WHATLEY v. BEAUGH (2021)

I respectfully dissent. While I recognize that the burden of proof is on the Beaughs in this matter, that burden is to show more likely than not that they own a majority of the acreage in the subdivision. Here, the survey of the subdivision divides the land into five (5) lots. It shows that four (4) of the five (5) lots contain 5 acres “more or less” and that one lot, Lot 5 owned by the Beaughs, contains 21.52 acres “more or less.”

The only direct evidence on whether Lot 5 contains a majority of the acreage of the subdivision is the testimony of Mr. Harry Shaheen who, according to the proposed majority opinion “agreed that the acreage designation for each lot are approximate, but pretty accurate, and that it ‘seems’ Lot 5 comprises a majority of the land in the subdivision.” The record is devoid of any evidence contradicting Mr. Shaheen's view and devoid of any evidence suggesting that Lot 5 does not constitute a majority of the land in the subdivision.

In my view, the “more or less” disclaimer on each property description cuts both ways, and, under the evidence in the record before us, the only conclusion is that Lot 5 does contain a majority of the acreage in the subdivision. As such, I would find that the Beaughs did carry their burden of proof and would reverse.

Saunders, J., dissents and assigns written reasons.