author: WALKER, Justice.

text:
    James Edward KUHN v. STATE of Mississippi.
    No. 48677.
    Supreme Court of Mississippi.
    Jan. 13, 1976.
    Wilkins, Ellington & Latham, L. C. James, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   WALKER, Justice.

The appellant, James Edward Kuhn, a nineteen year old youth, was convicted of raping a twenty-seven year old housewife and sentenced to life in the state penitentiary. From' that conviction and sentence, he prosecutes this appeal.

The appellant admits that he had sexual intercourse with the alleged victim but contends that she submitted freely and voluntarily; and, that no force or threats were used against her. The appellant testified that he and the young woman exchanged pleasantries in the parking lot of a shopping center, and he asked her if she wanted him to follow her home to which she replied in the affirmative; that he followed her home where she voluntarily got into his car and went with him to an isolated area where she willingly took off her clothes and engaged in sexual relations. He also testified that when he was driving her home she asked to be let out at a friend’s hopse rather than to be carried home.

The alleged victim testified that the appellant accosted her in her carport shortly after she arrived home from a shopping trip; that she dropped the packages she had in her arms and screamed, but was told by the appellant to “Shut up, don’t make any noise or I’ll use the knife”; and that he led and dragged her to his automobile where she screamed again. She testified, “This scared him and it made him mad and he used the knife. He chipped and he cut my chin about where the mold [sic] is.” He told her again, “If you make another noise I’ll kill you.” However, as the appellant pushed her into the car she “. . . got on the horn with both arms and blew the horn just as long and as loud as I [she] could”, whereupon the appellant again put the knife to her throat. The appellant drove to a deserted gravel road and directed her to take off her clothes. He threatened, “Do you want this knife? If you’ don’t I’m going to use the knife.” They thereafter had intercourse. The victim testified that she was afraid the appellant would use the knife to kill her or to cut her if she refused. She also stated that in her hurry to get dressed, she forgot to put on her panty hose and girdle. Aft-erwards, she asked to be driven to a friend’s house (her preacher’s home). The appellant complied with this request but warned her not to tell anybody what had happened.

The victim’s account of what transpired was corroborated in every respect. Packages were found lying in the carport of the victim’s home. A neighbor testified that he heard a scream and a horn blowing. When he looked out his window, he noticed nothing unusual but saw a car crossing a nearby bridge. The victim had cut marks or scratches on her neck and chin. She also had bruises on her back. The woman’s pastor testified that on the night of the incident he responded to a beating on his front door. When he opened the door, he found the victim standing there and she appeared scared and excited. The pastor noticed that she was carrying panty hose and a girdle in her hand.

The appellant does not suggest that the verdict was against the overwhelming weight of the evidence. However, he does contend (1) that the court committed reversible error in allowing the state to- introduce evidence of the appellant’s bad character; and, (2) that the court erred in allowing the state to conduct improper closing argument over defendant’s timely objection and motion for mistrial.

I.

We have meticulously examined this record and find nothing to substantiate appellant’s assignment of error that the state was allowed to introduce evidence of defendant’s bad character. Questions in this vein were interposed, but objections thereto were either sustained or no opinion was expressed by the witness. At most, one witness testified she had heard “that he [appellant] had been into something.” However, the appellant had already testified that he had been convicted of possession of marijuana and paraphernalia. If there was error, it was. harmless error which would not be cause for reversal under Mississippi Supreme Court Rule 11.

II.

The appellant’s next assignment of error is that the court erred in allowing the state to conduct improper closing argument over defendant’s timely objection and motion for a mistrial. This contention centers upon the following statements of the prosecuting attorney:

You know a woman who is the victim of a rape, who has the courage to report it and tell what happened in order to try to do justice, gets victimized twice.
You know she’s not only the victim of a rape, but when she comes in the courtroom to tell what happened her character gets attacked. No matter how straight and upright a life you’ve lived until the time — .
So do you see why? Do you see why so few rapes are reported ?

It is unwise for a prosecuting attorney to use this type of argument in his summation to the jury as it has no relationship to the guilt or innocence of the accused. Such argument tends to arouse the passion of the jury and divert their attention from the real issue to be decided. In a close case, the argument complained of could be reversible. However, under the facts of this case, we do not consider these statements to constitute reversible error.

The verdict of the jury was amply supported by the evidence. Therefore, the judgment of the lower court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: INZER, Justice:

license: Public Domain

text:
    H. K. PORTER COMPANY, INC. v. BOARD OF SUPERVISORS OF JACKSON COUNTY et al.
    No. 48379.
    Supreme Court of Mississippi.
    Dec. 15, 1975.

      Joe A. Moore, Charles W. Ford, Pasca-goula, Ross R. Barnett, Jackson, Jack J. Gilbert, Pittsburgh, Pa., for appellant.
    A. F. Summer, Atty. Gen. by Mary Libby Payne, Asst. Atty. Gen., Jackson, Karl Wiesenburg, Carl Megehee, Pascagoula, for appellees.
    Before PATTERSON, INZER and WALKER, JJ.
   INZER, Justice:

H. K. Porter Co., Inc. brought suit in the Chancery Court of Jackson County against Jackson County, Jackson County Port Authority and the State of Mississippi seeking to confirm its title in fee simple to 204 acres of land lying east and south of the mouth of Bayou Casotte ship channel in Jackson County which had been conveyed to it by Jackson County and the Jackson County Port Authority, together with approximately 100 acres immediately south thereof which it claimed by accretion.

The bill of complaint alleged that Porter had first leased about 404 acres from Jackson County and its port authority on March 1, 1957, and subsequently it ac-o quired fee simple title together with all riparian rights, accretion and accretions by deed from the same parties on November 3, 1961. It was alleged that thereafter Porter had conveyed 204 acres of the property to the north to a third party. It further alleged that approximately 100 acres of land had accreted to the south boundary of the property.

The State of Mississippi answered and denied that Porter had any claim, title and interest in the land claimed by accretion. The state admitted the execution of the lease and deed by Jackson County but denied the validity thereof. By a cross bill the state joined in the cross bill of Jackson County and Jackson County Port Authority and asserted that the land claimed by accretion was public land reclaimed from the Mississippi Sound and asked the court to enter a decree confirming that such land belonged to the State of Mississippi subject to it being granted for public purposes.

Jackson County and Jackson County Port Authority answered and denied Porter’s ownership in fee simple of the land described in the bill of complaint, denied the correctness of the description of such land, and denied the deraignment of title except they admitted the execution of the deed. They denied that Porter had any right, title or claim to the land which it claimed by accretion, asserting that it had been reclaimed by dredging operations in the construction of the canal for port purposes. They admitted the execution of the lease and deed and the subsequent conveyance of the north portion to a third party. They averred that Porter had ceased to use the land in question for . industrial purposes which violated the express provisions of the deed conveying title to Porter, and that because of such breach, Porter was not entitled to confirm its title, but that Jackson County and the port authority were entitled to reacquire such lands for port purposes. They also averred that the land had been conveyed to Porter for a nominal consideration less than the market value .and denied that Porter was entitled to any relief.

By a cross bill, Jackson County and Jackson County Port Authority alleged that the deed conveying title to Porter contained a covenant requiring that such land be used for industrial purposes and the lands now claimed by Porter were not being used for such purposes and such non-use constituted a breach of the covenant and the cross complainants reacquire such land for public purposes upon payment of the reasonable compensation.

Porter answered the cross bill and denied that it had ceased to use the 217 acres for industrial purposes. It admitted that it had sold its plant and the land upon which it was situated to Cochrem Company, but contended that the use of that part of the property by Cochrem constituted a continual use of the property in question for industrial purposes. It denied that the cross complainants had any right to reacquire the property for port purposes because of the provisions of Section 7605-06, Mississippi Code 1942 Annotated, which prohibits cross-complainants from reacquiring the property by eminent domain.

The record in this case showed that in 1954 the legislature authorized Jackson County to issue $2,000,000 in bonds in order to obtain funds to develop Bayou Ca-sotte as a port and industrial area and to purchase land for industrial and port purposes. The county proposed to dredge a deep water channel extending from the mouth of Bayou Casotte several miles to connect with the Pascagoula Canal and to develop a deep water port. In 1955 bonds were issued, and in 1956 Jackson County acquired the land now in question along with other land from J. S. Delmas by purchase in settlement of an eminent domain suit.

In 1956, the Jackson County Port Authority was organized pursuant to the provisions of Chapter 199, of the Regular 1956 Session of the Legislature. This act provided that the counties bordering the Mississippi Sound which had heretofore issued bonds for the purpose of dredging canals could create county port authorities and could acquire lands which could be used for industrial purposes.

On March 1, 1957, Jackson County and Jackson County Port Authority leased to Porter for a period of ninety-nine years, the 404 acres of the land acquired from Delmas. By the terms of this lease the port authority and the county agreed that they would maintain a deep water canal at least 200 feet wide with a minimum depth of 30 feet in Bayou Casotte, would place an earthen dike on the west and south boundary of the land leased, and would fill the land to approximately six feet above sea level with drainage towards the east. As consideration for the lease Porter paid $80,800 and agreed to construct an industrial plant at a cost of at least $1,000,000. The lease contained a clause for reversion in case of default by Porter or the county. The county and the port authority agreed that in the event the legislature authorized them to convey title to the land they would convey the land to Porter for an additional consideration of $1,000.

To dredge the channel, the county had to obtain permission from the U. S. Corps of Engineers. The Corps of Engineers designated certain areas in which the spoils would be deposited. The area nearest the land leased to Porter is the land now claimed by Porter by accretion. The county built the dike as required by the lease and deposited spoils from the canal as required by the lease. After this was done no other spoils were deposited on the land leased to Porter.

In 1961 the legislature by amendment to Chapter 199, Laws of 1956, authorized Jackson County and the Port Authority to convey land by deed. Accordingly, .pursuant to the provision in the lease the county executed a deed to Porter for the same land that it had originally leased to it.

Prior to the time the deed was executed, the Army Corps of Engineers took over the maintenance of the canal and it was deepened from 30 to 40 feet. The engineers used the same spoil areas that it had designated, and at the time the deed was executed, an island had been formed from the spoils. This island was separated from the lands conveyed to Porter by several hundred feet. As the dredging continued the island was increased in size. Prior to Hurricane Camille in 1969, this island was still separated from Porter’s land. Sometime after the hurricane, the island and the Porter lands became connected.

In 1971, Porter conveyed the northern 200 acres of land together with its manufacturing plant to Cochrem Company, who is now operating the plant. Porter retained the 204 acres of land on which no improvements were ever constructed. Porter is not now using the lands for industrial purposes and has no plans to so use the land in the future, but has been attempting to sell the same. The port authority and the county being in need of land for port purposes entered into negotiations with Porter to reacquire the land, but could not agree on the price. Porter then filed this suit and for the first time claimed the land created by the spoils dredged from the Mississippi Sound by accretion.

The chancellor, after a lengthy hearing, found from the evidence that there was no natural or artificial accretions to the fast lands of Porter, but the lands described as accretions were all built up by spoils from the bottom of the Mississippi Sound and any accretions that finally touched the fast lands were accretions to the initial island built up by the spoils.

The chancellor further found that the deed executed to Porter was valid; that its execution was in accordance with the original lease; and that the execution was merely a ministerial act once its execution became authorized by the legislature. The chancellor also found that the statute had been substantially complied with and that a reversionary clause could not be read into the deed.

However, the chancellor found that the legislature had no authority to convey away the sovereignty of the state and its political subdivisions so as to forever preclude it from exercising eminent domain to take property for public use. The chancellor further construed the statute to mean at the most that the county and the port authority were prohibited from retaking lands that were being used for industrial purposes and that the land in question was not being so used. A decree was entered confirming the title to Porter to the 204 acres of land included in its deed, subject to the covenant that it could be used for industrial purposes and subject to the right of the county and port authority to exercise eminent domain under the proper proceedings against Porter for any part of the land not so being used .for industrial purposes.

From this decree Porter appeals contending (1) that the trial court was in error in holding that it had not acquired title to the land claimed by accretion; (2) that the court erred in declaring void that part of Section 7605-06, Mississippi Code 1942 Annotated which prohibited the county and port authority from retaking by eminent domain the lands that had been conveyed to an industry in accordance with such section; and (3) that the court lacked jurisdiction to pass on the question of the county or port authority’s right to reacquire Porter’s land by condemnation.

The state cross appealed contending among other things that the court was in error in confirming title in Porter because neither the county nor the port authority complied with the mandatory provisions of the statute relative to the execution of the deed.

The county and port authority also cross appealed contending that the chancery court was in error in holding that Porter was entitled to confirm title in fee simple to lands not used by Porter for port industrial purposes, and in holding that they did not revert to the county under the provisions of Chapter 65, Local and Private laws of the Extraordinary Session 1954, which required that any such lands not used for port purposes should revert to the county. The State of Mississippi also makes this same contention in its assignment of error on direct appeal.

We find no merit in Porter’s contention that the chancery court was in error in failing to hold that it acquired title to the 100 acres claimed as accretions to its fast lands. Porter cites and relies upon, among other cases, Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973); Moore v. Kuljis, 207 So.2d 604 (Miss.1967); Harrison County v. Guice, 244 Miss. 95, 140 So.2d 838 (1962), and State of Alabama v. Gill, 259 Ala. 177, 66 So.2d 141 (1953), as applicable to the case at bar.

Harrison County v. Guice, supra; Moore v. Kuljis, supra; and State of Alabama v. Gill, supra; are authority for the proposition that when artificial accretions are cast upon the land of a landowner by either the Corps of Engineers or some stranger without the intervention of the upland owner such artificial accretion inures to the title of the upland owner. These cases correctly announce the law, but do not fit the facts in the case before us. Bonelli Cattle Co. v. State of Arizona, supra, is not in point as to the law or the facts.

The undisputed proof in this case is that at the time the deed was executed to Porter an island had already been formed in the Mississippi Sound by spoils deposited by the county and later by the Corps of Engineers. It is conceded that the land so formed belonged to the State of Mississippi. At that time the island was at least 500 feet from the earthen dike on the south boundary of appellant’s leased land. The proof further shows that as the spoils were deposited in this area the size of the island was increased. After the dike was built and the spoils were deposited on the Porter land as required by the lease, none of the spoils were ever deposited on Porter’s land or adjacent to the dike on the south boundary thereof. It was not until after Hurricane Camille in 1969 that the island became connected to the fast-land. Prior to that time the island could be reached from Porter’s land by wading at low tide. No evidence existed that any accretions were forming next to the dike on the southern boundary of Porter’s land. The chancellor found from the evidence that the island formed by the spoils reached a height of thirteen feet above the mean high tide and tapered down to 2.21 feet to the mean low water line near the base of the dike on the southern boundary of Porter’s land. The chancellor found that the island formed by the spoils became the property of the State of Mississippi and that it was by accretion to the island that finally reached the fastlands of Porter. The chancellor was correct in so holding.

In International Paper Co. v. Mississippi Highway Department, 271 So.2d 395 (Miss.1972), we held that the bed of a bay is the property of the state and all bodies of land arising from or upon such state owned bay floor become the property of the state. We also held that any accretion thereto which was not contiguous to private property belonged to the state. The same rule applies where the land arises as a result of depositing spoils dredged from the bay, or in this case, from the bottom of the Mississippi Sound. Furthermore, it is a general rule that the owner of an island, in this case the state, is entitled to the accretions thereto. Am.Jur., Water § 417 states in part as follows:

Addition to or extension of island or bar.
It may be stated as a very general principle, when followed to its ultimate, logical conclusion, that the owner of an island is entitled to additions thereto, under the proper application of general principles of accretion and reliction, in the same manner as is the owner of riparian land on the mainland.
Under the theory that the state owns the bed of a navigable stream, it has been widely held or recognized that the owner of an island or bar, as the case may be, in a navigable stream, is, as a general principle, entitled to additions thereto by accretion or reliction, where the ordinary requisites of accretion and reliction are otherwise met, in the same manner as is a riparian owner on the shore. As a corollary of this general rule, it has been held or recognized that where the accretions to the island meet the mainland or its accretions, the owner of the island is entitled to all the accretions forming on his shore to the point where they physically meet another shore or accretions thereto.

One of the cases cited in support of the rule is Hogue v. Bourgois, 71 N.W.2d 47, 54 A.L.R.2d 633 (N.Dak.1955), which we cited with approval in International Paper Co., supra. In this case, all the accretions were to the island formed from the spoils and the last visible water line was next to the dike on the south side of Porter’s land. Consequently, Porter was not entitled to any of the lands claimed by accretion.

Porter takes issue, with the holding of the chancellor that Jackson County and its port authority could reacquire the 204 acres of land claimed by Porter by eminent domain proceedings. It is contended that the chancery court had no jurisdiction to pass on this question. All the pleadings clearly submitted this issue for decision by the chancellor. It is argued that this was a question that could only be determined by an eminent domain court. Ordinarily, this might be true, but where as here, one of the issues raised relative to the confirmation was the question of whether the county and the port authority could reacquire the land since it was no longer being used for industrial purposes, the court had jurisdiction to decide the question. Porter joined the issue on this question and specifically plead Section 7605-06, Mississippi Code 1942 Annotated, [now § 59-9-19, Miss.Code 1972 Ann.], and submitted that issue for decision by the court. It has long been the rule in this state that when a court of equity obtains jurisdiction it will give full relief, whether legal or equitable as to all matters relating to the subject matter of the bill even though it be required to pass on matters which would not have been proper subjects of equitable jurisdiction if they alone were the subject of original relief. The rule is stated in Griffith, Mississippi Chancery Practice § 36 (2d ed. 1950), p. 39, as follows:

It is our settled policy that if equity have jurisdiction of the cause of action it is to assume full jurisdiction and settle all disputed questions in one and the same suit so far as within the pleadings and when necessary the court will allow and even suggest amendments to the plea as will permit full adjudication.

Appellant strongly urges that the chancery court was in error in declaring void that part of Section 7605-06, Mississippi Code 1942 Annotated, which it alleges prohibited Jackson County and its port authority from retaking by eminent domain the lands that had been conveyed to an industry in accordance with such section. However, appellant overlooks the fact that the court also construed this section and held that it meant, at the most, that the county and the port authority are prohibited from retaking such lands that are actually being used for industrial purposes and that the lands now owned by Porter are not so being used. The pertinent part of Section 7605-06 [now § 59-9-19, Miss.Code 1972 Ann.], reads as follows:

Such county, acting through the port authority or development commission, shall have the right to reclaim submerged lands for such purposes and shall also have the right to acquire by eminent domain proceedings, purchase or otherwise, any land or estate therein or property and rights that may be necessary for the purposes of this chapter, provided that land acquired for industrial operations by eminent domain shall be leased or shall be sold only with such provisions in the deed or lease as shall insure that the use of such land shall be beneficial to the carrying out of the purposes of this chapter and the promotion of commerce through said port. The county, acting through the port authority or development commission, shall have no authority or power to acquire without consent of the owner thereof any property operated or used for port, harbor or industrial operations, or for such purposes as the county, acting through the port authority or development commission, is authorized to acquire and use such property for, where such property has been sold or leased by the county, acting through the port authority or development commission, to any person, firm, or corporation for industrial operations as provided in this chapter. (Emphasis added).

Although the legislature cannot convey its power of eminent domain as that power is inherent in its sovereignty, the chancellor was in error in holding that the provisions were void for that reason. The legislature in which the power of eminent domain is vested can delegate this authority by statute. However, as stated in 26 Am.Jur.2d, Eminent Domain, § 19:

It has long been held that cities and other municipal corporations, counties, and other governmental subdivisions of the state may be authorized to acquire land by eminent domain. A municipal corporation or a county, however, has no inherent power of eminent domain and can exercise it only when especially authorized by the legislature. Since the right is delegated it can be exercised only within the ordinary scope of the delegation. (Emphasis added).

We hold that the legislature in furtherance of the purpose of the act had the authority to limit the power of the county to take by eminent domain in certain situations. It has the right to say what property or to what extent eminent domain powers shall be exercised by the county.

However, we are of the opinion that the chancellor correctly construed the statute to mean that the county or the port authority was prohibited from reacquiring property actually used or operated for industrial purposes. This statute was not intended to prohibit the county or its port authority from reacquiring by eminent domain proceedings land which was not being any longer used for the purpose for which it was conveyed. The evidence is without dispute that in 1971 Porter sold its industrial plant together with 200 acres of land used in connection with the plant. It retained 204 acres which is not being used for industrial purposes and which it does not intend to use for industrial purposes in the future. As we understand this section it means that the county or the port authority is prohibited from acquiring without the consent of the owner any property operated or used for port, harbor or industrial operations. When Porter sold its industrial plant and the 200 acres upon which it was situated, it completely divested itself of any industrial operation in the area. It is no longer using the 204 acres for industrial purposes, or any other purpose, contemplated by the statute. The county and its port authority are not prohibited from acquiring the land for public purposes under their specifically granted right of eminent domain.

CROSS APPEAL

We are confronted at the outset in consideration of the cross appeal with the contention of the State of Mississippi that the chancellor was in error in confirming appellant’s title to the 204 acres when the record shows that the mandatory provision of the statute giving authority to the county and port authority to execute the deed were not complied with by the county and the port authority. Although the county and the port authority do not join in this contention, it is properly raised by the state and must be decided.

Prior to 1961 the county had no authority to convey by deed the lands it acquired under the authority of Chapter 199, Laws of 1956; it did have authority to lease the land for a period not to exceed 99 years. In 1961 by the provisions of Chapter 3, 2d Extraordinary Session of the Legislature, the legislature authorized the transfer of land by deed. The pertinent part of this chapter is as follows:

The board of supervisors of any such county, acting through its county port authority or county development commission, shall have the following additional powers and authority:
(a) to set aside or lease all or portions of said harbor facilities, wharves, docks, sheds, warehouses, elevators, compresses, floating dry docks, graving docks, marine railways, tugboats, or any necessary or useful improvements for special purposes for a term not exceeding twenty-five (25) years; and to sell, lease or otherwise dispose of land acquired for industrial or harbor operations to individuals, firms or corporations, public or private, for industrial use, on such terms and conditions and with such safeguards as will best promote and protect the public interest, and they are' hereby authorized to transfer title or possession to any part or all of such lands by special warranty deed, lease, contract, or other customary business instrument; however, no such lease of land acquired for industrial operations shall be executed for a term in excess of ninety-nine (99) years from its date, and before the execution of the same any such conveyance, lease, contract, or other disposition shall be authorised by the affirmative vote of at least two-thirds (pi) of the membership of such port authority or development commission by order or resolution entered on its minutes, which order or resolution shall set forth the substantial terms of such conveyance, lease, contract, or other disposition. (Emphasis added).

After passage of this act the Board of Supervisors of Jackson County did enter the following order:

ORDER AUTHORIZING EXECUTION OF DEED TO H. K. PORTER COMPANY, INC.

WHEREAS, the Board of Supervisors of Jackson County, Mississippi, have previously agreed to convey to H. K. Porter Company, Inc. the land which was previously leased to said Corporation, as is now authorized by law; and
WHEREAS, H. K. Porter Company, Inc. has complied with all of the conditions of its original lease and has paid to the County the sum of $1,000 for the execution of the said Deed.
NOW, THEREFORE, be it ordered by the Board of Supervisors of Jackson County, Mississippi, that the County convey the property on which H. K. Porter Company, Inc., a Corporation organized under the Laws of the State of Delaware, for the sum of $1,000.00, and that A. P. Moran, President, and Wilbur G. Dees, Clerk, of the Board of Supervisors of Jackson County, Mississippi, be, and they are hereby authorized and directed to execute the Deed in the form attached hereinbelow, the execution of which deed has been recommended by, and joined in by the Jackson County Port Authority, to-wit. .

The resolution of the port authority authorizing its president and secretary to join in such a conveyance as required by statute was not made a part of such resolution and, in fact, the record affirmatively shows that no such resolution was ever adopted by the port authority authorizing its president and secretary to join in the deed as required by the mandatory provisions of the statute.

The statute authorized the execution of the deed by the county and port authority specifically provided that a conveyance must be authorized by an affirmative vote of at least two-thirds of the membership of the port authority and that such order authorizing such conveyance must be entered on its minutes. It is clear under the law of this state that the board of supervisors of the county have no authority other than that delegated to it by the legislature. In this case the county, although the owner of the land, was without authority to convey it except pursuant to the authority granted to it by the legislature. In Universal Motor Co. v. Newton County, 158 Miss. 873, 131 So. 827 (1931), this Court stated:

The members of the board of supervisors are trustees for the public and must act for the public, and are bound by the limitation fixed by law upon their powers, and the condition under which contracts may be made. These being fixed by law, all persons aré charged with notice of them.

(158 Miss. at 879, 131 So. at 828).

The board of supervisors of Jackson County had no authority to authorize the execution of the deed to Porter until the deed was authorized by affirmative vote of two-thirds of the membership of the port authority by an order or resolution entered on its minutes. There being none, the county was without authority to execute the deed and the port authority was without authority to enter into the transaction itself. The chancellor was of the opinion that the execution of the deed was merely a ministerial act required by the previously executed lease, which he held was validly executed and by the terms of which Porter had completely complied. However, in Howe v. State, 53 Miss. 57 (1876), and quoted in American Oil Co. v. Marion County, 187 Miss. 148, 192 So. 296 (1939), we stated:

It matters not whether its [board of supervisors] action ... be regarded as judicial, legislative, or ministerial. Excess of authority in either capacity is simply void. . . . They can do valid acts, only as empowered by law.

We hold that the title to the land in question was in Jackson County and by the plain and unambiguous terms of the statute it could not be conveyed by the county until it was authorized by a vote of at least two-thirds of the membership of the port authority by an order or resolution spread upon its minutes setting out the terms of such conveyance. It is undisputed that no such order or resolution was entered upon the minutes of the board. Under these circumstances we are compelled to hold that the deed was void and Porter acquired no title by virtue of the deed. It follows that the chancellor was in error in confirming title in Porter to the 204 acres of land in question. Of course, Porter still holds a 99 year lease on the lands in question and its validity is not involved in this lawsuit.

For the reasons stated, this case must be and is affirmed on direct appeal and reversed and rendered on cross appeal. Consequently, that part of the decree confirming title to the land in question in Porter is reversed and the bill of complaint dismissed with prejudice. In all other respects, the decree of the chancery court is affirmed.

Affirmed on direct appeal. Reversed and rendered on cross appeal.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., coricur.


text:
    Robert Terry HESTER v. Stephanie Hester SMITH.
    No. 48472.
    Supreme Court of Mississippi.
    Jan. 13, 1976.
    P. O. Gibson, Jr., Jackson, for appellant.
    Riddick & McCoy, Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    Jo Ann C. BAYLIS v. Robert Gerald BAYLIS.
    No. 48483.
    Supreme Court of Mississippi.
    Jan. 13, 1976.
    Pat H. Watts, Jr., Pascagoula, for appellant.
    Levi, Wilson & Denham, Pascagoula, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    Donald Earl CLEVELAND v. STATE of Mississippi.
    No. 48868.
    Supreme Court of Mississippi.
    Jan. 13, 1976.
    James B. Everett, Decatur, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   Reversed and defendant discharged.

GILLESPIE, C. J., RODGERS, P. J., and INZER, SMITH, WALKER and BROOM, JJ., concur.


text:
    Willie BIGGERS v. QUALITY CONCRETE PRODUCTS, INC.
    No. 48453.
    Supreme Court of Mississippi.
    Jan. 13, 1976.
    Breland & Whitten, Sumner, for appellant.
    Watkins & Eager, Thomas M. Mur-phree, Jr., Jackson, for appellee.
    Before RODGERS, P. J., and INZER and SMITH, JJ.
   Affirmed.

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


text:
    I. D. REESE v. William M. IVEY, Jr.
    No. 48446.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    F. W. Stratton, Liberty, R. L. Netter-ville, Natchez, for appellant.
    T. F. Badon, H. Bradford Miller, Liberty, for appellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   GILLESPIE, Chief Justice, for the court.

I. D. Reese appealed from an-adverse decree of the Chancery Court of Amite County. The litigation began with a bill of complaint by William M. Ivey, Jr., to collect an indebtedness from Reese and to subject, by means of attachment, funds in the hands of T. F. Badon, Trustee, to the partial satisfaction of Ivey’s claim.

The suit went to trial on Ivey’s bill of complaint and Reese’s cross-bill. Several issues were resolved in favor of Ivey, of which Reese complains on this appeal. All of these issues, except the one presently to be discussed, involved disputed questions of fact and the chancellor had ample evidence to justify his findings. We state only those facts bearing upon the issue next to be stated.

The question is whether upon foreclosure by the trustee in a second deed of trust, the trustee should pay off and satisfy the first deed of trust. Reese executed a deed of trust' to T. F. Badon, Trustee, to secure a note due Ivey in the amount of $4,675.00. Reese defaulted after paying the note down to $3,713.16, and Ivey called upon his attorney and Trustee, Badon, to foreclose the deed of trust. The Ivey deed of trust was second to a prior deed of trust given the Commercial Bank of Woodville. The trustee’s notice of foreclosure sale recited that the sale was being made subject to the first deed of trust wherein Commercial Bank of Woodville was the beneficiary. At the time and place of sale, the Trustee announced that the amount due on the Commercial Bank’s deed of trust was $7,241.47. The property was sold for $14,800.00, which was paid to and disbursed by Badon, Trustee, by first paying the Commercial Bank $7,241.47 to satisfy the first deed of trust, paying Ivey $3,713.16 in satisfaction of the second deed of trust, paying attorney’s fee (to Badon) $371.31, and publication fee of $88.15. The balance of $3,388.92 was paid into court, and Reese received credit therefor in the trial court’s decree.

The parties have cited no applicable Mississippi case on the stated question. It seems obvious that since the notice of sale recited that the land would be sold subject to the first deed of trust, a bidder would discount the amount of his bid by the amount owing on the first deed of trust. The few cases on the subject hold that absent special circumstances, a foreclosure sale by the trustee in a junior deed of trust is made subject to prior liens on the property, and the trustee can sell and convey no better title than he acquired. Title vests in the purchaser subject to the prior lien. Staunton Military Academy v. Dockery, 244 N.C. 427, 94 S.E.2d 354 (1956). See also Field v. Brown, 207 Mo.App. 55, 229 S.W. 445 (1921), which holds that with consent of all parties, the trustee may sell free of prior liens.

The mere announcement at the sale by Badon, Trustee, of the amount due on the first deed of trust did not give the trustee the right to pay off the first deed of trust from the sale proceeds. The announcement of the amount due on the prior deed of trust was appropriate to enable bidders to take this prior lien into consideration in making bids since the successful bidder was buying subject to the prior lien, as stated in the notice.

It is said that Reese was not harmed by the Trustee paying off the Commercial Bank deed of trust since Reese owed the debt and it was extinguished. But the sale was made subject to the first deed of trust, and bidders necessarily bid a sum minus the amount due on the deed of trust being assumed. It was the purchaser’s obligation to pay the first lien. The surplus left after paying the second mortgage, attorney’s fee, and cost of foreclosure should have been paid over to the mortgagor, Reese. We hold that the Trustee had no authority to pay off the Commercial Bank deed of trust, and became liable to the mortgagor, Reese, for the amount thus ■paid.

Badon, Trustee, is not a party to this appeal, but Reese’s cross-bill averred:

That at all times herein set forth the said trustee, T. F. Badon, was acting as agent and representative of the said cross-defendant, William M. Ivey, Jr., and any and all liability on the part of the said trustee to this cross-defendant is liability on the said Ivey to this cross-complainant for a full and complete accounting of all proceeds derived from the sale of this land at a foreclosure sale on said second mortgage.

The agency of Badon was not denied by Ivey in his answer to the cross-bill. We hold, therefore, that Ivey is liable for the action of his attorney and trustee, and the action of the trial court in failing to charge Ivey with the sum paid the Commercial Bank is reversed and judgment rendered here for that amount. In the adjustment of the indebtedness and liabilities, the judgment in favor of Ivey against Reese in the amount of $9,500.00, less $3,388.92 credit for sums paid into court is reversed. Reese is credited with the sum improperly paid to Commercial Bank in the amount of $7,241.-47. Judgment is entered here in favor of Reese against Ivey in the amount of $1,-130.39, with interest from September 11, 1973, the date of the decree below. In all other respects the decree is affirmed.

Reversed in part and rendered.

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


text:
    The HOME INDEMNITY COMPANY v. Billy Eugene STORK.
    No. 48461.
    Supreme Court of Mississippi.
    Jan. 13, 1976.
    Megehee, Brown, Williams & Corlew, Pascagoula, for appellant.
    Marby R. Penton, Pascagoula, for appel-lee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   Reversed and rendered.

GILLESPIE, C. J., RODGERS, P. J., and INZER, SMITH; WALKER and BROOM, JJ., concur.


text:
    James R. EVANS v. STATE of Mississippi.
    No. 48822.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    Boyd P. Atkinson, Cleveland, Miss., for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, P. J., and INZER and SMITH, JJ.
   Affirmed.


text:
    James SANDY et al. v. Mrs. Mae BURCHETT.
    No. 48467.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    M. Collins Bailey, Thomas H. Hadley, William E. Trusty, Charles C. “Cliff” Finch, Batesville, for appellants.
    Garner, Whitten & Garner, Hernando, Sandra Gustafson, David Gustafson, South-haven, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   Affirmed.


text:
    Jimmy HOSKIN v. STATE of Mississippi.
    No. 48744.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    Donald K. Marcus, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    Lorenzo HUFFMAN v. STATE of Mississippi.
    No. 48874.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    George L. Dorrill, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and INZER, SMITH, WALKER and BROOM, JJ., concur.


author: SUGG, Justice.

text:
    RIVERSIDE OF MARKS and Travelers Insurance Company v. Eddie R. RUSSELL.
    No. 48287.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    As Modified on Denial of Rehearing Jan. 19, 1976.

      Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Jackson, for appellants.
    Jack A. Travis, Jackson, for appellee.
    Before PATTERSON, INZER and SUGG, Justice.
   SUGG, Justice.

This is an appeal from a judgment of the Circuit Court of the First Judicial District of Hinds County reversing an order of the Workmen’s Compensation Commission and entering judgment for claimant.

The questions presented for decision are (1) whether the injury sustained by the claimant arose out of the employment, and if so, (2) whether apportionment of the award is required, (3) the rate of compensation payable, and (4) the amount of penalties payable, if any.

Claimant, Eddie R. Russell, sought to recover for injuries sustained by him while unloading baggage from his employer’s airplane. During the morning of November 6, 1971, claimant loaded approximately 300 pounds of baggage onto the airplane for a trip from Marks, Mississippi, to New Orleans, Louisiana. The location of the plane’s baggage compartment necessitated that claimant stoop over with the baggage in hand to reach the compartment. One piece of the luggage weighed an estimated 60-80 pounds.

While unloading the baggage in New Orleans, claimant began to experience difficulty in maintaining his coordination and balance causing him to fall repeatedly against the left side of the plane’s steps. The condition steadily worsened during the remainder of the day so that by the next morning he was unable to walk by himself. Claimant was taken to Oschner’s Foundation Hospital in New Orleans where it was determined that he had suffered a cerebrovascular accident to the right area of the brain. He remained at Oschner’s for 12 days undergoing tests- and physical therapy. Following his inability to secure further employment, claimant was admitted to the Veterans Hospital where he underwent six and one-half weeks of treatment for depression. As of the date of the hearing before the Attorney-Referee, claimant was capable of slow deliberate movements. Except for a three week period when he cleaned up houses, he had remained unemployed.

The specific medical question before the Attorney-Referee was whether the stroke was caused by a cerebral thrombosis or a cerebral hemorrhage. The testimony from both sides was that statistically a thrombosis is not usually precipitated by exertion or stress while a hemorrhage is generally brought on by these factors. The claimant’s physician testified that the injury was caused by a hemorrhage which was precipitated by the work of unloading the plane. Conversely, the employer’s physicians testified that the injury was the result of a thrombosis which was in no way related to claimant’s work but which merely coincided with the work. The only point of agreement among all of the testifying physicians was that regardless of its physiological origins, the onset of the stroke occurred while claimant was unloading the plane.

The Attorney-Referee denied the claim on the ground that the medical evidence was insufficient to show that the stroke arose out of the employment. The order of the Attorney-Referee was affirmed by the Workmen’s Compensation Commission, one member dissenting.

On appeal to the Circuit Court of the First Judicial District of Hinds County, the order of the Commission was reversed and judgment entered for claimant in the amount of $56 per week for 450 weeks.

We recognize the substantive evidence rule and its directive that a decision of the Commission on a disputed issue of fact will be affirmed where there is substantial and reasonable evidence to support the findings of fact. See V. Dunn, Mississippi Workmen’s Compensation § 289 at 403 (2d ed. 1967), and cases cited therein. Yet, the rule is not inflexible so as to prevent the Court from checking any fundamentally erroneous exercise of administrative power either as to the findings of fact or the application of the act. Universal Manufacturing Co. v. Barlow, 260 So.2d 827, 831 (Miss.1972); V. Dunn, supra at 407-08; see Todd’s Big Star v. Lyons, 301 So.2d 847, 849 (Miss.1974). The ultimate goal on review is “to ascertain whether or not the beneficent purpose of the Workmen’s Compensation Law has been carried out.” Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 732, 112 So.2d 357, 361 (1959).

After a careful review of all the evidence, we find that the Workmen’s Compensation Commission erred in denying benefits and the Circuit Court properly awarded compensation for a work-related injury.

Dr. George Porter, one of the examining physicians and a witness for the employer, was of the opinion that the infarct was thrombotic in nature and related to an underlying arteriosclerotic disease because “the most common cause of an infarct is an obstruction . . . and the most common cause of that obstruction is . arteriosclerosis.” He pointed out, however, that his opinion was based on statistical experience and possibilities, not probabilities. Based on possibilities, he felt that a hemorrhage was “the less likely of the two possibilities,” despite the facts that it was “[virtually, impossible to distinguish between the two” and “a small hemorrhage in the same area could have resulted in the very same result.”

In response to the question of whether the work in any way aggravated, precipitated, or contributed to the injury, Dr. Porter responded that “[I]t was extremely difficult if not impossible to answer” the question because to his knowledge that question had “never been satisfactorily answered either affirmatively or negatively.” Nevertheless, he remained of the opinion that the work had nothing to do with the injury although he conceded that other physicians might differ with his analysis.

Testifying on the basis of a hypothetical question, Dr. F. Earl Fyke, Jr., was also of the opinion that the infarct was thrombotic and the result of an underlying arterio-sclerotic disease. In response to the question of whether or not the work aggravated, precipitated, or contributed to the injury, Dr. Fyke stated that although the question had never been satisfactorily answered, he felt the work had nothing to do with the injury.

Dr. Theodore Soniat, an examining physician and witness for the employer, also testified that the infarct was thrombotic “because an archogram performed by him on claimant in the area of the neck did not show any significant narrowing of the arteries from arteriosclerosis.” He felt the thrombus was caused, not by any underlying arteriosclerotic disease, but by the adhesion of elements within the blood. He testified that the injury was not work-related. On cross examination, Dr. Soniat agreed that he belonged to a school of medical thinking which felt physical exertion had nothing to with the precipitation of a thrombosis.

Testifying for the claimant, Dr. James L. Crosthwait felt the infarct was caused by a work-related hemorrhage because of the absence of arteriosclerosis in the claimant’s body.

As revealed by the foregoing, a great deal of testimony was devoted to determining whether the infarct was caused by a thrombosis, which is usually not work-related, or by a hemorrhage, which is usually work-related. Insurance Department of Mississippi v. Dinsmore, 233 Miss. 569, 102 So.2d 691 (1958), suggestion of error overruled, 233 Miss. 581, 104 So.2d 296 (1958), rejected the very argument urged here by the employer. Speaking for the Court, Judge Ethridge held that:

“[A]ny subtle medico-legal distinction between a cerebral hemorrhage and thrombosis would be impractical and unrealistic.” (233 Miss. at 582, 104 So.2d at 297).

See Walker Manufacturing Co. v. Pickens, 206 So.2d 639, 640 (Miss.1968). Here, as in Dinsmore, the only issue is whether the injury was work-related. The work need not be the sole cause of the injury; it must only be a contributing factor.

We hold that there is ample evidence to show that the claimant’s cerebrovascular injury was caused by the work. The facts that claimant had no preexisting condition, no history of cardiovascular or cerebro-vascular health problems, no significant narrowing of the arteries and was undergoing strenuous physical labor at the time of the onset are all material considerations in our holding. Cf. Flintkote Co. v. Jackson, 192 So.2d 395 (Miss.1966). “Practical and commonsensical logic shows that this man’s work contributed to his stroke.” Dean Truck Line, Inc. v. Wilkes, 248 So.2d 462, 464 (Miss.1971). See also Waker Manufacturing Co. v. Pickens, supra.

The next question is whether the employer is entitled to the benefit of the apportionment statute. The lower court held that the apportionment statute could not be applied because the employer failed to raise the affirmative defense of a preexisting condition. Mississippi Code Annotated section 71-3-7 (1972). We find, however, that the employer raised the defense properly and timely in his answer.

To be entitled to apportionment, however, the employer must establish the four factors set out in Cuevas v. Sutter Well Works, 245 Miss. 478, 485, 150 So.2d 524 (1963):

(1) that there must be a pre-existing physical handicap, disease or lesion, (2) this pre-existing condition must be shown by medical findings, (3) to be a material contributing factor in the results following injury, and (4) the compensation otherwise payable is reduced by that proportion which the pre-existing condition contributed to the production of the results following the injury. (245 Miss. at 485, 150 So.2d at 527).

See Mississippi Code Annotated section 71-3-7 (1972).

At the hearing before the Attorney-Referee, the employer relied upon an alleged preexisting arteriosclerotic disease as the cause of the claimant’s injury. No testimony was introduced to show that the alleged disease was anything less than the sole cause of the infarct. Testifying for the employer, both Dr. Fyke and Dr. Porter believed the infarct was due to an underlying arteriosclerotic condition which had been developing over a period of years. However, Dr. Soniat, the physician who performed the archogram, found “no significant narrowing” of the arteries just below the head. For this reason, he believed the infarct to be the result of factors other than arteriosclerosis. To this, Dr. Crosth-wait testified that the infarct was the result of a hemorrhage of weak blood vessels in the head.

All things considered, the nature of the alleged preexisting disease, if any, would seem more closely akin to the normal degenerative conditions of the body which accompany age rather than the material contributing factor called for by Cuevas and the statute. See Youngblood v. Ralph M. Parsons Co., 260 So.2d 188, 190 (Miss.1972); Weaver Pants Co. v. Duncan, 231 So.2d 489, 491 (Miss.1970). We hold, therefore, that the employer failed to carry the burden of proving that there was a preexisting physical handicap, disease, or lesion which was a material contributing factor to the results following the injury.

A further matter of consideration is the amount of compensation payable. The lower court ordered the payment of compensation for permanent and total disability at the rate of $56 a week for 450 weeks.

The testimony before the Attorney-Referee showed that claimant had regained some use of his left side so as to be capable of slow deliberate movements. The resulting condition has, however, precluded the possibility that claimant will ever pilot an aircraft again. Moreover, as of the date of the hearing before the Attorney-Referee, claimant had been unable to secure any form of permanent or semi-permanent employment. He is, therefore, entitled to compensation for permanent and total disability. V. Dunn, supra at §§ 72, 74, 79. However, as the date of the claim herein was November 6, 1971, the maximum weekly benefits allowed are $40 per week for 450 weeks not to exceed the maximum limitation. Stuart Manufacturing Co. v. Walker, 313 So.2d 574, 576 (Miss.1975).

The circuit court ordered the employer and carrier to pay the 10% penalty prescribed by Mississippi Code Annotated section 71-3-37(5) (1972) and the $100 for a physician chosen by claimant under Mississippi Code Annotated section 71-3-15(5) (1972). The above penalties were properly assessed by the circuit court.

The circuit court also awarded claimant a $100 penalty under Mississippi Code Annotated 71-3-67(4) (1972) for failure of the employer to file a notice of injury (Form B-3).

Section 71-3-67(1) (1972) requires that an employer shall file a first notice of injury with the Commission within ten days after the occurrence of an injury. Section 71-3-67(4) provides:

Whenever an employer fails or refuses to file any report required of him by this section, the commission may in its discretion add a penalty not to exceed one hundred dollars ($100.00) to all or any awards which may be made as a result of the unreported injury. (Emphasis added).

The injury complained of was sustained by claimant on November 6, 1971, and the B-3 filed by the employer was not filed until December 2, 1971. The employer, therefore, failed to comply with the statute. However, the penalty under section 71-3-67(4) is not mandatory, but is discretionary with the Commission where an award has been rendered by the Commission. Since the Commission did not make the award, it has never exercised its discretion as to the penalty. Since the circuit court and not the Commission awarded compensation, the case is remanded to the Commission to determine the propriety of awarding the penalty under 71-3-67(4).

Claimant is entitled to 6% interest on each installment of compensation from the due date thereof. Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So.2d 391, 104 So.2d 298, 106 So.2d 383, 683 (1958). Accord: Leake County Cooperative v. Dependents of Barrett, 226 So.2d 608, 614 (Miss.1969); Gulf Park College v. Wheeler, 237 Miss. 155, 156, 113 So.2d 666 (1959); Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 735, 112 So.2d 357, 113 So.2d 667 (1959); V. Dunn, Mississippi Workmen’s Compensation § 293 at 414 (2d ed. 1967).

Since the employer was successful in reducing the award of the circuit court from $56 to $40 per week, 5% statutory damages are not allowed. Costs are apportioned 70% to appellant and 30% to ap-pellee to conform to the proportion of the award made by the circuit court and reduced here. This case is remanded to the Commission for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part and remanded.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Tommy Lee TURNER v. STATE of Mississippi.
    No. 48823.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Morris & Coáts, Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    Mrs. Ethel KNIGHT v. E. J. HOLDER, M.D., Individually, et al.
    No. 48385.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Rehearing Denied Jan. 27, 1976.
    Kenneth E. Crawford, Dan A. McIntosh, III, Collins, for appellant.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Hattiesburg, for appellees.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Affirmed.


author: BLOODWORTH, Justice.

text:
    The BAPTIST FOUNDATION OF ALABAMA v. Walter L. PENN et al.
    SC 1112.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    Rehearing Denied Jan. 15, 1976.

      Richard H. Gill, Montgomery, for appellant.
    Sterling G. Culpepper, Jr., Montgomery, for appellees.
   BLOODWORTH, Justice.

The Baptist Foundation appeals from a final decree of the Circuit Court of Montgomery County enjoining it from obstructing a road. We affirm.

This case began as a suit by The Baptist Foundation to enjoin a continuing trespass to lands held by it under a testamentary trust. In its petition, The Baptist Foundation alleged that appellee Penn had crossed and was continuing to cross an old roadway or trail on the Foundation’s lands and was grading, scraping, and filling the roadway to utilize it as access to a trailer park Penn planned to build. Appellee Penn denied any trespass by asserting that the roadway was the subject of a prescriptive easement in favor of the general public.

Following a lengthy hearing, the court found that the roadway in question had become a public roadway by prescription and denied the Foundation’s request for a temporary injunction against Penn.

Penn then filed a cross bill averring that the road in question was a public road by prescription, seeking to enjoin the Foundation from any interference with his right to use the road and to improve it, and adding as parties various other owners of land adjacent to the road.

At the conclusion of a hearing held to consider Penn’s cross bill, the court again found that the road in question is a public road. The court also found that Penn would suffer damages greater in kind and degree than that of the general public if the road were blocked or obstructed and granted Penn’s request for an injunction enjoining the Foundation from obstructing the road, from which decree the Foundation now appeals.

The Foundation contends that it made out a prima facie case at the preliminary injunction hearing by establishing its title to, and possession of, the land on which the road is situated, by establishing that the road lay entirely within its property, by establishing that Penn did not have its permission to change the character of the road, and by establishing that Penn did enter its land with road machinery, trucks, and fill material. The Foundation further contends that, because Penn was the moving party at the second hearing, Penn bore the burden of affirmatively establishing a prescriptive right to use the road, as well as the burden of establishing Penn’s individual right to an injunction different from the general public. It is the Foundation’s contention that Penn did not meet these burdens.

Although it is undisputed that the roadway in question was never a road recognized and maintained by the county, the exact status of the existing roadway is the subject of much dispute.

According to the Foundation, the roadway in question was merely “a trail winding across the property, heavily grown up with underbrush and small trees and impassable by car.” Relying on the authority of Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954), the Foundation maintains that the rule is that the use of such a road is presumed to be permissive and that the party claiming an adverse use has the burden of proving it. It is insisted, in brief, that there is no evidence in the record of any use that was “adverse, hostile to the title of [The Baptist Foundation or its predecessor in title], and under a claim of right,” and that, to the contrary, the witnesses conceded that all use of the roadway was with the. assumed or express permission of the owner.

According to Penn, the roadway is an open, well-defined road with a history of' at least 20 years of continuous public use. Under Penn’s version of the facts, the rule of Benson is inapplicable and the rule of Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954), is controlling.

In Ayers this Court held that “an open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public highway by prescription. . . . [A] presumption of dedication or other appropriation to a public use arises.” 260 Ala. at 392, 71 So.2d at 97. Moreover, once the Ayers presumption arises, the burden is then on the landowner to show that the use was permissive and that it was in recognition of the landowner’s title and right to possession. 260 Ala. at 392, 71 So.2d at 97.

Whether the rule of Ayers or Benson is controlling in a particular case depends upon the character and use of the road in question. Consequently, the precise question presently before this Court in the instant case is whether there is evidence in the record of the character and use of the road in question which will support the trial court’s decree under the Ayers standard. Unless such evidence is lacking or the court’s findings are otherwise “plainly and palpably erroneous and contrary to the great weight of the evidence” [Garrison v. Grayson, 284 Ala. 247, 249, 224 So.2d 606, 607 (1969)], the trial court’s decree must be affirmed. Having accorded the trial court’s determination a presumption of correctness, we now affirm that determination on the basis that there is sufficient evidence in the record to support the trial court’s findings.

To justify application of the Ayers standard, there must have been evidence in the record which supported the conten-' tion that the road in question was of the “open, defined” variety, “in continuous use by the public as a highway . . . for . . . twenty years.” Ayers, supra. Although the record included evidence to the contrary, it also included substantial evidence that the road does meet the Ayers requirements. For example, several witnesses testified that the road is “well-defined,” that they have never known it to be blocked, and that it has been in continuous use by the public for over 20 years.

Of course, the weight and credibility of witnesses is for the trial court’s determination. On this appeal, this Court must determine whether the trial court’s decree is supported by the evidence. Moreover, the record reflects that many witnesses, in response to questions, gave answers which are meaningless to us since we did not see the pointing finger “(Indicating)” or “right here” or “you see. (Indicating),” instances of which are replete in the record. The trial judge was not so limited. Morris v. Morris, 290 Ala. 41, 273 So.2d 203 (1973).

Whether Penn sustained injury sufficiently “different, not merely in degree, but in kind from that suffered by the public at large” [Ayers, 260 Ala. at 892, 71 So.2d at 98] as to justify the awarding of an injunction, is another question which must be resolved by an examination of the record. Although, upon an examination of the record, we find some evidence to the effect that Penn had obtained some access to his land by means of an easement across the private lands of another, such evidence is inconclusive particularly in view of the record’s numerous references to “here,” “(Indicating),” etc., heretofore referred to. Moreover, there is evidence that this is the only direct access from his property to a public road. This evidence is sufficient to support the trial court’s decree.

This Court has stated that it is “committed to the rule that if the obstruction forces the owner of the land out of his direct, public street or road into a circuitous route in his commerce and intercourse with the outside world, this is a special injury to him not suffered by the general inhabitants of the state, county or city.” Purvis v. Busey, 260 Ala. 373, 378, 71 So.2d 18, 22 (1954). Because Penn’s injury fits within the Purvis rule, the case for injunctive relief is justified.

Therefore, we hold that the trial court did not err in awarding the injunction or in applying the Ayers standard.

A final contention is made by the Foundation that the existing public easement, if any, cannot be changed or enlarged by Penn. We agree. See Lindsey v. Shaw, 210 Miss. 1333, 49 So.2d 580 (1950); Moss v. Vance, 288 Ala. 224, 259 So.2d 252 (1972). However, the evidence on this issue was conflicting. There was sufficient evidence for appellee Penn on this issue to support the trial court’s decree.

Having considered all the contentions of the Foundation, and finding no reversible error in any of them, we have concluded that the decree of the trial court should be affirmed.

Affirmed.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    J. C. GISSENDANER v. Joseph H. PROCTOR, Administrator C/T/A of Pinkie Sutton, Deceased.
    SC 1427.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    Cook & Cook, Andalusia, for appellant.
    Albrittons & Rankin, Andalusia, for ap-pellee.
   EMBRY, Justice.

Appeal from judgment of the Circuit Court of Covington County holding a mortgage void because the signature of the mortgagor Pinkie (Pinkey) Sutton or Pinkie (Pinkey) Sutton Brown was a forgery. We affirm.

Appellant is J. C. Gissendaner, the as-signee of the mortgage. Appellee is Joseph H. Proctor, Administrator C/T/A of the Estate of Pinkie Sutton, deceased, the mortgagor.

The pertinent facts are: Proctor sought to prevent Gissendaner from foreclosing a mortgage allegedly executed by Sutton on real estate which is the only substantial asset of her estate. The case was tried by the Circuit Court sitting without a jury.

Proctor contended the signature of Pinkie Sutton was a forgery and therefore the mortgage should be declared void. Examples of Pinkie Sutton’s signature were properly introduced into evidence and considered by the trial court. An objection to the qualifications of a bank officer to compare Sutton’s signature on the mortgage with Sutton’s signature on other documents was insufficient. Kirby v. Brooks, 215 Ala. 507, 111 So. 235 (1927).

The evidence pertaining to the authenticity of the signature on the mortgage was conflicting. The trial court heard and saw the witnesses, viewed examples of the signature and found the signature on the mortgage to be a forgery. That decision will not be disturbed on appeal. Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883 (1975).

Affirmed.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: ALMON, Justice.

text:
    Steve McKENNA d/b/a Roadrunner #2 and Korner Kupboard Franchise v. CITY OF HOMEWOOD, Alabama, a Municipal Corporation, et al.
    SC 1180.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    Seier & Halcomb and Beddow, Fullan & Vowell, Birmingham, for appellant.
    Irvine C. Porter, Birmingham, for appel-lees.
   ALMON, Justice.

Appellant brought a civil action against the City of Homewood, Alabama, et al., seeking mandamus, declaratory and injunc-tive relief.

The amended complaint alleged that appellant operated two places of business in the City of Homewood and had been issued a retail off premise beer license by the State of Alabama and the City of Home-wood for the years 1969 through 1974; and that on October 1, 1974, appellant was issued a retail off premise beer license and a retail off premise wine license by the State of Alabama for the period October 1, 1974 through September 30, 1975. For the license year 1975 appellant was issued by the City of Homewood A “retail merchant’s license” but his application for a “retail off premise beer license” was denied by the City of Homewood.

The amended complaint further stated:

“5. Petitioner has purchased, and there has been issued to your Petitioner by the City of Homewood, Alabama, a retail merchant’s license for the year 1975 and your Petitioner applied for renewal and issuance of a retail off premise beer and off premise wine license for the year 1975 by the City of Home-wood and that the same was refused by the City of Homewood on January 27, 1975. Petitioner is ready, willing and able to pay these fees upon issuance of the license.
“6. That on the 22nd of July, 1974, the Homewood City Council passed an ordinance, a copy of which is attached to the pleading as Exhibit ‘C’. That such business of the Petitioner was properly licensed prior to the passage of Ordinance 1265. That such actions on the part of the Homewood City Council have been arbitrary and capricious and that such ordinance is unconstitutional under the laws and Supreme Court decisions of the State of Alabama. That such ordinance attempts to discriminate against (1) drugstores or (2) gasoline service stations or (3) delicatessens, grocery stores or neighborhood convenience stores where gasoline or other petroleum products are sold to the public in the City of Homewood, or its police jurisdiction, who, or which have not theretofore obtained the consent and approval of the governing body of the City of Home-wood to handle and sell said beverages, or any of them, at the places aforesaid.
“7. That the Amendment to Ordinance 1265 was adopted by the City Council of the City of Homewood on January 27, 1975 which was the same meeting that the Petitioner was denied the renewal and issuance of a retail off premise beer and wine license for 1975. That such actions of the City Council were specifically passed by the Home-wood City Council for the purpose of preventing your Petitioner from selling beer in its convenience store. A copy of the ordinance as adopted on January 27, 1975 and published in Shades Valley Sun newspaper on January 30, 1975 is attached to the pleadings as Exhibit ‘D’.
“8. That the actions on the part of the City of Homewood have injured, damaged and harmed your Petitioner in the exercise of its valid and legal property rights. That such action on the part of the City of Homewood has caused your Petitioner to expend large amounts of time and money to exercise his lawful rights and to protect himself from the arbitrary and capricious behavior of the Homewood City Council.
“9. That there are numerous grocery stores that are presently selling petroleum products and off premise consumption wine, malt or brewed beverages within the City of Homewood and these persons, firms, associations or corporations have not been required to appear each year for the issuance of a municipal beer license. That such actions by the Homewood City Council have been specifically designed to discriminate against certain persons or firms at the ‘whims’ of the Council and such action has been discriminatory, arbitrary and capricious.”

Homewood’s denial was apparently based on Ordinance No. 1265 passed July 22, 1974, which provided, inter alia, that no drug store, gasoline service station or delicatessen, grocery store or neighborhood convenience store where gasoline or other petroleum products were sold to the public should sell or keep for sale wines or malt or brewed beverages for off premise consumption.

The trial court granted appellees’s 12(b)(6) ARCP motion to dismiss for failure to state a claim upon which relief can be granted. In so doing, the court relied primarily on USA Oil Corporation v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362.

The case of Trabits v. First National Bank, 1975, 295 Ala. 85, 323 So.2d 353, is dispositive óf this issue. In Trabits this court re-affirmed its adoption of the standard set out in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) where the Court stated:

. . In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. . . .” 355 U.S. 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.

We would again call attention to the Trabits case wherein we state the following:

“. . . . We agree with the textbook authorities that ‘[t]he motion for summary judgment provides a more expeditious and effective procedure [as contrasted to the motion for dismissal for failure to state a claim upon which relief can be granted] for quickly terminating an action that does not appear to merit relief on its substantive merits.’ 5 Wright and Miller, Federal Practice and Procedure § 1357, at 603-04 (1969).
“Dismissal for failure to state a claim for which relief can be granted is a tool which should be used sparingly.

We are not persuaded that the appellant would be unable to prove any set of facts in support of his claim which would entitle him to relief.

The judgment is hereby reversed and the cause remanded.

Reversed and remanded.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, TJ., concur.


text:
    CITY OF DOTHAN, Alabama v. DALE COUNTY COMMISSION, the governing body of Dale County, Alabama, et al.
    SC 1391.
    Supreme Court of Alabama.
    Dec. 18, 1975.

      Robert A. Huffaker, Montgomery, Wade H. Baxley, Dothan, for appellant.
    Joseph W. Adams, Ozark, Walter J. Knabe arid William K. Martin, Montgomery, for appellees.
   BLOODWORTH, Justice.

The City of Dothan appeals from a final order of the Probate Court of Dale County, dismissing Dothan’s request to call an annexation election [pursuant to the provisions of Tit. 37, § 138 et seq., Code of Alabama 1940 (Recomp.1958)] to annex lands in Dale County, including the Dothan Municipal Airport. We reverse and remand.

The circumstances under which the instant controversy arose had their origin in a meeting of the Board of City Commissioners of Dothan on September 20, 1974. At that meeting, two resolutions were passed which are significant for purposes of the instant appeal. Resolution No. 4852 calls for the expansion of Dothan’s corporate limits through the annexation of a land corridor contiguous to established Dothan corporate limits. At that time, Dothan’s city limits lay wholly within the boundaries of Houston County. The land annexed under Resolution No. 4852 lies primarily in Houston County but also includes a small area in Dale County. The second resolution, Resolution No. 4854, calls for the annexation of land lying in Dale County, the bulk of which is composed of land owned by the Dothan-Hous-ton County Airport Authority, a public corporation. No challenge was voiced to these proposed annexations until action was taken on the second resolution.

The annexation of Houston County territory, proposed under the first resolution, was pursued under the provisions of Tit. 37, § 137(1), Code of Alabama 1940 (Cum.Supp.1973), and became effective upon publication on September 23, 1974, as provided under § 137(1). On September 25, 1974, the second resolution, No. 4854, also pursued under § 137(1), was filed with the Judge of Probate of Dale County. (Under § 137(1) land contiguous to a city’s corporate limits, if it does not lie “within the corporate limits or police jurisdiction” of another city, may be annexed “[wjhenever all of the owners of property” to be annexed file a signed petition requesting annexation and “the governing body [of the annexing city] adopts an ordinance assenting to the annexation . . . .”) On October 4, 1974, various parties (hereinafter referred to as “opponents”) challenged the validity of Dothan’s request for an annexation: the Dale County Commission; the Town of Napier Field and its Town Council; the Town of Grimes and its Town Council; and certain residents who are electors and property owners of both towns, both counties, and the City of Dothan. Resident property owners of Dothan were later joined as petitioners. Opponents filed a Petition to Dismiss Request for Calling of Annexation Election.

On October 10, 1974, in response to an objection that part of the proposed annexation lies within the police jurisdiction of the town of Grimes and Napier Field, Dothan filed its Resolution No. 4870, superseding the resolution filed earlier, i. e., Resolution No. 4854. The effect of this action was to abandon the attempt at annexation under § 137(1), as proposed by the earlier resolution, No. 4854, and to substitute the annexation Resolution No. 4870, under the provisions of Tit. 37, § 138 et seq. [Tit. 37, § 138 et seq., do not expressly forbid a city’s annexation of property lying within the police jurisdiction of some other city.]

In response to the challenges asserted by opponents, Dothan filed a “Motion to Strike Petition to Dismiss Request For Calling of Annexation Election Or, In the Alternative, Motion to Discontinue Hearing.” In its motion to strike, Dothan contended, first, that the Judge of Probate’s duties under § 138 et seq. are purely ministerial and do not give him power to conduct a hearing to consider the objections raised by opponents’ Petition to Dismiss and, second, that none of the opponents have standing to challenge Dothan’s request for the calling of an annexation election.

At the hearing, the Probate Court denied Dothan’s motion to strike and entered an order dismissing Dothan’s request for an annexation election. The Probate Court based its order on its findings that: (1) it had “the power, authority and jurisdiction to consider Opponents’ challenge to the validity of Dothan’s . . . request for an annexation election”; (2) Dothan’s annexation of the Houston County corridor was a sham and subterfuge which does not satisfy the contiguity requirement of Tit. 37, § 152 and, furthermore, that the approximately 350-foot common boundary between the Houston County annexation and the Dale County annexation does not satisfy the contiguity requirement because the legislature intended “a substantial common boundary”; (3) the proceedings whereby Dothan purportedly annexed the Houston County corridor are void, and, being invalidly annexed, the corridor cannot be relied upon to satisfy the contiguity requirement for annexation of the Dale County land; (4) the legislative intent underlying Tit. 37, § 152, prohibits annexation by one city of land lying within the police jurisdiction of any other city; and (5) the annexation proposed by Doth-an is in violation of the legislative intent that municipal annexations not destroy the municipality’s conformity to “legal” and “popular” notions of what constitutes a municipality. [The court refers to the following factors as determinative of whether an annexation violates the legislative intent: configuration of the annexation, sub-stantiality of the common boundary, number of voters residing on the land proposed to be annexed, existence of streets or roads running through the proposed annexation connecting it to the city. The court pointed out that only two persons would be qualified to vote as residents of the land proposed to be annexed and that there are no roads or streets connecting Dothan and the proposed annexation.]

Dothan appeals on the grounds that the court exceeded its authority: A. by requiring a “substantial common boundary” in the absence of any such express requirement by the legislature; B. by ruling that a municipality cannot annex territory within the police jurisdiction of any other municipality in a similar absence of express legislative directive; C. by determining the Houston County annexation was void thus permitting an impermissible collateral attack; and, finally, D. by holding that the proposed annexation violated legislative intent.

We agree with the City of Dothan that the Probate Court of Dale County erred to a reversal on each of these grounds. Since a resolution of these issues is determinative of this appeal, we see no need to consider any other contentions raised by Dothan. We now proceed to a discussion of the aforementioned issues.

A. The requirement of Tit. 37, § 152, is simply that the territory proposed to be annexed be ‘‘contiguous to the boundary of the city at some point.” [Our emphasis.] The map and legal description accompanying Dothan’s resolution shows that there is approximately a 350-foot common boundary between the territory proposed to be annexed and the city boundary. This, we hold, is ample satisfaction of the requirement of “contiguity” under § 152, supra.

There is no requirement of “substantial common boundary” as the Probate Court seems to consider necessary. In the terms of this statute, “contiguity” means a “touching” at some point. State ex rel. Milan v. Masters, 207 Ala. 324, 93 So. 14 (1922).

B. By the express terms of § 152, Code, the property proposed to be annexed “may extend to or around the boundary line of any other city, but is not to embrace any territory within the corporate limits of another city." [Our emphasis.] It is self-evident that there is a clear ditinction between “corporate limits” and “police jurisdiction.” See Tit. 37, § 9, Code of Alabama 1940 for a definition of the latter term. It would seem that had the legislature determined to exclude territory within the police jurisdiction of one city from being annexed by another, it would have been a simple matter to have so provided. Such was the legislative purpose as expressed in Tit. 37, § 137(1) [another annexation statute] wherein it is expressly provided that property to be annexed within that provision “not lie within the corporate limits or police jurisdiction of any other municipality.” See our recent decision, State ex rel. City of Birmingham v. Tarrant City, 294 Ala. 304, 315 So.2d 583 (1975), construing this section. There, this Court suggested that the section does not permit annexation under this statute in cases of overlapping police jurisdictions. In these cases, the Court added, “annexations must follow conventionál procedures.”

C. In determining that the Houston County annexation was void, the Probate Court of Dale County erred as this constituted an impermissible collateral attack thereon.

Although admitting their attack is collateral rather than direct, opponents argue that the annexation proceedings in Houston County were “void” not merely “voidable,” and therefore subject to attack in a collateral proceeding. We think the proceedings were not “void.” Alexander v. Nelson, 42 Ala. 462 (1868). “[T]he law does not favor collateral attack on a municipal corporation in the exercise of [its] police powers . . . .” Chadwick v. Town of Hammondville, 270 Ala. 618, 622, 120 So.2d 899, 902 (1960). Being at most “voidable” merely, opponents’ remedy would seem to be, as Dothan suggests, a direct attack in a court of general jurisdiction.

D. The Probate Court also held that the annexation was void because its irregular shape and its lack of homogeneity with the rest of the city constitutes a violation of the legislative intent.

■ We know of no statutory mandate that the municipal boundaries of all territories sought to be annexed must form a regular shape. Tit. 37, § 135(10) does require that such annexed territory “form a homogeneous part of the city or town.” But, this is not to imply that homogeneity demands regularity of shape of the boundaries of the municipality. “Homogeneous” is defined as “of a similar kind or nature . of uniform structure or composition . . . consisting of uniform elements (as of people or groups with similar background) . . . .” Webster’s Third New International Dictionary, 1966.

Had the legislature been so disposed as to require all municipalities to possess boundaries of uniform and regular width and length it might have said so.

Other jurisdictions have permitted corridors and irregularly shaped boundaries such as those in the instant case. See Tovey v. City of Charleston, 237 S.C. 475, 117 S.E.2d 872 (1961); People v. City of Palm Springs, 51 Cal.2d 38, 331 P.2d 4 (1958); City of Burlingame v. San Mateo County, 90 Cal.App.2d 705, 203 P.2d 807 (1949). „

Clearly, the proposed annexation is no sham, or subterfuge because the City of Dothan has a valid municipal interest in its own municipal airport.

Therefore, we have concluded that there is no violation of the legislative intent in the proposed annexation.

Having then concluded that the Probate Court of Dale County erred in holding that Dothan’s request for thé calling of an annexation election is invalid and erred in dismissing the request, we reverse and remand for the entry of a judgment in conformity with this opinion.

Reversed and remanded with instructions.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.