PARSLEY v. McCAULEY
FLOYD PARSLEY; DELORES PARSLEY; AND PARSLEY REVOCABLE TRUST APPELLANTS,
v.
LEROY B. McCAULEY APPELLEE.
No. 2009-CA-000454-DG.
Court of Appeals of Kentucky.
October 29, 2010.
Michael D. Triplett, Erlanger, Kentucky, Brief for Appellants.
Sam W. Arnold, III, Cynthiana, Kentucky, Brief for Appellee.
Before: CAPERTON and COMBS, Judges; LAMBERT,1 Senior Judge.
OPINION
CAPERTON, JUDGE.
The Appellants, Floyd and Delores Parsley, appeal the November 21, 2008, order of the Harrison District Court, following a trial of the same date, which was ultimately affirmed by the Harrison Circuit Court in an order entered on February 10, 2009. Therein, the court held that the fence between the property of the Appellants and the Appellee, Leroy B. McCauley, was not a lawful fence and must be removed, with each party assuming half of that responsibility, and further set forth the boundary lines and guidelines under which new fencing was to be constructed. Following a review of the record, the arguments of the parties, and the applicable law, we remand this matter to the circuit court with instruction to vacate the order of the Harrison District Court.
The Parsleys and McCauley own farms that border each other at the east-west and north-south boundary lines near Cynthiana in Harrison County, Kentucky. After studying the deeds of his property, as well as the properties of his neighbors on both sides of Gray's Run Pike, Floyd Parsley determined that the fences on these boundaries encroached on his property. Parsley commenced to move the fences between the properties, and placed rock, dirt, and other material against a second portion of the division line fence. This resulted in a dispute with McCauley about the placement of the fences.
Both McCauley and Parsley had licensed surveyors survey the properties. The surveyors placed markers where they determined that the boundary between the properties should be. According to Parsley, those surveys essentially established the boundaries in the original position which Parsley disagreed with prior to building the fence. Parsley refused to move the fence he had constructed. This eventually led to an action in Harrison District Court filed by McCauley for the purpose of determining the propriety of the established fences.
McCauley filed the action under the Kentucky Boundary Line Fence Act, set forth at KRS 256.030 and KRS 256.042. Following a bench trial on November 14, 2008, the trial court issued an order establishing the east-west and north-south boundary lines between the two properties based upon testimony and surveys by licensed surveyors who had surveyed the properties, and set standards for the type of fence to be constructed. As noted, the court ordered that the fences constructed by Parsley be removed, and that the boundaries be re-established in accordance with the court's order.2
Parsley appealed to the Harrison Circuit Court, which affirmed the trial court's order on May 12, 2009. Parsley then sought discretionary review from this Court on March 12, 2009, asserting that the district court did not allow Parsley himself to testify, but instead heard testimony from expert surveyors on both sides, which placed the boundary lines of the property at issue contrary to what was set forth in Parsley's deed. Parsley thus asserted that the court's order, based upon the opinion of the surveyors, lessened his acreage and qualified as a taking of his property without due process or just compensation.
Discretionary review was granted, and this Court's motion panel reversed and remanded to the circuit court on June 29, 2009, with the directive that it vacate the order of the district court due to lack of subject matter jurisdiction. McCauley then moved this Court for reconsideration of that order, asserting that portions of the order of the district court which were vacated, specifically the portions concerning the labor, debris removal, and materials to be utilized for the construction of a boundary line fence, as well as the obligations of the parties with regard thereto, were within the jurisdiction of the district court.
This Court granted Parsley's motion for reconsideration on December 30, 2009, and ordered that the previous order of June 29, 2009, issued by its motion panel be withdrawn. In addition to the issues presented to the circuit court for review, this Court ordered the parties to brief the issue of the district court's subject matter jurisdiction. We now address these issues herein.
On appeal, Parsley makes one argument, namely, that neither the Kentucky Boundary Line Fence Act, nor any other circumstance gave the Harrison District Court subject matter jurisdiction to change the boundaries of the two properties at issue in the matter sub judice. In so arguing, Parsley relies primarily upon KRS 24A.120(1), and upon the opinions issued by this Court in Coffey v. Kehoe Rock and Stone, LLC, 270 S.W.3d 902 (Ky. App. 2008), and Emmons v. Madden, 781 S.W.2d 529, 530 (Ky. App. 1989).
While Parsley acknowledges that KRS 256.030 and KRS 256.042 give the district courts of the Commonwealth jurisdiction over the maintenance and construction of fences between properties, he asserts that such authority does not extend to the movement of boundary lines between properties. He notes that KRS 24A.120(1) specifically excludes "matters affecting title to real estate" from the jurisdiction of the district court.
PARSLEY v. McCAULEY
FLOYD PARSLEY; DELORES PARSLEY; AND PARSLEY REVOCABLE TRUST APPELLANTS,
v.
LEROY B. McCAULEY APPELLEE.
No. 2009-CA-000454-DG.
Court of Appeals of Kentucky.
October 29, 2010.
Michael D. Triplett, Erlanger, Kentucky, Brief for Appellants.
Sam W. Arnold, III, Cynthiana, Kentucky, Brief for Appellee.
Before: CAPERTON and COMBS, Judges; LAMBERT,1 Senior Judge.
OPINION
CAPERTON, JUDGE.
The Appellants, Floyd and Delores Parsley, appeal the November 21, 2008, order of the Harrison District Court, following a trial of the same date, which was ultimately affirmed by the Harrison Circuit Court in an order entered on February 10, 2009. Therein, the court held that the fence between the property of the Appellants and the Appellee, Leroy B. McCauley, was not a lawful fence and must be removed, with each party assuming half of that responsibility, and further set forth the boundary lines and guidelines under which new fencing was to be constructed. Following a review of the record, the arguments of the parties, and the applicable law, we remand this matter to the circuit court with instruction to vacate the order of the Harrison District Court.
The Parsleys and McCauley own farms that border each other at the east-west and north-south boundary lines near Cynthiana in Harrison County, Kentucky. After studying the deeds of his property, as well as the properties of his neighbors on both sides of Gray's Run Pike, Floyd Parsley determined that the fences on these boundaries encroached on his property. Parsley commenced to move the fences between the properties, and placed rock, dirt, and other material against a second portion of the division line fence. This resulted in a dispute with McCauley about the placement of the fences.
Both McCauley and Parsley had licensed surveyors survey the properties. The surveyors placed markers where they determined that the boundary between the properties should be. According to Parsley, those surveys essentially established the boundaries in the original position which Parsley disagreed with prior to building the fence. Parsley refused to move the fence he had constructed. This eventually led to an action in Harrison District Court filed by McCauley for the purpose of determining the propriety of the established fences.
McCauley filed the action under the Kentucky Boundary Line Fence Act, set forth at KRS 256.030 and KRS 256.042. Following a bench trial on November 14, 2008, the trial court issued an order establishing the east-west and north-south boundary lines between the two properties based upon testimony and surveys by licensed surveyors who had surveyed the properties, and set standards for the type of fence to be constructed. As noted, the court ordered that the fences constructed by Parsley be removed, and that the boundaries be re-established in accordance with the court's order.2
Look here as I screwed up due to length
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20KYCO%2020101029252.xml&docbase=CSLWAR3-2007-CURR
And Parsley's attorney's 3 children will be attending Wharton and Bryn Mar solely on income garnered from abovementioned legal actions.
It is amazing to me just how much money people will spend on a matter of their "pride" while completely ignoring the relative cost of agreeing instead of fighting in court.
I've spent time in court twice over such pettiness being turned into lengthy battles. In one case, the adjoiner had intentionally gone onto his neighbor's property to cut and trim large oak trees that he felt were harming his property. My primary purpose was to provide testimony that every tree involved was entirely on the tract owned by the injured party. No tree was partially or completely owned by the one doing the cutting. Thus, the full list of damages would apply for compensation. My client won the verdict, but, received maybe one-third of what he spent by suing the overbearing neighbor.
Tain't all blue grass in Kentucky
Thank God we don't allow for budgetary review in all actions.
I guess we should let some people go if it's gonna cost too much to bring them to justice.
Let 'em have your property if they want it, 'cause it'll cost too much to stop 'em.
Like hell.
