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03/17/95 BILLY AND LORRAINE HALL v. CLARA HARVEY

March 17, 1995

BILLY AND LORRAINE HALL
v.
CLARA HARVEY



Appeal from Franklin Circuit Court. (CV-93-275). John D. Jolly, TRIAL JUDGE.

Rehearing Overruled April 21, 1995, . Certiorari Denied July 21, 1995.

Crawley, Judge. Robertson, P.j., and Thigpen, Yates, and Monroe, JJ., concur.

The opinion of the court was delivered by: Crawley

CRAWLEY, Judge

This is a boundary line dispute filed in December 1993 by Mrs. Clara Mae Harvey against Billy Hall and his wife, Lorraine Hall.

Following an ore tenus proceeding, the trial court entered a judgment for Mrs. Harvey. The Halls appealed, raising the sole issue of sufficiency of the evidence to support the judgment. We affirm.

Mrs. Harvey testified to the location of the disputed parcel by reference to "a real rough sketch here on the board" drawn by her attorney. That sketch is not in the record. When Mrs. Harvey and her husband purchased their land in 1981, an old fence existed between their property and the property purchased by the Halls in 1988. Mrs. Harvey's husband and daughter pulled the fence down in 1985, so that her husband could cross over to what later became the Halls' property to help the owners, then the Campbell family, with a garden. At that time, the Campbells and the Harveys recognized the location of the fence as the property line between their properties.

After the Halls purchased their parcel, Mrs. Harvey gave the Halls permission to take down her fence to allow a mobile home to be towed across her property onto the Halls' property.

This dispute arose after the Halls erected a fence that cut off a road to Mrs. Harvey's barn and prevented her from putting hay in the barn. Later, the Halls constructed a road and a new fence on land claimed by Mrs. Harvey. The construction of the new fence, which was directly above Mrs. Harvey's water line, caused Mrs. Harvey's water line to be cut in several places. She had to relocate her water line.

Mrs. Harvey identified four small photographs of her garage, a shed, the new fence, and a mobile home on the other side of the new fence. However, the points on the photographs referred to are not sufficiently identified to aid this court in interpreting her testimony about the location of the new fence.

Mrs. Harvey remembered when the boundary line was surveyed around 1967 or 1968 and when the old fence was erected after the survey. She considered the old fence to be on the property line.

Mrs. Harvey had her property surveyed in 1991; the surveyor placed four fence posts and told her these posts were along the dividing line. He told Mr. Hall that the fence post he erected near Mrs. Harvey's garage was at the corner of the Halls' property. Mrs. Harvey did not accept this line because the survey did not extend to the end of her property or to the point where the old fence was located.

Mrs. Harvey's daughter, Mrs. Louise Murray Myers, testified that the old fence was there when her parents purchased the property and that she was present and assisted when her father took down the old fence. She said the fence was taken down so that her father could help the Campbells with their garden. She was told by the Campbells that the fence was located according to the survey they had done.

Mr. Ben Engle testified that he had owned his property for 30 to 35 years and had built a house on it in 1968. His property apparently adjoined Mrs. Harvey's property and the Halls' property. He had never heard anyone dispute the location of the property line. He said that since he had purchased his property, the coterminous owners had claimed up to the ...


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