United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, District Judge.
This matter is before the Court on Plaintiff Armstrong Coal Company's ("Armstrong") Motion for Summary Judgment [DN 41] and Motion to Exclude Testimony from Keith Biggerstaff [DN 42]. Fully briefed, these matters are ripe for review.
This case involves a dispute over a piece of land claimed by two parties, Armstrong and Blackburn. The disputed land, located in Ohio County, Kentucky, lies between tracts of land owned by the Plaintiff and Defendants in this case. Defendants obtained their property, which lies to the west of the disputed property, by a deed in October of 2000, which describes three contiguous tracts of land known as the Price/Cox Property. Plaintiff obtained its property, situated east of the disputed land, by deed from the Cyprus Creek Land Company in March of 2011.
Blackburn first asserted a right to the disputed property following a 2008 survey of his land conducted by Keith Biggerstaff. The survey, based solely on the Price/Cox deed, identified two parcels of land, Tract I and Tract II, as belonging to Defendants. [2008 Survey, DN 1-3, at 2]. Tract I and Tract II consist of 58.648 acres and 35.720 acres, respectively. Id . After receiving the completed survey of the land, Blackburn contacted Biggerstaff to inform him that he believed that the eastern boundary of his property extended beyond what was shown on the 2008 survey. At Blackburn's insistence, Biggerstaff surveyed the property again in 2010 and this time the survey included the area that Blackburn said belonged to him. Biggerstaff labeled this area Tract III on the new survey and provided a note concerning the tracts of land depicted in the plat. The note stated as follows:
THE ABOVE TRACT I AND TRACT II ARE PART OF THE THREE COMBINED TRACTS (LESS WHAT HAS BEEN SOLD OFF) TO GEORGE BLACKBURN RECORDED IN DEED BOOK 327, PAGE 389 AS OF RECORD IN THE OFFICE OF THE OHIO COUNTY COURT CLERK.
TRACT III IS CLAIMED BY GEORGE BLACKBURN AS PART OF THE ABOVE TWO TRACTS, NO DEED FOUND.
[2010 Survey, DN 1-4, at 2]. Blackburn subsequently recorded the survey with the Ohio County Clerk's Office.
Plaintiff Armstrong's special warranty deed obtained from Cyprus Creek details an acquisition of multiple tracts of land in Ohio County. At issue in this case is the tract identified as "Tract 17" in the deed. [Special Warranty Deed, DN 1-5, at 5]. The deed obtained from Cyprus Creek does not provide a legal description of the land other than the acreage for each tract. Following the purchase of the land from Cyprus Creek, Armstrong's land manager, Dennie Grider, visited the disputed property and noticed survey pins and a hunting stand around the area. After discovering these items on the property, Grider proceeded to check the public records and found the 2010 plat showing Tract III. As a result, Plaintiff Armstrong commenced this action on August 8, 2012 for the purpose of seeking a declaration of ownership as to Tract III.
For the purposes of this litigation, Armstrong retained two experts, Duncan Pitchford and Ronald Bacon. Pitchford prepared Plaintiff's title examination which shows an unbroken chain of title back to two land patents. Based on the title search, Pitchford opined that "[a]t no point in the record chain of title do Mr. Blackburn, or any of his predecessors in title, have any record claim to [Tract III]." [Pitchford Report, DN 41-21, at 4]. Additionally, Pitchford explained geographic contours of Tract III as follows:
The Property lies along a line commonly referred to in the records of the Ohio County Clerk as the "Travis" line or "Travis's line", but in actuality, is the "traverse line" lying between two original land patents granted by the Commonwealth of Virginia for contributions to the Revolutionary War effort. The Addington family's chain of title carries forward, uninterrupted, from a division of one of these original land patents, a 9270 acre survey for Jacob Lewis dated November 8, 1785, with the [northwest] corner of the Addington Property being the northeasterly corner of the original land patent; the dividing line between the Addington Property the balance of the property owned by Blackburn, et al. (shown as Tracts I and II on the Plat) being the traverse line.
Id. Defendant's title expert, Septtimous Taylor, similarly concluded that "the west boundary of the Plaintiff's (Addington's) tract is the Travis or Traverse line'...." [Taylor Report, DN 47-26, at 5].
Plaintiff Armstrong retained its second expert, Ronald Bacon, to opine concerning the physical location of the "traverse line." Although Bacon did not actually conduct a survey of Armstrong's property, he examined the area in dispute and used old maps of the area to determine where the "traverse line" would be today. From this examination, he found evidence of monuments, including a large stone and an old fence, which he believes correspond to physical markers of the "traverse line" described in the older deeds for Armstrong's property. Bacon also noted that these monuments which show the location of the "traverse line" were found within what he believed to be the pins placed by Biggerstaff during the 2008 survey of the Defendant's property. Bacon asserted that the location of the pins further evidence the fact that Biggerstaff had correctly identified Defendants' boundary in the 2008 survey.
Biggerstaff, who was later retained as an expert for Defendants, reviewed Bacon's report on the boundary lines. While Biggerstaff maintains that the Price/Cox deed clearly only conveyed Tracts I and II to Blackburn, he found some problems with the methodology and assumptions made by Bacon. Specifically, Biggerstaff stated that "Mr. Bacon errored ( sic ) when he ignored the natural monuments (on the East side of a caney ridge) and chose a point in the Matanzas Road (West side of said ridge) and used two different bearing rotations in locating the West boundary of the 9728 acre tract." [Biggerstaff Report, DN 47-25, at 5]. In addition to commenting on the ...