Ala. Power Co. v. Keller, 2150979

• Decision Date: 05 May 2017
• Docket Number: 2150979
• Parties: Alabama Power Company v. Ray Keller
• Court: Alabama Court of Civil Appeals

Alabama Power Company v. Ray Keller

2150979

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2016-2017

May 5, 2017

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

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 animallife, 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 laypersons 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 andNorthern 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 NortheastQuarter 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

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