from Jackson Circuit Court (CV-07-152)
ON APPLICATION FOR REHEARING
court's opinion of May 5, 2017, is withdrawn, and the
following is substituted therefor.
Alabama Power Company ("Alabama Power") appeals the
judgment entered by the Jackson Circuit Court ("the
trial court") establishing a boundary line and
adjudicating claims regarding certain disputed areas of
property in Jackson County. The judgment of the trial court
described the proceeding as one to determine the boundary
line between property owned by Alabama Power and property
owned by Ray Keller, ostensibly as coterminous landowners.
The record establishes, however, that Alabama Power and
Keller are not record title owners of coterminous properties
in some of the disputed areas. "Parties to a boundary
line dispute action must be coterminous owners, and equity is
without jurisdiction in such a proceeding unless the
complainant owns land adjoining respondent's at the
disputed boundary." Walls v. Bennett, 268 Ala.
683, 686, 110 So.2d 277, 280 (1959). To the extent the
judgment purports to establish a boundary line where Alabama
Power and Keller are not coterminous landowners, we hold that
the trial court did not have jurisdiction to do so and that,
accordingly, that portion of its judgment is void. Therefore,
we dismiss the appeal insofar as it pertains to that portion
of the judgment. We affirm the portion of the judgment
establishing a boundary line in that part of the disputed
areas in which the parties are coterminous landowners.
and Procedural History
28, 2016, the trial court entered a lengthy and detailed
judgment, a portion of which 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.
"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.
"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,  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').
"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 [of Section 31] 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 portions of the extensive
testimony taken at trial and its visits to the disputed
parcels. The judgment recounts testimony regarding markers,
monuments, landmarks, previous owners of the parties'
properties, and activities of people and organizations in the
disputed parcels. The following portions of the judgment are
the descriptions of testimony relevant as background
information or pertinent to the issues considered in this
"[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. ...
"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