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Alabama Power Co. v. Keller

Alabama Court of Civil Appeals

November 3, 2017

Alabama Power Company
v.
Ray Keller

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

          ON APPLICATION FOR REHEARING

          DONALDSON, Judge.

         This court's opinion of May 5, 2017, is withdrawn, and the following is substituted therefor.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.

         Facts and Procedural History

         On July 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.
"....

         "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.
"....
"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').[2]
"....
"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.[3] 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."

         In the 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 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.[4] ...
"....
"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 ...

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