L. COTHAM, ET AL. M COA-R3-CV COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

Transcription

1 WHAT WENT WRONG? A Study in Surveyor Errors and Omissions By Jeffery N. Lucas Professional Land Surveyor/Attorney at Law All Rights Reserved

2 OPINION Factual and Procedural History HERSCHEL DOWDELL v. JAMES L. COTHAM, ET AL. M COA-R3-CV COURT OF APPEALS OF TENNESSEE, AT NASHVILLE 2007 Tenn. App. LEXIS 470 January 11, 2007, Session July 25, 2007, Filed [All cases have been modified from the original] The appellant, Herschel Dowdell, and appellees, James L. Cotham and Betty J. Cotham are owners of adjoining real property located at 2948 Distillery Road, Greenbriar, Tennessee and at 2936 Distillery Road, Greenbriar, Tennessee, respectively. Mr. Dowdell purchased his property in June 1985 and the Cothams purchased their property in 1983 and both have continuously owned their respective properties since that time. According to the testimony at the bench trial, neither Mr. Dowdell nor the Cothams knew the precise boundary line of their adjoining properties. Further, the topic, though mentioned by the parties sporadically throughout the years, was never fully discussed and no resolution was ever sought. When Mr. Dowdell prepared his property for sale in late 2003 and early 2004, the issue [*3] rose to the forefront. Mr. Dowdell hired registered land surveyor, Mike Burns, to conduct a survey of his property in an attempt to resolve the dispute. Burns testified as an expert at the bench trial but explained that the actual field work had been completed by his associates. Burns said the surveyors easily identified two corners or pins of Mr. Dowdell's property and a third corner which was adjoining Mr. Dowdell's neighbor to the North. Burns added that these three points were sufficient for him to conduct a survey. He admitted, however, that the line between the Cotham and Dowdell properties was not as certain. Burns explained that it was common practice when surveying not only to pull deeds from the subject property owner but to pull the deeds to properties surrounding the subject property. When he determined that the Dowdell tract was once part of a larger parcel now lying across the road from Dowdell, Burns used this old line to determine the coordinates of his final boundary line between Dowdell and Cotham. On cross-examination, Burns stated that he had been retained by Dowdell to conduct a survey of the property because Dowdell wanted to know the location of his property [*4] line. Dowdell told Burns that the Cothams believed their property line went all the way to Dowdell's driveway. Burns recalled the Cothams' deed contained a call measuring 54.6 poles along the road which equaled feet of road frontage for the Cothams. However, Burns believed the Cothams' deed was a "bust", meaning that the survey line would not close. He said if you read the calls on the Cotham deed literally, it would take approximately 972 feet to close. Burns said he did not know if any of his surveying team walked the road frontage of the property. On the drawings presented as trial exhibits, feet of roadway frontage for the Cothams resulted in an overlap or encroachment upon Mr. Dowdell's property line (as found by Burns) by feet. Burns said he never measured the road frontage based on the Cothams' deed. He admitted that one of his associates could have done such a measurement thereby resulting in the overlap shown in the sketches. However, he denied any overlap in the two property lines according to his survey findings. Burns admitted that his results were based in part on calculations (based on the deed) done by the computer. In conclusion, Burns held firm [*5] to his testimony that his survey accurately reflects the boundary of Mr. Dowdell's property. Herschel Dowdell testified that he is the owner of the real property located at 2948 Distillery Road and has owned the property since July He said at the time of purchase he had no knowledge of the boundary lines. Mr. Dowdell said he walked the property and found two of his corners and eventually decided the Page 2 of 57

3 northern boundary pin of a neighbor marked a third corner. However, he had not located a distinct closing point for the property along the border with the Cothams. Mr. Dowdell described a drainage ravine, brush timber area and fence between his property and the Cothams. Mr. Dowdell said he first had a discussion with the Cothams about the boundary line in December 2003 and into January 2004 when he decided to put his property on the market. However, he did recall "overthe-fence" conversations with Betty Cotham some twenty years prior in which she told Mr. Dowdell she felt their property line actually went over near Mr. Dowdell's driveway. According to Mr. Dowdell, he listed his property for sale in mid Just prior to listing, he and Betty Cotham had another "over-the fence" discussion [*6] about the location of the line. Mr. Dowdell said the Cothams told him they would try to determine the location of the line so that any future buyer would know its location. Even though Mr. Dowdell described the preliminary discussions with the Cothams as somewhat amicable, the tensions escalated near the time when Mr. Dowdell actually placed his property on the market. Mr. Dowdell described a large sign erected by the Cothams near the disputed area. The signs included some of the following phrases: "No Sale," "Property Line Dispute," "We only want what is ours," and "This is not the correct property line." When the first sign was removed by someone in the middle of the night, the Cothams erected a second sign. The second sign contained various statements including: "Sign # 1 Ripped Down During the Night, Sign # 2 Keep Private Property," "Tried 3 times to Settle this to no Avail," and "Our Deed calls for ft of Road Frontage Not 838'." The second sign also contained a comment that someone was "watching." Mr. Dowdell said he saw people drive by his home and read the signs. He added that even though several people came to look at his house, no offers were made. He believed the sign [*7] adversely affected his ability to sell his home by driving potential buyers away. Mr. Dowdell said the dispute also affected him personally resulting in lost sleep, anger and fear. He felt the signs erected by the Cothams were threatening. When asked about the maintenance of the ditch line between the properties, Mr. Dowdell explained that he had done some clean-up work in the ditch and had mowed nearby. He also testified that the Cothams had cleaned up the area on occasion. He added that the Cothams had never done anything to exclude him from the disputed area. On cross-examination, Mr. Dowdell said he did not have a survey performed when he purchased the property and that no one showed him the boundary lines at that time. He admitted that he had never claimed property south of the ditch line until the Burns survey placed the boundary marker at the corner. However, he explained that he had never had a reason to identify the corner as being his property. Mr. Dowdell testified that he and the Cothams never had a problem until after the Burns survey. When questioned about various discovery responses, Mr. Dowdell agreed that he had witnessed the Cothams clearing the ditch line on occasion [*8] including the removal of an old fence but did not try to stop them. He later testified that the remnants of the old fence that had grown into the tree were not on the Burns survey boundary line. Mr. Dowdell admitted that he called the police when the Cothams mowed in the disputed area after the Burns survey but did so because he felt threatened. This was the first time he had tried to exclude the Cothams from his property. Betty Cotham testified that she is the owner of the real property located at 2926 Distillery Road. She said she first learned of Mr. Dowdell's intent to sell his property in May Mrs. Cotham saw Burns' survey crew on the property and engaged in conversation with one or more of them. She asked the crew why they were digging next to her fence. It was when the survey stake marked the boundary line determined by Burns that the Cothams erected the signs at the corner of the property. During her testimony, Mrs. Cotham confirmed the content of the signs. She said when the first sign was torn down they put up the second sign. Mrs. Cotham explained that the signs were to let others know the property they believed they had owned for over twenty years was not for sale. She [*9] said the reference on Page 3 of 57

4 the sign to "someone watching" simply meant they know the first sign was torn down and that they would be watching their property. Through the years Mrs. Cotham said she did not know the precise location of the boundary line but believed it to be close to Mr. Dowdell's driveway. She added that she owned no less than the property alongside the ditch line but per her deed possibly owned even further onto Mr. Dowdell's property. At some point she measured the distance from a stone on her property, which Mrs. Cotham claimed was a property corner marker, to a mark feet away. She said this measurement was based on the call in her deed. Mrs. Cotham explained that after the property was listed she and her husband met with Mr. Dowdell at Dowdell's request to discuss the boundary line issue. Mrs. Cotham said she informed Mr. Dowdell where she believed the line to be according to her deed. When asked about her adverse possession claim, Mrs. Cotham said she and her husband had cleared brush from the ditch line since 1983, including the removal of dead trees and an old fence that ran alongside the ditch. They usually did a "major" cleanup every two years. She said they [*10] never took any action to exclude Mr. Dowdell from the property but never believed she had an obligation to do so because of their belief they owned the property. She added that she had never seen Mr. Dowdell on the disputed area doing maintenance work and had never found a need to exclude anyone from the property. Mrs. Cotham was asked specifically about the old fence that ran along the ditch line between the two properties. She recalled that they removed the fence two to three years after they purchased the property in On cross-examination, Mrs. Cotham affirmed that even though she did not know the exact location of the boundary line, she always believed it to be north of the ditch line due to her deed references. She said someone from Burns' team measured the road frontage and told her there was an overlap of fifty feet. Again addressing the old fence she removed from the ditch line, she described the location of the fence and explained that it had been removed, among other reasons, to protect their cattle from getting trapped under it. She and her husband erected a new fence on the south side of the ditch line. Mrs. Cotham explained this new fence was never intended to be a [*11] boundary fence. Ammon Halsey testified that he previously owned the land now owned by the Cothams and had lived in that community since He said he had personal knowledge of the property line between the Cothams and Dowdell. Halsey said the property had been deeded to him from Lewis Elmore, who had reared Mr. Halsey's wife. Halsey said at the time of the deed, Mr. Elmore showed him the boundaries of the property. According to Halsey, Lewis Elmore owned both the Dowdell and Cotham properties in the chain of title. Lewis Elmore then conveyed part of the property (southern portion) to Halsey and the other part (northern portion) to Richard Elmore. The Cotham property is the property previously owned by Mr. Halsey while the property now owned by Mr. Dowdell was part of the property owned by Richard Elmore. He said that when Lewis Elmore split the property, he showed Halsey the property line. Halsey stated that Lewis Elmore indicated the boundary line between the two properties was "straight down a fence line all the way through the creek." He explained that the fence was in the crooked gully, "in and out of the north side and the south side, in and out." Halsey said during his ownership [*12] he never had a dispute about the boundary line. Halsey could not recall whether he showed the Cothams the location of the boundary line when they bought the property. He reiterated his belief that the property line was "right down the gully" along the old fence which had been removed. Halsey explained the location of the old fence and said remnants of the old fence remain where it had grown onto the trees. He testified that Mr. Cotham removed the fence and moved the fence over further onto Cothams' property. Halsey said he told Mr. Cotham he should have put the fence back at the right place because he believed the fence should be on the boundary line. When asked about the Page 4 of 57

5 maintenance of the ditch line, Halsey said he had witnessed the Cothams cleaning the gully on a few occasions and also witnessed tree trimmers topping the trees in the line. James Cotham testified that he has owned his property in Distillery Road since Mr. Cotham said he always believed he owned to the gully but by deed owned even farther north. However, Mr. Cotham said he was not particularly concerned about the property north of the gully. Mr. Cotham recalled the old fence he removed from the gully. He explained [*13] that the old fence was located on the southern border of the ditch, running down through the ditch. The fence occasionally connected to a tree in the line. He recalled Mr. Halsey telling him he should not remove the fence. During the Cothams' ownership, he could not recall ever being excluded from the property by Mr. Dowdell. The only exception was when Mr. Dowdell called the sheriff when they went onto the disputed area after the Burns' survey. Likewise, Mr. Cotham said Mr. Dowdell never tried to use the property in such a way that Mr. Cotham thought he should exclude Mr. Dowdell. Mr. Cotham described the periodic cleanup he and his wife performed on the subject area. Mr. Cotham discussed the placement of the signs in the corner of his yard. He said the sign was placed to protect his property after the stake from the Burns survey was placed against his fence. He said the purpose of the sign was to protect his property and to inform others that his property was not for sale. Mr. Cotham agreed that the center of the ditch line would be a good resolution to the disputed boundary line. In its finding, the trial court concluded first that the plaintiff failed to establish a prima facie [*14] case of defamation of title. The court noted that the signs placed in the defendant's yard, which served as the primary basis for this claim, were nothing more than a notice of lis pendens to alert others that there was a disputed property line. Secondly, the trial court found the defendants/counterplaintiffs had failed to prove adverse possession. The court found no proof to support the requisite elements of actual exclusive and continuous possession of this portion of the property in dispute. In fact, the court concluded there was no proof by either party to support a claim by either of adverse possession. As to the final issue of the location of the property line, the trial court weighed the testimony and noted the discrepancies in the surveyor's testimony and that of the lay witnesses. The court concluded that the gully is the natural boundary between these two parcels and that the center of the gully shall become the boundary line between the two parcels. The court advised the parties that a surveyor would be commissioned to survey the center line and that the surveyed center line would be the decree of the court as the boundary. Mr. Dowdell claims the trial court erred (1) in [*15] declining to grant Dowdell's summary judgment motion; (2) in denying Dowdell's oral motion at the beginning of trial to deem the defamation of title claim admitted due to the Cothams' failure to timely file a response to the amended complaint; (3) in disregarding Dowdell's survey conducted by a registered land surveyor in the absence of a competing survey; (4) in finding that the necessary elements of defamation of title had not been proven; and (5) when it arbitrarily reset the boundary line between Dowdell's property and the Cothams' property at the centerline of the gully. Mr. Dowdell finally claims that the trial court's order cannot be carried out due to the inability of the Cothams to obtain a survey due to a faulty legal description. DISCUSSION I. Summary Judgment Motion In his first issue, Mr. Dowdell claims the trial court erred when it failed to grant his motion for summary judgment on the issue of quieting title. The standard utilized by this Court when reviewing a trial court's granting of summary judgment is as follows: The standards governing an appellate court's review of a motion for summary judgment are well settled. Since our inquiry involves purely a question of law, [*16] no presumption of cor- Page 5 of 57

6 rectness attaches to the lower court's judgment, and our task is confined to reviewing the record to determine whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v. Brown, 955 S.W.2d 49, (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d at 88. Blair v. West Town Mall, 130 S.W.3d 761, (Tenn. 2004). When a motion for summary judgment is made pursuant to Tennessee Rule of Civil Procedure 56, and supported as provided in Rule 56, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but his or her response, by affidavits or as otherwise provided in this rule [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Tenn. R. Civ. P [*17] When the party seeking summary judgment makes a properly supported motion, the burden shifts to the non-moving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact. Staples v. CBL & Assoc., Inc., 15 S.W. 3d 83 (Tenn. 2000). To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party's claim or conclusively establish an affirmative defense. If the moving party fails to negate a claimed basis for the suit, the non-moving party's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim. Staples, 15 S.W.3d at In the instant case, the appellant Dowdell moved for summary judgment on the issue of quieting title. In his motion he asserted his ownership in the subject property as evidenced by the legal description contained in his deed [*18] recorded in Robertson County. This deed, he claimed, put the world on notice of the location of the boundaries of the property. He bolstered this claim by including a survey performed by a registered land surveyor. In their response, the Cothams answered the concise statement of material facts by disagreeing with many of the facts asserted by Mr. Dowdell as undisputed. In addition, the Cothams filed the affidavit of Ammon Hulsey and certified copies of their deeds. Among the factors cited by the Cothams were the calls in their deed for just over 900 feet of road frontage and the existence of the old fence, remnants of which remained on various trees. Mr. Dowdell argues that the Cothams rested on mere allegations and did not present evidence to contradict the results of the survey. Citing Johnson v. City of Mt. Pleasant, 713 S.W.2d 659, 662 (Tenn. App. 1985), Mr. Dowdell argues Tennessee law clearly favors a party who has obtained a valid survey in a boundary line dispute. In Johnson, the plaintiffs obtained a survey to support their position as to the location of the boundary line with the City. The City did not submit its own survey but argued there was sufficient additional evidence [*19] relating to the location of the boundary line that reasonable minds could differ as to the location of the boundary line. Id. at 662. In response, the City cited, among other things, as evidence of the location of the boundary line, the lack of knowledge of the plaintiffs' predecessor in title as to the location of the boundary line, the reference in plaintiffs' deed as to the boundary noting "bounded by the City," the testimony of a waste water plant employee since 1959 who testified of the existence of a tree line until 1970, and the City's warranty deed and deeds of their predecessors. Id. The Johnson court addressed each of the City's claims of "other evidence" contrary to the surveyor's findings. The court found none of these categories constituted the evidence required to challenge the surveyor's testimony. It found the only evidence that identified the boundary line came from the surveyor with- Page 6 of 57

7 out material evidence from the City to contradict the surveyor. Therefore, it concluded the trial court should have granted plaintiff's motion for directed verdict. Id. at However, we find Johnson is distinguishable from the instant case. While here, as in Johnson, the opposing [*20] party (Cothams) failed to obtain their own survey, the balance of the evidence in the present case was more significant than in Johnson. None of the "other evidence" in Johnson gave any indication as to where the original boundary line fell. We concede here that neither property owner knew the precise location of the boundary in this case though residing next to each other for over twenty years. Some "over-the-fence" discussions through the years cast doubt on the location of the actual line (i.e. Mrs. Cothams' comments that their line went to the ditch or even farther toward Mr. Dowdell's driveway); however, neither knew the boundary location with any certainty. We also acknowledge that the mere existence of a recorded deed does not, in and of itself, give us conclusive evidence of a properties' boundaries. However, for the purposes of summary judgment, we note the following proof created a genuine dispute as to material facts in the instant case. Ammon Hulsey, whose affidavit was submitted in response to Mr. Dowdell's motion for summary judgment and who was a prior owner in the Cothams' chain of title, indicated the existence of an old fence between the two properties in the ditch [*21] line. This fence was shown to him as the boundary line between his property at the time (now owned by the Cothams) and the property now belonging to Mr. Dowdell. The fence existed for many years until it was removed by the Cothams to protect their cattle. This evidence certainly created a genuine issue as to the boundary line location. Further, Mrs. Cothams' statement regarding her conversation with a member of Mr. Dowdell's surveyor's team about the road frontage cast some doubt on the surveyor's actual findings. These facts combined clearly establish a genuine issue of material fact in the instant case. The trial court properly denied Mr. Dowdell's summary judgment motion. This claim is without merit. III. Failure to Adopt Plaintiff's Survey ********** Next, Mr. Dowdell argues the trial court erred when it disregarded the survey performed by a registered land surveyor in the absence of a competing survey and/or contradictory expert testimony. [*24] Citing to his argument relating to the summary judgment issue, Mr. Dowdell essentially adopts the same argument but concludes the trial court should have determined at trial that the boundaries of the Dowdell's property were as stated on the survey performed by Burns. Mr. Dowdell cites no authority to support his proposition that the law absolutely requires a competing land survey in every boundary line dispute or that the trial court must adopt the sole surveyor's findings as a matter of law. Similarly, he cites no authority to support his claim that the trial court was required to disregard the testimony presented by the Cothams because the testimony was from lay witnesses rather than expert witnesses. This claim is simply without merit. In the remaining issues, Mr, Dowdell challenges the factual and legal findings made by the trial court following the bench trial. Tennessee Rule of Appellate Procedure 13(d) provides that "review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). See also [*25] Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). Under this standard, a determination by the trial court regarding the credibility of witnesses and a conflict in testimony is "binding on the appellate court unless from other real evidence the appellate court is compelled to conclude to the contrary." Hudson v. Capps, 651 S.W.2d 243, 246 (Tenn. App. 1983). Therefore, against this backdrop we review Mr. Dowdell's final two issues. IV. Prima Facie Case - Defamation of Title Page 7 of 57

8 In this issue, Mr. Dowdell maintains that, even if the trial court properly permitted the Cothams to late file their answer to the amended complaint, the trial court nonetheless erroneously concluded that Mr. Dowdell failed to prove the necessary elements of defamation of title. In his amended complaint, Mr. Dowdell added the allegation of defamation of title. Citing Ezell v. Graves, 807 S.W.2d 700, 701 (Tenn. App. 1990) as cited in a later unpublished opinion of this Court, Desgranges v. Meyer, 2004 Tenn. App. LEXIS 315, 2004 WL (Tenn. App. 2004), Mr. Dowdell first argues the existence of such a cause of action in Tennessee. Based on this authority, the elements of the tort of defamation of title are as follows: (1) the [plaintiff] [*26] has an interest in the property; (2) the defendant published false statements about the title to plaintiff's property; (3) the defendant acted maliciously; and (4) the false statements proximately caused the plaintiff a pecuniary loss. As with any tort, the plaintiff must establish a prima facie case before he is entitled to any form of relief. The testimony at the bench trial, along with the discovery contained in the record, revealed that Dowdell and the Cothams are adjoining property owners. Mr. Dowdell here presented his deed to verify his interest in this real property. Therefore, he has established the first element. However, evidence to support the remaining three elements is scant, if present at all. Both Mr. and Mrs. Cotham admitted they placed the signs at the corner of their property. However, even if we viewed the contents of the signs in a light favorable to Mr. Dowdell, it is difficult to conclude that the statements were "false" as required in the second element. The signs accurately indicated there was a property or boundary line dispute. Similarly the statements that the property owners only want what is theirs or that their deed shows a certain road frontage cannot [*27] be said to be false. The Cothams honestly believed they owned the road frontage in question per their deed. The only questionable remark at all in this case related to attempts to resolve the dispute. The testimony revealed that the parties talked about finding the exact location of the boundary; however, we know little else about any settlement efforts. This element simply has not been established. Even if we assume the Cothams posted a false statement, the proof does not establish that the Cothams made the statements maliciously. The trial court concluded that the signs were not done maliciously but instead essentially constituted a lis pendens notice. Because the proof did not establish a prima facie case of defamation of title, the trial court properly denied the claim. Therefore, plaintiff's additional requests for attorney fees or costs are similarly without merit. V. Arbitrary Boundary Line Mr. Dowdell's next issue goes to the heart of this action to quiet title and underlying boundary line dispute. He insists the trial court committed error by arbitrarily setting the boundary line between Dowdell's and the Cothams' property at the center of the drainage ditch without sufficient [*28] evidence as to the location of said drainage ditch. At trial, the court heard testimony from a registered surveyor (who conducted a survey of Dowdell's property), Mr. Dowdell, the Cothams and a prior landowner in the Cothams' chain of title. Both parties acknowledged they never really knew the exact location of their common boundary. "Over-the-fence" conversations through the years indicated the Cothams had told Mr. Dowdell their line possibly went to Dowdell's driveway but certainly at least went to the ditch line. The surveyor testified that he found two markers on Mr. Dowdell's property and a third at the corner of the property of Dowdell and the neighbor to the north. The surveyor's testimony confirmed the unknown closing point or boundary line. The surveyor pulled deeds in the chain of title to reconstruct the larger parcel from which the eventual multiple tracts were derived. He said he found a point on Mr. Dowdell's property and shot a line across the road into the property across the road which had one time many years ago been one parcel. Based on this line, the surveyor placed his marker at the corner of the Cothams' property. Page 8 of 57

9 This surveyor's mark was likely the spark that [*29] ignited this dispute. When the marker was placed near the Cothams' fence, the Cothams challenged the finding saying they had always owned at least to the ditch line and perhaps past the ditch line to the north. Again, Mr. Dowdell said he was never shown the boundary line and never really knew the location of the common boundary. In addition to the parties and a surveyor, the Cothams presented the testimony of a prior land owner in their chain of title. Ammon Hulsey testified that he previously owned the land now owned by the Cothams. Hulsey said he had lived in the neighborhood for 60 years and was deeded what is now the Cothams' property from the Lewis Elmore family who essentially "raised his wife." This previous grantor, Elmore, conveyed half (southern portion) of a larger tract to Mr. Hulsey and the other half (northern portion) to another party who was in Mr. Dowdell's chain of title. At the time of this conveyance, Hulsey said Elmore walked him over the property and showed him the intended boundaries. According to Hulsey, the boundary was the ditch line between the two properties. Hulsey explained that an old fence ran down the center of the ditch line and had served as the boundary [*30] line for years. Hulsey also testified that he observed the Cothams removing the old fence and told them they should have left the fence as it reflected the long held boundary line. Even though the fence has been removed, remnants of it remain on trees in or near the ditch line. Based on the testimony as a whole, the trial court weighed the evidence, adjudging the credibility of the witnesses. We find no cause for concern that the trial court found the testimony of the surveyor troublesome. The surveyor testified as to his results but noted that he had not conducted the actual survey. The court found that the surveyor's testimony left some questions unanswered. For example, he did not know if anyone from his staff walked the disputed road frontage as alleged by the Cothams. Mrs. Cotham testified that she was present when the survey was conducted and approached the surveyor's staff. She asked one of the surveying team about the road frontage on the Cotham deed to which (according to Mrs. Cotham who testified without objection) he responded that there appeared to be a fifty feet overlap. The trial court found this acknowledgment to be significant because it was within a reasonable range [*31] of the road frontage shown on the surveyor drawings offered as exhibits. Assessing the credibility of the witnesses, the trial court found the testimony of Mr. Hulsey to be significant as to the location of the boundary line between Dowdell's and the Cothams' property. Viewing this testimony in light of the conflicting testimony of the surveyor and Mrs. Cotham, the court concluded the ditch line was the natural and existing boundary between the properties. Even though Mr. Dowdell insisted the trial court should have given greater weight to the testimony of a surveyor, such a proposition is simply not supported by our case law. It is well settled that the testimony of an expert is to be considered along with all other testimony and such testimony does not carry any type of presumption favoring it over another type of evidence. Having made the credibility determinations, the trial court was within its purview to disregard some or all of the witnesses' testimony. As noted above, this credibility finding is "binding on the appellate court unless from other real evidence the appellate court is compelled to conclude to the contrary." We find no other real evidence from which to conclude [*32] the contrary. Therefore, we find the trial court did not arbitrarily conclude that the boundary line was the natural boundary between the parties' properties. The court's ruling was based on the evidence and was supported by the testimony of prior land owner, Hulsey. That the trial court gave more credence to Hulsey's testimony does not warrant a reversal of the trial court's final ruling. This claim is without merit. VI. Inability to Carry Out Court-Ordered Remedy In his final issue, Mr. Dowdell insists that the trial court's order, even if proper, cannot be implemented because the Cothams cannot obtain a survey to their property due to a faulty legal description. We disagree. Once the trial court concluded that the ditch line or gully would serve as the natural boundary line between the two parties, the court ordered the boundary to be surveyed with this new survey line becoming part Page 9 of 57

10 of the court's decree. The court invited the parties to use the surveyor who conducted the survey of Mr. Dowdell's property due to his familiarity with the property but informed them they could mutually agree on a surveyor of their choice. If the parties were unable to agree, the court would name a surveyor. [*33] Mr. Dowdell claims this remedy is impossible and cannot be carried out. He complains that the only valid method to accomplish this relief is to have both properties re-surveyed to incorporate the established boundary line. Based on testimony at the trial, it appears the Cothams' deed poses problems for surveyors due to the method used to compute the acreage, etc. Due to this "bust" in the deed, Mr. Dowdell argues the Cothams' property cannot be re-surveyed. We do not agree that the court's ruling contemplates complete surveys of both properties or other either property. The court merely entered an order establishing the boundary between the two properties. Therefore, the court was unconcerned with every other boundary of the properties. Instead, the court in essence found the new surveyed boundary line would resolve the issue. We must agree. The sole disputed area is the boundary line. Following a bench trial, the court established the boundary. A surveyor can complete a survey including the calls for the center of the ditch line as ordered. The resulting description for the center of the ditch line can be included in the court's decree as the proper boundary line. Recording of this [*34] decree in the Register of Deeds office will put all on notice of the boundary line between these parties. This issue is without merit. We affirm the court's finding. CONCLUSION For the reasons set out above, we affirm the judgment of the trial court and remand for further proceedings consistent with this opinion. J. S. DANIEL, SENIOR JUDGE Page 10 of 57

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13 OPINION: FAIN, J. BETTY J. LAWSON, Plaintiff-Appellant v. THOMAS WINEMILLER & ASSOCIATES, Defendants-Appellees Case No COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY 1995 Ohio App. LEXIS 2043 May 17, 1995, Rendered This case involves a claim of professional negligence against a surveyor and his surveying company. Plaintiff-appellant Betty J. Lawson appeals from a judgment of the trial court adopting the verdict of the jury and from the trial court's denial of her motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. Mrs. Lawson contends that the jury's verdict rendered in favor of defendants-appellees Thomas Winemiller and Thomas Winemiller & Associates, Inc. was against the manifest weight of the evidence, based on her assertion that the evidence establishing Thomas Winemiller's failure to adhere to the professional standard of care was uncontradicted. We conclude that the expert testimony offered [*2] by Thomas and David Winemiller, both Ohio licensed surveyors, provided competent, credible evidence that supported the jury's conclusion that Thomas Winemiller and Thomas Winemiller & Associates, Inc. did not fall below the standards of the professional surveying community when surveying Mrs. Lawson's property. We therefore conclude that the trial court did not err when denying Lawson's motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. Accordingly, the judgment of the trial court is affirmed. In June of 1985, Betty J. Lawson's now deceased husband, George Lawson, hired Thomas Winemiller & Associates, Inc. ("Winemiller & Associates") to perform a survey of the land owned by the Lawsons. Pursuant to the oral agreement with Mr. Lawson, Thomas Winemiller and his son, David Winemiller, both Ohio licensed surveyors, conducted a survey and prepared a legal description of the land. In September of 1985, in accordance with the legal description prepared by Winemiller & Associates, the Lawsons erected a fence marking the boundary between their property line and that of their neighbors to the south, the Gedrites. In October of 1985, the Lawsons [*3] sold the southern portion of their land by general warranty deed to Susan Vartman and Nancy Franz in accordance with the legal description prepared by Winemiller & Associates. The parcel sold to Vartman/Franz included the common property line with the Gedrites and the newly erected fence. Some time after the Lawsons sold the southern parcel of their land, the Gedrites brought a civil suit in trespass against Vartman and Frantz disputing the placement of the fence and the boundary line between the properties. Vartman and Frantz joined the Lawsons in the suit as third-party defendants. The jury determined that the Gedrites' deed set forth the correct boundary line between the Gedrites and the Vartman/Frantz property. Accordingly, the jury also determined that the Vartman/Frantz deed incorrectly included fifteen feet of the Gedrites' property in their deed and that the fence built along the property line encroached upon the property of the Gedrites. Because it was also established that the Gedrites and the Lawsons disagreed about the boundary line before the fence I Page 13 of 57

14 was erected and that this dispute was not disclosed to Vartman and Frantz before they purchased the property, damages were [*4] only assessed against the Lawsons. After the conclusion of the first suit involving her property, Lawson brought the present action against Winemiller and Thomas Winemiller & Associates, Inc. alleging professional negligence with regard to Winemiller's 1985 survey of the southern parcel of the Lawsons' land. The contentions underlying the professional negligence suit are that Winemiller negligently conducted a survey of the Lawsons' property and erroneously plotted the boundaries of their land; the Lawsons relied solely on Winemiller's survey, boundary pins, and legal description of their property when deciding where to erect a fence and when deeding the southern parcel of their land to Vartman/Frantz; and, as a result of relying on the survey conducted by Winemiller, the Lawsons suffered economic and emotional harm. In January of 1994, the professional negligence action was heard by a jury in the Montgomery County Court of Common Pleas, and the jury rendered a general verdict in favor of Thomas Winemiller and Winemiller & Associates. Thereafter, Mrs. Lawson filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which were subsequently [*5] overruled by the trial judge. This appeal followed. From the judgment against her, Lawson appeals. Lawson's First and Second Assignments of Error are as follows: THE VERDICT OF THE JURY, IN FINDING FOR THE DEFENDANT, CANNOT BE SUPPORTED BY ANY RATIONAL VIEW OF THE EVIDENCE, WAS NOT BASED UPON THE EVIDENCE PRESENTED AT TRIAL, WAS INCONSISTENT WITH ANY THEORY PROVABLE UNDER THE ISSUES, AND WAS UNSUPPORTED BY OR WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND ACTED CONTRARY TO LAW BY DENYING PLAINTIFF'S/APPELLANT [SIC] MOTION FOR JUDGMENT NOT WITHSTANDING [SIC] THE VERDICT OR FOR NEW TRIAL WHERE THE VERDICT IN FAVOR OF DEFENDANT COULD NOT HAVE BEEN BASED UPON THE EVIDENCE PRESENTED AT TRIAL, WAS AGAINST ANY RATIONAL VIEW OF THE EVIDENCE, AND WAS INCONSISTENT WITH THE THEORY OF NEGLIGENCE. Both of these Assignments of Error essentially raise the question whether the jury verdict was against the manifest weight of the evidence. In Ohio, a surveyor is liable for professional negligence if it is established that the surveyor failed to perform his work according to the standards of the surveying [*6] community and thereby proximately caused damages. Brookewood West v. Adlaka, (Sept. 13, 1989), Mahoning App. No. 88 C.A. 82, unreported. A claim of surveyor liability is founded on the three elements common to any tort: a breach of duty, causation, and damages. See, Smith v. Dayton Builders Supply, Inc. ( Dec. 11, II Page 14 of 57

15 1991), Montg. App. No , unreported (discussing accountant's professional negligence). More specifically, to recover in an action for professional negligence, the plaintiff has the burden of proving: (1) the standard of care within the profession; (2) the defendant's failure to adhere to the professional standards; and (3) that the defendant's failure to adhere to the professional standards proximately caused harm to the plaintiff. Weaver v. Carson (1979), 62 Ohio App.2d 99, 404 N.E.2d We note that a mere difference of professional opinion does not establish professional negligence. Moreover, professional negligence is not established by proving that a professional opinion turned out to be erroneous. Rather, to recover for professional negligence based on an incorrect professional opinion, one must establish that the professional [*7] fell below the standard of skill and knowledge commonly possessed and utilized by members within the profession when rendering his opinion. See, Restatement of the Law (Second), Torts (1965), Section 299A. In the case before us, Lawson asserts that uncontroverted evidence established that Thomas Winemiller and Winemiller & Associates were professionally negligent. She asserts that the uncontroverted evidence presented at trial established that: (1) the Lawsons' deed involved significant problems of overlap n1 and closure n2; (2) a surveyor should not complete a survey of property involving problems of both overlap and closure; (3) a surveyor should not attempt to correct a 15-foot closure problem; (4) Thomas Winemiller was negligent in his individual and corporate capacity for not discovering the overlap problem when surveying the Lawson deed; (5) Thomas Winemiller was negligent in his individual and corporate capacity for attempting to correct the 15-foot closure problem; and (6) Thomas Winemiller was negligent in his individual and corporate capacity for completing the survey of the Lawsons' property and for providing a legal description of the property. Accordingly, Lawson asserts [*8] that based on the uncontroverted evidence presented at trial, the verdict in favor of Thomas Winemiller and Winemiller & Associates is against the manifest weight of the evidence. n1 In the present context, overlap has its traditional meaning. As specifically related to a survey, overlap exists when two deeds, mutually exclusive as to ownership, include a portion of real property in common. n2 According to the definition set forth in Attorney's Guide to Engineering, Section 62.01[5], 62.12, closure is a mathematical calculation to determine if the field-measured angles and distances of a survey fit certain geometric conditions. One condition is whether the sum of the measured interior angles of each triangle add up to 180 degrees (plus a small correction on very large surveys). The other condition of closure is whether the directions and the distances measured in the survey agree with the known values and directions for the lines. In the present case, the closure problem related to the directions and distances of the survey lines. [*9] Lawson's assertion that the evidence at trial establishing Thomas Winemiller's professional negligence was uncontroverted is based entirely upon her contention that the evidence offered by Thomas Winemiller at the trial "could not have been taken seriously by a reasonable jury" because the testimony was "contradictory, self-serving, vague, unresponsive, and argumentative." However, we are not persuaded by this argument. It is axiomatic that the credibility of a witness and the weight to be given to a witness's testimony are issues within the province of the jury. State v. DeHass (1967), 10 Ohio St.2d 230, 231, 227 Page 15 of 57

16 N.E.2d 212. This principle applies even when one party classifies the witness's testimony as selfserving, contradictory, vague, or argumentative. These are factors to be considered by the jury when making its determination of the overall credibility of the witness. See, State v. Mattison (1985), 23 Ohio App.3d 10, 490 N.E.2d 926. In considering whether the judgment of the trial court is against the manifest weight of the evidence, the appellate court is guided by the presumption that the findings of the trier-of-fact are correct. Seasons Coal [*10] Co. v. Cleveland (1984), 1010 Ohio St.3d 77, 461 N.E.2d As long as the judgment is supported by some competent, credible evidence going to all the essential elements of the case, the judgment will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. Based on our review of the record, we note that the expert testimony presented by both of the parties at trial is squarely in dispute on two key questions in the case; namely, whether the Lawsons' deed contained an overlap problem; and, whether a surveyor should attempt to rectify a fifteen-foot closure discrepancy in a deed. We will address the evidence presented on each of these subjects in turn. A. Existence of Overlap. Lawson offered the expert testimony of William Petkewicz, the surveyor hired by the Gedrites in 1985, and Wayne Cosler, the surveyor hired by Lawson in Both Cosler and Petkewicz testified that each of their surveys of the Lawson/Gedrites property, which were conducted according to the standards of the profession, uncovered problems of closure and overlap. Petkewicz [*11] testified that he identified an overlap problem after he located the boundary markers that the Winemillers had failed to locate. Cosler testified that he identified the overlap problem after he plotted the adjacent deeds. Although neither expert specifically opined that Thomas Winemiller was negligent for not discovering the overlap problem, they both indicated that a properly conducted survey would have uncovered the problem. Cosler testified that the minimum standards for boundary surveys in the State of Ohio are set forth in Chapter 4733 of the Ohio Revised Code and Chapter 4733 of the Administrative Code Board Rules. Cosler identified the pertinent part of the Administrative Code Board Rules as follows: (A) When the deed and description of the subject property and the deed description of the adjoining properties do not resolve the unique locations of the corners and lines of the property being surveyed, the surveyor shall consult other sources of information in order to assemble the best possible set of written evidence of every corner and line of the property being surveyed. These sources include, but are not limited to: records of previous surveys, deed descriptions [*12] of adjacent properties, records of adjacent highways, *** and other sources as may be appropriate. (B) After all necessary written documents have been analyzed, the survey shall be based on a field investigation of the property. The surveyor shall: make a thorough search for physical monuments, analyze evidence of occupation and confer with the Page 16 of 57

17 owner(s) of the property being surveyed. In addition, the surveyor shall when necessary, confer with the owner(s) of the adjoining property and take statements. Cosler testified that the minimum standards of the surveying profession also require a surveyor to consult the deeds of the surrounding properties, as well as the property being surveyed, for overlap and closure problems. He further testified that it is a standard practice in the surveying community to notify the property owner when both overlap and closure problems are encountered and to recommend that an attorney be contacted to have any flaws in the deed resolved. Cosler and Petkewicz agreed that the standards in the surveying profession dictate that a surveyor should not prepare a legal description of property that involves both overlap and closure problems. [*13] Furthermore, Cosler opined that Thomas Winemiller made a mistake in his survey by "not informing his client of an overlap problem if he knew of the overlap." Thomas and David Winemiller agreed with Lawson's experts that the minimum requirements for conducting a survey are set forth in the code section identified by Cosler, and both Thomas and David Winemiller testified that when conducting their survey of the Lawsons' property they adhered to the minimum requirements of the profession set forth in the Administrative Code. They both testified that they consulted all deeds and tax maps involving the Lawsons' property and the deeds of all the surrounding properties when surveying the Lawsons' property. They both testified that they based their survey on their analysis of all pertinent written documents and their field investigation of the property. Finally, they both testified that they made a thorough search for the monuments marking the corners of the property and conferred with the Lawsons and the Gedrites when doing so. Thomas and David Winemiller agreed with Lawson's experts that it is not within the professional standards for a surveyor to provide a survey and description of property [*14] that involves both closure and overlap problems; however, they disagreed with Lawson's experts regarding whether an overlap problem existed between the Lawsons' and the Gedrites' deeds. David Winemiller explained that, because the Lawsons' parcel of land was created and deeded before the Gedrites' parcel, fundamental principles of surveying dictate that the Lawsons' deed has superior rights. Based on the controlling principle of superior rights, David explained, the Gedrites' junior deed cannot overlap, but must abut, the Lawsons' deed; accordingly, he explained, the Gedrites' deed cannot rightfully claim to own what the Lawsons' deed had previously claimed. Based on these principles, the Winemillers concluded that any boundary dispute between the two properties must be resolved in a manner that is consistent with the Lawsons' superior deed. Accordingly, they determined that there was no overlap problem, but only a boundary discrepancy that was properly worked out according to the Lawsons' deed. Testifying as licensed surveyors, both Thomas and David Winemiller opined that their survey was conducted in accordance with the professional standards within the surveying community. Moreover, [*15] the Winemillers testified that they were not negligent for providing a survey and description for the Lawsons' property because, based on their professional opinion, no overlap existed. They denied the possibility of the existence of any overlap between the Lawsons' and the Gedrites' property and, therefore, denied the need to abandon the survey. Page 17 of 57

18 B. Effect of a Fifteen-Foot Closure Problem. All of the experts who testified at the trial agreed that the Lawson deed contained a closure problem of 15 feet. However, the experts did not agree on what the professional standard is for a surveyor when encountering such a significant closure discrepancy. Lawson's experts both testified that closure problems are often encountered in the surveying profession. Cosler testified that in deeds issued prior to 1970, closure problems occur about fifty percent of the time. Cosler also testified that a survey is required to have closure, although a surveyor should not "force" closure. Notwithstanding the testimony from Lawson's experts about the frequency of the occurrence of closure problems, both Petkewicz and Cosler testified that a surveyor should not write a description of property [*16] which has a closure discrepancy as significant as 15 feet. Petkewicz testified that in such a case he would most likely notify the property owner of the problem and have him file new deeds, rather than complete the survey. Similarly, Cosler stated that he would not attempt to correct the closure problem because he would not know the proper way to do so. Further, Cosler opined that it was a mistake for Thomas Winemiller to have attempted to correct the closure problem. However, contradicting the opinions of Lawson's experts, the Winemillers testified that their completion of the survey and correction of the closure problem was in conformity with the standards of the surveying profession. The Winemillers explained that surveyors are hired for the very purpose of exercising their professional judgment about boundary disputes and inconsistencies in deeds. David Winemiller stated that when a deed does not close, as is often the case, it is a surveyors job to "work things out." Thomas Winemiller explained that when he provides a legal description of a new parcel of land, which the Lawson's southern parcel was considered to be, standards within the surveying profession require him to make [*17] the deed or description close. Moveover, the Winemillers testified that, although not specifically required to do so by the professional surveying standards, they disclosed and explicitly explained the closure problem they encountered with the Lawsons' deed, as well as their resolution thereof, to Mr. Lawson. Furthermore, the Winemillers specifically stated that the particular method they used to rectify the closure problem was in conformity with the standards of the profession. Thomas Winemiller testified that it is standard practice for a surveyor to correct a closure problem by adjusting a boundary line to close a deed. David Winemiller explained that in this particular case, the superior deed principle dictated that the closure problems with the Lawsons' deed be worked out in accordance with the terms of the Lawsons' deed. Accordingly, because their survey worked out the closure problem by plotting the boundaries of the Lawsons' property according to the intent and the specific measurements in the Lawsons' deed, the Winemillers opined that their survey conformed to the standards of the profession. The testimony of Thomas and David Winemiller provided a basis upon which the jury [*18] could reasonably have concluded that they complied with the professional standards of the surveying community when surveying the Lawsons' property. Because the Winemillers' testimony regarding their adherence to the professional standards was in direct conflict with the expert testimony offered in Lawson's behalf, the determination of whether the Winemiller survey was conducted in conformity with professional standards was dependent upon which set of experts the jury determined to be more credible. In rendering its verdict in favor of Thomas Winemiller and Winemiller & Associates, the jury acted within its proper province by determining that the expert testimony of- Page 18 of 57

19 fered by Thomas Winemiller in defense of his survey was more credible than that offered by Lawson's experts. Because the Winemillers' expert testimony provided some competent, credible evidence upon which the jury could have reasonably based its verdict, it cannot be said that the verdict was against the manifest weight of the evidence. Moreover, because the verdict was supported by competent, credible evidence, we cannot say that the trial court erred when it denied Lawson's motions for judgment notwithstanding the verdict [*19] or, in the alternative, for a new trial. Lawson's First and Second Assignments of Error are overruled. III Both of Lawson's Assignments of Error having been overruled, the judgment of the trial court is Affirmed WOLFF and GRADY, JJ., concur. Page 19 of 57

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22 JOANN ELTON, Respondent, v. MARCELLUS D. DAVIS, II AND RHONDA K. DAVIS, Appellants. COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT 123 S.W.3d 205 October 14, 2003, Opinion Filed OPINION BY: ROBERT G. ULRICH [All cases have been modified from the original] [*208] Marcellus and Rhonda Davis appeal the judgment of the trial court in favor of Joann Elton on her claims for ejectment and reformation of deed and their counterclaim for adverse possession. The Davises raise five points on appeal. They contend that Mrs. Elton's claims were barred by the statute of limitations and the doctrine of laches. They also argue that the judgment was not supported by substantial evidence and was against the weight of the evidence. Finally, the Davises contend that the trial court erred in adjudging moot their counterclaim for adverse possession. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. FACTS In 1978, Joann Elton and her late husband, Ronald Elton, acquired by deed certain real property located south and west of Platte City in Platte County. That property was legally described as: All of Lots 5 and 6, of Fractional Section 3, Township 52, Range 35, Platte City, Missouri. In 1987, the Eltons sold approximately two acres of this land to Marcellus and Rhonda Davis. Mr. Elton measured off the two-acre lot with his tractor computer starting on the east side of the lot where the Davises had started their construction and had placed their septic tank. A road bordered the south side of the lot. Mr. Elton placed a steel fence post on the west side of the lot to mark the western boundary. The Eltons executed a warranty deed to the Davises on November 6, 1987, conveying [*209] the property, which was legally described as: Commencing at the Southeast corner of a tract of land described as all of Lots 5 and 6 of Fractional Section 3, Township 52, Range 35, Platte County, Missouri, thence West 370 feet to the point of beginning; thence North feet; thence West 250 feet; thence South feet; thence East 250 feet to the point of beginning. After conveyance of the property, the Davises constructed buildings including a house and a driveway on the lot. The driveway was constructed on the east side of the steel post. The Davises also planted trees on the north side of the lot. They used the east side of the two-acre lot as a lawn and installed a swimming pool and a satellite dish on it. Mr. Elton farmed the land surrounding the Davises' property as measured by Mr. Elton from the time the Davises purchased the property in 1987 until his death in After Mr. Elton's death, Mrs. Elton hired Hal Swaney to continue to farm the land until the time of trial in Specifically, the soybean crop line bordered the steel post and the Davises' driveway on the west side of their lot, the trees planted by the Davises on the north side of their lot, and a vent pipe on the east side of their lot. Page 22 of 57

23 After Mr. Elton's death in 1995, Mrs. Elton began to notice that the Davises periodically parked vehicles and trailers in the soybean field to the west of the steel post. As a result, Mrs. Elton had a survey done of the Davises' two-acre lot in July The survey showed a discrepancy between the legal description of the Davises' property in the deed and boundary lines established by Mr. Elton. The legal description in the deed showed that the Davises' property was situated fifty-three feet west of the boundary lines established by Mr. Elton and maintained by the Davises. Specifically, the legal description included land to the west of the steel post, driveway, and crop line and did not include the eastern part of the Davises' lawn and swimming pool, or the septic tank and satellite dish. As a result of the survey, Mrs. Elton filed a petition in ejectment in April She later amended her petition to add a count for reformation of deed. The Davises answered raising the affirmative defenses of statute of limitations and laches and counterclaimed for adverse possession of the land consisting of the eastern portion of their lawn and a narrow pie-shape strip of land on the northern border of the property maintained by the Davises. Following a bench trial, the trial court entered its judgment on September 17, 2002, ordering reformation of the legal description in the deed to read as follows: Commencing at the Southeast corner of a tract of land described as all of Lots 5 and 6 of Fractional Section 3, Township 52, Range 35, Platte County, Missouri, thence 317 feet to the point of beginning; thence North feet; thence West 250 feet; thence South 348,5 feet; thence East 250 feet to the point of beginning. In essence, the corrected description shifted the Davises two-acre lot fifty-three feet east of the land described in the original deed to the location measured by Mr. Elton initially. The court also ordered the Davises ejected from all property not contained within the boundaries of the reformed [*210] legal description and entered judgment against the Davises on their affirmative defenses of statute of limitations and laches. Finally, the trial court found that the Davises' counterclaim for adverse possession was moot in light of the reformed legal description. This appeal by the Davises followed. STANDARD OF REVIEW On review of a court-tried case, the judgment of the trial court will be affirmed unless substantial evidence does not support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Mullenix-St. Charles Properties, L.P. v. City of St. Charles, 983 S.W.2d 550, (Mo. App. E.D. 1998). The evidence and inferences therefrom are viewed in the light most favorable to the prevailing party and all contrary evidence is disregarded. Mullenix, 983 S.W.2d at 555. The appellate court defers to the factual findings of the trial court, which is in a superior position to assess credibility, but evaluates independently the trial court's conclusions of law. Id. Finally, the appellate court should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong. Id. I. STATUTE OF LIMITATIONS AND LACHES In their first two points on appeal, n1 the Davises claim that trial court erred in entering judgment against them on their affirmative defenses of statute of limitations and laches. First, they argue that the trial court erroneously declared and applied the law in applying section n2 to determine when the cause of action accrued for statute of limitations purposes. Specifically, the trial court found that the ten-year statute of limitations did not begin to run until the damage from the Page 23 of 57

24 mistake in the legal description was sustained and ascertained in 2001 when Mrs. Elton ordered a survey and, thus, the statute of limitations did not bar Mrs. Elton's claims for ejectment and reformation of deed. The Davises argue that the statute of limitations began to run when the alleged mistake was made, which was on or about November 6, 1987, when the deed was delivered. Secondly, the Davises contend that Mrs. Elton's claims of ejectment and reformation of deed were barred by the doctrine of laches because delay in bringing this suit was unreasonable and inexcusable and the delay materially prejudiced them. n1 This opinion does not address the Davises' points on appeal in the order presented in their brief. n2 All statutory references are to RSMo 2000 unless otherwise indicated. The ten-year statute of limitations governs the causes of action in this case. n ; A.P. Green Refractories Co. v. Duncan, 659 S.W.2d 19, 20 (Mo. App. E.D. 1983). The commencement of that period is governed by section , which provides in pertinent part: the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment... Generally, the statute of limitations for reformation of deed will not run against a party in possession, at least until her right to possession has been challenged. Bramhall v. Bramhall, 216 S.W. 766, (Mo. 1919); Stark v. Zehnder, 204 Mo. 442, [*211] 102 S.W. 992, 995 (Mo. 1907); Epperson v. Epperson, 161 Mo. 577, 61 S.W. 853, 854 (Mo. 1901); Duncan, 659 S.W.2d at 21. n3 The parties and the trial court incorrectly stated that the ten-year statute of limitations in section governs in this case. The judgment of the trial court will be affirmed, however, if it reached a correct result, even though for an incorrect reason. Commerce Bank of Kansas City, N.A. v. Peabody Coal Co., 861 S.W.2d 569, 576 (Mo. App. W.D. 1993). The evidence in this case showed that Mrs. Elton has been in continuous, peaceable, and uninterrupted possession of the western fifty-three feet of the deeded property since before 1987 when the deed was delivered. Mrs. Elton testified that she believed she and her husband owned the fiftythree foot section of land. After delivery of the deed, Mr. Elton continued to farm the land until his death in Thereafter, Mr. Swaney continued to farm the land for Mrs. Elton up to time of trial. Although evidence was offered that, after Mr. Elton's death, Mr. Davis parked vehicles in the field occasionally during the wintertime, this intermittent encroachment did not constitute a challenge to Mrs. Elton's right of possession. Not until Mrs. Elton commissioned a survey in 2001 did she learn that the legal description in the original deed included the fifty-three foot section of property. The damage resulting from the mistake in the legal description was not, therefore, sustained and ascertainable until 2001 when the survey results were made known to Mrs. Elton. Thus, Mrs. Elton's causes of action did not accrue, and the ten-year statute of limitations did not begin to run, until July The statute of limitations, therefore, did not bar Mrs. Elton's cause of actions. Neither were Mrs. Elton's causes of actions barred by laches. "'Laches' is the neglect for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done." Hagely v. Board of Educ. of Webster Groves School Dist., 841 S.W.2d 663, 669 (Mo. banc 1992). Mere delay does not of itself constitute laches; instead, the delay involved must work to the disadvantage and prejudice of the defendant. Id. "Where no one has been harmed in any legal sense, and the situation has not materially changed, the delay is not fatal." Id. at Page 24 of 57

25 Laches is a question of fact to be determined from all the evidence and circumstances presented at trial. Id. at 670. Generally, the trial court must determine whether the harm to the defendant in allowing the suit to proceed outweighs the harm to the plaintiff in failing to consider her claims. Id. As discussed above, although the original deed was executed in 1987, Mrs. Elton was not aware of any mistake in the legal description in the deed until she ordered a survey in July She then initiated her action against the Davises in April Mrs. Elton was not to blame for the delay in bringing this suit. Furthermore, the delay in bringing the suit did not prejudice the Davises. The reformed deed shifted the Davises two-acre lot to the east by fifty-three feet. It encompassed the property that the Davises have occupied since 1987 and improved with a swimming pool, satellite dish, and septic system. Mr. Davis testified that if the deed were reformed, his business of automotive body repair would be shut down because he would not have access to his buildings on the west side of the property. However, he also testified that most motor vehicles required eight feet of clearance from the western property line to access those buildings. The evidence showed that the distance from the western boundary line in the original legal description to the Davises buildings was feet. The reformed deed moved the western boundary line east fifty-three feet. A clearance of 8.58 feet, therefore, remained for the Davises to access the west sides of their buildings with vehicles. Allowing Mrs. Elton's suit to proceed did not prejudice the Davises' legal position. The first two points are denied. [*212] II. REFORMATION OF DEED In their next point on appeal, the Davises claim that the trial court erred in entering judgment in favor of Mrs. Elton on her claim for reformation of deed. They argue that the judgment was not supported by substantial evidence, was against the weight of the evidence, and erroneously applied the law because Mrs. Elton failed to prove the necessary elements for reformation of deed. Specifically, the Davises claim that they and Mrs. Elton had no prior agreement to convey the land with the reformed description and no mutual mistake of fact occurred in the preparation of the deed. Reformation allows parties to a contract to conform the writing to their intent. Everhart v. Westmoreland, 898 S.W.2d 634, 637 (Mo. App. W.D. 1995). It is an extraordinary equitable remedy and should be granted with great caution and only in clear cases of fraud or mistake. Morris v. Brown, 941 S.W.2d 835, 840 (Mo. App. W.D. 1997). The existence of a prior agreement and mutual mistake are the primary factual issues to be established in a case for reformation based on mistake. Everhart, 898 S.W.2d at 637. The party seeking reformation must show that the writing fails to accurately set forth the terms of the actual agreement or fails to incorporate the true prior intentions of the parties. Id. "The mistake must be mutual and common to both parties and must reveal that both parties did what neither intended." Id. To support reformation for mutual mistake, the evidence must be clear, cogent, and convincing and upon testimony entirely exact and satisfactory. Morris, 941 S.W.2d at 840. Clear, cogent, and convincing evidence was presented to support a finding that the parties intended and believed that the property measured by Mr. Elton and described in the reformed deed was the property to be conveyed. Both Mrs. Elton and Mr. Davis testified that the Eltons agreed to sell and the Davises agreed to purchase approximately two acres of land. The evidence also showed that Mr. Elton determined the land to be conveyed to the Davises. Mrs. Elton testified that Mr. Elton Page 25 of 57

26 measured the two-acre lot with his tractor computer starting on the east side of the property by the septic tank. Mr. Davis conceded that Mr. Elton laid out the land and most of the improvements on it for them while he worked in Edgerton. Both Mrs. Elton and Mr. Davis testified that the Davises improved and maintained the land measured by Mr. Elton as their own since the conveyance and that the Eltons continued to farm the land surrounding the two-acre lot as their own. Furthermore, clear, cogent, and convincing evidence was presented to support a finding that a mutual mistake was made in that the original legal description did not describe the land measured by Mr. Elton. The survey done in July 2001 showed that the land maintained by the Davises was situated approximately fifty-three feet east of the plot described in the original deed. The Davises contend that the fact that Mr. Elton started measuring the lot at a point west of the survey marker implies that he made a unilateral mistake in measuring and marking the boundaries of the property and that a unilateral mistake is not an adequate basis for reformation. According to the evidence, however, the measuring or marking of the land correctly reflected the parties' intent, and the mistake constituted the errant legal description in the deed of the land measured and marked. Other than Mrs. Elton's testimony that no survey was done at the time of the conveyance, no explanation appears in the record for why the original deed did not correctly describe the particular parcel of land to be conveyed as agreed upon by the parties. The source of the mistake, however, is not relevant in a suit for reformation; instead, the fact of the mistake empowers the court of equity to act. St. Louis County Nat'l Bank v. Maryland Cas. Co., 564 S.W.2d 920, 926 (Mo. App. 1978). The legal description in the original deed described property that neither party intended be described. Reformation was, therefore, appropriate so that the deed accurately reflected the underlying agreement. The trial court did not err in reforming the deed. The point is denied. III. EJECTMENT In their next point on appeal, the Davises claim that the trial court erred in ejecting them from all property not contained within the boundaries of the reformed legal description. They contend that Mrs. Elton failed to show actual damages resulting from their wrongful possession of the disputed property and, thus, she was entitled only to nominal damages. The Davises also argue that "balancing the equities" shows that ejectment from the disputed property would cause them great hardship in that they would have to move their swimming pool, septic system, and satellite dish and would be without access to the rear of their buildings. "Ejectment is a possessory action testing the right to possession of real property." Gilbert v. K.T.I., Inc., 765 S.W.2d 289, 293 (Mo. App. W.D. 1988). To make a claim for ejectment, the plaintiff must show that the defendant was in possession of premises to which the plaintiff had the right of possession. Smith v. Seamster, 36 S.W.3d 18, (Mo. App. W.D. 2000). Appropriate relief in an ejectment suit may be a judgment for possession and damages. Id. at 21. Section provides that damages can include those for waste, injury, rents, and profits, subject to certain limitations on the length of time the damages can accrue. Id. Contrary to the Davises' contention, the trial court's judgment did not award Mrs. Elton damages on her ejectment claim, only possession. Furthermore, an action for ejectment is not an equitable action but is an action at law. City of Steelville v. Scott, 684 S.W.2d 880, 886 (Mo. App. S.D. 1984); Blumenberg v. Minton, 507 S.W.2d 26, 28 (Mo. App. 1974). A court does not, therefore, conduct a balancing the equities analysis in such action. Even if such analysis were done in this case, the Davises were not caused great hardship. As discussed above, the reformed deed shifted the Davises' two-acre lot to the east by fifty-three feet. The property described in the corrected legal description Page 26 of 57

27 encompassed the improvements made by the Davises including the swimming pool, septic system, and satellite dish; therefore, the improvements do not need to be moved. A clearance of 8.58 feet also remained on the western portion of the property for the Davises to access the rear of their buildings. The point is denied. IV. COUNTERCLAIM FOR ADVERSE POSSESSION In their final point on appeal, the Davises claim that the trial court erred in adjudging its counterclaim for adverse possession moot. In their counterclaim, the Davises claimed adverse possession of land to the east and north of the land described in the original deed. They claimed the land approximately feet east of the eastern boundary identified in the original deed description and a small pie-shape piece of property to the north of the reformed description. After entering its judgment reforming the legal description in the deed, the trial court found that the Davises' counterclaim for adverse possession [*214] was moot in light of the reformed legal description. A case is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)(quoting Shelton v. Farr, 996 S.W.2d 541, 543 (Mo. App. W.D. 1999)). Where an event occurs that makes a court's decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed. Id. (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo. App. W.D. 1999)). The trial court correctly found that reformation of the deed rendered moot the Davises' counterclaim for adverse possession of the land described in the reformed legal description. Reformation of the deed provided the Davises title to part of the land it claimed by adverse possession. Therefore, a ruling by the trial court on the Davises counterclaim for that particular land would have been unnecessary. The Davises, however, sought title by adverse possession of land outside the boundaries of the lot described in the reformed deed; specifically, an additional 5.75 foot wide strip of land on the eastern boundary and a pie-shape strip of land on the northern boundary of the lot described in the reformed deed. Reformation of the deed did not, therefore, determine the Davises' counterclaim for adverse possession of the land outside the boundaries of the land described in the reformed deed. That part of the judgment is, therefore, reversed, and the case is remanded for determination of the Davises' counterclaim as it applies to those strips of land. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. ROBERT G. ULRICH, J. Smart, P.J. and Hardwick, J. concur. Page 27 of 57

28 Page 28 of 57

29 Stewart J. Andrews and Leda N. Andrews, Appellants, vs. Donald J. Barton, Appellee. No. 3D COURT OF APPEAL OF FLORIDA, THIRD DISTRICT 974 So. 2d 1144; 2008 Fla. App. LEXIS 1836; 33 Fla. L. Weekly D 476 February 13, 2008, Opinion Filed OPINION BY: COPE [*1145] COPE, J. [All cases have been modified from the original] Stewart J. Andrews and Leda N. Andrews, defendants below, appeal a partial final judgment entered after a jury verdict in favor of plaintiff Donald J. Barton, finding the defendants to be negligent and awarding the plaintiff $ 31,570. The defendants argue, among other things, that the trial court erred by refusing to admit the tax assessor's map. We conclude that the point is well taken, and reverse for a new trial. This is a boundary dispute between two neighbors. In 1996, the defendants bought Lot 32, of Block 54, on Stock Island, which is near Key West. The property is in an industrial area. Although there are survey markers at various locations on Block 54, there were none marking the corners of Lot 32. The defendants built a storage shed within what they believed to be the boundaries of Lot 32. They poured a concrete slab, supplied electricity to the shed, maintained the shed, and used it for [*1146] storage. The remainder [**2] of Lot 32 had construction materials and miscellaneous property stored on it. In 2000, the plaintiff bought the lots to the east of Lot 32, being Lots 31, 30, and 29, minus a 50- foot strip of land at the east end of Lots 29 and 30. The plaintiff's land is at the east end of Block 54, adjacent to Fourth Avenue. The plaintiff obtained a survey prepared by Frederick H. Hildebrandt showing that the defendants' shed was on the plaintiff's property, Lot 31, not on the defendants' property, Lot 32. The plaintiff demanded that the defendants vacate the shed and remove their personal property. When the defendants removed their personal property and a wood rack inside the shed, the shed collapsed. The defendants removed the remainder of their property, disconnected the electricity, and used a backhoe to knock down the remainder of the shed. The plaintiff sued the defendants for damages. The plaintiff also requested an injunction to require the defendants to clear the property of trash and material the defendants had placed there. In the meantime, the defendants had concluded that the Hildebrandt survey was in error and that defendants owned the shed and the property on which it was located. The [**3] defendants filed their answer and counterclaim to quiet title and for adverse possession. 1 1 The quiet title counterclaim remains pending. The defendants dropped their adverse possession counterclaim. At trial, the plaintiff called surveyor Hildebrandt as an expert witness to testify that the shed was on the plaintiff's property and the defendants called surveyor Robert E. Reece as an expert witness to testify that the shed was on the defendants' property. The jury returned a verdict for the plaintiff. The trial court entered an appealable final judgment for damages, and the defendants have appealed. Page 29 of 57

30 By way of background, this part of Stock Island was platted in In 1948 a quarry was built for the mining of marl. The quarry owners, the Toppino brothers, built a marl road to transport their product. Subsequently the road was paved, and is now Fourth Avenue. In 1963 or 1964, there was a meeting of the property owners in the area. It had come to light that the road had been built farther to the west than was shown on the plat. As relates to the property involved here, the paved road and right of way encroached about fifty feet onto Lots 29 and 30, which are at the eastern end of Block [**4] 54. In 1969, the then owners of Lots 29 and 30, Helio and Waldina Gomez, conveyed a strip of land approximately fifty feet wide ("the fifty-foot strip") to Monroe County for road purposes. 2 In 2000, the plaintiff purchased Lots 29, 30, and 31 from a subsequent owner, minus the fifty-foot strip which the Gomezes conveyed to Monroe County. 2 The Gomez deed to Monroe County described the strip as being feet wide at the north end, and feet wide at the south end. When the plaintiff's surveyor testified, he stated that in doing his survey, he relied on the recorded plat and the plaintiff's statement that he had purchased Lots 29, 30, and 31. The plaintiff's surveyor conceded that he did not look at the plaintiff's deed and was unaware of the "less and except" provision which excluded the fifty-foot strip. He contended, however, that this exclusion would not make any difference in the survey. He opined that the shed was located on the plaintiff's land. [*1147] The plaintiff's surveyor testified that he had measured the entirety of Block 54 and found a discrepancy between the actual measurements of the land versus the land as shown on the plat. The surveyor's solution to this was to say that [**5] all of the lots in Block 54 would have to be reduced in width by 2.3 feet. The plaintiff's surveyor took that position even though there had been no proceeding to replat the block and even though the westerly property owners in Block 54 were not parties to this litigation. The defendants' surveyor testified that any surveyor must begin with an accurate legal description of the property being surveyed, which should be taken from the deed, not a verbal description. The defendants' surveyor reviewed the plaintiff's deed which revealed that the plaintiff did not own the fifty-foot strip. The defendants' surveyor testified that he and his crew had located a number of survey monuments and markers in Block 54, including a dozen corner markers, although no corner markers for Lot 32. The defendants' surveyor stated that once the exclusion of the fifty-foot strip was taken into account, the measurement of Block 54 revealed that the amount of land in Block 54 was consistent with the plat. The defendants' surveyor opined that the shed was located on the defendants' property, Lot 32. According to the defendants' surveyor, the plaintiff's surveyor erred by failing to note that the plaintiff does not [**6] own the fifty-foot strip, which the Gomezes conveyed to Monroe County. This means that the plaintiff's survey locates the property lines fifty feet to the west of where it should. According to the defendants' surveyor, the effect of this fifty-foot error is to relocate the plaintiff's land so it is positioned on top of the defendants' Lot 32. Turning now to the claim of evidentiary error, the defendants testified that they had been billed for, and paid, the taxes on Lot 32. The defendants' surveyor testified that he had consulted the property appraiser's map in doing his work and the appraiser's map was consistent with the plat of Block Page 30 of 57

31 54. The defendants sought to introduce the property appraiser's map into evidence to demonstrate where Lot 32 was located, so far as the property appraiser was concerned. The plaintiff objected, and the appraiser's map was excluded from evidence. We conclude that the property appraiser's map should not have been excluded. It was at least some evidence on the boundary issue and the location of the shed on which taxes had been paid. "Any competent evidence, whether documentary or parol, which is admissible to establish other facts and which will tend to [**7] identify the location of a disputed boundary is admissible and may be received in evidence[.]" Calder v. Hillsboro Land Co., 122 So. 2d 445, 456 (Fla. 2d DCA 1960) (citation omitted) (internal quotation marks omitted). We therefore reverse for a new trial. Although not raised as an issue by the parties, we conclude that on remand the plaintiff's survey must be excluded from evidence. There is no proper predicate for its admission, because it is based on a materially incorrect legal description. The purpose of the surveys in this boundary dispute is to locate accurately the boundary between the plaintiff's and defendants' property. To do this, the survey must begin with an accurate description of what land the parties own. The defendants' survey complies with this requirement by stating, on the face of the survey, an accurate legal description of the relevant properties. These were, in substance, Lots 29, 30, 31 (plaintiff's property), and 32 (defendants' property) of Block [*1148] 54, Stock Island, less and except the fifty-foot strip. 3 3 The legal description on the defendants' revised survey states in full: LEGAL DESCRIPTION: Lots 29, 30, 31, and 32, in Block 54, Stock Island, Plat Book 1, Page [**8] 55, A1-396, Monroe County, Florida records LESS AND EXCEPT: A part of Lots 29 and 30, Block 54 of "THE PLAT OF STOCK ISLAND", as recorded in Plat Book 1, Page 55 of the Public Records of Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at the Northeast corner of Lot 29, said corner to be known as the POINT OF BEGINNING of the lands hereinafter described, bear West, along the North line of Lot 29, feet; thence bear southwesterly 180 feet more or less, to a point on the South line of Lot 30, said point being feet West of the Southeast corner of Lot 30, thence bear East along the South line of Lot 30, feet to the Southeast corner of Lot 30; thence bear North 34 degrees, 28 minutes and 02 seconds East, along the Easterly Line of Lot 29, feet, back to the POINT OF BEGINNING. The plaintiff's survey, by contrast, states that he has prepared a survey of Lots 29, 30, and 31 of Block 54. There is no "less and except" for the fifty-foot strip. 4 That is not an accurate legal description. 4 The legal description on the plaintiff's survey states in full: Page 31 of 57

32 LEGAL DESCRIPTION: Lots 29, 30 & 31, Block 54, "MALONRY PLAT OF STOCK [**9] ISL- AND", according to the plat thereof, as recorded in Plat Book 1, at Page 55, of the Public Records of Monroe County, Florida. The plaintiff's survey did not undertake to make a complete survey of the boundaries of Lot 32, owned by defendants. However, the plaintiff's survey shows that Lot 32 lies to the west of the plaintiff's Lot 31. To have probative value, the plaintiff's survey must contain an accurate legal description of the property being surveyed. An expert "opinion is admissible only if it can be applied to evidence at trial." , Fla. Stat. (2006). Because the plaintiff's survey is based on a materially inaccurate legal description, it must be excluded from evidence on remand. See Summers v. McOwen, 478 So. 2d 397, 398 (Fla. 1st DCA 1985). 5 5 By failing to exclude the fifty-foot strip from the plaintiff's ownership, the plaintiff's surveyor assumed that the plaintiff's property is fifty feet wider than it really is. The plaintiff's surveyor placed the entirety of the plaintiff's property to the west of Fourth Avenue, but the fifty-foot strip (which the plaintiff does not own) lies under Fourth Avenue, not west of Fourth Avenue. The effect of this error was to place [**10] the boundary fifty feet to the west of where it really is, and (since the defendants' Lot 32 is only fifty feet wide), erroneously placed the plaintiff's property on top of the defendants' Lot 32. Finally, we direct that the trial court proceed first on remand to resolve the issue of the location of the lot boundaries. Given the testimony that a number of survey monuments and markers already exist in Block 54 (although no corner markers for Lot 32), it should be possible by use of measurements from the known monuments and markers to resolve the boundary issue as a matter of law. See generally Akin v. Godwin, 49 So. 2d 604, 607 (Fla. 1950); Tyson v. Edwards, 433 So. 2d 549 (Fla. 5th DCA 1983). In other words, by utilizing a survey or surveys containing the correct legal description, and by locating the existing monuments and markers in Block 54, it appears likely that the claimed boundary conflict will disappear. Any issue regarding the fifty-foot strip and the location of Fourth Avenue affects only the plaintiff's abutting property, not the interior lot owners. See Akin, 49 So. 2d at 607. We reject the defendants' remaining points on appeal without discussion. For the stated reasons, [**11] we reverse the partial final judgment and remand the [*1149] cause for further proceedings consistent herewith. Page 32 of 57

33 Page 33 of 57

34 KRISTIE KNERR, Plaintiff and Appellant, v. PAULA A. MAULDIN et al., Defendants and Respondents. B COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DIS- TRICT, DIVISION SIX 2006 Cal. App. Unpub. LEXIS 6749 August 2, 2006, Filed [All cases have been modified from the original] NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPI- NIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977. OPINION BY: PERREN This is a boundary dispute between neighbors Kristie Knerr and Paula Mauldin and Mauldin's successors-in-interest, Lucio Oliviero and Lana V. Mackahan. n1 Mauldin was the prevailing party below. The parties offered conflicting expert testimony on which of two surveys the trial court should use in resolving the dispute. We conclude that the determination [*2] is one of fact and that the trial court's finding in favor of Mauldin is supported by substantial evidence. We affirm. n1 During the pendency of this litigation, Oliviero and Mackahan purchased Mauldin's interest in her property. For convenience, we refer to respondents collectively as "Mauldin." FACTUAL AND PROCEDURAL BACKGROUND In August 2001, appellant Kristie Knerr purchased several lots in a subdivision known as the Chatsworth Lakeview Annex (subdivision). One of her lots, lot 214, is adjacent to and west of respondent Mauldin's lot 203. Mauldin purchased lot 203 and other lots in the subdivision in The description of the properties in Knerr's and Mauldin's deeds is by reference to a map prepared in 1926 creating the subdivision (1926 map). It shows that the subdivision contains 569 parcels, most of them 70 feet wide by 100 feet long. The subdivision's southern boundary is the Los Angeles-Ventura county line. At the time she purchased the property, Mauldin had a survey done by a licensed surveyor, [*3] South Bay Engineering Corporation (South Bay). Mauldin constructed a fence on the boundary between lots 203 and 214 and made several other improvements consistent with South Bay's survey. n2 n2 The parties disagree whether the fence is exactly on the boundary shown on South Bay's survey. This disagreement is not material to our decision and will not be discussed further. At the time Knerr purchased lot 214, Mauldin's fence was in place as constructed in Knerr apparently accepted Mauldin's fence as the eastern boundary of lot 214. Based on the location of Mauldin's fence, Knerr began constructing a fence on what she understood to be the western boundary of lot 214 in October Shortly after construction began, her neighbor to the west, Mr. Smoghi, told Knerr that her fence encroached 20 to 30 feet onto his property and asked her to remove it. He based this contention on a survey prepared by a licensed surveyor. Page 34 of 57

35 Knerr hired her own surveyor, Stephen Hughey, to survey the property. In October 2002, [*4] Hughey prepared a survey showing that Knerr's fence encroached approximately 10 feet onto Smoghi's property. Hughey's survey also showed that Mauldin's fence encroached 10 feet onto Knerr's property. Based on Hughey's survey, Knerr relocated the fence between her and Somagi's lots approximately 10 feet to the east. Knerr informed Mauldin that her fence encroached 10 feet onto Knerr's property and asked Mauldin to relocate the fence. Mauldin refused. Knerr filed a complaint for quiet title, trespass, and injunctive relief against Mauldin. During a four-day bench trial, the trial court heard expert testimony from Hughey, as well as Dr. Howard Turner and Terrence O'Neill, all licensed land surveyors. n3 n3 The testimony of the parties and other lay witnesses will not be summarized here as the only testimony relevant to the issue before us is that provided by the expert witnesses. (See Lentell v. McBride (1936) 7 Cal.2d 263, ) The qualifications of the expert witnesses were not disputed by the parties; therefore, we will not unnecessarily lengthen this opinion by including their curriculum vitae. [*5] Knerr's Evidence Hughey testified he started his survey at a monument labeled "S-10" as shown on the 1926 map. That monument was to the east and outside the subdivision, but Hughey used it as a starting point "because it's the only monument[] that can be shown without a doubt to have been perpetuated by records from various public agencies." Hughey testified he "follow[ed] the footsteps of the original surveyor" by following the courses and bearings on the 1926 map. He started with S-10, proceeded west to the southeast corner of the subdivision as shown on the 1926 map, and then continued west to the southwest corner of the subdivision. He stated the distances shown on the 1926 map for the southern boundary of the subdivision were correct. He used the proration method to determine the boundary between the Knerr and Maudlin lots. n4 n4 The "proration" method uses exterior boundary dimensions to equally distribute all east/west and north/south distances. It apportions any errors in dimensions equally among the lots in the subdivision. [*6] Hughey criticized South Bay's method of survey because "it found and established all the east/west locations of these lots on the basis of one monument." That monument was located in the interior of the subdivision at the northwest corner of lot 159. Hughey believed the lot 159 monument should not have been used by South Bay as a starting point because it was not set by the surveyor who prepared the 1926 map. Dr. Turner testified he reviewed the Hughey and South Bay surveys, the 1926 map and other surveys. He found the record distances shown on the 1926 map for the exterior boundaries did not close by 10 feet. He determined the error occurred in the east side of the subdivision, not on the west side where the Knerr and Mauldin lots are located, but could not find the exact location of the error. Dr. Turner said that the interior monuments in the subdivision, including the lot 159 monument, are "record monuments." He explained: "[T]ypically what happens is somebody accepts the pipe and somebody else accepts it and somebody else accepts it. If everybody accepts it and there [are] no problems, then it is a monument by reputation." Dr. Turner concluded that the boundary between [*7] lots 203 and 214 shown on South Bay's survey is 10 feet too far to the west of the record line shown on the 1926 map and that the boundary shown on Hughey's survey is three feet too far to the east. Page 35 of 57

36 Mauldin's Evidence Terence O'Neill testified he had recently prepared a survey of an area in the subdivision near the Knerr and Mauldin lots. He reviewed the South Bay and Hughey surveys, as well as those prepared by Charles Eades and Louis Zehfuss. O'Neill located a number of monuments Eades and Zehfuss had set in the interior of the subdivision. These monuments had been in the ground since the 1960's. Surveys prepared since then showed a "long-term acquiescence" in and a "definite pattern of respecting occupation" of these monuments by subsequent surveyors. O'Neill said that most surveyors after Eades and Zehfuss relied on the monuments they set. O'Neill did not give a lot of weight to the S-10 monument because it was more economical to measure from a monument that was closer to the area of the survey, here the lot 159 monument, rather than one further away, such as S-10. O'Neill testified that South Bay's method of occupying interior monuments placed by Eades and Zehfuss and harmonizing [*8] them is a proper method of survey and the one he would have used under the circumstances. O'Neill said South Bay's survey harmonized with the monuments set by Eades and Zehfuss and with other surveys of the area. He said South Bay's survey "meets the surveying standards as I have known for 45 years." The trial judge found that the boundary line established by South Bay's survey was the true boundary between lots 203 and 214 and denied Knerr all relief. Knerr's motion for a new trial was denied. In this appeal, Knerr asserts that a single issue of law is presented--which of the two conflicting surveys uses the proper surveying method to establish the true boundary between Knerr's lot 214 and Mauldin's lot 203. Mauldin asserts the issue is one of fact and the trial court's decision is supported by substantial evidence. An amicus curiae brief was filed on Knerr's behalf by the California Land Surveyors Association. DISCUSSION Knerr asserts that the location of a disputed boundary presents a question of law which receives de novo review on appeal. Mauldin contends the issue is one of fact governed by the substantial evidence standard of review. Knerr cites no authority supporting [*9] her assertion that a boundary line dispute presents an issue of law. In fact, longstanding precedent consistently treats the issue as one of fact. (See, e.g., Miller v. Cuelho (1891) 90 Cal. 549, 552 [rejecting argument that which of two conflicting surveys established actual boundary line is a question of law]; Kraemer v. Superior Oil Co. (1966) 240 Cal. App. 2d 642, 646, 49 Cal. Rptr. 869 [determination of whether fence encroaches on neighboring property is a question of fact]; Luginbuhl v. Hammond (1960) 179 Cal. App. 2d 350, 355, 3 Cal. Rptr. 582 [issue of which of two conflicting surveys conformed to established legal principles is one of fact, not law]; Spear v. Smith (1958) 161 Cal. App. 2d 744, 748 [in boundary disputes, true location of survey of tract of land is question of fact].) We review the trial court's findings to determine whether they are supported by substantial evidence. Under this standard, "we are not called upon to say whether the testimony of plaintiff's experts would have supported a conclusion in favor of his theory, but to determine whether there is any substantial support for the [*10] adverse finding of the court." (Golden v. City of Vallejo (1919) 41 Cal.App. 113, ) The appellate court has no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences that may be drawn from that evidence. (See, e.g., Dalusio v. Boone (1969) 269 Cal. App. 2d 253, 260, 75 Cal. Rptr. 287 [in boundary dispute, weight of the evidence and credibility of surveyors are exclusively within the province of the trial court and binding on appeal].) Page 36 of 57

37 Knerr asserts that Hughey's method of survey is the only proper method because he used as a starting point a monument shown on the map creating the subdivision and incorporated by reference into the parties' grant deeds. We disagree. Hughey's survey method may be acceptable where there are no interior monuments of record. Here, such monuments do exist. Mauldin's expert testified that surveys were done by Eades and Zehfuss in the 1960's. They set monuments marking the corners of interior lots near to lots 203 and 214. Knerr's own expert, Dr. Turner, acknowledged that the interior [*11] monuments used by South Bay were monuments of record. Where, as here, there is an established interior monument near the lots being surveyed, it is that monument that should be used. (See, e.g., State of California v. Thompson (1971) 22 Cal. App. 3d 368, 379, 99 Cal. Rptr. 594 ["Although respondent contends that [appellant's surveyor] ought to have commenced his survey from the east in order to literally 'follow in the footsteps' of [the original surveyor], this argument is without merit. A survey from the nearest established corner is least liable to error"].) "[W]e find nothing in the record or in the arguments of counsel which would entitle us to question the trial judge's proper application of accepted rules or precedent in analyzing the proof and in properly evaluating it. In a specialty field such as land surveying a trial court is entitled to rely heavily upon the opinions and supporting reasons given by the experts who testified and unless the conclusions reached by the court are palpably erroneous they must be accepted by a reviewing court." (Kraemer v. Superior Oil Co., supra, 240 Cal. App. 2d at p. 648.) The judgment is affirmed. [*12] Respondents shall recover costs on appeal. PERREN, J. We concur: GILBERT, P.J. YEGAN, J. Page 37 of 57

38 Page 38 of 57

39 RAPIDES PARISH POLICE JURY VERSUS GRANT PARISH POLICE JURY COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT (La. App. 3 Cir. 02/22/06); 924 So. 2d 357; 2006 La. App. LEXIS 299 February 22, 2006, Opinion Rendered FACTS AND PROCEDURAL HISTORY [All cases have been modified from the original] ********** Pursuant to Act 82 of March 4, 1869, the Louisiana legislature created Grant Parish out of the southern part of Winn Parish and the northern part of Rapides Parish. The language of Act 82 describes the boundary between Winn and Rapides parishes as a line that begins in the west "at a point on Red River where the Daro empties into said river." From this point, the line then runs east to "the point where Little River empties into Catahoula Lake." The current difficulty lies in the fact that [*361] the Red River at the western terminus point has changed its course over time resulting in different intersection points with Bayou Darro. Notwithstanding, the western terminus has changed little since the creation of Grant Parish. [Pg 3] The major point of contention in this litigation involves the eastern terminus. The difficulty here arises in the fact that Catahoula Lake at the eastern terminus point is an ephemeral lake that swells at times and dries up completely at times, and the Little River does not empty into the lake, but rather cuts through the lake bed. Therefore, the Little River appears to empty into Catahoula Lake at different locations [**5] at different times depending on rainfall and the level of the water in the lake. There was no map attached to or referenced in Act 82 of The current litigation involves three different positions for the parish line. The most northerly line is the existing line, advocated by Rapides Parish and the Town of Ball, and will be referred to herein as the USGS Line, or The Quad Sheet Line, or the Line of Acceptance. The middle line will be referred to as the Bringhurst Line. The most southerly line, advocated by Grant Parish, will be discussed as the 1838 GLO Line. In 1869, when Grant Parish was created at the request of local citizens of Winn Parish and Rapides Parish, the new parish initially had no legislative body, no police jury, and no parish surveyor of its own. At that time, Captain R. W. Bringhurst was the Rapides Parish surveyor, and he remained so until the early 1900's. Captain Bringhurst generated a parish map between 1871 and 1875 that appears to most accurately depict the new parish line as described in Act 82 of That line is now being called "The Bringhurst Line." The Bringhurst map was reportedly used continuously by both Grant Parish and Rapides Parish until [**6] some time between 1930 and At some time around 1940, the east end of the Bringhurst parish line was shifted northerly by about 1,600 feet as depicted by cartographers, resulting in its modern portrayal on parish maps prepared by the Louisiana Department of Highways and the United States Geological Survey (USGS) quadrangle maps (quad sheets). No explanation has been given for this northerly shift except perhaps the current [Pg 4] knowledge that the perception of the eastern terminus changed with the con- Page 39 of 57

40 dition of the Catahoula Lake bed. However, this USGS or Quad Sheet Line has been used continuously for approximately 60 years by both parishes in all official respects; and has been used repeatedly and without exception by Grant Parish's own surveying firm for this litigation, Pan American Engineers (PAE), in the preparation of the firm's many maps and surveys. In 1946, the police juries of Grant Parish and Rapides Parish took official action to certify this common boundary line. More specifically, on May 11, 1946, Grant Parish, by unanimous resolution, certified the boundary as portrayed on Louisiana Department of Highway maps. Three days later, on May 14, 1946, Rapides Parish [**7] passed a similar resolution. The certified boundary in the Louisiana maps coincides with the United States Government Quadrangle maps, which have been used by both parishes, and is now being called the "Line of Acceptance." In 1947, both police juries created parish planning boards, declaring and filing these maps as their official parish maps, and using identical transmittal letters to the State. Article 6, Section 1 of the 1974 Louisiana Constitution ratified the boundaries that were previously certified by the resolutions [*362] of both parishes. That section reads, in part, as follows: (A) Parishes and Boundaries Ratified. Parishes and their boundaries as established on the effective date of this constitution are recognized and ratified. (B) Creation; Dissolution; Merger; Boundaries. The legislature by law may establish and organize new parishes, dissolve and merge parishes, and change parish boundaries if approved by two-thirds of the electors in each parish affected voting thereon at an election held for that purpose. There is no evidence of an attempt at any time to change the parish boundary by two-thirds vote. [Pg 5] In 1997, the Grant Parish Police Jury, [**8] asserting apparently for the first time, that the boundary line was never definitively established, passed an ordinance "to ascertain and fix the boundary line which is common to both Grant and Rapides Parish," pursuant to the provisions of La.R.S. 50:221, which delineate the procedural steps to be taken when fixing parish boundaries. Grant Parish appointed Pan American Engineers ("PAE") to survey the common boundary line and served Rapides Parish with notice of its intent to fix the boundary. Grant Parish did not attempt to survey and fix the boundary as it existed on the modern USGS Quadrangle Maps since the 1940's. Nor did Grant Parish attempt to fix the boundary as it existed on the Bringhurst Map. Rather, Grant Parish relied on an ancient map plotted over a twenty-five year period beginning in 1813 and ending in This map, called the GLO (General Land Office) township plat, was approved in 1842, twenty-seven (27) years before the creation of Grant Parish in 1869, and is at the core of the dispute. It depicts a crude gooseneck-shaped structure, similar to a horizontal "S," projecting from west to east far out into Catahoula Lake. This map also depicts [**9] the Little River following the curve of the structure, more or less dead center in the gooseneck, and shows the Little River emptying out of the mouth of the gooseneck into Catahoula Lake, significantly south of the boundary certified in 1946 and ratified in Accordingly, Grant Parish surveyed a parish line based upon the gooseneck structure depicted in the 1838 GLO Plat. The Grant Parish survey, based upon the 1838 GLO Plat, moved the east end of the existing boundary line south by over a mile, and the west end of the boundary line south by about 750 feet. This change would reallocate 12,000 acres of land containing schools, subdivisions, family homes Page 40 of 57

41 and commercial enterprises to Grant Parish. Rapides Parish asserts that the change would also increase tax revenues for Grant Parish in excess of $ 1,000, per year. Testimony indicates that if the [Pg 6] parish boundary is changed to correspond with the Bringhurst Line which lies between the current line and the line urged by Grant Parish, Rapides Parish will lose approximately 3,000 acres of land and 465 residential properties. Rapides Parish asserts that, while the boundary line was never definitively established [**10] by conjoint survey on the ground, the boundary had never been disputed since the creation of Grant Parish, and that Grant Parish's current motivation for "fixing" the boundary is nothing more than a land grab to increase its tax revenues. Rapides Parish appointed Frank Willis as its surveyor, and asserts that he appeared at the designated time and place to begin the surveying efforts. Rapides Parish further asserts that Grant Parish and PAE began their survey work based upon a preconceived and erroneous premise, and for this reason a conjoint survey was not possible. Grant Parish asserts non-cooperation [*363] by the Rapides Parish surveyor. In any event, the two surveyors did not agree on methodology and worked independently of each other. In preparation for trial in November 2002, the trial court issued pre-trial and scheduling orders setting cutoff dates and procedures, including procedures for the voluntary and agreed-upon exchange of written export reports disclosing all opinions to be expressed at trial. At an August 2, 2002 status conference, the trial court learned that some Grant Parish experts had failed to submit comprehensive reports regarding their opinions. In reviewing [**11] the reports submitted, the trial court found them to be in violation of the pre-trial orders, and limited those experts to testify only as to the information in their reports. Grant Parish appealed, and this court and the Louisiana Supreme Court affirmed the trial court ruling on that issue. On August 22, 2002, asserting gross errors, misleading statements, and the use of improper methodology in the Grant Parish survey, Rapides Parish filed a motion in limine to exclude the original PAE survey of Grant Parish. In October [Pg 7] 2002 the trial court continued the hearing on the motion in limine specifically deferring the hearing to the trial on the merits. 2 2 The trial court in its forty-three page Reasons for Judgment inadvertently stated that the motion in limine sought to exclude the revised survey due to improper methodology and untimeliness. However, the motion addressed the original survey, and was based upon improper methodology. In September 2002, due to the errors in its original survey, Grant [**12] Parish submitted a revised boundary retracement survey. However, the trial court excluded the revised survey as being offered too late under the court's scheduling order. This court denied the writ application filed by Grant Parish on this issue, as did the Louisiana Supreme Court. On November 12, 2002, on the first day of trial, Rapides Parish reurged its motion in limine to exclude the original PAE survey and accompanying testimony and exhibits, arguing improper methodology and failure to meet minimum standards in the preparation of the survey. After a two-day hearing, during which all three of the PAE surveyors, their party chief, and an expert in survey methodology, standards and procedures were examined, the trial court ruled in favor of Rapides Parish. Grant Parish immediately applied to this court for emergency supervisory writs. Finding no showing of irreparable harm, this court denied writs on this issue on November 14, 2002, but allowed Grant Parish to proffer the survey and accompanying exhibits for consideration on appeal. Page 41 of 57

42 After a trial on the merits, lasting approximately two weeks, during which testimony was given by approximately forty witnesses, either live or by [**13] stipulation or deposition, and well over two hundred exhibits were examined, the trial court took the matter under advisement. The trial court produced an extremely comprehensive analysis of all of the issues. The trial court rendered judgment in favor of Rapides Parish and the Town of Ball, and judicially established the parish [Pg 8] boundary line as the line surveyed by expert surveyor Frank Willis, essentially re-establishing the line of the existing USGS Quadrangle Maps, also known as the Quad Sheet Line, also known as the Line of Acceptance, as the official parish boundary. The boundary description ruled upon by the trial court reads as follows: Commence at a point located at latitude 31 degrees 23 minutes seconds north, longitude 92 degrees 37 minutes [*364] seconds west, said point marking the point of beginning. From point of beginning, run northeasterly to the eastern terminus, said terminus having a latitude of 31 degrees 28 minutes seconds north, longitude 92 degrees 11 minutes seconds west. The line described hereinabove is a grid line based upon the Louisiana State Plane Coordinate system, North Zone. The geographic coordinates [**14] of the end points of the line are based upon the North American Datum of For the reasons discussed below, we affirm. LAW AND DISCUSSION [**16] Legislative Intent ********** Grant Parish contends that "the trial court erred in failing to adopt as its analytical framework in this case its duty of determining legislative intent in the adoption of the legislative act creating Grant Parish, Act 82 of 1869." We disagree. After listening to ten days of trial testimony and reviewing approximately [*365] 235 exhibits, the trial court issued an extremely comprehensive analysis of the intent of the legislature in creating Grant Parish in On the first page of its lengthy Reasons for Judgment, the trial court delved into the history of Act 82, and continued to provide an exhaustive analysis of legislative intent, as follows: Historical Summary The Louisiana Legislature on March 4, 1869 by Act 82 created Grant Parish. The newly created parish was formed from parts of Rapides Parish and Winn Parish. The [Pg 10] language of Act 82 describes the boundaries of Grant Parish as follows: Commencing at a point on Red river where the Daro empties into said river, and thence running east to the point where Little river empties into Catahoula Lake; thence up Little river to the junction of the Castor and Duddemonia, thence west on [**17] the southern boundary of the parish of Winn to the range line between ranges numbers two and three west, thence south on said range line to the township line between townships numbers eight and nine north, thence west on said township line to where Page 42 of 57

43 said line crosses the Rigolet de Bon Dieu; thence down said Rigolet de Bon Dieu to the mouth of Cane river, thence down Red river to the point of starting, the mouth of the Daro. According to the report of Thomas Howell, Ph.D., the head of the history department at Louisiana College, at the time that Grant Parish was created, the original idea of prominent local citizens was to create a new Parish out of south Winn, east Catahoula, and north Rapides Parishes. This new parish was to be called Red River Parish and the courthouse was to be located in the Town of Montgomery. William Calhoun, a debt-laden local plantation owner and member of the legislature, sabotaged this plan. Mr. Calhoun changed the original legal description of the new parish before it was accepted by the Louisiana legislature so that his plantation (now the Town of Colfax) would be the parish seat. Mr. Calhoun also changed the name of the new parish from Red River [**18] to Grant Parish..... The Legislative Act The pertinent part of the legislative act that defines the common boundary between Grant Parish and Rapides Parish provides: Commencing at a point on the Red river where the Daro empties into said river, and thence running east to the point where Little river empties into Catahoula Lake;... thence down Red River to the point of starting, the mouth of the Daro. [Pg 11] The starting point of the court's analysis is the interpretation of this part of the act. The court is of the opinion that the clause italicized above is vague and ambiguous, both in its description of the western terminus and in its description of the eastern terminus of the parish boundary, making the boundary subject to differing interpretations.(emphasis in original). The trial court then discussed the ephemeral nature of Catahoula Lake and the failure of Act 82 to "define at what stage Catahoula Lake was intended to be at the time the boundary was established." The trial judge continued his analysis: The legal description in Act 82 did not reference a map and all efforts to find any map or cartographic depiction indicating [**19] the intent of the legislature were without success. LSU Professor Ernest [*366] Easterly, Ph.D., attorney and geographer, testified of his exhaustive search of the Louisiana legislative records, the National Archives and other records in an effort to find references to a map or other evidence of the legislative intent. Frank Willis, land surveyor and civil engineer, testified to an exhaustive search of the records of Grant and Rapides Parishes, the LSU libraries, the Louisiana State Land Office and other potential sources for any evidence of a map that might have been attached to Act 82. Their search failed to produce any such evidence. In fact, their search failed to locate the original petition submitted to the legislature. However, various newspaper articles published around the time of the creation of Grant Parish, together with the 1927 affidavit of Jonathan I. McCain, point to the establishment of Grant Parish as a local idea. The report of Dr. Thomas Howell on the history of the creation of Grant Parish supports the idea that local individuals established the line for local purposes, political, economic, and/or personal. Additionally, since the parties in- Page 43 of 57

44 volved were local, almost certainly [**20] with continuing political ambitions, Dr. Howell opined that the parties would be more likely to draw a line that would cause as little disruption and local discontent as possible. Splitting settled areas where property was already in private hands would not likely please the owners. Lastly, Dr. Howell opined that it is more likely than not that William Calhoun (and his friend Governor Warmouth) had reason to make the new parish exclusive rather than inclusive. As a result, Calhoun would have been less likely to choose a line with Rapides Parish that would have included in Grant Parish a number of additional property owners at least some of who [sic] [Pg 12] would be less likely to oppose anything Calhoun wanted. To support this idea, Dr. Howell notes that the new parish was significantly smaller than the originally proposed "Red River" Parish. Not only was some of the Winn Parish testimony [territory] left off but also all of the Catahoula Parish territory was omitted. Whether the line with Rapides Parish was different between the "Red River" and the Calhoun proposals is unknown. However, Calhoun clearly intended to create in Grant Parish an entity that he could control politically. [**21] Other than evidence of various newspaper articles and personal accounts supporting the idea that the establishment of Grant Parish was a local idea, there is virtually no evidence in the record of legislative intent. As noted above, the parties were unable to locate evidence that a map was attached to the original legislation and were, in fact, unable to locate the original petition submitted to the legislature. Evidence of the journals of the House and Senate of 1869 for the legislative history of Act 82 was not submitted. From the scant evidence of legislative intent available for consideration, the court accepts the testimony of Dr. Thomas Howell, Ph.D. as summarized above, and concludes that the legislature would have been more likely to have intended to exclude territory from Grant Parish than to have included it. In previous cases involving boundary disputes where the court is called upon to interpret a statute defining a parish boundary, the courts have looked to historical evidence in the form of maps drawn near the time of the creation of the new parish. While map compilers can not legally fix or establish any boundary other than that defined and called for by the [**22] act, the courts have given import to the maps drawn by the map makers of the time, stating "when [*367] they marked and fixed the line on these maps..., they must have had good reason to believe that they were doing what the legislature intended them to do." St. Martin Parish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So. 2d 671[, 679] (La. 1947). The court then outlined the cartographic inaccuracies in specific maps entered into evidence, and stated that the ambiguities in the statute caused map makers great difficulty. The court discussed the work of expert surveyor, Frank Willis, and his discovery of a map depicting the parish line after much research and investigation in the files of the State Land Office in Baton Rouge: [Pg 13] It was prepared by Captain R.W. Bringhurst who served as Rapides Parish surveyor (and a civil engineer) before, during and after the creation of Grant Parish. According to testimony, this map was probably prepared before 1869, and updated sometime between 1871 and 1875 to add demographic data for the new shape of Rapides Parish and to add the parish line common to Rapides and Grant. Frank Willis tes- Page 44 of 57

45 tified that [**23] the Bringhurst map, although not a survey, was invaluable to his work in determining the location of the boundary in part because the Bringhurst map showed natural monuments of both the west and east end of the parish line as they existed around 1869 near the time of the creation of Grant Parish. Both Frank Willis and Ernest Easterly, III, expert geographer, testified that Captain Bringhurst, as a reputable parish surveyor for Rapides Parish both before and after the formation of Grant Parish, was probably the most competent contemporary cartographer for determining the parish boundary. The trial court continued analyzing legislative intent, providing exhaustive detail regarding the western terminus, where Bayou Darro emptied into the Red River, and the eastern terminus, where the Little River "emptied into" Catahoula Lake. With regard to the western terminus, after hearing expert testimony from Rapides Parish surveyor for this litigation, Frank Willis, and expert hydrologist, Dr. Paul Kemp, the trial court concluded that "the western terminus of the boundary line dividing Grant and Rapides Parish as defined by the legislative act is that point where the thread of Bayou Daro [**24] meets the mean low water line of Red River." The Rapides Parish surveyor, Frank L. Willis, is a registered professional civil engineer, registered professional environmental engineer, and registered land surveyor in Louisiana who has taught engineering courses at LSU in statics, hydraulics, elementary and advanced surveying, and engineering graphics. Mr. Willis testified regarding the swift currents and erodible alluvial soil in the Red River flood plain. His knowledge of the Red River was impressive and went beyond his professional credentials, as Mr. Willis testified that his firm did the hydrographic surveying on the Red River for the U.S. Army Core of Engineers on a navigation [Pg 14] project for two years. Mr. Willis also testified that he is from Boyce, Louisiana; he grew up on the Red River and personally witnessed the River move from 1966, when he was in high school, until the year Mr. Willis testified that he physically walked and "hacked" the 27-mile parish line from Boyce to the Catahoula Lake. The court assessed first-hand Mr. Willis' methodology and his conclusions that between 1938 and 2000, the Red River moved more than 3000 feet, and the mouth of Bayou Daro [**25] moved north as the river changed course. The trial court also heard the testimony of Dr. Paul Kemp, [*368] Ph.D., who is a hydrologist and associate professor with the LSU School of the Coast and Environment. Dr. Kemp's testimony substantiated Mr. Willis' opinion that the Red River had moved in a northeast direction since The trial court detailed the tools and techniques that Mr. Willis used to determine the location of Bayou Daro in 1869, including the location of natural monuments, the GLO survey of 1850, and a survey map of James O'Shee, Deputy Parish Surveyor in In his impressively comprehensive survey report, Mr. Willis stated that he also used the Bringhurst map because it was a "contemporaneous document" that directed him to the natural monument, the mouth of Bayou Darrow; he stated that it was just as valuable as an actual field survey. Also in his survey report, Mr. Willis includes an excerpt from a legal description he found in the Partition of the Bush-Darro Plantation, an estate located on the Red River at the "mouth of Bayou Darro" in the 1800's. Mr. Willis further stated in his survey report: Page 45 of 57

46 Grant Parish surveyors involved in this litigation did [**26] not find the O'shee map and the Bush Partition located in the records of the Grant Parish Clerk of Court. Therefore, they did not find a tie point close by. The Grant Parish Surveyors surveyed from a reference point 7.3 miles away using 1850 GLO field notes and assumed that the bearings and distances shown in the GLO notes were perfectly accurate - something [that is] simply not true. [Pg 15] In his survey report, Mr. Willis stated that because the Red River bank of 1850 had been washed away by the extensive movement of the river, he could not physically retrace the exact steps of the 1850 GLO surveyor, except to enter the bearings and distances he recorded. However, he did locate objects on the ground in the field and correlate them with monuments in the surveys. At one stage of the survey process while correlating a geo-referenced 2000 infrared image with the maps and surveys from the 1800's, Mr. Willis reported with great enthusiasm of noting a ridge or "different thermal return" and excitedly going out in the field in the rain and finding the ridge "right in the middle of O'Shee's line." Mr. Willis testified in detail regarding numerous specific, and sometimes "astounding, [**27] " correlations that he made during his survey. Mr. Willis found textual evidence in O'Shee's 1893 survey that O'Shee had readily seen and used the 1850 GLO corners and lines. This was significant to him. This meant that he could tie O'Shee's 1893 map to the 1850 GLO survey, compare the location of the mouth of the Darro in 1850 with its location in 1893, and after great amounts of study and research using many disciplines, calculate the movement of the river and establish the location of the mouth of the Darro in His tools included the civil engineering principles of river hydraulics, advanced photogrammetric techniques, aerial photographs taken over a sixty-two year period, orthorectification and georeferencing processes, precisely scaled map overlays, and state of the art Global Positioning Systems with a precision more accurate than one inch in one hundred miles. Mr. Willis ultimately tied all of his work to the Louisiana State Plane Coordinate System. In the final analysis, in spite of the movement of the Red River and the excavation of it by the Army Core of Engineers, Mr. Willis reported that the western terminus had remained essentially the same as it was in [**28] [Pg 16] With regard to the eastern terminus, the trial court discussed the testimony of [*369] Dr. Ernest Easterly, III, LSU Professor and geographer, regarding the legislative definition of the eastern terminus, "the point where Little River empties into Catahoula Lake." Dr. Easterly had previously studied Catahoula Lake and had written a scholarly paper on the ephemeral nature of the lake. He referenced the conflicts in historic maps and the confusion and misunderstandings regarding a temporary lake generally formed during flood times. Dr. Easterly testified that the Little River passes through the Catahoula Lake Basin, becoming a mere channel within the lake when the basin fills with water. Dr. Easterly further observed that Little River formed an actively accreting lacustrine delta, building upon the bed of Catahoula Lake. This delta extended along the course of Little River over the basin floor advancing farther into the lake since 1812, and changing surface locations since the time of mid-nineteenth century surveys. Dr. Easterly opined that the "chicken neck" structure shown in various maps is located in the lake bed, and that early geographers did not understand the uniqueness of an [**29] ephemeral lake and its changing nature. Dr. Easterly's expert opinion was that Little River could be said to "empty" into Catahoula Lake at its high water stage, at the thirty-six foot contour. Page 46 of 57

47 Expert surveyor Frank Willis provided extensive testimony at trial and via his eighty page survey report regarding his search for legislative intent in the eastern terminus. In his report, Mr. Willis explained that the hydrology and topography of Catahoula Lake are different from the same features on normal lakes that maintain a fairly constant water level. He stated that when Little River is within its banks it runs all the way through the Catahoula Lake bed and exits on the east side of the lake. When Little River exceeds its banks, it spreads out to form Catahoula Lake. Catahoula Lake is an ephemeral lake, normally dry for part of the year and at [Pg 17] full bank level or higher during other times depending on the levels of outfall streams and the flooding conditions in the rivers downstream. Mr. Willis also explained levee formation in the Catahoula Lake bed. Thin ridges run along the edges of Little River for its full route through the lake basin all the way to the point where the [**30] river exits the lake. These ridges are called natural levees, and are formed when the river floods over its banks and slows down, dropping its sand and silt load. This sediment forms higher ground along the edge of the river, the natural levee. These natural levees are readily visible today. The tops of the levees get lower very gradually as they progress out into the lake. They drop in elevation only about one foot per mile. Consequently, a rise in the water level of only one foot will inundate an additional mile of the natural levee. The natural levees along Little River are inundated regularly. Mr. Willis determined that "the Bringhurst map shows the most authoritative, contemporaneous, accurate and locally accepted definition of the point where the Little River emptied into Catahoula Lake in 1869 when Grant Parish was created." The Bringhurst map depicted the Little River delta extending out into Catahoula Lake when the lake is at a stage below the ordinary high water line. The 1838 GLO Plat relied upon by Grant Parish was also rendered during a low-water survey. By comparing the Bringhurst map, which by all indications was made around 1869, with the 1838 GLO Plat relied upon [**31] by Grant Parish, and with an 1884 GLO Map by a surveyor known to Mr. Willis to be very reputable, Mr. Willis discovered many inaccuracies in the 1838 GLO survey. [*370] For example, Mr. Willis determined that the true shoreline of Catahoula Lake was not far out on the low water delta as shown in the 1838 GLO Plat, and that the Little River was not in the location depicted in the 1838 GLO Plat. Subsequently Mr. Willis proved that the Little River, unlike the Red River in the western terminus, [Pg 18] had not moved over time. Mr. Willis found that the Bringhurst map actually depicted two outlets of the Little River emptying into Catahoula Lake during low water levels, indicating that Bringhurst actually walked on the low water delta and personally observed the first outlet into Catahoula Lake. While the second outlet was not shown on the 1838 GLO Plat, Mr. Willis found remnant evidence of the outlet on a 1994 Quadrangle Map of Holloway, Louisiana, thereby confirming his assessment of the Bringhurst Map and the unreliability of the 1838 GLO Plat. Mr. Willis testified at trial that the maps relied upon by Grant Parish do not accurately depict the proper location of the gooseneck structure, [**32] or the "S" curve of the Little River and its delta, which is what this court understands the gooseneck structure to be. Mr. Willis stated that the water levels on the natural levee on the river delta could have confused the original 1838 GLO surveyor. The flat longitudinal slopes of the natural levees, and a one foot rise or fall in the lake would inundate or expose almost a mile of natural levee thereby shifting the 1838 GLO surveyor's definition of the mouth by that much. Mr. Willis stated that if one combines the flat longitudinal slope of the natural levees with the GLO surveyor's lack of long-term knowledge of this ephemeral lake and his lack of civil engineering training, it is easy to see how he could Page 47 of 57

48 have erroneously determined the location of the lakeshore in 1838 during a low-water survey. Mr. Willis further stated that a one foot change in the water level of the lake can shift the location of the water's edge on the Little River Delta by about 4,000 feet. He stated that this phenomenon is one of the primary reasons that the courts have repeatedly ruled that lakes themselves are natural monuments and are the boundary, not the GLO meander lines. In the case of Catahoula [**33] Lake, the problem is complicated by daily water level fluctuations as well as the fluctuations from 1838 to 1869 when Grant Parish was created. Mr. Willis provided comparative sketches [Pg 19] of the lake bed and surrounding vegetation and wildlife during different water level stages which were very helpful in understanding how natural changes, lack of knowledge, and imprecise equipment, can undermine the integrity of a survey. Mr. Willis testified in great detail as to how he and other Rapides Parish experts were able to establish through scientific analysis and aging of cypress trees that the Little River had not moved in its approach to Catahoula Lake since prior to Rapides Parish introduced the report of Joy Young, Ph.D., a dendroecologist who specializes in physiology and the aging of cypress trees. Dr. Young obtained core samples of the cypress trees along Little River in the area of Catahoula Lake. Her report demonstrated the existence of cypress trees, hundreds of years old, in the same location that the 1838 GLO surveyor placed the Little River, and where Grant Parish surveyors purportedly "retraced" it. The subject cypress trees, which were individually identified, [**34] tagged, and aged, cannot germinate in water, and therefore could not have existed in the channel of the Red River in the 1800's. The findings of Dr. Young were corroborated by the testimony of Lewis Peters, a prominent forester. By scaling the true location of Little River and the placement of it in the [*371] 1838 GLO survey, Mr. Willis stated that the error exceeds the GLO minimum requirements. After evaluating all of the evidence, the trial court stated that the ephemeral nature of Catahoula Lake was not a recognized fact until Drs. Russell and Brown completed and published an important study in 1942 establishing that in 1812, when Louisiana gained statehood, the shoreline of Catahoula Lake has a thirty-six foot contour. This corresponds with a 1942 survey plotted by Heard and Daigre for the Carter Oil Company, and with evidence established by the State of Louisiana, and correlates with the line depicted by Bringhurst, and the personal observations of Mr. Willis in the field. [Pg 20] The trial court also stated that it was cognizant that Act 82 was passed in March of 1869 when the Catahoula Lake is normally at its high water stage. That indicates to this court that the Little River [**35] delta, or the gooseneck structure, in the lake bed would have been under water, and that Little River would appear to "empty into" the Catahoula Lake at a much more northerly location than that depicted by the 1838 GLO Plat relied upon by Grant Parish. Additionally, the court found no convincing evidence that the legislature considered the GLO maps in creating Grant Parish. Ultimately the court found the arguments of Grant Parish to be unpersuasive that the eastern terminus--where Little River "emptied into" Catahoula Lake--was located at or near the gooseneck or chicken neck structure. The court concluded that "the boundary line, including the western terminus and eastern terminus points, originally depicted by Captain R. W. Bringhurst and surveyed by Frank Willis makes the most reasonable argument to the Court that this is the boundary line intended by the language of Act 82 of the Louisiana Legislature in 1869." Page 48 of 57

49 Based upon the foregoing, and our review of the record and the many exhibits, we believe that the trial court conducted an exhaustive search for legislative intent, completely fulfilling its duties in that regard. We also believe that the trial court was correct in its [**36] determination that the legislative act creating Grant Parish was ambiguous, susceptible to speculation, doubt, and multiple interpretations dependent upon whether Catahoula Lake was considered at its high, medium, or low water mark. Accordingly, we find no error in the trial court's continuing its analysis beyond the search for legislative intent, particularly given the facts of this case which is before us 136 years after the legislature created the boundary, and given the intervening historical events, enactments, and changes in the law that have affected this boundary in the last 136 years. [Pg 21] Exclusion of the Original Grant Parish Survey Grant Parish asserts that the trial court erred in excluding the Grant Parish survey and related exhibits and testimony in a hearing on the day of trial where the survey was necessary for the determination of the legislature's intent in its description of the parish boundary line in Act 82. As a threshold matter, Grant Parish complains of surprise and implies unfair surprise regarding the Daubert-type hearing on the first day of trial. However, the record reflects that there was no unfair surprise in the court's actions. [**37] More specifically, Rapides Parish filed an August 2002 motion to exclude the Grant Parish survey based upon misrepresentations and the use of improper methodology in the preparation of the survey by Grant Parish surveyors. Subsequently, the trial court [*372] continued the hearing on the motion and specifically stated in its October 2002 order that "the Rapides Parish Police Jury shall have the right to reurge this motion at trial on the merits." Accordingly, on the first day of trial on November 12, 2002, Rapides Parish reurged its motion. Because this right was specifically referred to the trial on the merits, and because it is logical that a motion to exclude evidence would be heard at the very beginning of trial, prior to any attempts to introduce the opposed evidence during trial, there is no justification for a party to complain of surprise in this case. We find no abuse of discretion with regard to the trial court's decision to grant the motion to exclude the survey. The hearing on the survey lasted two days. The Grant Parish survey was conducted by the firm, Pan American Engineers (PAE), and all three of the surveyors of that firm who had affixed their seals to the PAE survey testified [**38] at the hearing. Evidence adduced revealed that the errors in the survey run the gamut from form to substance. Surveyors Thomas C. David, Jr., William J. Wood, and Jerry W. Boswell all signed and affixed their professional seals to the PAE survey, and each one admitted that he had failed to designate the specific [Pg 22] subject matter in the survey for which he was responsible. Such designation is a requirement under the rules and regulations governing licensed surveyors, pursuant to Section 2505(C) of those rules, where more than one surveyor affixes a professional seal to a survey. Mr. David admitted that he had not reviewed certain field notes or performed closure calculations before signing and affixing his seal to the survey. In fact, no closure calculations were done at all in the original survey. Mr. David admitted that closure calculations were a mathematical test to determine whether or not your extended traverse lines meet standards or whether they require adjustments. Mr. David admitted that closure calculations are an essential part of the survey, and must be done before the survey is completed and signed and sealed because the signature and seal certify that the survey [**39] is accurate and meets minimum standards. Page 49 of 57

50 Testimony and evidence at the hearing revealed errors in the survey in depicting both the eastern and the western ends of the common boundary line between Grant Parish and Rapides Parish. The western terminus of the boundary line involved the search for the point where Bayou Darro emptied into the Red River, and in more modern terms that location is in the vicinity of Township 5 North, Range 3 West. At the hearing, Mr. David stated that Bayou Rigolette was depicted on the PAE survey because it was believed to be a tie, that it crossed two section lines and the surveyors were trying to tie it in and use it as a reference to a section corner. However, the PAE survey contained contour lines depicting the Bayou Rigolette running over the top of a 130 foot hill. When asked how this was possible, Mr. David stated that, "it is not surprising to find a GLO plat showing a stream and when comparing to current locations to be off." He further stated, "Now, if it is for some reason mis-plotted, all we'd have to do is take the GLO plat, compare it to that and say is it mis-plotted or not." He stated that the lines were not meandered but just [Pg 23] sketched [**40] in. The end result is that the survey apparently had unexplained ambiguities and credibility problems. Rapides Parish posed the valid question to Mr. David regarding the accuracy of the entire survey if the tie points are "just as accurate" as Bayou Rigolette running over 130 foot tall hills. Rapides Parish further took issue with the PAE depiction of Bayou Darro, an [*373] important natural monument in determining the western terminus of the common boundary line. Specifically, the PAE survey shows Bayou Darro narrowing from 150 feet in width to 50 feet in width in only one half of a mile as it approaches the Red River. Accordingly, Rapides Parish asked how a water course can reduce that much in width in that short a distance and still carry the same amount of water. Additionally, the GLO field notes described Bayou Darro as being 264 feet wide, not 50 feet wide, at the same point. Ultimately, Mr. David explained that he believed that the GLO surveyor measured on the diagonal. The practice of measuring on the diagonal was questioned by Rapides Parish. Notwithstanding whether this was or was not an accepted practice, the end result is that the PAE survey did not clarify this point and rendered [**41] a water course with impossible dimensions as it flowed toward another body of water, with both bodies of water having important significance to the current litigation. With regard to the eastern terminus which involves the search for the point where the Little River "empties into" Catahoula Lake, when asked about the PAE survey's plotting of the course of the Little River in a particular section, Mr. David admitted: "As plotted from the DO - GLO plat for this township, Township 6 North, Range 3 East. The - it does show a connection over here in the Township 6 North, Range 2 East, but I know that is not correct." When asked whether the river existed as depicted in the survey in Range 2 East, Section 24, Mr David admitted: "It's - it is not an accurate representation of Section 24." Mr. David further admitted [Pg 24] that the survey contained "graphic misrepresentations" of the Little River in that area, and the plotting did not follow the GLO field notes in that township. 4 4 It is worth noting at this juncture that the PAE survey depicted with pink dotted lines, a second course for the Little River, showing it as having moved over time, which was convincingly refuted at trial by Rapides Parish experts. [**42] Also in the eastern terminus, which is where the largest discrepancy exists between the two parishes' assertions, the PAE survey depicts the edge of Catahoula Lake extending to the extreme northeast corner of Section 20 of Township 6 North, Range 3 East, a point that Rapides Parish asserts is fifty-two feet above sea level. Mr. David agreed with testimony that his survey depicted the lake at thirty-five feet mean sea level, and depicted the eastern terminus point where the Page 50 of 57

51 Little River empties into the lake at twenty-nine feet mean sea level. At the hearing, Rapides Parish asked, and Mr. David responded, as follows: Q. It's all here at one time and place, it's at 35 feet mean sea level, the eastern terminus point's at 29 feet and the northeast corner is at 52 feet. How can that be possible? A. Changes of terrain, changes of time, and I didn't make no statement of the correlations of elevations, I - I don't know what that means. Ask your experts, I don't know." Q. You don't understand your survey plat, do you? A. I'm not involved in horizontal elevations ordered, I - I mean vertical - I was involved in horizontal distances.... During his testimony, Mr. [**43] David admitted that he did not know how to work a computer or cad equipment. He further admitted that he did not consider elevations and could not explain the anomalies in the survey, but stated that he did understand the concept of water seeking its own level. He stated that he was not asked to [*374] go out there and figure elevations and had no idea what the correlations [Pg 25] between the three different elevations meant to his survey, which he stated was "a retracement survey." However, when asked whether they had meandered courses and followed the footsteps on the ground of the original GLO surveyor, which methodology is required in a "retracement" survey, the Grant Parish surveyors admitted that they had not. The hearing transcript contains approximately seventy pages of detailed examination of the three Grant Parish surveyors by Rapides Parish, regarding the specific surveying techniques used, and relating their testimony to their own survey and exhibits in evidence in open court. At the conclusion of the examination of each surveyor by Rapides Parish, and upon tender of each, essentially the only question asked by Grant Parish of its own surveyors was, "what is your degree of [**44] competence [confidence] in the survey meeting its stated goal." The recited goal was to equate legislative intent with the gooseneck peninsula shown on the 1838 GLO plat, and each surveyor simply stated that he felt he had met that goal. No attempts were made by Grant Parish to rehabilitate the damaging testimony regarding the mistakes marked on the survey in open court, or to address the specifics of the methodology used in preparing the survey, or to refute the negative evidence adduced by Rapides Parish. Following the testimony of the three PAE surveyors and their crew chief in the field, expert testimony at the hearing indicated that the PAE survey was not what it purported to be, "a retracement survey," because proper methodology was not followed in rendering the survey. More specifically, the PAE surveyors entitled their survey a Retracement Survey, and their Proces Verbal stated that, "The meandered courses and distances were tied to section corners and therefore could be reasonably reestablished utilizing survey retracement techniques to in effect follow the footsteps of the original surveyor. By retracing the meander lines, we could re-establish the location where the Little [**45] River emptied into Catahoula Lake." However, the [Pg 26] testimony of the surveyors demonstrated that the meander lines were not retraced on the ground by following in the footsteps of the original surveyor, but rather were mathematically calculated in an office using computers. Hollis Glenn Kent, Jr., attorney and licensed surveyor, former Assistant Attorney General, former Director of State Lands Office, and current Executive Secretary for the Louisiana Professional Engineering and Land Surveying Board which regulates engineers and land surveyors, was admitted Page 51 of 57

52 as an expert and testified regarding the rules and regulations, minimum standards, and professional rules of conduct governing surveyors. Mr. Kent was also involved in retracing the 31st parallel in the Florida parishes, which around 1800 was the boundary along the flat part of the boot of Louisiana above Bogalusa. Mr. Kent testified that retracement surveys should be done in the field and on the ground. He testified that he reads the above description of the work done in the PAE Proces Verbal to mean that the courses and distances were actually physically tied to section corners, and that "retracement techniques" require [**46] that the lines be run physically on the ground. Mr. Kent further testified regarding the importance of following the footsteps of the original surveyor as much as possible, so that as one moves down the line with his field notes, one finds as much evidence as possible to prove that the original lines and corners are being surveyed. He testified that it is important to look for bearing trees, witness trees, soil types, dig for [*375] stumps, locate old mounds, or broken glass or burned charcoal once used as markers in old surveys. He further testified that if a house has been built, one obviously cannot go through it, but one goes around it and tie other markers in and move on down the line. He stated that if that work was not done in a retracement survey, the survey would not meet minimum standards. [Pg 27] Mr. Kent was questioned about numerous specific statutes in evidence, including La.R.S. 37:681 et seq., of Chapter 8, Professional Engineering and Professional Surveying, and various sections of Title 37, regarding professional and occupational standards for professional engineers and land surveyors. He testified that based upon the omissions and misrepresentations [**47] reportedly contained in the PAE survey, the work done could fall under the statutory definitions of misconduct, incompetency, and even fraud. Accordingly, where the trial court heard first hand the testimony of the Grant Parish surveyors, and watched them mark their errors on the PAE survey in open court, we must affirm its finding that the PAE survey was not what it purported to be and could not be relied upon to accurately depict rivers and lakes and their interaction with each other in 1869 or now. In Safeco Insurance Co. of America v. Chrysler Corp., , pp (La.App. 3 Cir. 7/31/02), 834 So. 2d 1026, 1035, where an electrician identified pine straw as electrical wiring in a photograph, this court articulated the standard for expert testimony and evidence as follows: We have adopted the standards set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which regulate the admission of "scientific" testimony. In that case, the Supreme Court stated that the gatekeeping function of the trial court requires it to assess, among other things, the [**48] "reliability" of the methodology or formulation upon which the expert's opinion is based. The reliability of a non-scientist expert's testimony, when it is not formulated on a scientific research, is still judged using the Daubert standard. The Supreme Court has recognized such in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). We have also recognized such in Darbonne v. Wal-Mart Stores, Inc., (La.App. 3 Cir. 11/2/00), 774 So. 2d Thus, the trial court's gatekeeping obligation applies to testimony based on "technical" and "specialized" knowledge. Id. In Kumho, 526 U.S. at , 119 S. Ct. at 1171, the Supreme Court stated: [Pg 28] The test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every Page 52 of 57

53 case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. The trial court's inquiry must be tied to the facts of the particular case. Id. The abuse [**49] of discretion standard applies to the trial court's ultimate conclusion as to whether to exclude expert witness testimony and to the trial court's decisions as to how to determine reliability. Id. In this particular case, the proposed expert testified that he identified four photographs as representative of other causes of the fire. He proclaimed that one such cause was an electrical short emanating from the kitchen. However, he identified pine straw in the photograph as the electrical component that [*376] shorted out. Clearly, the factual basis for Mahl's testimony, that the fire did not originate in the van, was called into question. While it is true that it is the trial court's prerogative to allow the jury to weigh the witness's testimony, in light of a misidentification of electrical wiring, such a blatant misidentification, which the defendants refer to as a "mistake," does not only address the credibility of the witness, but the very foundation for the testimony his proponent seeks to enter into evidence. Since the cause and origin of the fire is the central issue of this case, we cannot say the trial court abused its vast discretion in excluding this witness as unreliable. [**50] Safeco Ins. Co. of America, 834 So. 2d at (alterations in original). Similarly, in the present case, where the survey is offered to show where one body of water met another body of water in 1869, and the proper methodology for such a survey was not followed, and the survey is not what it purports to be, the trial court did not abuse its discretion in excluding that evidence as unreliable based upon the methodology employed by Grant Parish's surveyors. Nor can we give credence to the argument by Grant Parish that the survey, which failed to meet the minimum standards requirements for surveys, should [Pg 29] have been admitted for the limited purpose of proving legislative intent. We fail to see how a faulty drawing, determined to be misleading and misrepresentative of where major markers are on the ground, can be used to show the location of the markers that the legislature was pointing to in Where Grant Parish has made the "gooseneck" configuration the central issue in its argument for locating the parish boundary intended by the legislature in 1869, but the gooseneck was not referenced by the legislature in 1869, and the gooseneck was drawn [**51] in 1999 using faulty data, the survey cannot be relied upon to show legislative intent. Moreover, the faulty new survey was purportedly based upon an ancient survey created over thirty-one years before the Act of 1869 was drafted, and the trial court found no evidence that the underlying survey was used by the legislature or referenced or connected in any manner to the Act of In fact, the trial court rejected this premise, which will be specifically addressed in the section below addressing the separate error urged by Grant Parish on the weight given the 1838 GLO survey. ********** Page 53 of 57

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