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Alabama Power Co. v. Keller

Alabama Court of Civil Appeals

May 5, 2017

Alabama Power Company
v.
Ray Keller

         Appeal from Jackson Circuit Court (CV-07-152)

          DONALDSON, Judge.

         Alabama 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.

         Facts and Procedural History

         On July 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 judgment states:

"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.
"....

         "I. Introduction:

"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 Appalachian Mountains.
"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.

         "II. 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, [1] in the Northeast Quarter of the Northeast Quarter of Section 31 (Part of the 'Middle Disputed Parcel');
"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').
"....

         "III. 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."

         In the 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 1987.
"....
"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, either.
"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 Power.
"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 property.
"....
"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 ...

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