author: EMBRY, Justice.

text:
    STATE of Alabama ex rel. Anita HARLOW et al. v. Dan CHANDLER.
    77-3.
    Supreme Court of Alabama.
    July 21, 1978.
    J. Wm. Thomason, Birmingham, for appellants.
    Roger A. Brown, Birmingham, for appel-lee.
   EMBRY, Justice.

This appeal is from a judgment denying relief sought by an information filed to impeach and remove from office a city councilman for voting in violation of § 11— 43-54, Code 1975, on any question in which he, his employer or employee has a special financial interest at the time of voting or was so interested at the time of his election. The judgment was entered upon grant of motion for summary judgment submitted on pleadings, affidavits, depositions and exhibits. The judgment must be reversed for a variety of reasons, the most important of which is that the issues were incapable of summary determination through examination of pleadings, affidavits, depositions and exhibits.

The plaintiffs, Anita Harlow and four other resident taxpayers of Irondale, filed an information pursuant to § 36-11-6, Code 1975, seeking to impeach the defendant, Dan Chandler, a councilman of the City of Irondale. Section 36-11-6 provides:

“Any five resident taxpayers of the division, circuit, district, county, city or town for which the officer sought to be impeached was elected or appointed may institute proceedings of impeachment under sections 174 and 175 of article 7 of the Constitution upon giving bond, with sufficient sureties, payable to the officer sought to be impeached, conditioned to prosecute the impeachment to effect and, failing therein, to pay all costs that may be incurred, which bond shall be taken and approved by the clerk of the court before which the proceedings are proposed to be instituted.”

The information filed by the plaintiffs alleged that the defendant had voted:

“ * * * for the approval and payment of claims against the City of Irondale presented by a business establishment known as Chandler’s Garage and the defendant was at the time he voted for such approval and payment of such claims an agent, servant, employee, stockholder, director or officer of the business known as Chandler’s Garage; against the peace and dignity of the State of Alabama.”
The defendant filed an answer stating:
“1. He is not guilty.
“2. He is not guilty of an impeachable offense.
“3. The information fails to state an offense.
“4. The information fails to state an impeachable offense.
“5. The information fails to allege an impeachable offense as defined by the Alabama Constitution.
“6. He has not received any benefit, monetary or otherwise, from his service as a member of the City Council of Iron-dale, Alabama, other than that provided by law.”

Chandler also moved for summary judgment based on the pleadings, affidavits, depositions and exhibits filed with the court. The circuit court granted the defendant’s motion and entered the following judgment:

“This cause coming on to be heard on Motion For Summary Judgment filed on behalf of the defendant on the pleadings, affidavits, depositions and exhibits made a part of the record in this case. It is hereby ordered, adjudged and decreed that the Motion For Summary Judgment should be and is hereby granted.
“The defendant is an elected member of the city council of Irondale, Alabama, and has been for approximately 13 years prior to this date employed as a mechanic of Chandler’s Garage. Chandler’s Garage was a sole proprietorship owned by the defendant’s father, Robert Chandler, until August 24, 1976, at which time the business was incorporated and became Chandler’s Garage, Inc. Robert Chandler owned 97% of the stock of this corporation and the defendant owned 1% of the stock. The defendant still receives a salary as a mechanic and does not receive any dividends or extra compensation because of his ownership of his share of stock.
“Chandler’s Garage has done virtually all of the mechanical servicing of the vehicles of the City of Irondale for approximately 30 years. There has been no diseernable increase in business between the City of Irondale and Chandler’s Garage since the election of the defendant to the city council since October of 1976.
“The information filed by the plaintiffs charged the defendant with having voted for payment of claims against the City of Irondale presented by Chandler’s Garage for work done pursuant to the established business practice for the past 30 years. Plaintiffs bring information under Title 37 Section 452 of Alabama Code 1940 [§ 11-43 — 161, Code 1975], which prohibits an alderman from providing any service for compensation payable out of public municipal funds from which he is an alderman or having any private or personal financial dealings with, for, or on account of the municipality.
“The question is, is voting to pay a bill owned by the defendant’s father’s garage, which is incorporated, and he owned 1% of the stock, an impeachable offense under Title 37 Section 452 of the Alabama Code?
“It is the opinion of this court that this is not such an offense that is a matter of law under Title 37 Section 452 of the Alabama Code. It is the law and undisputed evidence of this case that it is not an impeachable offense. The court believes that cases contemplated by authorizing impeachment should be neither trivial nor capricious and must be restricted to something directly affecting the rights and interests of the public. The court believes that because of the long standing relationship between the City of Irondale and Chandler’s Garage and the fact that the defendant was an employee for 13 years merely receiving a salary, the fact that he owns 1 share of stock of the corporation should not cause the defendant to be impeached.
“As a matter of fact, the court finds on pages 21, 22 and 23 of the deposition of the defendant that he abstained from voting when it was called to his attention.
“On the Motion For Summary Judgment, it is due to be and is granted. Costs taxed to the plaintiffs over which execution is issued.”

Under Rule 58(b), ARCP, but with great difficulty, we treat the judgment of the trial court as a final one. The judgment when read together with the motion for summary judgment indicates that a final judgment was intended; we hold it was final in this case. However, the better practice would be to expressly dismiss the information. More is needed to indicate finality than a mere statement that the defendant’s motion is granted. Rule 58(b) allows us to look beyond the wording of the judgment but this should not be necessary.

Unfortunately, the trial court misconceived the allegations of the plaintiffs’ information. The allegations do not charge the defendant with a violation of § 11-43-161, Code 1975; in fact a violation of § 11 — 43-54 is alleged. That section provides:

“No councilman shall be entitled to vote on any question in which he, his employer or employee has a special financial interest at the time of voting or was so interested at the time of his election. For violating this section or section 11-43-53, a councilman may be removed.”

Because of the misconception there were issues not determined by the trial court below, nor raised on appeal by the litigants. Section 36-11-6, which provides the mode of impeachment raised by the plaintiffs, allows resident taxpayers to institute impeachment proceedings under §§ 174 and 175 of Art. VII, Constitution of 1901. Section 175 authorizes the removal of municipal officers such as defendant, Chandler, under regulations prescribed by law. Section 36-11-6, Code 1975, is such a regulation. However, § 175 of the Constitution allows removal only for the causes specified in § 173. Those causes are:

“ * * * willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith, * * * ” Ala.Const., Art. VII, § 173.

Because § 175 allows removal of municipal officers only for the causes listed in § 173, then § 11-43-54, Code, must specify one of those causes. It may well be that a violation of § 11-43-54 constitutes “corruption in office” or is an “offense involving moral turpitude.” But certainly no such finding could be made solely on the basis of the pleadings, affidavits, depositions and exhibits filed by the parties.

Such a determination must be made by the trier of fact and must include two findings. First, scienter must be found to exist. Scienter means knowingly. The word is often used to denote guilty knowledge. Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Black’s Law Dictionary, p. 1512 (4th Ed. 1968). Second, corrupt intent or motive must be found to exist. That is the act must be done with evil motive, in bad faith or not honestly. See generally, State v. Schultz, 71 N.J. 590, 367 A.2d 423 (1976) (defining corruption showing misconduct in office). As to intent see Walker v. Woodall, 288 Ala. 510, 262 So.2d 756 (1972); Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (Crim.App.1973). For a general discussion of scienter and its relationship to intent see State v. Roufa, 241 La. 274, 129 So.2d 743 (1961); 2 Wigmore on Evidence, § 300, pp. 192-93, 3d Ed.

Applying these requirements to the case at bar, we hold that in order to be impeached under § 11 — 43-54, the councilman must know that a special interest of his, his employer or his employee is being voted on (scienter), and he must intend to benefit that interest by his vote (corrupt intent).

Accordingly the judgment is reversed and the case remanded.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, a corp. v. Leonard H. METZGER, Jr., as Executor, etc.
    77-299.
    Supreme Court of Alabama.
    July 21, 1978.

      Alton R. Brown, Jr. and Robert M. Mon-tiel, Mobile, for appellant.
    Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.
   FAULKNER, Justice.

This appeal questions Tit. 36, § 74(62a) Code of Ala. 1940, Recompiled 1958, as to whether the umbrella policy in this case came within its provisions. The trial court found that it did. We find that it did not, and reverse and render.

On August 4, 1974, Gwen Metzger was killed when the automobile she was driving was struck by an uninsured motorist who was intoxicated and fleeing the police. At the time her husband, Leonard Metzger, had in effect two insurance policies relevant to this case. The first was an “Automobile Policy” issued by Aetna Casualty and Surety Co. on the automobile Gwen Metzger was driving when the accident occurred. This policy had limits of $300,000 and specifically included uninsured motorist coverage. The second, issued by Trinity Universal Insurance Co. with a limit of $1,000,000, was termed a “Personal Excess Umbrella Policy.” This umbrella policy covered “ultimate net loss in excess of the underlying limit which the insured shall become legally obligated to pay as damages because of personal injury or property damage.” The “underlying limit” was determined by the limits on two “underlying policies,” specifically, the automobile policy issued by Aetna and a homeowner’s policy issued by Reliance Insurance Co. with limits of $100,000. Metzger collected $10,000 under the uninsured motorist provisions of his automobile policy with Aetna and then made demand on Trinity Universal to pay uninsured motorist coverage under their umbrella policy. Trinity Universal denied liability prompting Metzger to bring this suit. The ease was tried by a judge without a jury on the single question of coverage. The trial court rendered judgment for Metzger and Trinity Universal appealed.

Our uninsured motorist statute reads in pertinent part:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state . . . unless coverage is provided therein or supplemental thereto, under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder from owners or operators of uninsured vehicles . . . provided, that the named insured shall have the right to reject such coverage; . . . ” Tit. 36, § 74(62a), Code of Ala. 1940, Recompiled 1958.

We must determine whether the umbrella policy issued by Trinity Universal is an “automobile liability or motor vehicle liability policy” as contemplated by this statute. First it is clear that it is not a “motor vehicle liability policy” because this term is defined in Tit. 36, § 74(62) as a policy insuring specific automobiles and individuals subject to limits of $5,000/$10,000/$l,-000. (Tit. 36, § 74(62)(b)(l) and (2). Other statutory requirements are set out in subsections (a) and (c)-(k).) Trinity Universal’s umbrella policy refers to an underlying, policy with Aetna rather than any specific automobile, and sets limits far above the statutory requirements.

Is this umbrella policy, nevertheless, an “automobile liability policy” and therefore subject to the statute? This court has in the past drawn a distinction between “automobile liability policies” and “motor vehicle liability policies,” (see State Farm Mutual Automobile Insurance Co. v. Hubbard, 272 Ala. 181, 187, 129 So.2d 669, 675 (1961)) but we think that, for the purposes of this case, any fine distinctions that may exist between these two terms are not relevant. The term “automobile liability policy” as used in our uninsured motorist statute, Tit. 36, § 74(62a), contemplates a policy similar in nature to that defined in Tit. 36, § 74(62). Automobile liability policies and motor vehicle liability policies insure against the risk of loss through the operation of specific automobiles. An umbrella policy, on the other hand, is fundamentally excess insurance designed to protect against catastrophic loss. Before an umbrella policy is issued, a primary policy (the “underlying policy”) must be in existence and this primary policy must by law provide uninsured motorist coverage. The umbrella policy assumes a risk of much less frequent occurrence, i. e., the risk of judgments in excess of primary policy limits, and accordingly carries premiums which reflect the lesser magnitude of this risk. The umbrella policy issued by Trinity Universal is an inherently different type of insurance from an automobile or motor vehicle liability policy, and consequently does not come within the scope of the uninsured motorist statute.

Of course, Alabama allows “stacking” of uninsured motorist coverage and our holding today in no way affects this principle as outlined in Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970). It is important, however, to note the factual differences between that case and the one at bar. In Safeco the insurer had accepted premiums for uninsured motorist coverage but attempted to escape liability through the fortuitous presence of other applicable insurance. Trinity Universal, on the other hand, issued its umbrella policy on the premise that another primary policy with uninsured motorist coverage was applicable. It did not collect premiums for uninsured motorist coverage as Safeco did and then attempt to avoid liability through an obscure “excess-escape” clause. When Metz7 ger purchased the policy it was clear that it was merely excess insurance designed solely to protect him from the infrequent occurrence of catastrophic judgments against him. Trinity Universal’s umbrella policy is clearly a very different sort of insurance from that contemplated by the uninsured motorist statute. Thus the umbrella policy is not subject to that statute and is not required to provide uninsured motorist coverage.

To reiterate, we simply hold today that an “umbrella policy,” clearly intended as excess insurance to protect against catastrophic judgments and issued as supplementary insurance to existing primary policies themselves sufficient to meet the requirements of the law, is neither an automobile liability nor motor vehicle liability policy within the scope of the uninsured motorist statute, even 'though one of the primary policies may itself insure automobiles.

REVERSED AND JUDGMENT RENDERED FOR THE DEFENDANT.

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


text:
    BUILDERS DEVELOPMENT COMPANY, etc. v. CITY OF OPELIKA, Alabama, etc.
    77-331.
    Supreme Court of Alabama.
    July 21, 1978.

      Arnold W. Umbach, Jr. and Jacob Walker, Jr., Opelika, for appellant.
    Guy F. Gunter, III, Opelika, for appellee.
   FAULKNER, Justice.

This is an appeal from a denial of a bill for declaratory judgment. The plaintiff, Builders Development Company (Builders), attacked the rezoning by the City of Opeli-ka of a parcel of property Builders owned in Opelika. Since we find that proper notice was not given by the City we do not reach the other issues raised on appeal. We reverse and remand.

Since 1968 Builders has owned a parcel of property at the intersection of Rocky Brook Road and Morris Avenue in Opelika. Under the City’s Comprehensive Zoning Plan of 1969 this property was zoned to permit multi-family units. In June of 1977 Builders initiated the required procedures to commence development of this property with “Quadraplexes” (a type of multi-family unit). When local homeowners learned of Builders’ development plans they requested the City Commission to rezone the property to allow only single-family units. On Tuesday, August 29,1977, the City Commission published its first notice of a public hearing scheduled for Monday, September 12, to consider rezoning Builders’ property. Second notice appeared on Monday, September 5. Thus it is agreed that notice of the September 12 meeting was published once a week for two consecutive weeks, with the first notice appearing only fourteen days prior to the meeting. At the September 12 meeting the City Commission rezoned the property to allow only single-family units.

In the meantime Builders’ plat suitable for multi-family or single-family units was before the Planning Commission and received final approval on September 14. A month later Builders requested building permits for multi-family units. The permits were denied because of the rezoning of the property to prohibit multi-family units. Builders then filed a bill for declaratory judgment asking the trial court to declare the rezoning ordinance null and void for a number of reasons, including lack of proper notice, and to issue an order directing the appropriate officials to issue building permits for multi-family units. After an extensive hearing the trial court denied the bill.

Three statutes establish the notice procedures which a municipality in this state must follow when adopting zoning ordinances. The first, enacted in 1923, appears now as § 11-52 — 74, Code of Ala.1975, and reads as follows:

“No ordinance shall be passed by any municipal corporation under the authority of this article unless and until the proposed ordinance has been published for at least 15 days in advance of its passage in a newspaper of general circulation published within the municipality or, if there is no such newspaper, by posting the same in four conspicuous places within the municipality, together with a notice stating the time and place that the ordinance is to be considered by the municipal legislative authorities and stating further that at such time and place all persons who desire shall have an opportunity of being heard in opposition to such ordinance.” Acts 1923, No. 443, p. 590; Code 1940, T. 37, § 773, as amended, Acts 1964, 1st Ex.Sess., No. 252, p. 348, § 1.

In the Code of 1923 this statute appeared as § 1879. In 1935 the legislature adopted the “Standard State Zoning Enabling Act” prepared by an advisory committee for the United States Secretary of Commerce. See Chapman v. City of Troy, 241 Ala. 637, 639, 4 So.2d 1, 2-3 (1941). This act contained two provisions relative to notice requirements. The first now appears as § 11-52-77, Code of Ala.1975, and reads in pertinent part:

“No ordinance shall be- passed by any municipal corporation under the authority of this article unless and until the proposed ordinance has been published at least once a week for two consecutive weeks in advance of its passage in a newspaper of general circulation published within the municipality, or, if there is no such newspaper, then by posting the same in four conspicuous places within the municipality, together with a notice stating the time and place that the ordinance is to be considered by the municipal legislative authorities and stating further that at such time and place all persons who desire shall have an opportunity of being heard in opposition to or in favor of such ordinance.” Acts 1935, No. 533, p. 1121, § 4; Code 1940, T. 37, § 778, as amended, Acts 1964, 1st Ex.Sess., No. 252, p. 348, § 2.

The 1935 act also provided for amendments to zoning ordinances and stated, “The provisions of [section 11-52-77] relative to public hearings and official notices shall apply equally to all changes and amendments.” Acts 1935, No. 533, p. 1121, § 5; Code 1940, T. 37, § 779; now codified at § 11-52-78, Code of Ala.1975. It is clearly established, however, that the 1935 notice provisions did not repeal the 1923 provision, for the legislature provided as part of the 1935 act, “[T]his act shall not be held to repeal Section . . . 1879 of the Code of Alabama of 1923 [§ 11-52-74, Code of Ala.1975], but on the contrary said [section] shall remain in full force and effect, the provisions of this act being cumulative and additional to said Code [section].” Acts 1935, No. 533, p. 1121, § 12. Consequently, § 11-52-74 and § 11-52-77 must both be complied with when a city publishes notice of a proposed zoning ordinance or amendment. Otherwise the ordinance is void. Roberson v. City of Montgomery, 285 Ala. 421, 424, 233 So.2d 69, 71 (1970); Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 407, 44 So.2d 593, 597 (1950); Chapman v. City of Troy, 241 Ala. 637, 640, 4 So.2d 1, 3 (1941).

Once it is determined that both § 11-52-74 and § 11-52-77 must be complied with the question then becomes, what is compliance? In 1956 the Attorney General issued an opinion reading these statutes as requiring publication “once a week for two consecutive weeks, [with] the first publication ... at least fifteen days pri- or to the passage of such ordinance . . ” Quarterly Report of the Attorney General, Vol. 85, p. 16 (1956). We think that this is the only plausible construction which gives effect to both statutes and makes them cumulative in accordance with the intentions of the legislature as indicated in the 1935 act. The legislature by declaring that the 1935 act did not repeal the 1923 act has clearly indicated that interested parties should have at least fifteen days to prepare for a hearing, not twelve, thirteen, or fourteen. Amendments to zoning ordinances must, of course, follow the same notice procedures, since § 11-52-78 is also subject to the “non-repealer” provision in the 1935 act. Here, notice was first given on Tuesday, August 29, and the public hearing was held fourteen days later, on Monday, September 12, in violation of the statutorily required notice procedures. Since proper notice of the September 12 public hearing was not given the ordinance passed at that meeting rezoning Builders’ property is void and the judgment of the trial court must be reversed. Before a zoning ordinance or amendment may be passed by a municipal corporation the ordinance or amendment must be published once a week for two consecutive weeks with the first publication appearing at least fifteen days prior to the passage of the ordinance or amendment.

REVERSED AND REMANDED.

BLOODWORTH, ALMON, EMBRY and BEATTY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    UNION OIL COMPANY OF CALIFORNIA, a corporation v. Jane Ellen COLGLAZIER, etc., et al.
    77-332.
    Supreme Court of Alabama.
    July 21, 1978.

      Rae M. Crowe and Charles J. Fleming, Mobile, for appellant.
    Edwin J. Curran, Jr. of Vickers, Riis, Murray & Curran, Mobile, for appellees: Jane Ellen Colglazier, as Trustee, The First Nat. Bank of Mobile and Jay P. Altmayer, as Trustees under the will of Marvin C. Altmayer, deceased, Harry H. Riddick, Kenneth R. Giddens, Zelma K. Giddens, and The First Nat. Bank of Mobile, as Trustee under the Giddens Land and Mineral Trust.
    Norton Brooker, Jr. of Lyons, Pipes & Cook, Mobile, for appellee, South Ala. Pulpwood, Inc.
   BLOODWORTH, Justice.

Union Oil Company (Union) appeals from the grant of a summary judgment for plaintiffs, Colglazier, et al., and the denial of its own motion for summary judgment, in a declaratory judgment action in which plaintiffs were found to own an undivided one-half interest in and to all the oil, gas and minerals in a tract of land in Mobile County, free and clear of an oil, gas and mineral lease held by the defendant, Union. We affirm.

Plaintiffs are grantees of Conservation & Land Company (Conservation), which originally owned both the surface and minerals of the land in question, the Northwest Quarter of Section 12, Township 2 South, Range 2 West, Mobile County, Alabama. Conservation conveyed this land to one C. C. Huxford, “excepting, however, all oil, gas and minerals in and under said lands.” This deed was recorded. Huxford then conveyed the land to one G. C. Coggin Company, Inc., stating that all oil, gas and mineral rights to this tract and to some other parcels conveyed in the same instrument “are excepted, these rights having been reserved in previous conveyances.” This deed is also of record. Coggin Company conveyed the land back to Conservation along with several other parcels, subject to the following reservation:

“The grantor expressly reserves to itself, and unto its successors and assigns, an undivided one-half interest in whatever interest it now owns in the oil, gas and minerals lying in, under or upon said lands.”

It is undisputed that Coggin Company never owned any mineral rights in the land in question. This deed also was recorded.

Following the conveyance from Coggin Company, Conservation once again owned both the surface and the minerals of the subject parcel. It then conveyed this land and several other tracts to Celeste Land Company (Celeste), a new corporation with the same shareholders as Conservation. This deed, the interpretation of which is the subject of this suit, is a “statutory warranty deed” conveying the land “subject to all of the easements, reservations and restrictive covenants, if any, lawfully existing with respect thereto.” This deed was also recorded. Included in the description of the land conveyed was this provision: “All of Section Twelve (12), except the Southwest Quarter (SW Vi), and except as hereinafter expressly set forth.” Following the description of the tracts conveyed was this language:

“2. There are expressly excepted from the real property described under Paragraph 1 hereinabove the following:
* * * * * *
(c) An undivided one-half (V2) interest in and to the oil, gas and minerals lying in, under or upon the Northwest Quarter (NW V4) of Section Twelve (12), Township Two South, Range Two West (T2S, R2W), same having been reserved to G. C. Coggin Company, Inc., in the certain deed dated December 22, 1950, recorded in Deed Book 520, page 86, of said Probate Records. . . . ”

The question to be decided is whether through this deed Celeste obtained title to all of the oil, gas and minerals or whether title to an undivided one-half interest remained in Conservation.

Plaintiffs claim title through subsequent conveyances from Conservation, each claiming to own a certain fractional part of the undivided one-half mineral interest. They brought a declaratory judgment action, alleging that Union claimed that the entire mineral interest was under lease to it by virtue of an oil, gas and mineral lease executed by Celeste, purporting to cover all of the mineral interest without exception or reservation. Both plaintiffs and Union moved for summary judgment. The court granted plaintiffs’ motion and denied Union’s, holding that the deed from Conservation to Celeste conveyed only an undivided one-half interest in the oil, gas and minerals and that the plaintiffs owned their fractional interests free and clear of Union’s lease. Union appealed.

The significant language in the Conservation-to-Celeste deed is “same having been reserved to G. C. Coggin Company, Inc.”

Union’s position is that this phrase made the conveyance subject to a mineral interest erroneously thought to be in a third party who had no such interest, and that this erroneous reference did not withhold the mineral interest from the conveyance as a matter of law.

Plaintiffs contend that there was a clear exception from the conveyance of an undivided one-half interest in the minerals and that the quoted language is merely a recital of an erroneous reason for the exception which does not avoid the effect of the exception. The trial court was correct in finding for the plaintiffs.

The basic objective in construing the terms of a deed is to ascertain the intention of the parties, especially the grantor, and if that intention can be found from the entire instrument, arbitrary rules of construction need not be used. Financial Investment Corp. v. Tukabatchee Area Council, Inc., 353 So.2d 1389, 1391 (Ala.1977).

A starting point is provided by § 35 — 1-2 (Code 1975), which states as follows:

“Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.”

Upon consideration of the entire deed, when it clearly appears that the grantor intended to reserve or except mineral rights, the reservation or exception will be good, even though the granting or habendum clause contains words of inheritance. Holmes v. Compton, 273 Ala. 554, 142 So.2d 697 (1962).

We find that the deed in question, taken as a whole, is not ambiguous and clearly expresses an intention to except from the grant an undivided one-half interest in the oil, gas and minerals. The clause referring to the prior reservation is merely an erroneous recitation of fact, and does not operate to void the exception or pass the entire fee interest.

Our conclusion finds support in cases from other jurisdictions involving similar situations. In Wilson v. Gerard, 213 Miss. 177, 56 So.2d 471 (1952), the grantor conveyed certain tracts by warranty deed “[sjubject to one-half interest in mineral and oil rights as conveyed to Wm. Henderson.” In fact, there was no prior conveyance and no such person as “Wm. Henderson.” Title to the one-half mineral interest remained in the grantor, and the grantee was deemed to own only what he was purchasing — all the land and one-half of the minerals.

In Oldham v. Fortner, 221 Miss. 732, 74 So.2d 824 (1954), the grantor conveyed land “except all minerals and mineral rights, heretofore sold and conveyed.” This was held to be a valid exception of all of the mineral rights, whether or not the prior conveyance of mineral rights was valid.

In Pich v. Lankford, 157 Tex. 335, 302 S.W.2d 645 (1957), the Texas Supreme Court construed two deeds, the first containing the following language after the description of the land: “Save and Except an undivided three-fourths of the oil, gas and other minerals in, on and under said land, which have been heretofore reserved.” The second deed contained this language following the description of the land conveyed: “Save and Except an undivided three-fourths of the oil, gas and other minerals in and under the Southwest Quarter thereof, . . . which minerals do not belong to the grantors herein.” In fact, only a one-half and a one-fourth royalty interest had been previously reserved. The Court held that the deeds excepted an undivided three-fourths interest in the minerals in plain and unambiguous language. The quoted clauses were mere recitals telling why the exceptions were made. The chain of title showed the recitals to be false, but the giving of a false reason for an exception was held not to operate to convey the excepted interest to the grantee. Id. at 340, 302 S.W.2d at 648.

Defendant Union cites cases from several other jurisdictions which reach different conclusions as to what the parties intended by the use of exceptions or reservations referring to prior conveyances. We do not consider these cases to be controlling, and although extended discussion of the facts and conclusions of each case is unnecessary, we will comment upon the main arguments made by Union.

First, Union points out that some courts have held that these clauses are intended to protect the grantor on his warranties, not to exclude the mineral interest from the grant, citing United States v. McKenzie County, 187 F.Supp. 470 (D.N.D.1960), aff’d sub nom. Murray v. United States, 291 F.2d 161 (8th Cir. 1961). This Court has used the warranty-protection approach in a case involving bonuses and royalties. Martin v. Knight, 290 Ala. 171, 275 So.2d 117 (1973). We found that a reservation made “with the same provisions” used in a prior deed was intended to protect a warranty rather than reserve anything to the grantor. This is not the situation here. In this case the deed contains a clear exception which stands on its own and does not incorporate by reference any prior exception or reservation.

The deed in question is a statutory warranty deed, and it is suggested by plaintiffs that there are no warranties present which would be protected by the disputed clause. This is denied by Union. We do not reach this issue and we express no opinion as to what effect, if any, the presence or absence of warranties, express or implied, would have on the interpretation of other deeds. Our conclusion here is based on the consideration of the language used in the deed, not on the fact that it is a statutory warranty deed.

Next, Union contends that under the common law and under Alabama statutes it is presumed that the deed conveyed a fee simple, absent an expressed reservation to the grantor himself. Union argues that the deed did not contain specific language reserving an interest in Conservation, so that the full mineral interest must have passed to Celeste.

Section 35^4-2 of the Alabama Code of 1975, quoted above, does not require any magic words in order to convey less than a full interest in land. Moreover, a valid exception operates to remove something from the grant, whether the interest is vested in the grantor or in another. Pich v. Lankford, supra, 157 Tex. at 342, 302 S.W.2d at 650.

Union’s third argument is that the deed is ambiguous and that ambiguous clauses in deeds must be construed in favor of grantees and against grantors. We have previously stated our conclusion that the deed is not ambiguous and clearly excepts an undivided one-half of the mineral interest. However, Union raises the point that the deed on its face leaves no interest in Conservation, so that plaintiffs were forced to introduce an extrinsic chain of title to establish their interests in the property. It is contended that introduction of this chain of title created an ambiguity which must be resolved in favor of the grantee, Celeste.

The fact that plaintiffs, in order to establish their interests, introduced a chain of title which proved that a statement in the Conservation-to-Celeste deed was false did not create an ambiguity in the deed itself. Either the deed was ambiguous or it was not. The question is whether the deed from Conservation to Celeste conveyed one-half of the mineral rights or all of the mineral rights. The trial court correctly found that there was a clear exception of one-half of the oil, gas and minerals. This issue is not affected by the truth or falsity of the disputed clause, since it was merely an erroneous reason for or description of the exception and could not operate to enlarge or diminish the exception. Pich v. Lankford, supra.

Union argues further that the deed does not except a one-half mineral interest, but rather excepts the same interest which G. C. Coggin Company reserved. This is not what the deed says. It excepts in plain language an undivided one-half mineral interest, then proceeds to purport to add a description or reason, albeit erroneous.

The final contention made by Union is that, due to the close relationship of the parties to the Conservation-to-Celeste deed, the plaintiffs are estopped from contending that the deed conveyed less than the full mineral interest. Union asserts that Celeste represented that it owned the full mineral interest and leased the full mineral interest to Union. At that time, the stockholders in Celeste were also the stockholders in either Conservation or South Alabama Pulpwood, one of the plaintiffs. It is Union’s position that Celeste, Conservation, and all those claiming under them are es-topped from denying that Celeste did not own the full mineral interest.

Union is not in a position to invoke an estoppel on this point. A party who seeks to assert an estoppel must have been ignorant of the truth at the time of the conduct amounting to the representation and at the time when that conduct was acted upon. Jacksonville Public Service Corp. v. Calhoun Water Co., 219 Ala. 616, 123 So. 79 (1929). If he could have ascertained the facts by reasonable diligence, but failed to do so, he may not assert an estoppel since he did not justifiably rely upon the other’s representations. Pattillo v. Tucker, 216 Ala. 572, 113 So. 1 (1927).

It is not clear whether Union checked the chain of title to the land in question or not. An examination of the public records by Union would have disclosed the recorded deeds through which Celeste claimed title and would have given Union actual notice that there were, at least, serious questions as to whether Celeste owned a full mineral interest. Even if Union had not checked the record, it has constructive notice of the contents of the recorded deeds. § 35-4-63 (Code 1975). A purchaser is chargeable with notice of what appears on the face of conveyances in his chain of title. Wittmeir v. Leonard, 219 Ala. 314, 122 So. 330 (1929).

For the foregoing reasons, this cause is due to be affirmed.

AFFIRMED.

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

      . In modern usage, the terms “reservation” and “exception” are often used interchangeably without regard to their technical common law meanings. See Webb v. Jones, 163 Ala. 637, 50 So. 887 (1909). The parties have not argued this distinction. This opinion follows the wording of the deeds in question and the terms as used by the parties.


author: JONES, Justice.

text:
    AIRCO, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    77-342.
    Supreme Court of Alabama.
    July 21, 1978.
    James D. Brooks, Mobile, for AIRCO, Inc., et al., appellants and industrial inter-venors.
    Maurice F. Bishop, Birmingham, for Honorable George C. Wallace, as Governor, and the State of Alabama, intervenors.
    Carl L. Evans, Montgomery, for Alabama Public Service Commission, appellee.
    John Bingham, of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Lange, Simpson, Robinson & Som-erville, Birmingham, and Steiner, Crum & Baker, Montgomery, for appellee, Alabama Power Co.
   JONES, Justice.

This case involves the Alabama Public Service Commission’s grant of an emergency rate increase on January 20, 1977. The Circuit Court dismissed the appeal as moot, holding that no effective relief could be granted. We affirm.

On January 20, 1977, Alabama Power Company was granted a $47.2 million emergency rate increase (on an annual basis) which was to remain in effect until May 15, or until a permanent rate became effective. Charges were collected on this emergency rate from January 20 through April 27, 1977, and Industrial Intervenors paid approximately $15.2 million pursuant to those charges.

On April 26, 1977, the APSC issued its Order (effective April 28) setting permanent rates for all customers. No appeal was taken from this Order.

When timely appeal was filed on the emergency rate Order, no supersedeas bond was posted. The Circuit Court dismissed the appeal as moot on January 28, 1978.

It is well established that there can be but one lawful rate in effect at any given time and that rate is the rate established by the APSC, as long as it remains unchanged. T. R. Miller Mill Co. v. Louisville & Nashville Railroad Co., 207 Ala. 253, 92 So. 797 (1921). Because there was no supersedeas bond posted, the charges were collected under a lawful rate and cannot be refunded. Alabama Gas Corp. v. Wallace, 293 Ala. 594, 308 So.2d 674 (1975); and State v. Alabama Public Service Commission, 293 Ala. 553, 307 So.2d 521 (1975) (involving General Telephone Company of the Southeast). See also Foshee v. General Telephone Company of the Southeast, 295 Ala. 70, 322 So.2d 715 (1975). Thus, there is no effective remedy upon which relief can be granted. To render an opinion based solely upon the Commission’s alleged improper actions (without seeking a remedy therefrom) or upon its prospective improprieties would be to render impermissible advisory opinions. See Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 309 So.2d 424 (1975).

Therefore, the Order of the Circuit Court dismissing the appeal for mootness is due to be affirmed.

AFFIRMED.

All the Justices concur.


text:
    John Douglas RABON and William Ronald Rabon v. Luree M. RABON and Neal Rabon.
    77-352.
    Supreme Court of Alabama.
    July 21, 1978.

      Bert W. Rice, Atmore, for appellants.
    Joe B. Thompson, Jr. and Edward T. Hines, of Garrett & Thompson, Brewton, for appellee.
   EMBRY, Justice.

This appeal is from a directed verdict upholding the validity of a will. The issue is whether there was a scintilla of evidence from which the jury could lawfully infer the favored beneficiary was unduly active in procuring the will.

We hold there was and reverse.

The contested will was executed by John W. Rabón on 9 August 1972. He died on 29 March 1976, and his widow, Luree M. Ra-bón, petitioned the Probate Court of Es-cambia County for probate of his will on 28 May 1976. Notice of contest and demand for transfer was filed by two sons of the testator, John Douglas and William Ronald Rabón. Pursuant to § 43-1-78, Code 1975, the case was transferred to the circuit court for trial by jury.

The parties stipulated that the validity of the execution of the will was not in issue and that the sole ground of contest was that the will was a product of undue influence or coercion on the part of Luree M. Rabón, the sole beneficiary. After the close of the contestants’ case the proponents offered no evidence and moved for directed verdict, which was granted. The trial judge in his instructions to the jury, directing the verdict for the proponents, stated that no evidence had been presented showing the favored beneficiary had engaged in any undue activity in procuring execution of the will.

This court in Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977), restated the three pronged test required to raise a presumption of undue influence in Alabama.

“ * * * [The] evidence must establish: (1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. * * * ”

Clearly, in the trial below evidence of the first two elements was presented. Luree Rabón was the wife of the testator and the sole beneficiary of his will. The testator was 86 years old and in a rapidly deteriorating state of health. He was described as being feeble and childlike, could not drive, read, or even feed himself. In short, he was almost completely dependent upon his wife, Luree. The trial court instructed the jury that some evidence had been presented tending to show there was a confidential relationship between the testator and a favored beneficiary. This evidence would also tend to prove the favored beneficiary dominant and controlling in that relationship.

There was also evidence of undue activity upon her part in procuring the execution of the will. This third test has often been the determining factor regarding the existence of a presumption of undue influence. See Pruitt, supra. It is not required that the favored beneficiary be present at the execution of the will, although this also might be evidence of undue activity. A testator can be coerced into making his will by one who remains unseen during its execution. All that is required is evidence that the favored beneficiary played such a part in the procurement of the will tending to show that testator did not make the will under his own volition, nor devise property consistent with his own free will and desires. Locke v. Sparks, 263 Ala. 137, 81 So.2d 670 (1955).

In this case the contestants offered testimony to show that on 30 July 1972, ten days before the execution of the will, the testator told his son, William, that he had considered dividing the minerals, the mineral property, four (4) ways and would give him the mineral rights if he could. At that time, according to the testimony, Luree went into a fit of anger, shouted profanely at the testator and continued to do so intermittently from 9:00 p. m. until 3:00 a. m. on the occasion. The favored beneficiary was overheard telling the testator “you’re not going to give the mineral rights to Ronald and Douglas, and if you do you’re going to have to find somebody else to stay with you or to look after you.” Luree was also overheard screaming that the mineral rights were hers. She told William Rabón that he wasn’t getting any of her property, that she had fixed it where he and his brother couldn’t touch it.

Evidence of this nature is crucial to the determination of the existence of undue influence. It is essential in order to prove that the free agency of a testator was destroyed and the wishes of another substituted for his. Dunlap v. Robinson, 28 Ala. 100, 107 (1856). It is this destruction of the testator’s free agency which must be caused by the activity of the favored beneficiary in procuring the will in order to establish undue influence to void the will. Stanley v. Kelley, 267 Ala. 379, 102 So.2d 16, 19 (1958). And physical coercion is not necessary. A threat to leave a sick testator may suffice. In re Sickels’ Will, 63 N.J.Eq. 233, 50 A. 577, affirmed 64 N.J.Eq. 791, 53 A. 1125 (1903). Atkinson, Law of Wills, § 55, p. 257 (2d ed. 1953).

This court held in Reed v. Shipp, 293 Ala. 632, 308 So.2d 705 (1975):

“ * * * that all that is needed to submit the case to a jury is a mere scintilla from which the jury can infer some undue activity in the procurement or execution of the will, and this can be proved by circumstantial evidence. Smith v. Moore, 278 Ala. 173, 176 So.2d 868 (1965).

The mere spark of evidence which would permit the inference that the favored beneficiary substituted her own volition for that of the testator and caused him to execute the will is sufficient to take the case to the jury. In this case there is sufficient evidence for submission of the case to the trier of facts; the jury. For error in directing a verdict the case must be reversed.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Porter MATHIS, Jr. v. J. T. HARRISON, Sr.
    77-374.
    Supreme Court of Alabama.
    July 21, 1978.
    Lee B. Williams, Grove Hill, Edward P. Turner, Jr., Chatom, for appellant.
    Wyman O. Gilmore, Grove Hill, for appel-lee.
   PER CURIAM.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    Edna Hendrix HARRISON v. Peggy RACCA, Executrix.
    77-404.
    Supreme Court of Alabama.
    July 21, 1978.
    Nicholas S. Hare, Jr., Monroeville, for appellant.
    J. Milton Coxwell, Jr., Monroeville, for the Executrix, Peggy Racca as appellee.
    W. C. Owens, Monroeville, Guardian Ad Litem for Jane Harrison, a minor.
   FAULKNER, Justice.

This is an appeal from an order denying the existence of a common-law marriage. We affirm.

Edna Hendrix, a beautician, met James Harrison, a dry docks worker, at Frosty Acres, a restaurant, just down from Little River, across the street from Blueberry Hill, on February 15, 1968. She was a widow, having five living children — he a divorcee, having three living children, one of which is Peggy Racca. From February 15 until April 27, they saw each other three times a week. They went to movies, to the American Legion Hall for singings, to Blueberry Hill for cold beer. She cooked for him. On April 27, according to Edna’s testimony, they totally committed themselves to each other — not in a ceremonial marriage — it was a private affair, and they began to live together as husband and wife. Just before Christmas, she said James gave her a ring he had purchased at Johnson’s Jewelry in Monroeville.

Edna testified that she and James lived together as husband and wife and were husband and wife at the time of his death on February 1, 1977. Even though Edna testified to the existence of a common-law marriage between herself and James, the evidence of the recognition of that marriage is in sharp conflict. Essentially, Edna’s witnesses testified that she and James were married — Peggy Racca’s witnesses testified they were not married— just living together. Among the documentary evidence are these items:

1. The death certificate reports James Harrison being a divorced person.

2. The death notice appearing in a local newspaper reports James Harrison’s survivors to be his mother, a son, 2 daughters, 3 brothers, and 3 sisters.

3. Federal and state income tax returns filed by James for the years 1969-1975, show him to be a single person.

4. Edna’s federal and state income tax returns for the years 1975-76 show her to be a single person.

5. Records of criminal proceedings brought against James by Connie Montgomery, a girl friend of his, for malicious destruction of property, and assault and battery, in 1969.

6. Oil and gas lease executed by James as a single man.

7. Life insurance application dated March 27, 1970, naming James’ mother as beneficiary, and showing him to be divorced.

There was other documentary evidence, such as receipts, issued in the name of Edna Harrison or Mrs. James Harrison.

Taken as a whole or singularly, the documentary evidence is not conclusive as to whether a common-law marriage existed. However, the trial court apparently considered this evidence as having some weight. But, the principal issue is, was there public recognition of the marriage and cohabitation or mutual assumption openly of marital duties and obligations? See Skipworth v. Skipworth, 360 So.2d 975 [Ala., 1978], The trial court, after hearing very conflicting evidence ore tenus, answered this question in the negative and found that a common-law marriage did not exist. We will not disturb his findings, as we find that they were not plainly and palpably wrong. Skipworth; King v. King, 269 Ala. 468, 114 So.2d 145 (1959).

AFFIRMED.

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


text:
    Clarence SKIPWORTH v. Mary Burke SKIPWORTH.
    77-502.
    Supreme Court of Alabama.
    July 21, 1978.
    Noble J. Russell and Robert Straub of Russell & Straub, Decatur, for appellant.

      Kenneth Shelton, Decatur, for appellee.
   FAULKNER, Justice.

This appeal arises from a challenge by Clarence Skipworth, brother of W. C. Skip-worth, to the appointment of Mary Burke Skipworth as administratrix of the estate of W. C. (Bill) Skipworth. The trial court, after hearing the evidence ore tenus, found that Mary Burke Skipworth was the common-law wife of Bill Skipworth, and therefore may be appointed. We affirm.

Extensive testimony was presented to the trial court, and though some of it was in conflict, the following information can be gleaned from the record. Mary Burke and Bill Skipworth were originally married in 1960 when they were both in their fifties. This was Mary’s fifth marriage (she had divorced and remarried one husband) and Bill’s second marriage. In 1965 Mary secured a divorce from Bill after a fourteen months separation, although there was testimony at trial that the separation was neither continuous nor complete. Shortly after Bill signed the divorce papers the couple “forgave each other” and according to Mary’s testimony resumed marital relations. This status continued until Bill’s death in October, 1976, with only occasional, and brief interruptions, when Bill was drinking “booze.”

Throughout their formal marriage, and their purported common-law marriage, Mary and Bill maintained several residences, all acquired by them individually prior to the formal marriage in 1960. These residences included a farm owned by Mary, a flower shop and adjacent house on Moulton Street in Decatur, also owned by Mary, and a combination house and store on Sixth Avenue owned by Bill. From 1963 on Mary operated the flower Shop on Moulton Street under the name of “Mary Burke Florist,” a business name which had originally been established in the early 1950’s. Because of her business, many people always referred to her simply as “Mary Burke.” Bill operated several enterprises during this time, including his own flower shop at his place on Sixth Avenue and a pool room on Moulton Street. It is apparent that from the time of their formal marriage in 1960 until Bill’s death both Mary and Bill conducted their business affairs as if they were both single. They kept separate bank accounts, both claimed homestead exemptions, and they filed separate income tax forms as single individuals. On the other hand, testimony indicated that they lived together, for the most part in Mary’s house on Moulton Street, although Bill would occasionally stay at his house on Sixth Avenue when he was drinking or it was convenient to his work. In later years the house on Sixth Avenue apparently became more of a kennel, unfit for human habitation.

Following their divorce, Mary and Bill continued to represent themselves to the general public, their neighbors, their doctor, and hospitals as husband and wife, although when questioned, they explained the situation. Several witnesses described them as inseparable. During this time they purchased a double grave and headstone and Bill purchased several insurance policies with Mary as beneficiary. About the only ones who did not consider the couple married were members of Bill’s family.

It is clear that Mary and Bill were aware that there were legal problems inherent in their status. They executed several legal documents, deeds and tax forms, as single individuals, although the evidence also showed they had filed their taxes this way prior to the divorce. Insurance, on the other hand, was purchased as husband and wife. Because of their uncertain legal status, Mary and Bill planned to undergo a second formal marriage in December of 1976, an event which was foreclosed by Bill’s demise in October.

The requirements in this state for a valid common-law marriage have been outlined numerous times by this court. No ceremony and no particular words are necessary. Instead, there must first have been a present agreement, that is, a mutual understanding to enter at that time into the marriage relationship, permanent and exclusive of all others. This agreement must be followed by public recognition of the existence of the “marriage” and cohabitation or mutual assumption openly of marital duties and obligations. See Beck v. Beck, 286 Ala. 692, 697-98, 246 So.2d 420, 425-26 (1971) and cases cited therein.

On appeal counsel for the appellant argues that the trial court misapplied the law concerning present agreement to marry. In many instances present agreement is simply inferred from cohabitation and public recognition. Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 428, 17 So.2d 166, 168 (1944). But, appellant asserts that here the couple’s plans to undergo a ceremonial marriage in December of 1976 show a lack of present agreement. We disagree. A situation similar to that of the Skipworth’s was presented in Huffmaster v. Huffmaster, 279 Ala. 594, 188 So.2d 552 (1966), where the couple resumed their marriage a short while after a divorce. Testimony in that case showed that the husband and wife had intended to undergo a second ceremonial marriage but “never got time.” This court stated, “A subsequent asserting ‘we knew we were not married’ by a party . . . will hardly vitiate a valid marriage where the original understanding was to presently enter into the marriage relationship, followed by a public recognition of the relationship.” 279 Ala. at 595, 188 So.2d at 554. As is apparent from this passage, the operative time is when the agreement is initially entered into, and once other conditions of public recognition and cohabitation are met the only ways to terminate a common-law marriage are by death or divorce. A party cannot legally terminate the marriage by simply changing his or her mind and moving out or by telling selected individuals, “We’re not really married.”

This court has further noted that a lawful common-law marriage is formed in this state “without regard to what the parties consider the legal effect of such relation to be.” Smith v. Smith, 247 Ala. 213, 217, 23 So.2d 605, 609 (1945); White v. White, 225 Ala. 155, 157, 142 So. 524, 525 (1932). Common-law marriage is not limited to situations where the parties are so ignorant that they do not know that a formal ceremony is the preferred method of marrying. On the contrary, in modern society many individuals realize that common-law marriages have inherent legal problems not found in ceremonial marriages. Such a realization may prompt expressions of concern over the parties’ legal status as well as attempts to eliminate any problems by undergoing a ceremonial marriage. But any evidence of this sort must be examined by the fact-finder in the context of the entire relationship, as was done by the trial court in this case.

Where the evidence is taken by the trial court ore tenus it is well established that the trial court’s findings will not be disturbed on appeal unless plainly and palpably wrong. King v. King, 269 Ala. 468, 471, 114 So.2d 145, 148 (1959). Here there was ample evidence of present agreement, cohabitation, and public recognition to show the existence of a common-law marriage between Mary Burke Skipworth and Bill Skipworth after their divorce in 1965.

AFFIRMED.

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


text:
    Thomas Harold SANDLIN v. Willis A. SANDERS et al.
    SC 2625.
    Supreme Court of Alabama.
    June 23, 1978.

      Thomas E. Ellis, Birmingham, for appellant.
    Bishop K. Walker, Jr., of Nash & Walker, Oneonta, for appellees.
   FAULKNER, Justice.

Sanders and Woolsteen brought an action pursuant to § 35-3-1,- Code of Alabama 1975, in the Circuit Court of Blount County to determine the boundary between themselves and Sandlin as coterminous land owners. Their complaint asserted ownership up to the center of a dirt road, allegedly a public road, either by deed description or by adverse possession for 20 years. Sandlin filed an answer and counterclaim alleging the dirt road to be a private road lying wholly within his property.

The dispute over the proper location of the common boundary arose when Sanders and Woolsteen attempted to cut driveways from the road to the lot owned by the Woolsteens. Sandlin and his father objected. They placed logs across the driveways and erected a gate across the dirt road. The trial court held the common boundaries of the parties to be the center of the dirt road, declared the dirt road a public road and enjoined Sandlin from obstructing the road. Sandlin appeals from the judgment. We affirm.

Sanders acquired title to the NW Vi of the SE Vi of Section 31, Township 13 South, Range 3 West by a 1947 deed from his father, with the following description:

“Beginning at the NW Corner of NW Vi of SE Vi of Section 31 Township 13 Range 3 West and running East 810 feet thence a South Westernly direction along center of road 1013 feet to the west Boundary line of NW Vi of SE Vi thence North 679 feet to point of Beginning.”

In 1975 Sanders and his wife executed a deed to themselves transferring the same property to a joint tenancy with the right of survivorship, describing the property as follows:

“A part of the NW Vi of the SE Vi of Section 31, Township 13 South, Range 3 West, Blount County, Alabama, more particularly described as follows: Begin at the NW corner of said NW Vi of the SE Vi thence South 0° 48' 49" East, 350 feet; thence North 89° 33' 11" East, 140 feet; thence North 0° 48' 49" West, 140 feet to the beginning. Containing 1.12 acres, more or less.
“Also: A part of the NW Vi of the SE Vi of Section 31, Township 13 South, Range 3 West, Blount County, Alabama, more particularly described as follows: From the NW corner of said NW Vi of the SW Vi; thence South 0° 48' 49" East, 350 feet to point of beginning; thence continue South 0° 48' 49" East, 328 feet; thence North 49° 27' 11" East, 1053.27 feet; thence South 89° 33' 11" West, 280 feet to the point of beginning. Containing 4.06 acres, more or less.”

In that same year, the Sanders also conveyed a portion of the land to their daughter and son-in-law, the Woolsteens.

Sandlin acquired title to the following property by deed from his parents in 1967:

“The Southwest fourth of Northeast fourth of Section 31, Township 13, Range 3 West, containing forty acres, more or less.
“The Northwest fourth of the Northeast fourth of Section 31, Township 13 South, Range 3 West, containing 40 acres, more or less.”

Sanders testified that when he went into possession of his property in 1947, the road was the boundary. He used the road in 1955 for access to a watermelon patch located west of the property in dispute and, after selling that west property in 1964, had used the road three or four times a year to inspect his northern boundary. He has not resided on the property since 1953. Since 1955 he has cut a few poles off his property and, after selling part of the property to his daughter, fenced his part of the property. Sanders testified that the first time he saw “no trespassing” signs on both sides of the road was October, 1975.

Sandlin testified that he has farmed on the north side of the road but has never farmed south of the road. However, he keeps the south side of the road bushhogged and several years ago planted fescue on both sides. He has also cut tree limbs from the south side to clear passage of the road. The road is the only means of ingress and egress to the homes of Sandlin, his father, and his son. In fact, the dirt road deadends at their homes. Since he acquired the property in 1967, Sandlin has posted “no trespassing” signs on both sides of the road.

H. J. Lang testified that he and his father had tended what is now the Sandlin’s property 40 years ago. It was always his understanding that the Sanders owned the left and Doc Johnson, Sandlin’s predecessor in title, owned the right. The road was considered the boundary. According to Lang, anyone who wanted, had traveled the dirt road, and that hunters had used the road.

Jim Tyler, a friend of Sandlin’s father for 17 years, testified that “no trespassing” signs had been on both sides of the road ever since he had been going there.

Larry Blaylock, a neighbor, testified that he had always heard the road referred to as Sandlin’s road, that “no trespassing” and “no hunting” signs had been posted on both sides of the road as long as he could remember, and that he had seen Sandlin cutting trees on the south side of the road one time.

Sandlin’s father, Hershel Sandlin, testified that he had posted signs on both sides of the road when he acquired the property in 1960. He uses the road every day and had sold three or four pine trees off of the property south of the road.

Gene Blaylock, a member of the County Commission representing District I, in which the disputed property lies, testified that Sandlin owns land on both sides of the road. Until two years ago, the County worked anyone’s private road, but now maintains only public roads. The County has maintained the dirt road in question both prior and subsequent to this policy change. Blaylock stated that the road is used by public vehicles such as county school buses and mail carriers.

Sanders presented three “surveys,” all setting the boundary between the NW Vi of the SE Vi and the SW Vi of the NE Vi of Section 31 in the center of the dirt road. Sandlin introduced a survey establishing the boundary approximately 20 feet south of the road. The different conclusions of the surveys revolves around the measurement of the length of the northern interior quarter-quarter line of the NW Vi of the SE Vi of Section 31, thus affecting the location of the half section line under the methods used in Sanders’ surveys.

A 1960 “possession” plat, performed by Rice, recorded the measurement of this northern interior quarter-quarter line as 1366.03 feet. The 1975 Hollis survey, adopted by the trial court in its final judgment, relies on this measurement in locating the half section line which divides the properties, as did plaintiff’s Exhibit 17, performed during the trial in an attempt to verify the findings of the Hollis survey.

The issues presented for our review are (1) whether the trial court was plainly and palpably erroneous in determining the boundary to be the center of the dirt road; (2) whether the trial court was plainly and palpably erroneous in holding that the road is a public road; (3) whether the exclusion of Hershel Sandlin’s offered testimony concerning statements by Johnson as to the location of the boundary was error; and (4) whether denial of Sandlin’s motion for appointment of an independent surveyor was reversible error.

I.

The trial court held:

“. . . [T]hat the Plaintiffs are entitled to the relief sought by their Complaint and that the Plaintiffs’ property lies south of the road, and the Defendant’s land lies north of the road, and the Court further finds that the northwest corner of the property of the Plaintiffs, Willis A. Sanders and Barbara Jean Sanders, and the southwest corner of the property of the Defendant is the northwest corner of the NW Vi of SE Vi of Section 31, Township 13 South, Range 3 West, as established by the survey of Frank S. Hollis, Registered Land Survey- or, Registration No. 9323, as shown by plat of said survey dated August 28,1975, and that the boundary line between the lands of the parties hereto runs from said corner north 89° 33' 11" east along the road as shown in said survey, a distance of 810 feet, and as claimed by the Plaintiffs.”

It is well settled that the decree of a trial court, hearing the evidence ore tenus, will not be disturbed on appeal unless the decree is plainly and palpably erroneous. Varner v. Carr, 291 Ala. 654, 286 So.2d 294 (1973); Deese v. Odom, 283 Ala. 420, 218 So.2d 134 (1969). Sandlin contends that this presumption is overcome because the Hollis survey, adopted by the trial court, fatally relies upon the Rice survey’s 1366.03 feet measurement of the northern interior quarter-quarter line. It is undisputed that the Hollis survey did rely heavily upon this measurement for determining the location of Sanders’ northern boundary. Plaintiff’s Exhibit 17, introduced to bolster the conclusions of the Hollis survey, likewise relies upon this measurement. (Although other calculations were made to determine the proper location of the half section line, Mr. Allred in constructing Exhibit 17 admittedly measured 1366.03 feet north to determine the northern boundary.)

In Merchants National Bank v. Hall, 278 Ala. 319, 178 So.2d 146 (1965), the court stated:

“Thus by the complainant’s own witnesses, the Durant line of 1962 was shown to have been based upon the Teter description which in turn had been based upon the Greenwood survey, the accuracy of which was questionable to the extent that the additional conveying all the land owned by the Hall sisters (the northern two-thirds of the original Young C. Hall tract in Section 8, supra) was added. Such evidence cannot be deemed of any real probative value justifying the lower court decreeing that the Durant line was the correct boundary between the northern two-thirds and the southern one-third of the original Young C. Hall tract, and the decree of the lower court is erroneous in this aspect.
* * * * * *
“There being no evidence to support the court’s decree fixing the boundary line between the complainant the respondents’ land as being that shown by the Durant survey of 1962, the decree is due to be reversed and remanded to the lower court.” (Emphasis added.)

The instant case is analagous. Here Mr. Rice, who performed the 1960 survey from which Sanders acquired the 1366.03 feet measurement, testified as follows:

“Q. Let me ask you, from looking at this survey and the way it is prepared, can you define for us what type of survey it is?
“A. Well, it is my judgment that it is a possession survey.
“Q. You are, or were before you retired, a licensed surveyor, were you not?
“A. Yes.
“Q. In the State of Alabama?
“A. Yes.
“Q. What is the difference between a possession survey and any other type of survey?
“A. Well, a possession survey attempts to survey and describe and plat the corner as shown by the owner. In other words, the owner says, ‘this is what I want. I want you to survey and plat this property.’ Now, if he had told me, ‘I want you to survey this property in order to locate and determine the property line corners,’ this is not a possession survey.
“Q. Now, do I understand your testimony Mr. Rice, that this survey that you hold in your hand was not done to locate the corners and boundaries of what it shows?
“A. That is my judgment.
“Q. Would it be correct to say that it was done simply to plat the lines described to you by the owners?
“A. That’s right.
“Q. Now, have you reviewed this survey specifically at my request?
“A. That’s right.
“Q. Have you done some calculations to determine the correctness of certain lines of this survey?
“A. We ran this survey through a computer and I have here a computer tape, or read out tape, indicating that the survey as far as the quality of the survey is concerned ia [sic] almost a perfect, and it pulls it back to the point of beginning with practically no error. As a matter of fact, the error isn’t but about four-tenths of a foot one way and about two-tenths the other way.
“Q. Alright, let me point to you on your plat a figure there that is the one-fourth mile line in this survey and has a figure 1366.03, is that correct?
“A. That’s right.
“Q. Did you perform any calculations to determine the correctness as far as boundaries of this section with that figure?
“A. Now, I don’t understand that. Say that again.
“Q. Alright, did you perform any calculations to determine the correctness of that figure as far as the true boundary line of the section?
“A. No.
* * * * * *
“Q. You cannot say, then that your survey, this survey, would correctly establish the boundary lines for this section?
“A. No, the survey that I made would not establish the true boundary of the section, it couldn’t do that.”

Thus, the Hollis survey, as well as plaintiff’s Exhibit 17, are subject to the same criticism as the Rice survey: that they did not determine the boundary by metes and bounds. Consequently, the trial court’s decree, if based solely upon the Hollis survey, must be reversed.

However, additional evidence was presented to support the decree. There was conflicting evidence that the road was considered the boundary line. Furthermore, there was a great deal of discussion of the location of monuments or even whether some of the markers were indeed monuments. The Hollis survey determined a concrete monument on the northern interior quarter line to be approximately 30 feet south of the center of the road. There was, however, testimony that such a set-off was not unusual. The Brown survey, relied upon by Sandlin, on the other hand, determined a concrete monument near the NE and SE corner of the SE Vi of Section 31 to be located 35 feet too far south. While the above is not exhaustive of the testimony at trial, it does illustrate the conflict in evidence and interpretations of the surveyors.

“It is the province and duty of the court to locate the disputed boundary line by finding and locating the true line. If this cannot be done with absolute certainty, the court should consider all the physical indications, reputation, general treatment of the parties, monuments, if any, and courses and distances.” McLaurine v. Knowles, 257 Ala. 8, 10, 57 So.2d 543 (1952).

W. T. Smith Lumber Co. v. Bryan, 272 Ala. 303, 130 So.2d 15 (1960). We opine that the evidence of the reputation of the road as the boundary and the conflicting conclusions regarding the significance of the location of the monuments and purported monuments are sufficient evidence to justify the trial court’s decree establishing the boundary at the center of the road.

Because the trial court made no findings of adverse possession of the disputed strip of woodland, we decline to comment on the sufficiency of Sanders’ alleged adverse possession.

II.

We do not agree with Sanders’ contention that the trial court erred in declaring:

“. . . that the road dividing the property of the Plaintiffs and of the Defendant, is a public road, the same having been used for a number of years for the delivery of the United States Mail over the same, that it has been used for the transportation by the public school buses for the delivery of children over the same, and has been maintained by Blount County for a period of time in excess of twenty (20) years.”

This dirt road is bounded by woodland to the south and farmland to the north. It leads only to the property of Sandlin on which three families reside — Sandlin, his father, and his son. In addition to the evidence set out in the trial court’s decree, there was also testimony that the road had been used by Sanders to reach a watermelon patch in 1955 and three or four tithes a year to inspect his timber. Hunters had used the road as well as the Sandlins’ visitors.

Sandlin contends that this case is governed by the principles set out in Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954) where the court, in applying a presumption of permissive use, stated:

“It is the established law, of course, that an open defined roadway in continuous use by the general public as a highway without let or hindrance for a period of twenty years becomes a public highway by prescription and if the landowner claims the use is permissive only the burden is on him to show it. (Citations omitted.)
“But this principle has been held to be limited in its application to ‘well-defined highways running over improved or reclaimed lands, and is not applicable to wooded or unimproved lands, or lands which, though once reclaimed, have been “turned out,” or left open and unused.’ Locklin v. Tucker, 208 Ala. 155-156, 93 So. 896. In such latter case mere user without tending to show adverse user under claim of right does not raise a presumption of dedication. (Citations omitted.) * * *
“So in the instant case we think that in view of the desultory use — indeed almost non-user — of the ‘dim’ way for so many years and the fact that the public authorities gave no recognition of the way — if so it could be called — by working it or exercising acts of ownership over it for more than twenty years, it would take clearer proof than has been brought forth to rebut the presumption that the use was merely permissive.”

We, however, agree with Sanders’ contention that the character of the land on which the road lies, the condition of the road, and, of course, the use to which it has been put require application of the presumption of dedication to public use as defined in Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954).

“As we understand the evidence in this case, it supports no other reasonable conclusion than that the road which Stidham obstructed, although in a bad state of repair and infrequently used, was a public road. It is without dispute that it has been open to the use of those who wanted to use it for more than sixty years. It ran through reclaimed lands. Under our cases this is sufficient to raise a presumption of dedication to public use. It is now settled in this state 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. When such circumstances are shown, a presumption of dedication or other appropriation to a public use arises. The burden is then on the landowner to show the user was permissive only, in recognition of his title and right to reclaim the possession.” 260 Ala. at 392, 71 So.2d at 97. (Citations omitted.)

Davis v. Linden, 340 So.2d 775 (Ala.Sup.Ct.1976); Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So.2d 766 (1975).

Our conclusion is not altered by the fact that the road deadends on the Sandlin property, Baptist Foundation, nor by the fact that “. . . as a practical matter the road was used primarily, if not solely, by the landowners .bordering the road, and rarely by anyone else.” 340 So.2d at 777. Appellant failed to satisfy the burden “. . .to show the user was permissive only, in recognition of his title and right to reclaim the possession.” 260 Ala. at 392, 71 So.2d at 97. The trial court did not err in holding the road in question to be a public road.

III.

The trial court refused to admit testimony of Sandlin’s father, Hershel Sandlin, concerning conversations with his predecessor in title, Doc Johnson, now deceased. The offered testimony referred to the location of the southern boundary of the property now owned by Sandlin.

“Q. Mr. Sandlin, let me just ask you this. At any time before this property was purchased by you, did Mr. Johnson ever tell you or Mr. Campbell, or anybody else that owned this property, tell you that this property was to be used by anybody on the south side of the road?
“A. No sir.
“MR. WALKER: We object, please the Court.
“THE COURT: Sustained.
“MR. ELLIS: We note an exception.
“Q. Did you ever have any conversation with Mr. Johnson about that road, and whether or not it belonged on your property?
“MR. NASH: We object, please the Court.
“THE COURT: I am sorry Gentlemen, I will give you a ruling in just a minute. Go ahead and ask the question again.
“Q. Did you ever have any conversation with Mr. Johnson about that road and whose property it was on?
“MR. NASH: We object.
“THE COURT: Alright, I sustain. I will sustain on the basis that this gentleman does have some interest in the outcome of this law suit and will exclude the testimony about any conversation between them.
“MR. ELLIS: We accept [sic].”

Later, the trial court made it clear that he sustained the objection on the grounds of the Dead Man’s Statute and on hearsay and self-serving declaration.

We find no error in the court’s ruling because the offered testimony violates the hearsay rule. Sandlin failed to establish the necessary predicate that Johnson’s declarations were made while he was in possession of the land and claiming as owner.

“The declarations of a former owner, since deceased, are admissible in evidence, but in order that they may be received, they must establish some fact, as a cornerstone or particular marked line, and they are not admissible when they are mere statements that certain lands lay within the boundary of such former owner, or that it was the same as had been conveyed in a certain deed, or merely as to facts which might tend to a general reputation as to the true boundary. Also, evidence of declarations by an owner, since deceased, as to boundaries, is inadmissible unless made while he was actually in possession and claiming the land as owner." 12 Am.Jur.2d, Boundaries, § 107, ip. 642 (Footnotes omitted).

Southern Iron Works v. Central of Georgia Railway Co., 131 Ala. 649, 31 So. 723 (1901).

IV.

The court denied Sandlin’s motion to appoint an independent surveyor. Section 35-3 — 20(a), Code of Alabama 1975, provides:

“Whenever in any action pending in the circuit court it is pertinent and material to the determination of the issue or issues therein or to the proper entering of a description in the judgment therein to establish or fix a disputed land line or boundaries between coterminous landowners, or to locate the position of a line of the government survey, or to locate a landmarker or other object, the court may, as provided in this article, direct a competent surveyor or surveyors to make a survey for the purpose of fixing or establishing the disputed land line or boundaries between coterminous landowners or of locating the position of a line of a government survey or of locating a landmarker or other object.”

This provision is discretionary with the trial court. W. T. Smith Lumber Co. v. Cobb, 266 Ala. 146, 94 So.2d 763 (1957); Redden v. Otwell, 252 Ala. 653, 42 So.2d 454 (1949); Stansell v. Tharp, 245 Ala. 270, 16 So.2d 857 (1944). While appointment of an independent surveyor “is usual and recommended,” Deese v. Odom, we will not place the lower court in error for failing to do so where both parties have presented surveys, albeit conflicting in their conclusion.

AFFIRMED.

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