from Jackson Circuit Court (CV-07-152)
Power Company ("Alabama Power") appeals the
judgment entered by the Jackson Circuit Court ("the
trial court") establishing a boundary line between
adjoining properties owned by Alabama Power and Ray Keller.
On appeal, Alabama Power contends that the trial court should
have applied the legal principles of adverse possession
rather than the principles applicable to boundary-line
disputes, that the trial court erred in establishing the
boundary line, and that the equitable doctrine of unclean
hands barred Keller's claims. We do not find grounds to
reverse the judgment, and, therefore, we affirm the judgment.
and Procedural History
28, 2016, the trial court entered a judgment that describes
in detail the procedural background of the case, the areas in
dispute, and the claims of the parties. A portion of the
"First and foremost, this is a land line or boundary
line case. This case also requires the court to consider
claims, counterclaims, or issues concerning statutory,
prescriptive, and/or hybrid adverse possession.
"The disputed real property boundary in this case is
located in Tate's Cove, a narrow, remote, picturesque
valley branching off Big Coon Cove in Jackson County,
Alabama. [Keller's] property is more than 700 acres and
is almost completely surrounded by [Alabama Power's]
holdings of more than 15, 000 acres. The properties feature
mountains, boulders, hollows, draws, sinks, diverse plant and
animal life, caves, creeks, wildlife, cultivated lands,
evidence of human habitation and use, and timber lands--all
the flora, fauna and terrain typical of the Southern
"The complaint was filed June 26, 2007. Therein, Ray
Keller asked the court to 'judicially determine and
declare the common boundary line between the parties.'
Doing so is not a task the court takes lightly. The
seriousness of this undertaking caused the court to view the
property on three separate occasions. ...
"The parties share about four and one-half (4.5) miles
of common boundary and about one and one-half (1.5) miles of
that common boundary is in dispute. The disputed portion will
be determined in this case. The court has walked the majority
of the area where the common boundary is in dispute,
particularly in the most rugged and mountainous areas where
driving is impossible. The court, riding with counsel on
three occasions, has driven on or in the vicinity of the
remainder of the disputed boundary where roads were
maintained and were passable. The court made a thorough
examination of the proffered boundaries on the ground.
"This is not the first occasion where the court has been
called upon to determine a boundary between adjoining
landowners with large, rural and remote holdings, but this
case stands out to the court due to the size and scope of the
undertaking and the fact that the first survey of the
property did not occur until 2006, was done in conjunction
with this litigation, and was done more than 60 years after
some of the land was first divided between Mr. Keller's
and Alabama Power's respective predecessors in title.
"At the same time, this case is similar to many that
come before the court, where historically observed and agreed
boundaries, crafted by lay persons and having withstood the
test of time, collide head-on with foreign, institutional, or
newcomer land owners unwilling to abide by the undisputed
boundaries of decades or centuries past. With the means to
employ survey crews and with access to modern equipment using
twenty-first century technology, disputes arise when the
current surveys do not correspond with the observed
boundaries of old. One neighbor, armed with his survey, wants
the boundary set to include every bit of ground his survey
reflects and is unwilling to yield. The other neighbor is
likewise unwilling to yield and insists that the historical
boundary be observed. Litigation follows in virtually every
instance, and so it is in this case.
"Initially, the case was tried ore tenus over a
three-day period, beginning October 3, 2011. ...
"On May 10, 2012, the court entered an Order in favor of
Mr. Keller on all claims and against Alabama Power on all
claims. Both sides filed post-judgment motions to, inter
alia, alter, amend or vacate the order. ...
"After briefing and oral argument, the court set aside
its order of May 10, 2012, in part, granted Mr. Keller's
Motion to Reopen the Evidence, and granted Mr. Keller's
Motion for an Additional View. The third all-day view
followed and additional evidence was received on January 27,
2014, and October 21, 22, and 23, 2014.
"... Now, the court must 'judicially determine and
declare the common boundary line between the parties' as
requested in the Complaint.
The Areas in Dispute ...:
"In fashioning this boundary, the court will necessarily
determine who owns some or all of the following areas in the
vicinity of the Eastern and Northern boundaries of Section
31, as well as in the Northeast Quarter of the Northeast
Quarter of Section 31.
"i. The lands West of the Cave Spring Branch in the
Northeast Quarter of the Northeast Quarter of Section 31
(Part of the 'Middle Disputed Parcel');
"ii. The lands that are East of the Cave Spring Branch
and South of a line that runs East from the 'Cable Anchor
Post' and/or 'Gate' and continues to the East
boundary of Section 31, as located and described by the Rymeg
drawing, including the Bubble-Up,  in the Northeast Quarter of
the Northeast Quarter of Section 31 (Part of the 'Middle
"iii. The lands that are South of the 'Old
Management Area Sign Line, ' including the Large Cave, as
the same runs West from Cave Spring Branch, up the mountain
and South of the Small Cave to the blazed tree, and along the
'Sign Line' until it terminates at the Painted Rock
Pile (The 'Northern Disputed Parcel'); and,
"iv. The lands West of the Creek in the Southwest
Quarter of Section 32--which includes the cultivated lands
(The 'Southern Disputed Parcel').
Claims and Contentions:
"For purposes of this case, both parties acquired their
properties in 1988.
"Plaintiff Keller claims a boundary based on a 1942 deed
in Alabama Power's chain of title and a 1953 deed in his
chain of title, as well as ownership and possession
consistent with that 1942 division at all times since. Both
conveyances are from the same grantors, Jim Davis and Anna
Davis, who were husband and wife.
"The 1942 deed in Alabama Power's chain includes
calls that are 'west to creek, 'up the Cave Branch to
the cave, ' 'along a blazed line, ' and 'all
lines or [sic] established by agreement with both partys
[sic].' The 1942 deed includes lands that are in the
Northeast Quarter of the Northeast Quarter of [Section] 31,
but not the entire Quarter-Quarter section.
"The 1953 deed in Mr. Keller's chain purports to
convey the Northwest Quarter of the Northwest Quarter of
Section 31, but includes specific calls that encompass a
larger area, including lands that are in the Northeast
Quarter of the Northeast Quarter of [Section] 31,
specifically: 'with a blazed line which is bounded on the
North by the property belonging to Frank Evans and running to
a blazed tree on top of the cave, ' 'south eastwardly
with the meanderings of the cave branch, ' 'west with
a line which is bounded on the south by the lands of T.R.
Allison, ' and 'North with a line which is bounded on
the west by the lands of T.R. Allison.'
"Mr. Keller claims that he and his predecessors in title
are the rightful owners of the disputed lands pursuant to the
original deeds, the agreed boundaries reflected in the 1942
and 1953 deeds, and ownership and possession since 1942 (at
the latest) even if the deeds in his chain are not artfully
crafted and do not always rightly describe the disputed
lands. Mr. Keller alternatively claims he owns the disputed
lands by adverse possession, during his ownership or prior to
his ownership by his predecessors.
"Mr. Keller claims that Alabama Power's deed to the
disputed areas in the Northeast Quarter of the Northeast
Quarter is color of title only based on the 1942 division of
the property and that Alabama Power has not adversely
possessed anything West of the Creek, South of the East-West
line above the Bubble-Up, or South of the Old Management Area
Sign Line to include the Big Cave.
"Alabama Power claims the boundary is a line painted by
Alabama Power in the 2000s and painted, at least in part, by
its predecessors in the early 1980s. The power company says
this boundary closely corresponds to what is conveyed on the
face of its 1988 deed and that it also closely corresponds to
the government survey line as shown by its 2006 survey of the
same. While the original deed in Alabama Power's chain
(the 1942 deed) does not convey the entire Northeast Quarter
of the Northeast Quarter of Section 31, a later deed in the
chain includes that entire Quarter-Quarter section.
Specifically, a 1959 deed from Frank Evans and Bessie Evans
to H.R. Campbell purports to convey the 'NE 1/4 of the NE
1/4 of Section 31 ... being all the land owned by the
grantors in Tate's Cove.'
"Defendant Alabama Power claims that it owns everything
conveyed or purported to be conveyed on the face of its deed
and that any title defect was remedied by statutory adverse
possession based on color of title and by assessing the
disputed lands for taxation in addition to satisfying the
traditional, common law elements of adverse possession.
"Alabama Power claims that Mr. Keller is not entitled to
prevail on a hybrid adverse possession theory because he
seeks too much of Alabama Power's property and, further,
that he cannot prove common law adverse possession or
statutory adverse possession because he cannot achieve the
twenty (20) year period required for the common law variety
and because he is not entitled to the shorter ten (10) year
period for statutory adverse possession because he did not
assess the land for taxation nor does he have color of title.
"Alabama Power additionally claims that Mr. Keller
cannot adversely possess lands that are leased to the State
of Alabama for the public's use."
judgment, the trial court described the testimony taken at
trial and its visits to the disputed boundary area. The
judgment extensively recounts testimony regarding markers,
monuments, landmarks, previous owners of the parties'
properties, and activities of people and organizations in the
area of the disputed boundary. The facts regarding the trial
court's determination of the location of the boundary
line are largely undisputed on appeal. The following portions
of the judgment are the descriptions of testimony relevant as
background information or pertinent to the issues considered
in this appeal:
"[Keller] called Bruce Allison. ... [Mr. Allison] said
that his father, Earl Allison, used to own 720 acres, the
same property which Mr. Keller now owns and/or claims. He
said that the farm of his grandfather, Thomas Russell (T.R.)
Allison, adjoined the subject property. In 1988, Earl Allison
lost the property to a mortgage foreclosure. The property was
sold at a 'courthouse sale, ' where it was purchased
by the State of Alabama. A very short time later, the
Plaintiff Ray Keller and his business partner, Billy Gordon
Sanders, acquired Earl Allison's right of redemption,
pursuant to former Ala. Code [1975, ] § 6-5-246 ....
"The Allison property was redeemed and conveyed from the
State of Alabama to Mr. Keller and Mr. Sanders by deed dated
June 13, 1988. ...
"[Norrell] Privett stated that he discussed the property
lines with both Earl Allison and Bruce Allison at the time he
cruised the timber. As the court understands it, the boundary
line Norrell Privett cruised in 1987 basically matches the
boundary shown on the hunting permit map issued by Earl
Allison to his hunters. Mr. Privett was shown Plaintiff's
Exhibit 5, a deed in the Allison-Keller chain dated January
8, 1953, from Jim Davis and Anna Davis to T.R. Allison. The
deed refers to the meanderings of the cave branch as being
the boundary line. Mr. Privett says that this 1953 deed
description matches what he observed as the boundary line in
"Gary Allen Nichols testified that he had leased the Big
Coon property from Mr. Keller since 2005 and that he was the
one who built the gate above the Bubble-Up ... in the spring
of 2006 and painted it yellow. He built it where the old gate
and cable were located, at the spot where there were old
State management area signs marking the line. Mr. Nichols
stated that he never hunted on the upper side of the gate
because 'it was wildlife management area land.'
Later, he discovered that the gate was removed, apparently
knocked down by a boulder pushed against it with a bulldozer
or other heavy equipment. That boulder was left in the road
to block it.
"Mr. Nichols testified that there are old signs all
along the route up the trail to the caves and that the club
members hunt up to the State signs, including during the most
recent hunting season. He stated that the old wildlife
management area signs were all the way to the caves and
testified that 'the big cave is on' Ray Keller's
hunting land. He said that at the end of 2006 someone took
down twenty or more of the wildlife management area signs and
stacked them at his hunting cabin. He said that he did not
know where they came from and had been unable to learn from
anyone else whence they came. Mr. Nichols said that he saw
the trees where the old signs were broken off and that some
of them could be matched up to the tree where they were
removed, like pieces of a puzzle. On cross examination he
said that he had never noticed the red paint which Defendant
Alabama Power says is its line until the boulder was used to
knock down the yellow gate and block the road. He also
admitted that he had never walked the whole boundary line
with Ray Keller or with anyone else.
"Scotty Fleming then testified for [Keller]. He is a
professional forester, the owner of Tri-State Timber Company,
L.L.C. and lives at Pisgah, Alabama. His main customer is the
Plaintiff Ray Keller. ... Mr. Fleming testified that no one
had told him about the red paint on the lines until he
discovered them himself and that he had seen no red paint
there previously. Mr. Fleming testified that he had moved the
boulders which were blocking the road and that the boulders
were located exactly where the red line came down to the
road. He said that he covered up approximately one mile of
the red painted line, because the red marks did not represent
what he understood was the true and correct line. He
testified that he assumed the hunting club had marked it, and
marked it erroneously. He believed that he was well within
his rights as Mr. Keller's representative and contractor
to remove what were erroneous boundary lines. Mr. Fleming
later returned and marked what he thought was the boundary
line. Now, upon further reflection, he believes the line he
painted was in error and is not the true boundary line,
"This testimony proves nothing other than why he should
not have painted over the old line in the first place.
Whether Mr. Fleming's changing boundary line beliefs are
sincere or unscrupulous is not known by the court. ...
"The Plaintiff's Exhibit 5, a deed from Jim Davis
and wife Annie [Davis] to T.R. Allison, dated January 8,
1953, describes the line as 'to a blaze tree line' at
the top of the cave and southeast with the meanderings of the
cave branch. Mr. Fleming believes this to be the true line.
Mr. Fleming further testified that when he obliterated the
red paint marks (which were apparently painted by Alabama
Power Company), that no old paint marks were present. He
insisted that he only painted what he knew were fresh paint
marks. He further testified that he would never paint over an
old line, but that he would paint over a new line that he
believed was erroneous. He stated that he would not remove a
historic line, [but] it never occurred to him to call Alabama
Power Company officials to discuss the fresh red painted line
or the gate being bulldozed down. He said that he thought
that these were acts of vandalism and the acts of a rogue
hunter, not the acts of Alabama Power Company. ...
"Thomas Cook testified for the Defendant Alabama Power.
He is a Biologist Aide Senior with [the Alabama Department of
Conservation and Natural Resources ('ADCNR')],
employed with it for twenty-seven years. He painted the
boundary lines of Holland Ware's property in 1983. He was
hired to do so by Wade Manning, an official with the ADCNR,
but was paid by Holland Ware individually. He testified that
he did not paint the west line of the Northeast Quarter of
the Northeast Quarter at that time. Instead, he painted the
west line of the Northwest Quarter of the Northeast Quarter
in Section 31, which is land owned by Mr. Keller now and, at
that time, his predecessors, the Allisons. While Mr.
Cook's testimony is confusing about exactly what he
painted and why, it is clear that he did not paint the
boundary advanced by [Alabama Power] in this case and that he
painted boundaries of lands that did not belong to his
employer, Mr. Ware, or his successor in interest, Alabama
"Mr. Cook stated that the line to paint was easy to find
and that no one objected to his painting the line where he
did in 1983. He said that in 2006, Frank Allen and Joe
Worthen painted the line again on behalf of ADCNR. He
referenced a 'turkey project' research conducted by
Auburn University to study and increase the wild turkey
population in the area. The turkey project lasted from about
1980 until 1987. He stated that the wildlife management area
staff maintained Tate's Cove Road down to the gate and,
in years past, maintained it below the gate, past the
Bubble-Up onto property claimed by Mr. Keller. ... Mr. Cook
testified that the red paint line that he made in 1983
includes the Bubble-Up as a part of the Alabama Power
"Mr. Cook also explained the methodology of placement of
Alabama Wildlife Management Area [('WMA')] signs on
trees. ... He testified that wildlife management area signs
are not always placed on property lines but are sometimes
placed along interior roads so that people will know that
they are on the management area. This testimony is important
because some signs placed along alternative boundaries for
the subject property are not in keeping with this Alabama
Power method of erecting signs. The strong implication is, of
course, that someone deceptively used management area signs
and red paint to mark a false boundary, a false boundary
which strongly favored Ray Keller's position in this
dispute and in this litigation. That 'someone' acted
on Mr. Keller's behalf to move the boundary is alleged,
but is not at all proven.
"Mr. Cook further testified that he had not observed the
red painted line being obliterated before the 'Bubble-Up
conference' with the parties and the attorneys in fall of
2006 (other witnesses testified that this meeting was in
February 2007). He said that no one ever showed him the buggy
axle and that he had never heard of it until this lawsuit.
Mr. Cook testified that there had been at least two gates
across the road at the Bubble-Up since 1984. He does not know
who tore down the yellow gate, but admits that he placed the
boulder there blocking the road at the direction of his
supervisor, Frank Allen.
"The Defendant next called G. Dwight Hawes [who] has
been a licensed land surveyor in Alabama since 1983 ....
"On the north line of the Quarter-Quarter section, Mr.
Hawes found, at the half mile marker, a rebar with plastic
cap bearing Jim Sentell's mark. Mr. Sentell, another
well-known Jackson County surveyor, set this monument in 2002
when he was performing work for Ray Keller. Mr. Hawes knows
Jim Sentell well and recalls that, in fact, Mr. Sentell
borrowed Mr. Hawes' handheld global positioning system
(GPS) device to assist him in 2002. Mr. Hawes ...