiction that: ‘A Court speaks on-ly through its written judgments, duly entered upon its minutes. Therefore, no oral pronouncement is of any effect unless and until made a part of a written judgment duly entered.’” Evans v. Perkey, 647 S.W.2d 636, 641 (Tenn.Ct.App.1982) (citing Sparkle Laundry & Cleaners, Inc. v. Kelton, 595 S.W.2d 88, 93 (Tenn.Ct.App.1979)). Because the trial court only included its provisional findings regarding damages in its oral ruling and not in its written judgment, the case must be remanded to the trial court to determine the amount of damages due to the Starkos under the counterclaim.

Like the lot owners in Linn v. Elrod, 1999 Tenn. App. LEXIS 796, No. 03A01-9903-CH-00080, 1999 WL 1081265, at *4 (Tenn.Ct.App. Dec. 1, 1999) our determination binds only the lot owners who are the parties to this litigation. Any litigation relative to rights in and title to any land that could conceivably lie north of the boundaries to the Woods-Starko properties must be determined between Woods-Starko and any persons or entities claiming such interests. Similar cases involving


lots adjacent to navigable waters [197 S.W.3d 265] would involve principles laid down in State v. Brazos River Harbor Navigation Dist., 831 S.W.2d 539 (Tex.App.1992) and Norrell v. Aransas County and Navigation Dist., 1 S.W.3d 296 (Tex.App.1999).xiv There is no such issue to be deter-mined between the parties to this case.

The judgment of the trial court is reversed, and the case remanded for further proceedings. Costs of the cause are assessed to Appellants.

WILLIAM B. CAIN, JUDGE

Endnotes: i All headnotes (a.k.a., the law of the case or the “Black Letter Law”) in this opinion are provided by the Edi-tor of TLL for the convenience of our readers. All endnotes, such as this one, are also provided by the Editor of TLL and may include the Editor’s commentary to the opinion, which should be considered only as the Editor’s opinion and not as the law of the case. Footnotes, if any, are as provided by the court. JNL. ii This is what we have discussed on many occasions. Landowners believe that surveyors show them what they own. It is only surveyors who do not believe that surveyors are in the business of determining ownership limits. iii Obviously, Mr. Rainey was a convincing and credible witness, even though his opinion was ultimately in-correct and his survey was deemed “not competent evidence” by the Court of Appeals. “It is generally held, therefore, that a resurvey that changes lines and distances and purports to correct inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat.” [Emphasis added.] It is al-ways important in these types of cases to be credible because the judge is looking for one of the surveyors (if there are multiple experts testifying) to be believable and to show the judge the way out of the case. The judge in this case may have never heard a boundary dispute case before. This is true of most judges presiding over boundary dispute cases. These cases are relatively rare, and the esoteric nature of land surveying cou-pled with the confusion and nonsense many surveyors bring to the table further complicate the matter and often, as in this case, the wrong judgment is made. Nevertheless, if we get a case like the present one with a bad trial court decision, that goes up on appeal and the correct law is applied to the facts established at rial, the resulting ruling usually turns out to be nothing more than common sense. Boundary retracement survey-ing is—after all—largely a matter of common sense. iv These are the basic and fundamental rules of construction for interpreting property descriptions. Often re-ferred to as the priority of calls, they are nothing more than rules for interpreting the language of the deed writers. These are not the only rules of interpretation, this opinion is full of them and that is why we are stud-ying this case. Even though these are the fundamental principles for interpreting legal descriptions, how often do we see surveyors ignoring calls for “artificial monuments” or for “the boundary lines of adjacent land-owners” in favor of course and distance? The answer is too often. v Unfortunately, the judge relied on the wrong witness. Mr. Rainey may have been a credible witness in the eyes of the judge, but Mr. Rainey failed the common-sense test as did Mr. Artz. By now, even if you have not finished reading the case, you know the correct answer to the location question because you are a TLL subscriber. If you are still in doubt, then just consider the two fundamental principles of property boundary surveying: 1.) you are either an “Original Surveyor”; or 2.) you are a “Retracing Surveyor” whose only func-tion is to follow in the footsteps of the original surveyor. Relative to Lots 4 and 5 of Winston Place subdivi-sion, who was the original subdividing surveyor, the unnamed platting and monumenting private practice surveyor or the Army Corps of Engineers (ACOE)? What does the gap between Winston Place subdivision


and the ACOE boundary have to do with the property line between Lots 4 and 5? What does common sense tell you? vi This should be a familiar articulation of some of the fundamental principles of surveying, with a heavy em-phasis on the activities and intent of the surveyor. However, we need to take a step back and understand what is going on here—what the underlying principle is. Why is the surveyor so important in this passage and what does “surveyor’s intent” have to do with the establishment of property boundaries? As we will eventu-ally discover (see Endnote xiii, below) as the Court of Appeals continues to articulate more rules of construc-tion and fundamental principles of boundary location doctrine, the surveyor has a role to play but is not the main character in the boundary establishment play. The main characters are the landowners who go into reli-ance on the original surveyor’s work, causing their property rights to attach the surveyor’s monuments, lines and even blunders. Without reliance and the attachment of the concomitant property rights, a surveyor’s monument is just a piece of steel or a chunk of concrete devoid of any special significance. vii How do property boundary lines become established? viii Two important issues in this passage. The first is that juries do not determine what the law is, the judge does. The function of the jury is to weigh the evidence presented, determine the facts from the evidence and apply the law that the judge gives them to those facts. This is the exact same function as the retracement sur-veyor determining the location of property boundaries. Second, parol evidence (i.e., where the landowners believe the boundaries are located), is often the determining factor in the boundary location problem and too often overlooked or ignored by the surveyor. ix The retracing surveyor’s criteria relative to evidence is “best evidence obtainable,” often stated otherwise as “best available evidence.” This is a part of the litmus test for evaluating your boundary retracement opin-ion on the location question, as we have discussed on many occasions. The retracing surveyor must gather the best available evidence (the evidence criteria) that any other reasonably prudent practitioner would gather in like or similar circumstances (the standard of care), weigh and evaluate that evidence to determine the facts, apply the law to those facts and render a well-reasoned opinion (same function as the jury) on the only question open to the surveyor—the location question. The final step in the litmus test is to explain the appli-cable boundary location doctrine(s). If the retracing surveyor passes the litmus test, then in all probability the surveyor has correct results—in other words—an accurate survey. x When it comes to the conveyance of land, the intent of the parties (primarily the grantor and to a lesser ex-tent the grantee) is paramount. The original surveyor subdividing the land of a common grantor and the monuments set during that process are deem the physical manifestation of the common grantor’s intent. Sometimes, as we discussed above, the surveyor’s intent is given a little too much credit. Even if we do as-cribe some credence to the notion of original surveyor intent, wouldn’t it be the original surveyor’s intent to carry out the plan of subdivision approved by the common grantor (developer)? If mistakes were made carry-ing out that intent and those mistakes are not corrected by the common grantor; the conveyance of the lots to subsequent grantees, reliance on the original surveyor’s work and the consequent attachment of property rights establish the location of the property lines. That is how property boundary lines become established. xi This is yet another basic and important rule of construction. When a deed calls for a map or plat (recorded or not), everything that appears on the face of the map or plat is just as if it were written into the deed. So, if the map called for indicates that monuments were set at all of the lots corners, those as called-for monuments in the deed even though the deed merely describes the property by lot and block numbers. xii In our present case replace “Winston Place subdivision” with “Knowlton plat” and “Corps of Engineers’ line” with “Klyce survey” and we have Akin v. Godwin all over again, 100 years later. “Those who do not remember the past are condemned to repeat it.” (Accredited to the philosopher George Santayana.) For too many surveyors it is not a problem of remembering, it is a problem of knowing in the first place.


xiii This is it! (See Endnote vi, above.) This is the foundational truth and equitable bedrock upon which the boundary location doctrines rest. This is what renders the original surveyor infallible and the retracement surveyor duty-bound to follow in the footsteps; it is all about “reliance” and “property rights.” Whether you want to believe it or not, the property boundary surveyor is in the property rights business. xiv With this last citation made by the Court of Appeals in this opinion, the Court cited case law from Florida, Michigan, Minnesota, Montana, Ohio, Tennessee, Texas, Washington and Wisconsin, as well as the United States Supreme Court and the U.S. Circuit Court of Appeals, for a total of eleven court systems. Also cited were four secondary sources: American Jurisprudence (Am.Jur.); Corpus Juris Secundum (C.J.S.); Clark on Surveying and Boundaries; and Thompson on Real Property. This is how property boundary law has become homogenized in the United States and how what is true in the State of Tennessee is generally true in most other jurisdictions.

of lucas & t lucas letter

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