text:
    CITY OF JACKSON, Mississippi v. SHELL OIL COMPANY.
    No. 49225.
    Supreme Court of Mississippi.
    May 25, 1977.
    Rehearing Denied July 13, 1977.
    John E. Stone, Lloyd M. Montgomery, Jr., Jackson, for appellant.
    Green, Cheney, Jones, Hughes, McKibben & Stack, Charles E. Hughes, Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice, for the Court:

This is an appeal by the City of Jackson from an order of the circuit court reversing an order of the Jackson City Council denying a petition filed by Shell Oil Company in a zoning matter.

The property in question is a lot on Clinton Boulevard in the City of Jackson which was rezoned from residential to unrestricted commercial in 1969 and Shell Oil Company purchased the property under that classification. The same year Shell obtained from the City a building permit for the construction of a service station. The service station was not commenced because of economic conditions. On May 29, 1974, a new comprehensive zoning ordinance was adopted by the City, under which the classification of the subject property was changed from commercial to limited commercial. The new comprehensive zoning ordinance contained section 2801 which reads as follows:

Any party feeling aggrieved by the change of zoning status of his property as reflected by the Official Zoning Map adopted herein shall have ninety (90) days from the effective date of this Ordinance within which to petition the Planning Board for reconsideration of the zoning status of such property. After the expiration of the aforesaid ninety days, any person petitioning for a change in the zoning status of his property must base said petition upon changes taking place after the adoption of the aforesaid Official Zoning Map.

Within the ninety days provided in section 2801, and on August 21, 1974, Shell filed its application and petition for reconsideration of the zoning of the lot in question and stated therein that there have been no changes in the property or in the neighborhood thereof except toward more commercial usage.

Shell’s petition came on for hearing and the only proof offered was by Shell to the effect that since the 1969 rezoning of the subject property there had been no changes in the conditions of the neighborhood except that it was more commercial at the time of the hearing than it was when it was rezoned in 1969.

Section 2801 extended for ninety days after the passage of the comprehensive zoning ordinance of 1974 the right of any property owner feeling aggrieved by the change of zoning status of his property to petition for reconsideration the zoning status of such property.

When the comprehensive zoning ordinance changed the zoning status of Shell’s property the doctrine of res judicata, applied, and when Shell made timely petition to maintain the status of its property, the City had no authority to make such change absent a material change in circumstances since the last zoning order. Westminster Presbyterian Church v. City of Jackson, 253 Miss. 495, 176 So.2d 267 (1965).

The question of who had the burden of proof is actually not involved. The only proof offered showed no material change of circumstances and it is immaterial who offered it.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


source: Caselaw Access Project

author: RUFUS H. BROOME, SUGG, Justice, GILLESPIE, Chief Justice,

license: Public Domain

text:
    Edward G. LENNEP, Sr. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 49041.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    On Motion to Reinstate Cross Appeal May 25, 1977.
    Rehearing Denied July 13, 1977.

      Corlew & Burdick, John G. Corlew, Cum-best & Cumbest, Arvis V. Cumbest, Pasca-goula, for appellant.
    Palmer & Pike, William J. Palmer, Pasca-goula, for appellee.
    Before GILLESPIE, C. J., SUGG and BROOM, JJ., and BROOME, Commissioner.
   RUFUS H. BROOME,

Commissioner for the Court:

The State Highway Commission filed condemnation proceedings in the Special Court of Eminent Domain (County Court of Jackson County) seeking to condemn for public use 13.54 acres of land owned by Jack F. Turner and wife Martha L. Turner, hereinafter called Owner. Said property sought to be condemned was for a right of way in connection with the construction of Interstate 10 across Jackson County. The petition to condemn was later amended so as to name as defendants Edwin G. Lennep, Sr., Edwin G. Lennep, Jr., Eddie Lennep Fray and Thomas Cecil Lennep, hereinafter called Lessee, who claimed a leasehold interest in a part of the condemned property on which a sawmill was located. Lessee leased some land from the Owner in 1963 for a ten (10) year period and this lease was renewed in 1973 for an additional ten (10) year period with the original lease and renewal thereof providing the right of cancellation upon six (6) months notice to the opposite party. The property description in the lease and the renewal thereof did not correctly describe the property on which the sawmill was located, but the sawmill was located on the property sought to be condemned and had been so located since it was constructed and the Trial Judge allowed parol evidence admitted during the trial by the testimony of the Owners and Lessee to the effect that the lease was intended to cover the property on which the sawmill was actually located.

The case was submitted to a jury, which returned the following verdict:

“We the jury find that the defendants will be damaged by the acquisition of their property for the public use in the sum of $96,500.00 and apportion the damages as follows: $68,000.00 to the defendants John F. Turner and wife, Martha L. Turner and $28,500.00 to the defendants Edwin G. Lennep, Sr., Edwin G. Lennep, Jr., Eddie Lennep Fray and Thomas Cecil Lennep.”

The judgment was properly entered and motion for a new trial was overruled and Lessee filed an appeal to this Court and the State Highway Commission filed a cross-appeal as to Lessee only. The State Highway Commission did not appeal as to the total verdict of $96,500.00 nor as to the fee holder Turners and the Lessee has dismissed their appeal, leaving the matter before the Court on the cross-appeal of the State Highway Commission. The Lessee filed a motion to dismiss the cross appeal of the State Highway Commission based on the fact that the Commission has accepted the total judgment and paid that part of the judgment apportioned by the jury to the fee holder Turners and is appealing only with respect to the amount of the award given the Lessee. We now consider this motion to dismiss the cross-appeal.

Section 11-27-5 of the Mississippi Code of 1972 as amended states:

“Any person or corporation having the right to condemn private property for public use shall file a petition to condemn with the circuit clerk of the county in which the affected property, or some part thereof, is situated and shall make all the owners of the affected property involved, and any mortgagee, trustee, or other person having any interest therein or a lien thereon a defendant thereto. The petition shall be considered a matter of public interest and shall be a preference case over other cases except other preference causes. The petition shall describe in detail the property sought to be condemned, and shall state with certainty the right to condemn, and shall identify the interest or claim of each defendant.”

Section 11-27-13 states as follows:

“Each different property, identified by separate ownership, shall constitute a separate cause of action and require a separate trial, unless otherwise agreed by all parties with the approval of the court

It is clear that the Legislature of the State of Mississippi intended for the unit rule to be applied in determining compensation in eminent domain cases. It is also clear that this Court follows the unit valuation method of determining compensation where a property sought to be condemned involves a leasehold interest. Lee v. Indian Creek Drainage District, 246 Miss. 254, 148 So.2d 663, 666 (1963), had this to say:

“Where there' are different interests or estates in the property acquired by condemnation, the proper course is to ascertain the entire compensation to be awarded as though the property belonged to one person and then apportion this sum among the different parties according to their respective rights.”

Thus it may be seen that from the eminent domain act itself and the prior decisions of this Court, the proper procedure under the unit valuation method of determining compensation is to file the petition against all persons and parties claiming an interest in the property sought to be condemned and for the jury to determine the value of the property being condemned and then to apportion the damages to the proper parties, which in this case was a fee holder and a lease holder.

This Court has observed in State Highway Commission v. Rogers, 242 Miss. 439, 136 So.2d 216 (1961), that the Florida Constitution and statutes as to eminent domain were similar in some respects to our Mississippi Constitution and eminent domain statutes. There are differences, some of which should be noted, between the eminent domain laws of Mississippi and Florida. One difference is that Florida provides for compensation for loss of business profits and further provides that when the jury returns the verdict of total damages that the judge shall then apportion the damages among the various interests entitled to share in the award. Mississippi does not provide for any future business loss and provides, as herein-before stated, for the jury to apportion the damages among the various interests after it has awarded total damages. A leading case from Florida is State Road Department of Florida v. Hartsfield, Fla.App., 216 So.2d 61, which is a similar case to the one before the Court. In that case the Florida Road Department condemned property owned by C.M.H. Corporation, Allison White, doing business as White’s IGA Grocery and Herbert Hartsfield, doing business as Leon Dry Cleaners. A verdict was rendered by the jury and apportioned among the defendants. The State Road Department of Florida was satisfied with the verdict as it applied to C.M.H. Corporation and Allison White but appealed as to that part awarded to Herbert Hartsfield, and the Florida court had this to say:

“[T]he interests of the respective claimants to the amount awarded for each parcel are . so inextricably bound each to the other that the condemnor may not accept the benefits of the judgment by paying the award made to some of the claimants and then appeal the remainder of the judgment with which it disagrees.” 216 So.2d at 66.

Under the unit valuation method that we use in Mississippi, to allow a partial appeal in an eminent domain suit by the State Highway Commission, who had control of and was the architect of the lawsuit, would present untold problems. The fact is that in this case the Commission has not sought to overturn the total verdict but only that part of the verdict awarded to the Lessee. Any change in the verdict in favor of the Lessee would of necessity result in a change in the verdict apportioned to the landowner who has been paid and is no longer a party to this litigation, which was the choice made by the State Highway Commission. For the above reasons the motion to dismiss the cross-appeal is sustained.

Since the cross-appeal has been dismissed, it is not necessary to discuss the other issues raised in the cross-appeal.

CROSS-APPEAL DISMISSED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

Before GILLESPIE, C. J.,and SUGG and BROOM, JJ.

ON MOTION TO REINSTATE CROSS APPEAL

SUGG, Justice,

for the Court:

The judgment of the eminent domain court fixing total damages for the property condemned has not been appealed from. No one contends that the total damages fixed by the jury is not proper. Both the direct appeal of the Lenneps as tenants, which was voluntarily dismissed by the Lenneps, and the cross appeal of the Commission involve only the $28,500 apportioned to the Lenneps as their share of the total damages.

It is clear that the legislature intended for the unit valuation method to be applied in determining compensation in eminent domain cases. Mississippi Code Annotated section 11-27-5 (1972). We have consistently followed the statutory mandate and use the unit valuation method for determining compensation where property sought to be condemned involves a leasehold interest. In Lee v. Indian Creek Drainage District, 246 Miss. 254, 148 So.2d 663, 666 (1963) we stated:

Where there are different interests or estates in the property acquired by condemnation, the proper course is to ascertain the entire compensation to be awarded as though the property belonged to one person and then apportion this sum among the different parties according to their respective rights.
The textwriter in 18 Am.Jur., Eminent Domain, Sec. 239, p. 872, has expressed this rule in the following language: i * * * rp^ ruje jg generaiiy recognized (though not invariably followed) that, where there are several interests or estates in a parcel of real estate taken by eminent domain, a proper method of fixing the value of, or damage to, each interest or estate, is to determine the value of, or damage to, the property as a whole, and then to apportion the same among the several owners according to their respective interests or estates, rather than to take each interest or estate as a unit and fix the value thereof, or damage thereto, separately.’ 18 Am.Jur., Eminent Domain, Sec. 239, p. 872. See also Anno. 69 A.L.R. 1263. (246 Miss. 263-264, 148 So.2d 666).

The unit valuation method as announced in Lee is a sound rule because the jury first fixes the amount of the damages to the property condemned, and then apportions the damages to the interested parties according to their respective interests. This minimizes the chance of pyramiding damages which would be inherent if each interest or estate was considered as a unit and the value of each unit was fixed separately. The total damages to the property condemned is not affected simply because part or all of the property condemned is leased or because there are separate interests or estates in the property.

When leased property is condemned, and after total damages to the entire estate is ascertained, the question is then presented: How shall the lessee’s share of the damages be determined?

In Lee, supra, we adopted the rule that the taking of a portion of the devised premises operates as an apportionment of the rent and dissolves the relationship of landlord and tenant pro tanto. In Lee we followed the rule laid down in Board of Levee Commissioners v. Johnson, 66 Miss. 248, 6 So. 199 (1889) and stated the rule as follows:

Thus, the award of total damages to the property is apportioned between the landlord and the tenant so as to give the landlord the value of his reversion, and rents under the contract, less an abatement for present payment. The damage to the leasehold is determined by awarding the tenant the value of his contract (which includes a reduction in his future rents because of loss of the use of a portion of the leased premises), less the rents due under the terms of his contract, plus the abatement earned for the present payment of rent to the landlord. . (246 Miss, at 266, 148 So.2d at 667-668).

Under the unit valuation rule the interest of the landlord and tenant are inextricably bound to each other. The total damages to the property is apportioned between them so that if any party is dissatisfied with an award' to either the landlord or tenant, both the landlord and the tenant must be parties to an appeal which attacks the award to either. Where the total damages to the property condemned have been fixed by a jury and no appeal is taken from the amount awarded, the jury verdict is final. If the award to the tenant is increased on appeal, or in a subsequent trial following appeal, it could only be at the expense of the landlord because the total damages would remain as fixed by the first jury, and a change in the award to the tenant could only result in a reapportionment of the damages between the landlord and the tenant. Any diminution of the award to the landlord without the landlord being made a party would violate due process. It naturally follows that both the landlord and tenant must be made parties to any appeal by a condemnor. The condemn- or may not accept the benefits of the judgment by paying the award to either the landlord or the tenant and then appeal the remainder of the judgment with which he disagrees. The condemnor must appeal the total award of damages.

A landlord and tenant as defendants in a condemnation proceeding bear a unique position to each other. On the question of the total award of damages to the property condemned they are not adversaries, but as to the apportionment of the total award, they are adversaries. Thus, if either the landlord or tenant is satisfied that the total award of damages is sufficient, but is dissatisfied with the apportionment of the damages between them, either might appeal without naming the condemnor as a party to the appeal because the appeal would not attack the total damages fixed by the jury. The proceeds of the judgment for the total damages is in the same status as the title to the property condemned. In the case of Evans v. Mississippi Power Company, 206 So.2d 321 (Miss.1968), we stated:

It should be remembered that condemnation is a proceeding in rem. It is against the property, and not the person. The owners or other interested parties are summoned into court in order that they may assert and propound their claims to the rem. Mississippi has provided a legal, constitutional, and orderly procedure for doing this.
The money judgment of the special court of eminent domain is substituted for the rights taken in the land. Title to the proceeds of the judgment is in exactly the same status as the title to the land itself. If the title to the land is clouded, then the title to the money judgment is clouded. It can be resolved by agreement among the landowners, or, if necessary, by resort to the proper court. (206 So.2d at 322, 323).

The landlord and tenant, if satisfied with the total award, would therefore take title to the judgment in exactly the same proportion as their respective estates in the condemned property, subject to resolution by agreement or apportionment by the court.

The dissenting justices are of the opinion that it would be manifestly unjust to require the Commission to appeal when the only dispute was between the Commission and lessee. This view overlooks the fact that under our procedure the damages to the property condemned is fixed by the jury and then apportioned between the landowner and the tenant. If the condemn- or is of the opinion that either the landowner or the tenant has been awarded excessive damages his complaint is not against that interest alone, but his complaint must go against the total award of damages because the condemnor can obtain relief only by reducing the total award of damages. If the total award is reduced then there must be another apportionment between the landowner and tenant; likewise, if the total award is increased, there must also be another apportionment between the landowner and the tenant. It naturally follows that the dispute in this case is between the condemning authority, the landowner and the tenant, and their dispute is inextricably tied to the total damages awarded.

This would not preclude a condemning authority from settling with any party before condemnation suit was filed, or before the award of damages was made by a jury, because if there was a settlement as to either the landowner or the tenant, the case could then proceed to trial under the valuation method announced in Commissioners v. Johnson; and Lee v. Indian Creek Drainage District, supra.

The Commission relies on Seago Enterprises, Inc. v. Mississippi State Highway Commission, 330 So.2d 588 (Miss.1976), as authority for reinstating the cross appeal of the Highway Commission. Seago is not authority for reinstating the cross appeal because Seago Enterprises was neither permitted to join in a statement of values nor present evidence of damages sustained by it as lessee. Seago’s position is comparable to that of the tenant in Board of Levee Commissioners v. Johnson, supra, where the Board of Levee Commissioners condemned land of one Mayson, the owner, but did not make Johnson, his tenant, a party to the condemnation proceedings. We permitted Johnson to recover in a separate suit because he was not a party to the original suit and was not compensated for the value of his leasehold interest. See also Board of Levee Commissioners for Yazoo and Mississippi Delta v. Nelms, 82 Miss. 416, 34 So. 149 (1903).

Although Seago Enterprises was a party to the condemnation proceedings, when the court refused to let it join in the statement of values and present evidence as to its damages, the effect was the same as if it had not been a party to the lawsuit. The decision in Seago is based on our holding in Board of Commissioners v. Johnson; and Board of Commissioners v. Nelms, supra.

The Commission also relies on Mississippi State Highway Commission v. Aultman, 336 So.2d 1325 (Miss.1976). In Aultman the condemnor appealed as to the lessee but paid off the landowner and sublessee. The right of the condemnor to appeal without making the owner and sublessee parties was not assigned as error, and was not argued; therefore, Aultman is not authority on the question presented on the motion to reinstate the appeal of the Commission. If we were to adopt Aultman as authority for the issue presented by the motion to reinstate we would effectively do away with the unit valuation method in determining compensation cases where the condemn- or appealed as to only one party when another party had an estate or interest in the property condemned.

If this appeal involved condemnation of land owned by two people as tenants in common with a total award of $96,500 we would not seriously consider permitting either the condemnor or one of the property owners to appeal without naming all parties. The same principle applies in this case.

The landowner in this case is not a party to the cross appeal, the total award of damages has not been attacked; therefore, the total award of damages stands. If on a new trial, the lessee in this case should recover more than was apportioned him by the original jury it would be at the expense of the landowner and would violate due process because he is not a party to the appeal. For the foregoing reasons the petition of the Commission to reinstate its cross appeal is denied.

This case was considered by a conference of the Justices en banc.

MOTION TO REINSTATE CROSS APPEAL DENIED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, and BROOM, JJ., concur.

GILLESPIE, C. J., and WALKER and LEE, JJ., dissent.

GILLESPIE, Chief Justice,

dissenting:

With deference, I am' of the opinion that the majority opinion unnecessarily exalts the unit valuation method into an end itself that will result in hardship and needless expense to landowners under circumstances that are likely to arise from time to time. It takes away from the landowner or the lessee, as the case may be, the right to manage his own lawsuit, to settle, and to avoid needless expense. In the present case the appeal is by the Highway Commission, but the hardship that prompts me to dissent will be visited not only on the Highway Commission but upon the parties whose property is being condemned when more than one person owns an estate in real property.

Moreover, in my opinion this case is controlled in all essential aspects by Seago Enterprises, Inc. v. Mississippi State Highway Commission, 330 So.2d 588 (Miss.1976), and Mississippi State Highway Commission v. Aultman, 336 So.2d 1325 (Miss.1976).

The majority opinion holds that in order to value separate estates in real property all parties must be before the court at all times. Such a holding is not required by reason or authority. In the instant case, when the jury returned a verdict finding the value of the entire property at $96,500, and apportioned the damages $68,000 to the owners and $28,500 to the lessees, the Commission and the owner had the right to agree that $68,000 was the proper amount of damages due the owner. This being true, there is no valid reason why the landowner should not be allowed to receive his $68,000 and thus avoid the expense of being made an appellee in an appeal to the Supreme Court and a long delay in being paid. The unit method of valuation could still be used if the case is reversed by the Supreme Court and retried as to lessees. In such event, there would be judgment in favor of the lessees for its fair share of the total valuation.

In my opinion there will be cases where the majority holding will require unjust results. For instance, if the condemnor of an apartment house containing numerous apartments leased to various people is aggrieved as to the amount awarded to any particular lessee, or lessees, the condemnor would have to bring the entire lawsuit, including each separate lessee and the owner, to the Supreme Court. All those parties having no complaint as to the amount of the award must undergo an appeal and all the expense and delay that it entails. This would be manifestly unjust.

When less than all of the parties are before this Court or the trial court, the questions involving damages can be determined in strict accord with the unit rule without having all the parties before the court.

WALKER and LEE, JJ., join in this dissent.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: PATTERSON, Presiding Justice,

text:
    TALLAHATCHIE VALLEY ELECTRIC POWER ASSOCIATION v. Bessie C. CLINTON, Administratrix of the Estate of Joe Clinton, Deceased.
    No. 49167.
    Supreme Court of Mississippi.
    April 27, 1977.
    Rehearing Denied July 13, 1977.
    Pant, Crutcher, Moore & Spencer, L. G. Fant, Jr., Holly Springs, Mitchell, McNutt, Bush, Lagrone & Sams, Fred M. Bush, Jr., Tupelo, for appellant.
    John S. Throop, Jr., Water Valley, Farese, Farese & Farese, Ashland, Liston, Crull & Gibson, William H. Liston, Winona, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice,

for the Court:

The facts are stated in the light most favorable to the plaintiff, Bessie C. Clinton, whom the jury awarded $125,000, reduced, on condition of remittitur, to $62,500. There is little conflict in the evidence regarding the circumstances which gave rise to the death of Joe Clinton.

Appellee, the widow and representative of the eleven children of Joe Clinton, sued the appellant, Tallahatchie Valley Electric Power Association, a corporation organized under the laws of Mississippi for the distribution of electricity. The plaintiff brought the suit under the wrongful death statute charging that appellant negligently maintained its power lines the proximate result of which was the death of Joe Clinton.

In 1971 Tallahatchie was engaged in the transmission, distribution and sale of electrical energy in northern Mississippi, including Yalobusha County. Sometime in 1948 or 1949, Tallahatchie constructed an electrical transmission line running northeasterly out of the town of Water Valley to supply potential customers. The occupants of the “P. S. McCain home,” situated on the south side of the DeLay Road approximately five miles northeast of Water Valley and within Yalobusha County, were served by this power line. The McCain residence faced approximately north and Tallahatchie’s electrical lines passed it in an easterly-westerly direction. The northwest corner of the residence was 18.35 feet south from the perpendicular plane of appellant’s power lines, and the northeast corner of the building was 28.78 feet south of the perpendicular plane of the lines. The single phase line consisted of two uninsulated conductors, one above the other, carrying 7200 volts of electricity. The highest conductor was a phase line, 33.78 feet above ground level, and the lower a neutral line, 29.92 feet above ground level.

When the line was constructed and energized, the McCain residence did not have an external television antenna nor were such common in the Tallahatchie service area. In 1955 a 60-foot television antenna was erected at the McCain residence in such a position that if it had fallen toward the transmission line, it would have made contact with the primary or phase line. The antenna remained at this height from 1955 through November 1970 when it was removed.

In March 1971, a 29-foot antenna was erected at the “McCain” residence by the Johnsons, succeeding lessees, which would not have struck the lines had it fallen toward them. During the last week of June or the first week of July 1971, this antenna was extended in height to approximately 40 feet and anchored by two guy wires. Additionally, the antenna was strapped with two metal bands to the building’s northwest corner. The antenna remained in this position and height until August 31, 1971, the date of the accident.

Steven Vokril, a meter reader employed by Tallahatchie, testified that he observed the installation of the antenna and at that time it was lower than the subject line. Vokril returned on July 12 and August 12, 1971, to read the meter but could not recall whether an “antenna conflict,” i. e. the possibility of contact due to the extended height of the antenna and the proximity of the power line, existed on these dates.

In August 1971, the Johnson family decided to move and sold most of their furniture, as well as the external television antenna, to Peoples Wholesale Company of Water Valley. Accordingly, Joe Clinton, Gary Hopkins and Julian Box, employees of Peoples, arrived at the “McCain” residence to remove the antenna and furniture. While the workers were removing the furniture, Box and Hopkins were informed by Horace Johnson, “The antenna came down in sections and it was loose and they didn’t even have to use a wrench on it. I left the bottom section loose for the purpose of turning the antenna so that I could get better reception . . . you could give it a half turn either way.” Mrs. Johnson also related to all three workers the proper method of disassembling the antenna by removing and lowering one section of the mast at a time. She said:

A. I told them to be very careful of the power lines. The boy, like I said, seemed to be in a very big hurry. He wanted to hurry and get out because they were teasing him about calling his girl friend. He said it would take only a short while to get it down and I said to be very careful in taking it down. I said, you do have to watch those wires up there, if you try to pull it down or anything, because I don’t want nobody to get hurt. I said, take it down like it was put up and you won’t have any problems and it won’t take much time.
Q. Did you tell them that one time or more than one time?
A. No, I said something about it quite a few times, six, seven, or maybe more times.
Q. You told all three of them that?
A. Yes, sir.

To those present it appeared that Julian Box was in charge of the moving crew. Hopkins, the youngest of the three, ascended the roof and severed the antenna guy wires; he then cut the metal straps which secured the antenna to the building. Having freed the antenna, the men attempted to “walk” it down when, becoming unmanageable, it fell onto the upper wire. All three were instantly electrocuted.

At the conclusion of the evidence and overruling of several motions, the cause was submitted to the jury. Nine minutes later it returned a verdict for $125,000, the full amount demanded in the declaration, even though it had been instructed by the court that the plaintiff’s decedent was negligent as a matter of law. The amount of the judgment was reduced, as mentioned, on condition of remittitur to $62,500.

Appellant assigns and argues as error the following:

1. An instruction, which permitted the jury to find “from a preponderance of the evidence” that the defendant “failed to inspect its line” was reversible error.

2. An instruction that an antenna conflict had existed in 1955 was erroneous.

3. The court’s refusal to instruct the jury on the issue, whether defendant was charged with notice of the antenna conflict, was error.

4. As a matter of law the defendant was not liable.

5. The court erred in overruling the motion for a new trial, even with the remitti-tur of 50% of the verdict awarded.

We address the critical issue of whether the defendant was negligent as a matter of law.

Since the advent of electricity in Mississippi, this Court has required electrical companies to exercise the highest degree of care in dealing with this deadly agency. Temple v. McComb City Electric Light & Power Co., 89 Miss. 1, 42 So. 874 (1907). Again, in Triplett v. American Creosote Works, Inc., 251 Miss. 727, 171 So.2d 342 (1965), we said:

The Power Association was required to exercise the highest degree of care in the construction and maintenance of its high powered lines.

(251 Miss, at 737, 171 So.2d at 347) Such a tenet cannot now be doubted.

Concerning the duty incumbent upon Tal-lahatchie and others similarly situated, in Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973), we said:

[A]s a general proposition . an electric company is under a duty to safeguard the public against injury arising from the use of its dangerous agency, whether the danger arises from its negligence, the negligence of others, or from causes over which it has no control, to the extent of exercising reasonable care to correct or remove the cause of danger if reasonably foreseeable and known to the power company. An electric company is not an insurer and is not liable for injuries unless it is guilty of some wrongful act or omission. However, a power company must anticipate and guard against events which may be reasonably expected to occur, and its failure to do so is negligence, even though the power company may not anticipate the identical injury that occurs.
(285 So.2d at 729)

We must resolve the issue from a situation in which the deceased, with others, was repeatedly warned of the dangers presented and to a degree, instructed on the proper method of removal of the TV antenna. Further, the existence of the antenna was a singular event in that the “McCain” residence was remote and isolated, being approximately three-quarters of a mile from the nearest home. Thus, when the negligence of Clinton is reviewed and compared to that of Tallahatchie, it is obvious, and we think inescapable, that the jury verdict of $125,000 was the result of bias and prejudice, particularly when it is observed that the jury completely disregarded the court’s instruction on Clinton’s contributory negligence. More specifically, we are of the opinion that Tallahatchie was guilty of negligence so slight, if at all, and Clinton guilty of negligence so great that we must conclude his negligence was the sole proximate cause of his death.

In this holding, we distinguish the cases of Shepard, supra, and Delta Electric Power Association v. Burton, 240 Miss. 209, 126 So.2d 258 (1961), in that here, in a sparsely populated area where no “veritable forest of television antennas” existed, the injury which occurred was not reasonably foreseeable by Tallahatchie. That is to say, although such an occurrence was within the realm of speculation, the failure to act in this instance was not negligence of the quality held actionable in Shepard, supra, Mississippi Power Company v. Luter, 336 So.2d 753 (Miss.1976), and the preceding cases. In Shepard, supra, we quoted with approval the following:

. The extent of the duty or standard of care is measured in terms of foreseeability of injury from the situation created. There is no duty to safeguard against occurrences that cannot be reasonably expected or contemplated. A failure to anticipate and guard against a happening which would not have arisen but for exceptional or unusual circumstances is not negligence, nor does the law require those maintaining power transmission lines to anticipate every possible fortuitous circumstance that might cause injurious contacts with those lines. (285 So.2d at 733)

We think that mature individuals of ordinary intelligence in a time of universal use of electricity must know its dangerous propensities and when this knowledge is refreshed by repeated warnings, leaving no doubt as to the danger, but which is disregarded, there remains little, if anything, that a power company can or could do to prevent the accident. The high degree of care imposed upon the merchants of energy does not contemplate their becoming absolute insurers or establish their liability regardless of fault, and while it is true that the warning did not emanate from the appellant, it was nevertheless repeatedly given but was ignored. This is not to say that the duty of the defendant to warn of the danger of electricity may be satisfied by third parties since such is nondelegable, but it is to say that the negligence of Clinton was greatly enhanced by the fact of warning regardless of its source. At the very least it would make plausible the query, “What more could the power company have done?” We are, of course, aware that a court should not substitute its judgment for a jury’s verdict and we acknowledge the principle with great respect. Employers Mutual Casualty Co. v. Ainsworth, 249 Miss. 808, 164 So.2d 412 (1964). However, we believe the salient facts of this case are not in conflict thus a legal resolution is necessary and in so doing, we have concluded that Clinton’s negligence was the sole and proximate cause of his death.

We are therefore of the opinion the trial court erred in not finding that the defendant was not liable as a matter of law. In view of this result we do not reach the cross-appeal.

REVERSED AND RENDERED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: WALKER, Justice,

text:
    Morris TALBERT v. STATE of Mississippi.
    No. 49736.
    Supreme Court of Mississippi.
    May 11, 1977.
    Rehearing Denied July 13, 1977.
    William 0. Semmes, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Morris Talbert was indicted and tried in the Circuit Court of Grenada County, Mississippi, for the murder of E. W. Gant. The jury found him guilty as charged, and the court sentenced him to life imprisonment. In his appeal, he contends that evidence of his confession was improperly admitted. He contends that the state did not present proper proof of the victim’s 'cause of death, and further argues that the evidence taken as a whole does not support the jury’s verdict. He also complains of the refusal of several requested instructions. Only two of these assignments merit discussion.

On the morning of Saturday, September 20,1975, D. H. Lemley, a route salesman for Colonial Bread, found Mr. Gant lying on the floor of his small country store. He testified: “. . . Mr. Gant was laying on the floor. His head was all messed up. Blood was all over the store, on the furniture and everything.”

Mr. Gant was carried to the Grenada County Hospital, where he was placed in intensive care under the supervision of Dr. D. L. Harrison, Jr. In his testimony, Dr. Harrison described Gant’s injuries in detail:

There was a deep laceration of the left occipital, the back side of the scalp, the length of which was approximately four inches, and coming in a diagonal fashion across the scalp. Then, there was another laceration on the right temple area which crossed over his head, the bridge of the nose, and extended beneath the eye. These lacerations were very irregular. These were ragged and went down through all layers of the soft tissue of the acalp (sic) and face to the bony structure or bony structures of the skull, the nose, and the face and to his head.

Dr. Harrison further testified that the fixed and dilated condition of the pupil of Gant’s right eye “indicated . . . that he had brain injury and increased intercranial pressure, pressure within the skull from the brain injury.” From his observation of the victim, Dr. Harrison concluded that “his injuries were severe enough that I felt that death was imminent.”

Because of Gant’s critical condition, Dr. Harrison ordered him transferred to the Methodist Hospital in Memphis. Dr. Harrison did not see the victim after he left Grenada. Mr. Gant’s son testified that his father died in Memphis the next day, Sunday, September 21 at 8:10 p. m.

Dr. Harrison testified that, based upon his observation of the victim on September 20, Mr. Gant died as a result of the massive head injury which he had described to the court. On cross-examination, Talbert’s attorney asked Dr. Harrison whether there might have been some independent and intervening factor which had caused Gant’s death after he left Grenada. Referring to the head injury, Dr. Harrison replied, “I believe that this was the primary cause, the primary cause of his death. I don’t believe there was any other significant or secondary — significant secondary or contributing cause.” In response to further questions, Dr. Harrison testified that he had spoken with the physicians at the Methodist Hospital and had examined their records, finding no evidence of any intervening cause of death.

Talbert vigorously argues that Dr. Harrison’s testimony was not sufficient to establish the cause of death. Dr. Harrison did not see Mr. Gant from the time he left Grenada on Saturday morning until the time he died in Memphis on Sunday night. Talbert contends that Dr. Harrison’s opinion is therefore based on hearsay reports from the doctors in Memphis. Finally, he contends that the best evidence rule required the state to prove the cause of death by the testimony of the doctors in Memphis who cared for Mr. Gant during the last twenty-four hours of his life.

We believe that the cause of Gant’s death was adequately proved by Dr. Harrison’s report of his observations on the morning of September 20. We find no direct precedent for this situation in our reported decisions, and no cases are cited to us by either Talbert or the state. However, we believe that the most reasonable rule is stated in 40 C.J.S. Homicide § 186 (1944):

When a wound from which death might ensue has been inflicted with murderous intent and has been followed by death, the burden of proof is on accused to show that death did not result from such wound, but from some other cause.

State v. Johnson, 36 Del. 341, 175 A. 669 (Ct. of Oyer & Terminer 1934); Land v. State, 156 So.2d 8 (Fla.1963), cert. denied, 377 U.S. 959, 84 S.Ct. 1635, 12 L.Ed.2d 503 (1964); Hopper v. State, 54 So.2d 165 (Fla.1951); Penton v. State, 114 So.2d 381 (Fla.App.1959); Coachman v. State, 114 So.2d 189 (Fla.App.1959). In Mississippi the burden of proof never shifts from the prosecution in a criminal case. Pittman v. State, 297 So.2d 888, 891 (Miss.1974). However, the defendant has the duty to go forward in presenting evidence to substantiate matters raised in defense. See, e. g., Alston v. State, 258 So.2d 436, 438 (Miss.1972). We hold that Talbert had the duty to go forward and present evidence from which the jury could infer an intervening cause of death.

In this case, Dr. Harrison described Gant’s injuries in excruciating detail. His opinion at the time of his observations was that death was imminent because of the head injuries inflicted by this brutal beating. Mr. Gant in fact died the next evening. With this testimony, the state met its burden of proof. It had established facts from which the jury could infer beyond a reasonable doubt that Mr. Gant died from the beating inflicted upon him in the course of the robbery. Talbert introduced no evidence whatsoever to establish that any other agency could have caused Gant’s death.

The best evidence rule did not require the state to present the doctors from Memphis who attended Gant at the time of his death. The best evidence rule applies only to documentary evidence. 32A C.J.S. Evidence § 782 (1964).

Nor was Dr. Harrison’s opinion as to the cause of death based upon hearsay. His testimony clearly indicates that his opinion was formed by his personal observations on September 20. It is unimportant that his opinion was later confirmed by his conversations with the doctors in Memphis. He did not rely on those consultations in forming his opinion. It should also be noted that reference to these conversations was brought out by Talbert’s attorney on cross-examination, and not by the prosecution.

This holding does not modify or detract from our holding in Gilleylen v. State, 255 So.2d 661 (Miss.1971). That case involved the testimony of a pathologist who based his opinion on the report of a technician. We held that the state was required to present the testimony of the technician because of the defendant’s constitutional right to be confronted with the witnesses against him. Id. at 663. In this case, Dr. Harrison did not base his testimony on his conversation with the doctors in Memphis. Therefore, there was no need to introduce their testimony into evidence.

We therefore conclude that the state properly established the cause of Mr. Gant’s death.

Talbert further contends that the trial court improperly admitted evidence of his confession. During the hearing on Tal-bert’s motion to suppress, it was established that Talbert was properly advised of his rights immediately after his arrest. Tal-bert denied any knowledge of the crime, and the attorney appointed to represent him advised him not to make any statements to the authorities. However, Deputy Sheriff Doyle Nail testified that on the afternoon of September 25, as he was carrying some cigarettes back to Talbert’s cell, the prisoner voluntarily admitted his guilt, without any questioning by the deputy. Nail reported that Talbert said:

Mr. Doyle, I lied about Gant’s store. I was there, but it didn’t happen like Thompson and Terry said it did in the store. We all three were in the store and Thompson began to beat Mr. Gant with a tire tool and I taken the tire tool away from Thompson and he went outside and got another piece of iron and came in and finished beating him while me and Terry looked for money behind the counter.

In his testimony on the motion, outside the hearing of the jury, Talbert did not contend that he had been coerced or intimidated. Rather, he denied making the statement at all. Since no question of voluntariness was presented, the court ruled “that the statement is admissable (sic) as a voluntary statement, the question of whether he made it or not being one for the jury.”

Talbert contends that the court had the responsibility of determining whether or not the statement was actually made. In support of this proposition, he relies on this language in Morroco v. State, 204 Miss. 498, 508, 37 So.2d 751, 752 (1948):

With further reference to confessions, we point oht that there are two questions which the Court must decide on a preliminary investigation. The first of these; was there a confession; and, second, was it free and voluntary?

This language must be considered in light of the unique circumstances of the Morroco case. The defendant was a Mexican who spoke only broken English. The sheriff had questioned him in English, and Morroco had responded as best he could. The sheriff later wrote down his understanding of Mor-roco's answers, and read the statement back to him. Morroco then said the statement was “all right.” In that case, it was clear that a statement had been made, and that it had been made voluntarily. The only issue presented was whether it had been made competently, whether Morroco could understand the statement read to him by the sheriff. We held that to be a question for the court. Id. at 508, 37 So.2d at 752. In this sense, Morroco is similar to Brooks v. State, 242 So.2d 865, 868 (Miss.1971), where the defendant claimed he was too drunk to make a competent confession. We found that to be an issue for the trial judge. Thus, it is apparent that when we said in Morroco that the trial court must decide whether there was a confession, we did not mean that the trial court ought to decide whether a statement was made, but whether the statement made was competent to constitute a confession.

The true rule, as applied by the trial court in this case, is found in Weathers v. State, 237 So.2d 441 (Miss.1970). In that case, the police officer testified that a confession had been made, and the defendant claimed that it had not. We held, “The conflict between Weathers and the officer as to whether Weathers had, in fact, made the statement attributed to him created a factual issue, the resolution of which lay peculiarly within the province of the jury.” Id. at 442. Thus, the court properly admitted the testimony of Deputy Sheriff Nail regarding Talbert’s confession. The jury was free to decide whether the statement had been made, and to decide what weight to give it.

We conclude that the evidence contained in the record is sufficient to support the jury’s verdict. We find no merit in Tal-bert’s remaining assignments of error. Therefore, his conviction and sentence must be affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: GILLESPIE, Chief Justice,

text:
    MISSISSIPPI MARINE CONSERVATION COMMISSION et al. v. Albert J. MISKO.
    No. 49434.
    Supreme Court of Mississippi.
    May 11, 1977.
    Rehearing Denied July 13, 1977.

      Lucien M. Gex, Jr., Waveland, for appellants.
    Boyce Holleman, Gaston H. Hewes, Jr., Gulfport, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court:

The Circuit Court of Harrison County, on petition of Albert J. Misko, ordered that a writ of mandamus issue commanding the Mississippi Marine Conservation Commission (Commission) to reinstate Misko as assistant chief inspector with all back pay accrued from January 1, 1974. The Commission appealed to this Court.

The minutes of the July 18,1972, meeting of the Commission reflect that the Commission “elected to hire” Albert J. Misko as the assistant chief law enforcement officer. Governor Waller was present at this meeting of the Commission.

On July 19, 1972, the chairman of the Commission wrote a letter to Misko, welcoming him as the assistant chief inspector at a salary of $700 per month. Misko assumed the duties of assistant chief inspector upon being issued a badge and identification card indicating that he held the rank of assistant chief inspector. Misko was identified as assistant chief inspector in the Commission’s minutes from September, 1972, through December, 1973.

On November 14, 1973, the Commission entered an order stating that Misko had violated his authority and requesting that Misko resign and upon his failure to resign that the Governor be requested to remove him after a public hearing as required by law.

On December 22, 1973, the chairman of the Commission wrote Misko a letter stating that he was suspended from all duties pending the outcome of certain charges (later dropped) filed by the Jackson County Prosecuting Attorney. On February 27, 1974, Heber Ladner, Secretary of State, wrote a letter to the Commission stating that he had made a search of his records, as the Commission had asked, but had failed to find a letter of appointment by the Governor appointing Misko as the assistant chief inspector. At the Commission’s regular meeting in March, 1974, Misko, who was then on suspension, was ordered dismissed effective immediately, and Misko was sent a letter on March 7,1974, advising him that he had been discharged. On April 1, 1974, Governor Waller issued Misko a commission appointing him assistant chief inspector of the Mississippi Marine Conservation Commission, effective July 17, 1972, for the period ending July 17, 1976. The commission stated that “this appointment being a substitute to the original appointment.

The commission was issued' by the Secretary of State in accordance with the Governor’s letter to the Secretary of State, which stated that the appointment had been made on July 17, 1972, and that Misko began serving in that capacity on that date.

The Governor never submitted Misko’s name to the Mississippi State Senate and obviously the Senate never confirmed the appointment. This case raises several questions.

Was Misko lawfully appointed to the office of assistant chief inspector?

Mississippi Code Annotated section 49-15-11 (1972) provides for the creation of the Mississippi Marine Conservation Commission. At the time this controversy began section 49-15-21(b) (later amended) provided in part:

The governor shall appoint a chief inspector and assistant chief inspector, which appointments shall be confirmed by the senate, who shall serve in such office for a term of four (4) years. . . . The chief inspector and assistant chief inspector shall not be removed from office except by the governor, and then only upon notice of at least ten (10) days of the charges made against him, and the time and place of a public hearing. The commission shall appoint such other deputy inspectors as may be needed, but such deputies shall not be removed from office except upon approval of the chief inspector.

Mississippi Code Annotated section 7-1-35 (1972), which delineates confirmation procedures, states:

The governor shall fill by appointment, with the advice and consent of the senate, all offices subject to such appointment when the term of the incumbent will expire within nine months after the meeting of the legislature, and also vacancies in such offices occurring from any cause during the session of the senate or during the vacation of that body. All such appointments to offices made in vacation shall be reported to the senate within ten days after the commencement of the session of that body for its advice and consent to the appointment, and the vacancy shall not be filled if caused by the senate’s refusal to confirm any appointment or nomination, or if it do not occur during the last five days of the session, by the appointment of the governor in the vacation of the senate, without its concurrence. Any appointment in vacation to which the senate shall refuse to consent shall be thereby annulled from that date, but the acts of the appointee prior thereto shall not be affected thereby.

We are of the opinion and so hold that at most Misko was a de facto officer. Brady v. Howe, 50 Miss. 607 (1874). In violation of section 7-1-35, the appointment was never reported to the senate and the plain provisions of section 49-15-21(b), which require that the appointment of the assistant chief inspector “shall be confirmed by the senate” were unfulfilled. We reject as untenable the argument that the appointment is good so long as it is not rejected by the senate. In the first place, the appointment was never submitted to the senate, and in the second place, that is not the intent of the statutes. The appointment can only be made by executive action and the action of the senate in confirming it.

This Court stated in Brady, supra,

It is very manifest that the senate shares with the governor, in the duty and responsibility of filling the judicial offices the constitution intends that the appointments of the respective judges to their appropriate terms shall be participated in by the senate. 50 Miss, at 616-17.

In the same case, the Court stated:

That for the repose and quietude of society, constituted him de facto chancellor, and imparted virtue and validity to his judicial acts. 50 Miss, at 623.

If the Court should hold that Misko is a de jure officer when several sessions of the legislature intervene between his appointment and his discharge, the Court would circumvent the plain words of the statute that place responsibility on the senate to confirm the appointment of assistant chief inspector. This the courts have no authority to do.

Was Misko a deputy inspector subject to removal only upon the approval of the chief inspector?

Misko argues that if he was not assistant chief inspector who could only be discharged by the governor after hearing, he was a deputy inspector under the following sentence from Code section 49-15-21(b): “The Commission shall appoint such other deputy inspectors as may be needed, but such deputies shall not be removed from office except upon approval of the chief inspector.” There is nothing in the record to indicate that anyone considered Misko a deputy inspector. He was assistant chief inspector or nothing, and we find no merit in the alternative argument that Mis-ko was a deputy inspector.

For the reasons stated, Misko was never validly appointed assistant chief inspector, and at most he was a de facto officer so long as he worked for the Commission in that capacity and when he was discharged the Commission merely terminated a de fac-to status which required no action by the governor or any hearing to remove him from an office he did not validly hold.

REVERSED AND JUDGMENT HERE FOR THE COMMISSION.

PATTERSON, P. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.

WALKER, J., took no part.


author: LEE, Justice,

text:
    William Lee JOHNSON v. STATE of Mississippi.
    No. 49630.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied July 13, 1977.

      Leslie C. Gates, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

William Lee Johnson was indicted, tried, and convicted of armed robbery by the Circuit Court of Lauderdale County, and from a life sentence, he appeals here. We affirm.

Three errors are assigned in the rulings of the trial court:

(1) The trial court failed to sustain appellant’s motion to exclude certain evidence obtained through a search of appellant’s automobile;

(2) The trial court refused appellant’s requested Instruction D-4, which was a two-theory instruction; and

(3)The court overruled appellant’s motion for judgment notwithstanding the verdict.

Around midnight on November 18, 1975, the night clerk of 8-Days Inn in Meridian noticed a 1968 or 1969 blue Pontiac automobile with a white top and dented right fender being driven through the motel parking lot several times. The last time, it continued to the back of the motel, and a short while later, two black males entered the motel and demanded money. One was tall and thin, he was wearing a black leather jacket, a pair of blue jeans, and he had a blue and white handkerchief over his face. The other wore a brown jacket, he had a red and white handkerchief over his face, and he carried a pistol. Jones put the money ($119.00) into a bank bag and the two men left, whereupon, Jones notified the police and gave them a description of the automobile and the robbers.

Approximately forty-five (45) minutes later, two police officers spied a car parked on a roadside fitting the description, even to the dented fender, given them by the motel operator. They drove up to the car, which was occupied by two black males and two black females, and got out. (Another couple stood outside the car). As they ap-. proached it, they noticed that the driver (appellant) had on a black leather coat. All occupants were ordered out of the car, and the police, seeing that appellant fit the description given them by the night clerk, (“He was tall, wore a black leather coat and jeans”), placed him under arrest. The officers also saw three coats on the back seat of the appellant’s vehicle, they took all the occupants to the police station, along with the car, and, after arriving at the police station, searched the automobile, found that the pocket of one coat contained a .22 pistol and another a blue and white handkerchief, and that a purse of one female contained a red and white handkerchief.

Frank Lloyd, one of the occupants of the car, testified that he, appellant and Woodrow Johnson planned to rob the 8-Days Inn, that they drove through the motel several times, he was afraid they had been seen, he became involved in an argument with Woodrow, and backed out of the planned robbery. Appellant let him out of the car at another place in town, and Woodrow Johnson borrowed Lloyd’s pistol. The Johnsons left, and, a short while later, returned, picked up Lloyd, along with three girls, and the individuals were in the vehicle at the time the officers saw it. Appellant filed a motion to exclude the evidence obtained by search of the vehicle, along with the evidence of the black leather coat worn by appellant, on the ground that there was no probable cause for the arrest and search.

I.

Did the court err in declining to sustain appellant’s motion to exclude the evidence?

Under the facts stated above, the officers had probable cause to arrest Johnson and they had probable cause to search the vehicle. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Wolf v. State, 260 So.2d 425 (Miss.1972); Norwood v. State, 258 So.2d 756 (Miss.1972); Powe v. State, 235 So.2d 920 (Miss.1970).

The automobile was taken into possession of the police at the same time the occupants were arrested. The officers had already seen the coats on the back seat and when they arrived at the police station they removed the coats therefrom. The search was lawful under those circumstances and the procedure has been approved in Wolf v. State, supra, and Dorsey v. State, 243 So.2d 550 (Miss.1971).

Appellant contends that his arrest was unlawful in that it violated that part of Mississippi Code Annotated Section 99-3-7 (1972) which states: “. . . And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.”

the officers told appellant that he was under arrest for investigation. Without question, the officers had lawful authority to arrest appellant under the circumstances, and the arrest was proper. Klingler v. United States, 409 F.2d 299 (8th Cir. 1969); Bennett v. State, 211 So.2d 520 (Miss.1968); Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962).

II.

Did the trial court err in refusing appellant’s requested Instruction D-4?

Appellant requested and was refused Instruction D 4 [See Appendix I]. He was granted Instruction D-6 [See Appendix II]. The Instruction D-4 was the only instruction which told the jury that before the defendant could be found guilty the jury must believe him guilty “to the exclusion of every reasonable hypothesis consistent with his innocence.” However, Instruction D-6 told the jury that, if there was any circumstance susceptible to two reasonable interpretations, one favorable and the other unfavorable to the accused, and “they are in doubt as to which is the correct interpretation,” such doubt shall be in favor of the accused. That instruction did not require the jury to have a reasonable doubt, and is stronger for the appellant than the wording of Instruction D-4 “a reasonable hypothesis.”

The two-theory instruction may be given only in an entirely circumstantial evidence case. The present case is not entirely circumstantial because Lloyd testified about the preliminary planning and casing of the motel with appellant and Woodrow Johnson, he testified about an argument at the motel, and that he loaned them his pistol. An employee of the motel testified that he saw the vehicle at the motel prior to the robbery and heard the loud argument between two individuals in the car. Appellant’s defense was an alibi. We are of the opinion that there is no merit in this assignment of error.

III.

Did the trial court err in refusing to enter a judgment notwithstanding the verdict?

Appellant did not request a peremptory instruction or a directed verdict. However, we treat the motion for a judgment notwithstanding the verdict as if a peremptory instruction had been requested. The evidence of appellant’s guilt was overwhelming, and, had a motion for directed verdict or request for peremptory instruction been made, the trial court properly would have overruled them. Therefore, this assignment of error is without merit.

There being no errors in the trial of the case, it must be and is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

APPENDIX I

“JURY INSTRUCTION D-4

The court instructs the jury for the defendant that before you can find the defendant guilty, you must believe from the evidence beyond reasonable doubt and to the exclusion of every reasonable hypothesis consistent with his innocence, that he is in fact guilty.”

APPENDIX II

“JURY INSTRUCTION D-6

The court instructs the jury that if there be any fact or circumstance in the case susceptible to two reasonable interpretations, one favorable and the other unfavorable to the accused, and when the jury have considered such fact or circumstance in connection with all the other evidence they are in doubt as to which is the correct interpretation, they must resolve such doubt in favor of the accused and place upon such fact or circumstance the interpretation favorable to him.”


text:
    SCRANTON CONSTRUCTION COMPANY, INC. and Clegg Concrete Company, Inc. v. INGALLS SHIPBUILDING CORPORATION, INC., Litton Systems, Inc., and The United Cement Company, Inc.
    No. 49252.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied July 13, 1977.
    Breland & Barnett, Norman L. Breland, Gulfport, for appellant.
    Karl Wiesenburg, Pascagoula, Brunini, Grantham, Grower & Hewes, John M. Grower, W. Timothy Jones, Jackson, for appellee.
    Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and JOE 0. SAMS, Sr., Commissioner.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    MAJOR ASSOCIATES, INC. v. Robert NORMAN, d/b/a Norman Painting & Drywall.
    No. 49417.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied July 13, 1977.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Young, Scanlon & Sessums, Robert R. Marshall, Jackson, for appellant.

Brown, Alexander & Sanders, Pirnist J. Alexander, Jr., Jackson, for appellee.

Before INZER, P. J., and SMITH and BROOM, JJ.

REVERSED AND RENDERED.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


text:
    Olius McCRORY v. STATE of Mississippi.
    No. 49711.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied July 13, 1977.
    Sekul, Hornsby & Wallace, John M. Se-kul, Walter W. Teel, Biloxi, for appellant.
    A. P. Summer, Atty. Gen. by Wayne M. Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., SMITH and BROOM, JJ., and J. C. PEDUCCIA, Commissioner.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    In the Matter of the ESTATE of Leroy JONES, Deceased. Estell HAIVE et al. v. Edna Marie STRAUDER and James Charles Jones.
    No. 49407.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied July 13, 1977.
    Zuccaro, Riley, Pintard & Brown, J. Walter Brown, Jr., Natchez, for appellants.
    Prank W. Walden, J. Barret Martin, Natchez, for appellees.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   Appeal from Chancery Court, Adams County; Fred C. Berger, Chancellor.

AFFIRMED.


text:
    Leslie E. KNIGHTEN v. Glenda S. BRODERICK.
    No. 49444.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied July 13, 1977.
    Leslie E. Knighten, pro se.
    Pritchard, Myers & Gordon, William H. Myers, Pascagoula, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Chancery Court, Jackson County; James Arden Barnett, Special Chancellor.

AFFIRMED.


text:
    Lewis GRAY, Jr. v. POLORON PRODUCTS OF MISSISSIPPI et al.
    No. 49364.
    Supreme Court of Mississippi.
    May 25, 1977.
    Rehearing Denied July 13, 1977.
    William E. Trusty, William L. Cook, Jr., M. Collins Bailey, Batesville, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, K. Hayes Callicutt, Jackson, for appellees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Lewis Gray, Jr., claimed workmen’s compensation benefits for injuries sustained September 4, 1969. The attorney/referee allowed temporary total benefits from September 6, 1969, to October 5, 1969, and denied permanent partial benefits, which decision was affirmed by the full commission and by the Circuit Court of Panola County. Gray appeals from that judgment and we reverse.

While in the scope of his employment with Poloron Products of Mississippi, appellant’s automobile struck a bridge abutment and he was thrown violently into the steering wheel. Appellant was taken to the South Panola Hospital where Dr. H. Deck Stone, the company physician, examined and attended him. He remained in the hospital from September 4,1969 to September 6,1969, and was discharged to go home. On October 7, 1969, he was released by the doctor and he returned to work. Appellees concede that appellant sustained injuries to his chest, but contend that he had recovered from same on October 3, 1969, without any residual effects, and that he did not sustain injuries to his spine. Appellant claims that, in addition to his chest injuries, he sustained serious disabling injuries to his back. The Workmen’s Compensation Commission accepted appellees’ version.

The testimony of lay witnesses, including claimant, shows for the claimant that he complained of pain in his chest, neck and back, and was unable to work, although he did work for approximately seven (7) months because he had to support his family. The lay testimony for appellees indicated that after returning to work, appellant never complained of back trouble or of being unable to do his work, that he worked longer and harder than he had before the injury, and that he worked for a period of seven (7) months without any complaint to his employer.

The question presented on this appeal is whether or not there is substantial evidence to support the finding of the full commission. For a determination of this question, it is necessary to analyze the medical testimony.

Dr. H. Deck Stone was the first doctor to examine and treat the claimant. He found that claimant had contusions of the chest and a possible separation of the bones and the cartilage in the area of the sternum. He testified that claimant made no complaint of any pain in the spine, cervical or lumbar, and that he did not examine his neck and back or X-ray them. He did say that on October 3,1969, when he saw claimant, complaint of pain in the back was made.

Dr. Ben Moore next examined appellant on January 5, 1970. He said that claimant complained of chest pains, particularly in the sternum area, but of no other pain and no complaint was made about the neck or back injuries. He did not examine appellant’s cervical, lumbar or thoracic spine or X-ray them.

Dr. H. Nelson Hamilton, an orthopedic surgeon from Greenville, examined appellant on May 13, 1970, and hospitalized and treated him until May 30, 1970. He made X-rays of appellant’s spine and testified that there was a fracture at C-6, a compression fracture at C-6, a fracture at L-5, traumatic cervical nerve root neuropathy, a mass at C-6, and that the X-rays showed real evidence of fractures at C-l, L-4 and L-5.

It is significant that Dr. Hamilton said the first time he saw appellant that complaint was made of tenderness in his lower back, his fingers on the left hand were dead, the straight-leg raising test was painful with back and neck pain, and there was a deadening in the lower left leg. An examination of the neck also showed a unilateral pedicle fracture at C-6 and a compression fracture at C-6. Appellant showed signs of traumatic cervical nerve root neu-ropathy and signs of post-traumatic arthro-pathy following fracture in the cervical area. These findings resulted from the physical and clinical examination performed by Dr. Hamilton and from an inspection of the X-rays. He treated appellant from May 13, 1970, to September 13, 1971, (date he last saw him) and during this time examined Gray some sixteen (16) times. In his opinion, on March 22, 1971, appellant was totally disabled and had not reached maximum improvement by the time of the hearing on November 18, 1971.

Dr. William Franklin Owens, Jr., an orthopedic surgeon from Jackson, testified for appellees that he examined the X-rays taken by Dr. Hamilton, that he saw no fractures of the cervical spine and that he did not believe appellant had muscle spasms. He noted an abnormality from X-rays of L-4 and L-5 which indicated a spondyloly-sis condition, and which, in his opinion, was old and chronic. Dr. Owens never saw or examined Gray, and he said that the spon-dylolysis condition could well have been aggravated by the injuries. He further stated that Dr. Hamilton was better qualified to testify as to appellant’s condition than he, and that it is not uncommon for patients to complain of the injury hurting worse and then notice and complain of other pain later on.

Dr. James M. Packer, a radiologist from Jackson, testified for appellees that he saw no fractures in the X-rays, that there was evidence of a spondylolysis condition which was old and remote. He said that he was not an authority on such a condition and that radiologists differ in their interpretation of it.

Dr. Lloyd Merbitz, an orthopedic surgeon from Greenville, testified for the appellant that he examined the X-rays of Dr. Hamilton, that there was no fracture to the left cervical spine, that the six cervical vertebrae indicated a little suspicion to him, but he could not diagnose from the X-rays, that there might be a defect in L-4 and L-5. In his opinion, if it were a fracture, there would be resulting damage to the soft tissues of the neck and back.

Dr. Henry B. Grochau, a radiologist from Greenville, testified for appellant that he was requested by Dr. Hamilton to perform a laminagraphic examination of appellant’s spine and that he also took coned down views of the cervical spine. The X-rays taken by Dr. Hamilton were too incomplete for him to make a final diagnosis, but they were strongly suggestive of a fracture of the pars interarticularis. Dr. Grochau testified that there was a strong suspicion of a fracture of C-6 and'that the fracture was fresh. His X-rays indicated that there was a linear separated bone fragment and loss of definition of the joint between L-4 and L-5 and that this strongly suggested to him a fracture of the interior facet. In his opinion, the fractures were the result of direct trauma, the conditions were not present to suggest a congenital defect and, in his opinion, there was a great percentage of probability that there was a fracture of appellant’s back and neck.

Dr. Hamilton was recalled by appellant, and he testified that the Exhibit 1 X-ray indicated a spondylolysis effect which he felt was due to a fracture because it was not smooth and it did not have the characteristics of a congenital defect. He stated that the fractures themselves are not of any great importance so far as diagnosis and treatment of appellant is concerned, but they confirm that trauma had been received and that the fracture was healing. He stated further that appellant had an unstable lumbosacral injury following the accident, that the damage received was soft tissue damage to the muscles, damage to the joints in the cervical area and damage to the nerve roots.

The Workmen’s Compensation Act is given a broad and liberal construction. Doubtful cases should be resolved in favor of compensation in order to serve the humane purposes of the act. Youngblood v. Ralph M. Parsons Co., 260 So.2d 188 (Miss. 1972); Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351 (1959). In reviewing a case, the Court is required to look at all the evidence on both sides. Roberts v. Junior Food Mart, 308 So.2d 232 (Miss. 1975).

In Harpole Bros. Construction Co. v. Parker, 253 So.2d 820 (Miss. 1971), claimant was a healthy, physical laborer until a limb fell on his back, he resumed work in a few days, but continued to have problems with his back (this was in 1965). In 1968, a physician thoroughly examined Parker’s back and found traumatic arthritis which was consistent with a history of injury to the back. Dr. Thompson testified for the employer that he found no acute injury and it was his opinion that claimant was suffering from spondylolisthesis, a congenital defect, and that, in his opinion, any disability was not connected with the injury. The commission denied compensation, the circuit court reversed and was affirmed by this Court in the following language:

“It is clear that the only possible basis upon which the commission could deny compensation in this case is the testimony of Dr. Thompson. If his testimony is considered in isolation, it might amount to substantial evidence to support the finding of the commission, but when it is considered with the other evidence in this case, it loses much of its character and does not amount to substantial evidence. In reviewing a record to determine whether there is substantial evidence to support the order of the commission, we must look at all the evidence on both sides. When we do that in this case, we find that the order of the commission is clearly erroneous.” 253 So.2d at 822-823.

In Riverside of Marks v. Russell, 324 So.2d 759 (Miss. 1976), the claimant suffered a cerebrovascular accident while loading baggage. His physician testified that it resulted from a hemorrhage, which is usually work related, and the employer’s physician testified that it resulted from thrombosis, which is usually not work related. The attorney/referee and full commission denied compensation, the circuit court reversed and entered judgment for the claimant, and this Court, in affirming the lower court, held that there was ample evidence to show that claimant’s injury was caused by his work.

The only doctors who physically examined appellant here were Dr. Stone, Dr. Moore and Dr. Hamilton. Dr. Stone and Dr. Moore admittedly did not perform a physical examination on the cervical and lumbar spine while Dr. Hamilton did perform such an examination, including the taking of X-rays, and he cared for and treated claimant from May 13, 1970, until November 18,1971, which was the last date he saw claimant prior to the hearing. From the physical and other examinations of claimant, Dr. Hamilton positively testified that appellant had sustained injuries to his spine which were causally related to the accident of September 4,1969. Dr. Merbitz examined the X-rays taken by Dr. Hamilton and corroborated Dr. Hamilton in some degree. Dr. Grochau conducted laminagraphic examinations of appellant’s spine and it was his opinion there was probability of a fracture. Dr. Grochau’s X-rays were not examined by other physicians and his testimony from these X-rays is not contradicted.

We are of the opinion that the order of the Workmen’s Compensation Commission is not founded on substantial evidence, and that the great weight of evidence in the case shows appellant sustained an injury to his spine as a result of the September 4, 1969 accident. The evidence indicates that a spondylolysis condition may have been present in appellant’s spine. Preexisting injury was pleaded as an affirmative defense by the appellees. Dr. Hamilton testified that claimant was totally disabled as of March 22, 1971, and that he had not reached maximum improvement on November 18, 1971. The judgment of the lower court, therefore, is reversed, judgment is entered here in favor of appellant, and the cause is remanded to the commission for the purpose of determining questions of total disability, permanent partial disability, if any, and apportionment, if any.

REVERSED AND REMANDED TO WORKMEN’S COMPENSATION COMMISSION.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: SMITH, Justice,

text:
    ADAMS COUNTY, Mississippi v. McKinley McCOY et al.
    No. 49408.
    Supreme Court of Mississippi.
    May 25, 1977.
    Rehearing Denied July 13, 1977.

      Gwin & Gwin, Lucien C. Gwin, Jr., Natchez, for appellant.
    Mulhearn & Mulhearn, John E. Mulhearn, Jr., Natchez, Anderson, Banks, Nichols & Stewart, John A. Nichols, Jackson, for ap-pellees.
    Before INZER, SMITH and BROOM, JJ.
   SMITH, Justice,

for the Court.

The Board of Supervisors of Adams County has appealed from a decree of the Adams County Chancery Court refusing to cancel the claims of appellees, McCoy (and others), to certain “lieu” school lands, claimed to be clouds upon the county’s title to such lands, and, on cross-bill filed by appellees, cancelling the county’s claim of ownership, as a cloud upon appellees’ title thereto, and confirming title in appellees as owners of the land.

The land in question was set apart by the United States Congress as lieu school land in 1806. Since the history, purpose and status of such lands have been discussed at length in several former opinions of this Court a further discussion will be omitted here.

In order to prevail in this case, it was indispensable that appellees show that in some manner recognized by law Adams County had been divested of title to the land and that such title had been acquired by them.

The claim of appellees stems from, and is predicated upon, a specifically identified source. This source is alleged to have been a deed from the Adams County Board of School Commissioners, as grantor, to Martha P. Weems, appellees’ alleged predecessor in title, executed on November 9, 1846.

The instrument referred to does not appear of record and, if it ever existed, long since has been lost or destroyed. The failure to produce it in evidence was not accounted for and the fact that such a deed existed at all is sought to be implied from a reference to it made in a deed from Weems subsequently executed. Another reference appearing in the land records of Adams County refers to an instrument from the Board of School Commissioners to Weems as a lease. These circumstances, however, are not essential to a decision of the question now presented.

Appellees’ case must fail because it has not been demonstrated that lawful authority to convey title to school lands, such as those here involved, so as to divest the county of title thereto, existed in the State of Mississippi at the relevant time. Appel-lees cite as authority an implication sought to be drawn from a statute enacted on February 9,1839 entitled “An Act Concerning The School Lands.” This statute authorized the township trustees: “ . whenever the location of any sixteenth section shall be unhealthy or otherwise unsuitable for schools, and a majority of two-thirds of the regular heads of families of the township to which the same belongs shall sign a written assent thereunto, the trustees for such township may employ the fund arising from the sale or lease of such sixteenth section . . . ” The statute provided that the “contract or agreement should be made in writing” and “recorded by the clerk of the probate of the county.” There is no evidence that any such proceedings ever took place and none that a sale of the land presently involved was ever made by the township trustees if, in fact, authority of such trustees to sell logically may be implied from the language of the statute. Moreover, the instrument relied upon by appellees to divest Adams County of its title to the land is specifically identified as a deed from the Adams County Board of School Commissioners as grantor, to Martha P. Weems, appellees’ alleged predecessor in title, executed on November 9, 1846.

Jurisdiction of school lands became vested in the Board of School Commissioners on March 4, 1846 for the first time under Chapter 9, Article 37, Laws of Mississippi 1846, effective from and after passage and entitled “An Act To Establish A System Of Common Schools.” The authority of the Board of School Commissioners was expressly and specifically limited to leasing school lands for 99 years.

The case has been ably and thoroughly briefed by counsel for both sides and their diligent research of the statutory history of school lands in Mississippi has resulted in a detailed and interesting discussion of the subject. From this we think that it is clear that no statutory authority existed in the Board of School Commissioners, the supposed grantor in the “deed” to Weems, appel-lees’ alleged predecessor in title on November 9, 1846, to divest Adams County of title to school lands and that the authority of the Board of School Commissioners was limited to the leasing of such lands.

Appellees contend, however, that they acquired title by adverse possession under the provisions of Mississippi Code Annotated section 29-3-7 (1972).

Adverse possession for a period of twenty-five years, under a claim of right or title, shall be prima facie evidence in such case that the law authorizing the disposition of the lands has been complied with and the lease or sale duly made. If the claim be under a lease, the time at which the lease expires shall be fixed by the court. (Emphasis added).

It is immediately apparent that only cases where there existed a “law authorizing the disposition of the lands” are within contemplation of the statute. Here no such law existed on November 9, 1846 under which the Board of School Commissioners lawfully could have executed a valid conveyance of title to Weems. The above statute, obviously is designed to eliminate the difficult and sometimes impossible problem of producing proof after many years in cases which fall within its provisions. This means, if lawful authority for the conveyance existed and the conditions of the statute are met, proof of adverse possession will be prima facie evidence of due execution, payment of consideration and the like. The statute has no application to this case in which no authority existed for the conveyance of the school land by the Board of School Commissioners. Under such circumstances it is not necessary to discuss in detail the acts alleged by appellees to have constituted adverse possession of the land, although their sufficiency in any case, and particularly in this case, is questionable. We have repeatedly held that lieu and sixteenth section school lands are held by the county in trust for the school children of Mississippi. Authority to divest the county of title must be clear and explicit.

It was error to enter the decree appealed from and it will be set aside and a decree will be entered here cancelling the claims of the several appellees to the land, including all accretions and battures, as clouds upon the title of Adams County thereto.

REVERSED AND DECREE HERE FOR APPELLANT.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    K. R. TRAINUM v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 49456.
    Supreme Court of Mississippi.
    June 1, 1977.
    Rehearing Denied July 13, 1977.
   Appeal from Special Court of Eminent Domain, Alcorn County; Neal Biggers, Judge.

Smith, Downs, Coleman & Ross, Orma R. Smith, Jr., Wendell H. Trapp, Jr., Wilbanks & Wilson, Corinth, for appellant.

Joe B. Mitchell, Corinth, for appellee.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


author: EMBRY, Justice.

text:
    Annie Belle McGILBERRY et al. v. Brady BELCHER et al.
    Div. SC-2081 & SC-2081A.
    Supreme Court of Alabama.
    May 27, 1977.
    Rehearing Denied July 8, 1977.
    Nicholas S. Hare, Monroeville, for appellants.
    J. Milton Coxwell for Coxwell & Coxwell, Monroeville, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment entered in two actions, consolidated for trial involving disputed ownership of lands which Annie Belle McGilberry claims to be hers by adverse possession. The judgment held that Brady Belcher was the owner and the McGilberrys appeal.

The issue presented for review is whether the judgment entered, after ore tenus hearing of conflicting evidence, was fairly supported by credible evidence and not clearly erroneous or manifestly unjust. We affirm.

The issue of ownership was framed by the filing of an action of trespass against Gulf Lumber Company, a corporation, by Annie Belle McGilberry and a subsequent action for trespass against her and Norris McGilberry by Brady Belcher.

Annie Belle McGilberry claimed the true location of the boundary of her W Vi of NW lh, Section 14, Township 5 North, Range 5 East in Monroe County, was fixed by an old fence enclosing the McGilberry property and the lands enclosed by it were hers by prescription or adverse possession of her and her predecessor in title for a period of more than forty years. Belcher contended the lands belonged to him, that the fence was located in part upon his NW Vi of SW Vi and SE Vi of NW Vi of the same Section, Township and Range, and the character of the McGilberry possession was permissive or as a tenant rather than hostile and adverse; further that no possession of any character had been shown to a definite or certain location.

There was conflicting evidence about the character of the McGilberry possession and after oral hearing the trial court found and ordered, in its judgment:

“That Annie Belle McGilberry is the owner of the W Vz of NW Vi, and NE Vi of NW Vi, Section 14, Township 5 North, Range 5 East, Monroe County, Alabama, as described and located by the government survey. That Brady Belcher is the owner of the NW V4 of SW V4 and SE Vi of NW Vi, Section 14, Township 5 North, Range 5 East, Monroe County, Alabama, as described and located by the government survey.
“That in Civil Action No. 4378, Plaintiff McGilberry has failed to prove that any trespass was committed by Defendant Gulf Lumber Co. upon the W Vi of NW Vi, Section 14, Township 5 North, Range 5 East. That Plaintiff McGilberry and her predecessor in title have not acquired title to any lands outside the W V2 of NW Vi, and NE Vi of NW Vi, Section 14, Township 5 North, Range 5 East, by adverse possession or prescription because the character of their possession has been permissive, or as a tenant, and possession up to a definite and certain point or line has not been shown .
“That in Civil Action No. 4493 Plaintiff Belcher has failed to prove a trespass by Defendants McGilberry upon the NW Vi of SW Vi and SE Vi of NW Vi, Section 14, Township 5 North, Range 5 East.
“It is therefore ORDERED and ADJUDGED that the relief prayed for in both Civil Action No. 4378 and in Civil Action No. 4498 respectively be and hereby is denied in both cases.
“The Court does further find established from the evidence that Brady Belcher and Annie Belle McGilberry are co-terminous owners of real property in Monroe County, Alabama, as set forth hereinabove, and that the boundary and dividing line between the lands of said parties is disputed and uncertain.
“Therefore, in order to afford complete relief to the parties in these causes and to finally and completely settle all disputes arising therefrom, it is ORDERED and ADJUDGED that the true government survey lines between W V2 of NW Vi and NE Vi of NW Vi, the lands of McGilberry, and NW Vi of SW Vi and SE Vi of NW Vi,' the lands of Belcher, all in Section 14, Township 5 North, Range 5 East, be located and properly marked by Boyd Foster of Greenville, Ala., a registered land surveyor, who shall report his actions hereunder to this Court upon completion.”

In Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (1976), this court said:

“Under the law of Alabama, a person claiming title by adverse possession against the holder of the legal title, has the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse and exclusive possession of a definite tract under a claim of right for the time prescribed by law, and such possession is required to be shown by clear and convincing evidence. * * * ”

The factual setting in Knowles and in this case is quite similar. There the claimant was an adjoining landowner (similarly situated as McGilberry) who claimed title by adverse possession against the record title holder (similarly situated as Belcher). It was contended, as it is here, that a fence marked the true boundary line and that for more than forty years control was exercised over all the land within the fence, including the disputed portion (331 So.2d at 254). There was evidence introduced by the Knowleses, as there was by McGilberry here, that they had cut and sold timber from the disputed parcel. There was also evidence that the Knowleses grazed cattle upon the land from time to time, as there was evidence here by McGilberry (Id). The trial court found, as it did in this case, that the Knowleses had failed to establish title by adverse possession.

Adverse possession becomes a perfect title on the theory that the true owner had by his own fault and neglect failed to assert his rights against the hostile holding, but all presumptions and intendments are favorable to the title, and possessions are not presumed to be hostile thereto. Cotton v. May, 293 Ala. 212, 215, 301 So.2d 168 (1974); Stewart v. Childress, 269 Ala. 87, 111 So.2d 8 (1959).

This judgment establishing a boundary line between coterminous lands and determining ownership of lands based on evidence submitted ore tenus in open court is presumed correct. In such case the trial court’s conclusions will not be disturbed unless plainly erroneous or manifestly unjust. White v. Sims, 295 Ala. 244, 246, 326 So.2d 733 (1976).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.