The Case of the Missing Boathouse

UPDATE March 12, 2024:  The Town of Magnola Springs files an appeal to the Supreme Court of Alabama!!!!  More bad legal advise for the Town, and another bad decision - all done in private with no public discourse (say "executive session".)  In spite of spending tens of thousands of taxpayer dollars no public vote has EVER been recorded on this ongoing lawsuit.  The likelihood of reversal on appeal is very low, but Bradley Hicks, Town Lawyer, will be wealthier for it.   The time for negotiation is now past. The final decision of the Supreme Court is expected in about 6 months. 

UPDATE December 11, 2023 (and December 27th 2023).  Per Judge Taylor:  All of the disputed lands are awarded to the plaintiff, Kenneth R. Challener.  The final order was entered in this case on December 11, 2023.   Each party has 30 days to request a modification of the order, or 42 days to appeal.  On December 27th I requested a modification of the order to include the exact GPS measurements of the property to avoid future arguements with the Town of Magnolia Springs (they have now a long litigeous history and take every opportunity to insert big brother into the lives of the residents, citizens, and visitors).  The Town may request a modification themselves, and then the judge will make a new final order.  At that point the clock on modifications and appeals starts over.  It ain't over till its over, but its mostly OVER!!.  Plans are progressing for reconstruction, more to follow.   70 years after Ralph Kerr started the process, 9 years after the Great Flood knocked over the boathouse and I spoke to the Town about rebuilding, 4 years after filing suit......

UPDATE November 25, 2023:   Judge Taylor requested an additional brief regarding the vacation of the public roadway in 1959.  See the discssion below regarding the vacated roadway.  This roadway was never opened and ran along the north bank of the Magnolia River.  The roadway was vacated from Rock Landing and to the west as well, as was previously part of a lawsuit that the Town filed against two residents.  This lawsuit was decided by the Alabama Supreme Court in favor of the land owners in 2013 (Fuller vs the Town of Magnolia Springs).  The land in question here would be the eastern end of that same public roadway.  Any decision to reopen the discussion would also affect all other properties on the north side of the river from the bridge to Rock Landing - if approved they first 100 feet of those properties would become a public roadway again and be owned by the Town!  I suspect the landowners for the other properties would not be very happy about having their riverfront and boathouses owned by the Town!!

The greatest tyrannies are always perpetuated in the name of the noblest causes - Thomas Payne

This charming boathouse on the Magnolia River disappeared in May of 2021.  Owner Kenneth Challener (14914 Gates Ave) reported that the boathouse was damaged in the Great Flood of 2014, and removed without permission or discussion by the Town of Magnolia Springs in May of 2021.   The Town, in spite of numerous conversations regarding rebuilding the boathouse, claimed that they owned the boathouse and the land around the structure and had the structure removed.   This cost the good citizens of Magnolia Springs $3500, in addition to a now multi-year lawsuit now costing tens of thousands of dollars.  Notably the Town did not follow their own Nuisance Ordnance in removing this historic building.

Dr. Challener reported that the boathouse has been in his family since the it's construction in 1907.   Dr. Challener's great grandfather, Dr. Charles Lester Howe, used the boathouse to store his boat.   He used the boat to see patients along the river.  At that time roads and bridges were often questionable, and the River was a way to transport people and goods throughout the south.   The land north of the boathouse was donated to the Town in 2009 by one Charles Houser.  The Town (and virtually every resident with any history in Magnolia Springs) knew that the boathouse belonged to the Challeners and Paarlbergs (and the Howes and Kerrs before that).  It was always known about Town as the "Howe Boathouse" and then later "the Paarlberg boathouse".

It has always been a fixture of Magnolia Springs.   The picture above  once adorned the cover of the local phonebook, and can still be found in the Magnolia Springs Cookbook.!  The Town unfortunately failed to have a title search performed (or did one and found out the title/deed was not "clear") and decided to take a chance on acquiring the land secretly.   This has resulted in a lawsuit which has been ongoing since the boathouse was removed, with discussions on reconstruction ongoing since 2014.

HISTORY

The issue of ownership began in 1953 when Milton Kerr tried to buy the property  from his Aunt Ada's estate.   As was often the case in the late 1800s and early 1900s the deeds were not always clear.   GPS points and computer title searches did not exist in that day!  The boathouse was built by Charles Howe in 1907, exactly where it was until removed by the Town.  He built the boathouse on what was at that time a public roadway (it only took 20 years to sort this out....).  He owned the land to north or the boathouse, and thus had easy access to the the river.   In 1924 he sold that land to Arthur Holk, but reserved a small piece of the property in addition to a deeded right of way to the road so that he could maintain access.   In 1927 he sold 1/2 of his homestead lot and a 1/2 interest in the boathouse to his brother-in-law and sister-in-law (his wife's brother and wife).  Those homes are located a five minute walk away, on the other side (see othersider's page) of the highway and the bridge.

Since no one else claimed the land, or used the land, and it always transferred between family members the deed issue never became apparent, until 1953 when Milton Kerr tried to buy the house (and thus 1/2 interest in the boathouse) from his Aunt Ada Kerr estate.  At that time it became clear that the deeds did not properly describe the property to be transferred.   The Challener deed described a 35 foot by 35 foot parcel due north of the boathouse.   The Kerr deed described "the land between the river and the land sold by Charles Howe to Arthur Holk.  Thus began the first of five title searches by the Kerr family and Challener's to clear the title.

And then there is the claim by the Town of Magnolia Springs.   The land sold to Arthur Holk by Charles Howe had passed through multiple hands and ended up owned by the Moore Brothers.  The Moore Brothers are locally famous for the "Moore's store".   This was a general store and gas station in Magnolia Springs for much of 50 years in one form or another.  Every deed up until the death of the Moore's describes the land as starting 103 feet north of the river, the same description found in the original deed from Charles Howe to Arthur Holk.   However, when it was transferred in 1977 by Executrix Ingrid Mannich, somehow the deed now listed the entire parcel - ignoring the presence of the boathouse and the use by the Challener's and Paarlbergs.   This same incorrect deed was then transferred to Charles Houser (DBA River Management and then the Lower Alabama Land Company).   This was the same deed transferred to the Town of Magnolia Springs in 2009.

in 1998 Houser renovated Moore's store into the current Jesse's Restaurant.  The Town of Magnolia Springs incorporated in 2006.  In 2009 Houser donated the land to the Town of Magnolia Springs ( resulting in a large tax deduction to him).  Prior to that donation he was planning on developing the land along the River and had talked about building townhouses and a landing or dock.  Unfortunately his wife took ill and he ended up leaving the Springs area, but in the process made this donation.

.The Town did not obtain Title Insurance or do have a title search performed (curiously).   The deed was thus a "Statutory Deed" and not a general warranty deed.  It is HIGHLY likely that Charles Houser and the Town knew the title was not clear.  Dr. Challener had discussions with Charles Houser in 2005 and 2006 regarding both the boathouse and the 35 x 35 piece that would prohibit development alone the River.  Dr. Challener offered to swap properties and even move the boathouse further down the river, if that would help Mr. Houser with his plans.  In exchange Dr. Challener would give up the 35 x 35 piece for a similar size property with deeded road access.  Mr. Houser declined the offer.   Houser incidentally never stated that he thought he owned the land around the boathouse.

 Dr. Challener and Janet Paarlberg also met with Bob Holk beginning in 2014.  At that time he was a Councilman for the Town of Magnolia Springs.  He would become Mayor in 2016, and resign in disgrace in 2019.   Bob Holk stated he would take the issue before the Town Council of resolving the deed issue.  He was quite positive about the likelihood of a settlement and avoiding litigation.  This turned out to be a great falsehood.   He (and thus the Town) were given copies of deed and documents showing ownership and given multiple various options to settle the dispute (all of which allowed the Town to keep the walkway in place - more later). 

 In 2007 Russell Paarlberg passed away from advanced age.  His daughter Janet became to owner of the Paarlberg 1/2 of the boathouse,    In 2013 Robert Challener also died from complications of his stroke but had already transferred his ownership of the boathouse to his son, Kenneth.   Janet Paarlberg and Kenneth Challener began discussions on how to improve the boathouse in 2013.   These discussions were then changed to reconstruction after the 2014 the Great Flood knocked the boathouse sideways and broke the pilings.   After recieveing permission from Alabama Department of Environmental Management (ADEM) and applying to the Army Corp of Engineers, the Town requested  permission to rebuild be denied by ADEM, which did happen.    Up until this point there was really no one to "fight" to get the deed corrected.   Enter the Town of Magnolia Springs.....likely in the end they will be the cure for 70 years of struggle over the deed for this property!  Thank you Magnolia Springs!

THE VACATED ROAD

Dr. Challener spent hundreds of hours over years searching for the reason for the discrepancy in his deed and the location of the boathouse.  The search was exhuastive and included combing through 100 year old deed books at the Probate office, the tax records, the Baldwin County Historical Society, the Historical Archives of Baldwin County and the newspapers (the Onlooker and Baldwin Times from 1890 - 1925).   It turned out that it had to do with the original subdivision filed in 1892 by Otis Lyman and an Order to Vacate a road in 1959.   When Otis Lyman established the Magnolia Springs subdivision in 1892 there was a public road left along the north bank of  the River.   In that day river travel was integral to life.  The River was used for personal travel as well as for moving goods.  Roads were often in poor condition due to rain and storms.  Bridges were subject to destruction by storms and were built of wood.  They were constructed by hand and hard to replace.  Thus, the River was the lifeblood for small communities.   There was a public landing on the Magnolia River just upstream from the boathouse in early 1900s, but it was destroyed in a storm in 1914.  That structure was moved to where Jesse's Restaurant in now (and was Holk Brother's General Store at the time).  The only structure left on the River from then until the 2014 Great Flood was the Howe/Challener/Paarlberg  Boathouse.   

Dr. Howe kept a piece of land north of the boathouse to allow continued access.   This land was above the public road that was "vacated". in 1959.  It was an unused, unopened public road at that time.  The River was valuable for home owners along the shore and for recreation, and not for commercial traffic.  The land owners north of this road of course were anxious to have the road vacated, and add the land to their own.   Every landowner signed off on the vacation of the road - but unfortunately the Howes and Kerrs not " invited to the party".  They were also not notified of the Order to Vacate the road, in spite of having a structure on the River.    At that time the Moore Brothers owned the land to the north of the boathouse, the same land that was sold to Arthur Holk in 1924.   They had no interest in the River front, and they signed off on the order as well.   The Challener's and Kerrs continued to use the property as they always had, completely oblivious to the legal proceedings and left out of the discussion. 

Thus if the land had been public at that time but was in use by only the Howes/Challeners and Kerrs /Paarlbergs, then who owns it after the road is vacated?   The Kerr's deed stated the land was from the River to the 103 foot mark - the land sold by Howe to Holk.  The Challener deed included the 35 x 35 piece above the 103 foot mark, above the boathouse.  Logic and the law would suggest it is owned by the Howe/Kerr/Challener/Paarlberg clan.  Once combined the two parcels match the survey of Claude Arnold in 1953.....thus the basis for the lawsuit.

FAILURE TO FOLLOW THEIR OWN RULES

The Town of Magnolia Springs has a Nuisance Ordinance (2007-14).  Any real property nuisance or unsafe building can be abated, with penalties for violations.   The Town of Magnolia Springs never filed a nuisance complaint with Janet Paarlberg or Kenneth Challener.  The real issue is "why not?"  Most likely they were trying to avoid giving the Challener/Paarlberg team the opportunity to repair or replace the structure.  To identify it as a nuisance is to recognize the ownership and allow the opportunity for a right to appeal if necessary the Notice to Abate.  The process is really quite easy and straightforward.  The Building Inspector will inspect.  The order will be filed.   A certified letter will be sent. A notice will be placed on the structure.  If not repaired the Town may proceed with repairs or Abatement and institute legal proceedings against the owners.  The owners have a right to a hearing and appeal.   The Town decided to take the tack that they "owned" the boathouse and the land, inspite of all the history above, and do what they wanted.   In May 2021 they had the damaged boathouse removed without any notice the the Challeners/Paarlbergs.  Conveniently this was also done while both parties were out of town. 

One might give the Town the benefit of the doubt, except that Charles Houser, Mayor from 2006-2012, was notified of the concerns about the property in 2005 and 2006.  Robert Holk, Councilman (2012 -2016)  and Mayor (2016-2019) met with the Kenneth Challener and Janet Paarlberg in 2014 and 2016.   Multiple emails were exchanged as well as deeds and the Claude Arnold Survey.  The Town lawyer, Brad Hicks (of Stone Crosby) was involved from 2014 on.   So to say the did not know of the conflict and issues surrounding the deed would be absurd.   They simply decided they would do what they wanted, regardless of personal property rights, the law, and their own ordinances.   The nanny state knows best...just ask them.

The real issue raised by the Town's case is what's missing.  There was no presentation of any survey, title search or other documentation of the Town's purported ownership of the property.   Their case was mighty thin!   The only argument they made was the boathouse was abandoned.     Of course one cannot abandon real property, like a structure, in Alabama.  The only possible claims to the property were chain of title, which you can see above and below was not really an option or Adverse Possession.  The had not met any of the 6 requirements for Adverse Possession, and must meet all 6 for a claim.  

"If the law is against you, talk about the evidence," said a battered barrister "If the evidence is against you, talk about the law, and, since you ask me, if the law and the evidence are both against you, then pound on the table and yell like hell" .  So, lots of pounding and yelling, no evidence or law in this case. 

The Judge's Request

Judge Taylor requested platt maps, or drawings of the deeds that started all this mayhem.  That is:  The Howe Holk deed in 1924, the Howe to Challener deed in 1927, and Howe to Challener deed in 1953.   Here are the Platt Maps