author: ALMON, Justice.

text:
    O. M. WILLOUGHBY v. Winfield MOON, et al.
    79-553.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Thomas A. Smith, Jr., Cullman, for appellant.
    James F. Berry, Cullman, for appellees.
   ALMON, Justice.

This is an appeal by Willoughby from a judgment finding that Theolene Moon, in accordance with an agreement, was indebted to Willoughby in the amount of $11,000. The judgment also ordered Willoughby to assign to Theolene Moon a judgment previously rendered against her husband Win-field Moon.

On November 24, 1970, O. M. Willoughby obtained a $225,365 judgment against Win-field Moon in Jefferson County. Unable to satisfy the judgment in Jefferson County, Willoughby brought suit on the judgment in Cullman County in July of 1972. That suit was dismissed before trial apparently with the consent of all parties. There was evidence that the suit had been dismissed upon an agreement between Willoughby and Winfield and Theolene Moon. A purported copy of the agreement was offered in the present suit, but not allowed into evidence. The agreement was supposedly entered into in April 1973. Subsequently, in April, 1976, the parties entered into a settlement agreement whereby Willoughby agreed to assign his judgment against Win-field Moon, to Theolene Moon upon her paying him the sum of $20,000. Theolene paid Willoughby $9,000 upon execution of the agreement but did not pay the balance because she said Willoughby told her she “could pay the balance anytime I was able.” The evidence was disputed as to Willough-by’s demands for payment. It was admitted that Willoughby had called Theolene and asked for the balance to be paid but she told him she could not pay at that time. There was no indication as to when the demand was made or whether Willoughby took any action upon Theolene’s failure to pay. As of the filing of the present suit in 1978, Theolene had not made any payments under the 1976 agreement other than the $9,000 paid initially. While the present suit was pending, Theolene paid $11,000 into Court as full payment under the agreement.

The following issues were put to the trial court by consent of the parties:

1. The issue as to the validity and enforceability of the agreement dated April of 1973.
2. The issue of the validity and enforceability of the agreement dated April 30, 1976.
3. The issue of the determination of the amount due under either of the two agreements, in the event the court finds that either or both of the agreements are enforceable.
4. The issues raised as to the indebtedness claimed by the Plaintiff from the Defendant in the Amended Complaint.

For a better understanding of this case we set forth the findings of fact and conclusion of the trial court:

This cause is before the Court on the Complaint of O. M. Willoughby, as amended, wherein, the original Complaint sought the declaration that certain lands described therein were owned by the Defendant, Winfield Moon, and sought to have these lands sold to satisfy a Judgment held by the Plaintiff against said Defendant. This Complaint was amended on June 26, 1978, by requesting, additionally, that Plaintiff have a Judgment for Seventeen Thousand Twenty-Six and 00/100 ($17,026.00) Dollars, plus interest from the Defendants, Winfield Moon and Theolene Moon, on an open account theory. The Defendants filed separate Answers to the original Complaint and to the Amended Complaint and the Defendants, Winfield Moon and Theolene Moon, amended their Answer by paying into Court the sum of Eleven Thousand and 00/100 ($11,000.00) Dollars, on the date of June 14, 1978.
By agreement, the issues to be tried by the Court were set down in an Order of this Court, dated October 23, 1978, and these issues were tried before this Court on December 15,1978, however since that time several post-trial Briefs have been filed and several post-trial settlement conferences have been held and scheduled, the latest being November 21, 1979. At that time, the Plaintiff was allowed thirty (30) days to file a rebuttal to the Defendants’ Brief of November 21, 1979, and for all practical purposes that is the date that this case was taken under advisement by this Court.
After considering all of the evidence and the Briefs filed and the legal arguments heard by the Court and the Court not intending anything uncomplimentary, it appears that the facts and the parties and their business dealings are unusual, however, when addressing the issues as set forth in the Order of this Court, dated October 23, 1978, it appears that the alleged agreement of the parties, dated April, 1973, is not enforceable by this Court. There is evidence that an agreement was reached between the parties in April, 1973, and evidence concerning the details of the agreement, however, the agreement being in writing, a purported copy thereof was not allowed into evidence on the objection of the Plaintiff. There is some conflict regarding the amount of a debt owed by the Defendant, Winfield Moon, to the Plaintiff in 1973 and there is evidence, of course, that the parties had other business dealings after any agreement that was reached in 1973. One of the problems appears to be with regard to the fact that good records were not maintained regarding these transactions between the parties. Defendants’ Exhibit “4” indicates that there was a Twenty Thousand and 00/100 ($20,000.00) Dollar settlement between the parties and there is evidence that after, the settlement some transactions were had between the parties and the Plaintiff claims additional sums due him, in addition to the settlement figure, as a result of certain items listed on Defendants’ Exhibit “4”, among which are payments for worthless checks and attorney’s fees. The evidence is not clear concerning these items and all of these items appear to have occurred in a point of time prior to the time the parties entered an agreement on April 30, 1976. There is evidence, also, to the effect that the Plaintiff had possibly included these same items in the settlement agreement of the parties dated April 30, 1976. It further appears that the Plaintiff dismissed a law suit against the Defendants, which was similar to the original Complaint herein, at about the same time that the alleged agreement of April, 1973, was reached. To conclude regarding these matters, it appears that any agreement that the parties may have had in April, 1973, is not enforceable by this Court.
The agreement of the parties, dated April 30, 1976, appears valid. This agreement was duly executed for a valid consideration, a part of which was the payment of the sum of Twenty Thousand and 00/100 ($20,000.00) Dollars. The evidence indicated that the Defendant, Theolene Moon, paid to Plaintiff the sum of Nine Thousand and 00/100 ($9,000.00) Dollars on the date of the agreement, thereby leaving a balance due the Plaintiff in the amount of Eleven Thousand and 00/100 ($11,000.00) Dollars. Normally, it would appear that the Twenty Thousand and 00/100 ($20,000.00) Dollar payment would be due presently since no payment time was specified, but it appears that Plaintiff and Defendant, Theo-lene Moon, orally amended the agreement, whereby this Defendant was allowed to pay on that date the sum of Nine Thousand and 00/100 ($9,000.00) Dollars and allowed to pay the balance of Eleven Thousand and 00/100 ($11,000.00) Dollars later when she was able, when she could get the money. Apparently, at this time, the Plaintiff could have demanded and received the entire Twenty Thousand and 00/100 ($20,000.00) Dollars, but the evidence indicates that the Plaintiff agreed to allow Theolene Moon to pay Nine Thousand and 00/100 ($9,000.00) Dollars of said amount and agreed to defer the payment of the Eleven Thousand and 00/100 ($11,000.00) Dollars because Theolene Moon stated that she needed the money and Plaintiff stated that she could pay the balance when she got the money or that she could pay the balance any time that she was able. So far as I can determine, this is undisputed, and it appears that this balance should be paid to the Plaintiff within a reasonable time under these circumstances and conditions, if not as stated.
The Plaintiff’s testimony was that af-terwards he requested payment several times. It was not clear exactly of whom the request was made, nor was it clear exactly as to specific times the requests were made. The Defendant, Theolene Moon, testified that on one occasion the Plaintiff did request, after the agreement date, that this balance be paid, however, no specific time or date was given here either.
It further appears that the agreement of April 30, 1976, was drawn in contemplation of agreements and business dealings had between the parties, which included those which were the subject of an alleged 1973 agreement between the parties and including some business dealings which occurred between the parties since that time. It appears that the agreement of April 30, 1976, included more than just the satisfaction of a Judgment, which the Plaintiff had against the Defendant, Winfield Moon, it appears that the agreement was in writing and that there was other consideration in the agreement independent from the satisfaction of the Judgment. At the time of the agreement, Plaintiff received Nine Thousand and 00/100 ($9,000.00) Dollars, and under the agreement, the only agreement that we have before the Court, the balance due the Plaintiff was in the amount of Eleven Thousand and 00/100 ($11,000.00) Dollars and this sum was paid into Court for the benefit of the Plaintiff on June 14, 1978. This payment was made after the Complaint was filed and after the original Complaint had been answered, and based upon the evidence and in consideration of the law applying, it appears that this sum was paid within a reasonable time, or viewing the situation in the worst light, the failure of the Defendant to pay the Eleven Thousand and 00/100 ($11,000.00) Dollars sooner, was only a partial failure and it appears that Plaintiff can now be fully compensated, pursuant to the agreement of April 30, 1976. There being no default, it appears that this agreement of April 30, 1976, is a valid and enforceable agreement and that it should be enforced and that the equities between the parties can best be served by placing the parties in the same relative position which they were in immediately after the April 30, 1976, agreement.
It follows then that the Court should order the Clerk to pay over to the Plaintiff the Eleven Thousand and 00/100 ($11,000.00) Dollars, now on deposit with her, together with all accrued interest, and that the Plaintiff should be ordered to perform all of those things which he agreed to perform in the agreement dated April 30, 1976, and it follows further that no indebtedness results from the issues reached by the amended Complaint and that the Defendants should have a Judgment as to these issues.

The general rule as to performance under a contract is stated in Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So.2d 792 (Ala.1978), as follows:

The rule as established by this Court is that, when an act is to be done, and no time is prescribed for its performance, the law requires it to be done within a reasonable time. Smith v. Pope, 280 Ala. 662, 197 So. 2d 767 (1967); Sims v. City of Birmingham, 256 Ala. 540, 55 So.2d 833 (1951); and Drake v. Goree, 22 Ala. 409 (1853). What is a reasonable time depends upon the nature of the act to be done and all the circumstances relating to that act. Smith, supra. This, necessarily, is a question of fact to be determined by the trier of facts — here, the trial Judge. Drake, supra.
This factual question was decided adversely to Appellant; and all presumptions lie in favor of his decree under our ore tenus rule of review. See Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So.2d 492 (1942). Thus, where, as here, there is credible evidence supporting the Court’s decree, and it is not manifestly unjust or unreasonable, the decree must be upheld. Alabama Power Co. v. Martin, 341 So.2d 695 (Ala.1977); Hartford Accident and Indemnity Co. v. Oglesby, 293 Ala. 620, 308 So.2d 695 (1975); and Shirley [ v. McNeal, 272 Ala. 696, 133 So.2d 873 (1961).]

This language was subsequently discussed in Seybold v. Magnolia Land Company, 376 So.2d 1083 (Ala.1979), and modified to the extent that the question as to what is a reasonable time for performance of a contract is not always one for the trier of fact. “When it depends upon a construction of a contract in writing — or upon undisputed extrinsic facts — it is a matter of law upon which a directed verdict may be appropriate.” Seybold, supra, at page 1086.

We are of the opinion that Hendrix, supra, is controlling and the trial court' has not abused its discretion.

In essence, the trial court has held the parties to their own agreement. We cannot discern from the record exactly what relationships or business dealings led to the 1976 agreement, but we are clear to the conclusion that no error is made to appear.

The judgment is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice. EMBRY, Justice

license: Public Domain

text:
    TOWN OF HOKES BLUFF, a municipal corporation v. Sam BUTLER, et al.
    79-588.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.
    James F. Hinton, Gadsden, for appellees.
   ALMON, Justice.

This is an appeal from a judgment which enjoined the Town of Hokes Bluff from constructing a proposed open lagoon-type sewer treatment plant on certain land located outside the city limits in the Tillison Bend area of Etowah County.

The City of Hokes Bluff, exercising its statutory authority, gave notice of its intent to construct and maintain the sewer system in question. Code 1975, § 11-50-50.

Several residents and property owners in the Tillison Bend community brought suit to restrain the proposed construction as constituting a nuisance. After a trial with an advisory jury the court made the following findings of fact and conclusion of law.

FINDING OF FACT

The Court, on consideration of the recommendation of the advisory Jury had in this cause, and on the independent consideration of the evidence presented by the Plaintiffs and Defendants in this cause, finds that:

1. That the proposed sewer lagoon, being an open lagoon with clay bottom, surrounded by earth banks, being 20 to 30 acres in size and operating on the principle of oxygen breaking down the material placed therein, will constitute a private nuisance to the Plaintiffs named herein and the persons on whose behalf the action was filed:
A. The lagoon will, if allowed to be constructed, produce vile and offensive odors of a nature to prevent the lawful enjoyment of the complaining parties.
B. That the odors, the production of which is undisputed, will cause the Plaintiffs irreparable injuries and damages and there can be no reasonable doubts that these injuries will result from the erection of the sewer lagoon at the location in Tillison Bend, Etowah County, Alabama, on the property of William Pitts, on the east side of the Coosa River near the Public Boat Launch on Lonz Road ....
CONCLUSION OF LAW
The Court, with the aid of a jury, finds that the sewer lagoon about to be erected or commenced by the Town of Hokes Bluff will be a nuisance and will be irreparable in damage to Plaintiffs and such consequences are to a reasonable degree certain.
It is, therefore,
ORDERED, ADJUDGED AND DECREED that the Defendant, The Town of Hokes Bluff, a municipal corporation, be and is by this order enjoined and prohibited from erecting, constructing, or commencing the erection or construction of a sewer lagoon on the property located in Tillison Bend, Etowah County, Alabama, as is described and shown in the map made a part of the Finding of Fact in this decree, and of the type and nature described in the cause and in the Finding of Fact in this cause, all in accordance with the authority granted this Court in accordance with Code of Alabama 1975, Section 6-5-125 and any amendments thereto to date.

Code 1975, § 6-5-125, provides that:

Where the consequences of a nuisance about to be erected or commenced will be irreparable in damages and such consequences are not merely possible but to a reasonable degree certain, a court may interfere to arrest a nuisance before it is completed.

The Town contends that the lower court’s injunction is a judicial usurpation of municipal legislative authority because the Town has done nothing not expressly authorized by Code 1975, § 11-50-50.

The Town cites City of Birmingham v. City of Fairfield, 375 So.2d 438 (Ala.1979), for the proposition that proof of negligence is required to sustain injunctive relief ordering abatement of a nuisance where the conduct giving rise to the condition complained of was expressly authorized by legislative act, and Gilmore v. City of Monroeville, 384 So.2d 1080 (Ala.1980), where this Court affirmed the denial of an injunction to abate the erection and operation of a public workshop because the evidence failed to establish nuisance per se.

The Gilmore decision cites for its authority the case of Rouse & Smith v. Martin & Flowers, 75 Ala. 510 (1883), where the court affirmed the action of the lower court in dissolving an injunction prohibiting the erection of a cotton gin. In so doing the court observed:

The cases are numerous where equity has intervened to prevent the carrying on of a business or vocation, although lawful in itself, on the ground of its being obnoxious to the health, comfort or convenience of neighboring residents, by reason of disagreeable noises, offensive odors, noxious gases and the like. 1 High on Inj. §§ 772-73. No general rule can be laid down sufficiently specific and certain to apply to all cases; but, as often said, each case must be decided upon its own particular state of facts, and the whole question must be largely one as to degree, being determined in the light of human experience.

We have carefully considered the following cases: Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749 (1906); 1st Avenue Coal & Lumber Co. v. Johnson, 171 Ala. 470, 54 So. 598 (1911); Brammer v. Housing Authority of Birmingham Dist., 239 Ala. 280, 195 So. 256 (1940); Downey v. Jackson, 259 Ala. 189, 65 So.2d 825 (1953); City of Birmingham v. Scogin, 269 Ala. 679, 115 So.2d 505 (1959); Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974); and Morgan County Concrete Co. v. Tanner, 374 So.2d 1344 (Ala.1979). In none of these cases has a trial court been reversed for granting an injunction under Code 1975, § 6-5 — 125, on issues similar to those posed in this case. We consider the case of City of Birmingham v. City of Fairfield, supra, to be distinguishable from the present case because here the location of the proposed lagoon is flexible, whereas in City of Birmingham the location of the drainage problem under the circumstances of that case was fixed and the evidence was that the City of Birmingham had made the improvements reasonably and in accord with good engineering practice. In other words, the City of Birmingham had done nothing wrong by providing a proper system. The fact that the Fairfield drainage system was inadequate to accept all the water flowing into it, was no fault of the City of Birmingham, which had prudently exercised its statutory authority in improving its drainage system.

The same basis, i.e., location, máy be used to distinguish the case of Johnson v. Bryant, 350 So.2d 433 (Ala.1977). There the extended pier and boathouse was authorized at a particular place by the Corps of Engineers.

The principle of law which seems to be the most troublesome is the one stated in Fricke v. City of Guntersville, 251 Ala. 63, 36 So.2d 321 (1948), that “there can be no abatable nuisance for doing in a proper manner what is authorized by law.” We do not question the soundness of this rule; however, it is clear from the rule itself that if the project will not be done in a proper manner then the nuisance is abatable. What then does the phrase “proper manner” mean in the context of this case?

We do not believe that when the legislature gave cities and towns the authority to construct sewer systems that it contemplated that they might locate the processing plants without regard to the consequences. The fact that the legislature sanctioned the location of these facilities outside of the corporate limits indicates a concern to remove them from highly populated areas.

“Location is one factor to consider in determining whether a given activity constitutes a nuisance.” Morgan County Concrete Co. v. Tanner, supra. In 1st Avenue Coal & Lumber Co. v. Johnson, this Court stated:

It is but right and proper that plants such as planing mills and coalyards and bins should not be located or carried on in the residence portion of a town or city, to the annoyance of the inhabitants thereof, though the business is a lawful and laudable one and is carried on in a proper manner. Of course, in determining whether or not a given plant, shop, or business is a nuisance by reason of its location, consideration must be given to its effect upon persons of ordinary sensibilities. It is not sufficient that it be considered a nuisance by those persons of very delicate and fastidious tastes or sensibilities; it must be of such character as to be a nuisance to those persons of average mental and physical condition, and those of normal sensibilities and tastes.— Joyce on Nuis. § 93.

Location is also a factor in determining whether a proposed sewer project is constructed in a proper manner. Therefore, even though a project is authorized by law, it may nevertheless be constructed in an improper manner as a result of its location, and therefore be abatable.

It is important at this point to emphasize exactly what the court restrained the Town from doing. The court did not prohibit the Town from constructing a sewer system, nor did it prohibit the Town from constructing any type of sewer system it chose. It merely prohibited it from constructing an open lagoon-type disposal facility at this particular location, because in the court’s opinion such construction and operation would constitute a nuisance to those residing nearby.

Our final inquiry is whether there was sufficient credible evidence before the court to support its judgment. We note at the outset that all of the evidence which the trial judge heard is not before us because the appellant designated less than the entire reporter’s transcript.

The proposed open lagoon was to be located very near the bank of the Coosa River next to a public boat landing ramp in an area designated as a “flood prone area.” There was testimony that the dikes or levees surrounding the lagoon would be raised to a height to withstand such á flood as is likely to occur only once in 100 years. There was other evidence that even so, it is usually not good practice to locate lagoons in flood areas. Written requirements of the Alabama Water Improvement Commission state:

Location
Lagoons should be treated as any other type of sewage treatment plant in determining their location, i.e., one that is fairly well isolated from existing or proposed residential or commercial properties.
If possible, lagoons should be located so that prevailing winds are in the direction of uninhabited areas. An area that would allow an unobstructed wind sweep across the lagoons is preferred.
The location of lagoons in areas likely to flood is discouraged. In all cases, provisions shall be made to divert storm water around the lagoon.
Soil characteristics shall be thoroughly investigated by borings at a representative number of points over the area. The lagoon bottom should be watertight. Locations over creviced rock, excessively porous soil, or soluble material should be avoided unless it is planned to stabilize the bottom to prevent liquid loss and pollution of subsurface waters.
Prior to submission of detailed plans and specifications for any project involving a lagoon, this office shall be furnished a letter of intent outlining the scope of the project. A small sketch map locating the lagoon site by appropriate quarter section, section, range, and township shall be included with this letter. This material will be used to request an opinion from the Geological Survey of Alabama on the suitability of the site with respect to subsurface geologic and hydrologic conditions. A favorable opinion from the Geological Survey is a requirement on all lagoon sites.

After a field investigation the Geological Survey of Alabama stated, “[T]his site is considered poor for but probably adaptive to the construction of the proposed lagoon.”

The testimony showed that there were 9 houses within 1000 feet of the lagoon and 42 houses within 2000 feet. The evidence is not clear exactly how close some of the houses are to the lagoon. As we indicated earlier, all of the evidence is not before us.

The extent of the odor which would emanate from a lagoon of this type is not clear, but all the witnesses agreed that it would give off odor, especially during rapid changes in the weather.

There was considerable testimony concerning the relative merits and demerits of an alternate site. The alternate site was in a less densely populated area.

We have not attempted to set out all the evidence in the record. The engineer employed by the Town to design the project testified at length and his testimony was generally supportive of the Town’s position.

Having reviewed the record, we are of the opinion that there was sufficient evidence in the record to support the trial court’s conclusion. This is especially true in view of the fact that the trial judge had evidence before him for his consideration which is not before this Court.

We think it fair to comment that the probable reason for designating less than the entire record on appeal was to present only the facts necessary to raise a question of law relative to the equitable powers of a circuit court to restrain a project authorized by legislative enactment. That question of law is presented by the record and we have resolved it adversely to the Town of Hokes Bluff. The judgment granting the injunction is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES, BEATTY and ADAMS, JJ., concur.

MADDOX, FAULKNER and EMBRY, JJ., concur specially.

EMBRY, Justice

(concurring specially):

I concur in the result reached by the majority in this case for two reasons only: (1) There is not a complete record before us and on the basis of that which is I cannot conclude that the trial court was without sufficient evidence to justify the judgment entered by it; (2) Under the particular facts of this case I cannot further conclude that the trial court impinged upon the rights of the Town delegated it by legislative enactment.

MADDOX and FAULKNER, JJ., concur.


author: PER CURIAM.

text:
    McDowell LEE, individually and as a member of the State Employees’ Retirement System and a taxpayer of the State of Alabama v. David BRONNER, individually and as Secretary-Treasurer and Chief Executive Officer of the State Employees/Teachers Retirement System and De Facto Finance Director of the State of Alabama.
    79-641.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    William J. Baxley of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    M. R. Nachman, Jr., Sp., Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a judgment granting a motion to dismiss the plaintiff’s complaint pursuant to Rule 12(b)(6), ARCP.

Lee, Secretary of the Alabama Senate, brought this suit individually and as a member of the State Employees’ Retirement System and a taxpayer of the State of Alabama, against Bronner. Bronner was sued individually and in his capacity as secretary-treasurer and chief executive officer of the Retirement System and as de facto state director of finance. Lee alleged the following acts of Bronner as the basis for this suit:

(a) Without legal authority and for direct personal gain caused State and Retirement System funds to be paid for personal attorney’s fees and other charges associated with the defense of the aforementioned cause of action;
(b) Received pay, emoluments, gifts or other consideration from stock or bond brokerage representatives or other persons, firms, or corporations in violation of Code of Ala.1975, §§ 36-27-25, 36-27-35 [sic], and 27-27-26;
(c) Caused Retirement System investments to be made upon which defaults and interest forfeitures resulted;
(d) Has divided his full-time employment between the Offices of Secretary-Treasurer and Chief Executive Officer of the State Employees’ Retirement System and De Facto Finance Director of the State of Alabama;
(e) Made personal investments in stocks, bonds, or other securities which are related to or correspond with investments of the State Employees’ Retirement System said relationship being in the same securities, or by the same bond or brokerage representative handling said investments, including commissions upon said personal investments having been waived, reduced, or discounted by stock or bond brokerage representatives either for Defendant personally, or for members of his family, or business partners or co-investors of Defendant;
(f) Received from stock and bond brokerage firms or representatives illegal gifts and payments of hotel and entertainment expenses, including meal, cocktail, and room charges at conventions in Gulf Shores, Alabama, and elsewhere, and received from the same sources illegal payments for air travel to California and other locations; .
(g) Caused State of Alabama and State Retirement System monies to be expended for direct personal gain, in the form of. attorney’s fees and other payments represented in Retirement System documents to be for “consultation with Board of Control.”

Lee sought an accounting and payment by Bronner of any misapplied or misspent funds. Lee amended his complaint to also seek a declaratory judgment stating a determination of his rights, status and other legal relations with Bronner, praying for a judgment declaring the aforementioned sums to have been expended and the division of time and illegal gifts and payments received without authority, and in a manner detrimental to his interest as a member and beneficiary of the State Employees’ Retirement System.

Bronner moved to dismiss the action due to lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted and lack of standing on the part of Lee to bring the suit.

In Zeigler v. Baker, 344 So.2d 761 (Ala.1977), this Court considered the question of whether a taxpayer has standing to challenge disbursement of state funds. Zeigler dealt specifically with whether a taxpayer could attack the constitutionality of disbursements. In the course of the opinion the Court stated, “[T]he right of a taxpayer to challenge the unlawful disbursement of state funds likewise is unquestioned.”

To support the action of the trial court in granting the motion to dismiss, Bronner relies almost exclusively on the case of Powers v. United States Fidelity & Guaranty Co., 236 Ala. 389, 182 So. 758 (1938). This case holds that the Governor and Attorney General control the institution and prosecution of suits for the benefit of the State, and in its name as a governmental unit for the recovery of State monies. One aspect of Lee’s complaint does not come within the holding of Powers, supra. Lee is not suing in the name of the State. As a contributing member of the Employees’ Retirement System, Lee has an interest separate from the State because he has contributed his own money to the retirement fund over which Bronner and the Board of Control have managerial duties and responsibilities, Code 1975, § 36-27-25. Lee has alleged dereliction of duty and statutory violations concerning the retirement fund in which Lee has a direct pecuniary interest, Code 1975, § 36-27-25(h).

Moreover, this Court in Zeigler, supra, observed:

... If a taxpayer does not launch an assault, it is not likely that there will be an attack from any other source, because the agency involved is usually in accord with the expenditure. There may be instances in which the affected public official might pursue the matter. The Attorney General would be an appropriate officer to bring such a suit, but in some instances this is not done and it is in such cases that it is only the taxpayer’s attack which preserves the public treasure.

Quoting from Department of Administration v. Horne, 269 So.2d 659 (Fla.1972).

The general administration and responsibility for the proper operation of the retirement system is placed with the Board of Control. The Governor is, ex officio, chairman of the Board. Code 1975, § 36-27-23. Bronner is represented in this suit by a special assistant attorney general. Code 1975, § 36-15-21.

In addition to an accounting, Lee is seeking declaratory as well as possibly injunc-tive relief.

A complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Jeannie’s Grocery v. Baldwin County Electric Membership Corp., 331 So.2d 665 (Ala.1976). Lee has made allegations in his complaint, which if proved, would present a basis for relief. At this early stage of the suit we do not express any opinion about the other aspects of the complaint

The judgment granting the motion to dismiss is hereby reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

FAULKNER, ALMON, EMBRY, BEAT-TY and ADAMS, JJ., concur.


author: ALMON, Justice. FAULKNER, Justice

text:
    James Otis ROBERTS, on behalf of himself and all other stockholders of Alabama Power Company v. ALABAMA POWER COMPANY, et al.
    79-743.
    Supreme Court of Alabama.
    Sept. 25, 1981.

      Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellants.
    T. W. Thagard, Jr. and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, for appellees.
   ALMON, Justice.

James Otis Roberts, a shareholder and former employee of Alabama Power Company, filed this derivative action on behalf of the nominal defendant, Alabama Power Company, alleging that the individually named defendants engaged in the following acts which injured the Company and shareholders:

1) the transfer of the plaintiff from a position of supervisory responsibility to a non-supervisory position;
2) the gratuitous absorption of expenses incurred in installing underground electrical facilities at Eastdale Mall, Montgomery, Alabama;
3) the gratuitous rendition of services to then State Senator Fred Jones; and
4) the gratuitous rendition of services to Alabama Christian College in Montgomery, Alabama.

The plaintiff later amended his complaint to allege that the defendants’ action in transferring him to a non-supervisory position was violative of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; that the defendants had violated Code 1975, § 37-8-24 by absorbing the Eastdale Mall installation costs and providing gratuitous services to Alabama Christian College; and that the rendition of gratuitous services to Senator Fred Jones violated Code 1975, § 36-25-6 and § 37-8-24. A claim for injunctive relief was also included.

The individual defendants and Alabama Power filed motions to dismiss. The trial court, pursuant to Alabama Power’s motion, limited discovery to the issue of whether the action could be maintained as a derivative shareholders’ action. Subsequently, Alabama Power moved for a summary judgment based on the action of the board of directors and on the action of the “independent” committee appointed by the board of directors, in recommending the suit be dismissed. Plaintiff later amended his complaint to eliminate his claim based on age discrimination. It appears he did so after a jury in federal court had decided that issue against him.

On January 31, 1980, the Court granted Alabama Power’s motion for a summary judgment. The basis for granting the motion was:

“(1) The Plaintiff is not a ‘fair and adequate’ representative of the stockholders of Alabama Power Company as required by Rule 23.1 of the Alabama Rules of Civil Procedure and/or (2) the ‘outside’ directors of Alabama Power Company, who constitute three fourths of the entire Board, unanimously made a good faith determination, after an extensive investigation, that this litigation was not in the best interest of the Company.”

The first issue raised on appeal is whether the trial court correctly ruled that the “business judgment” rule authorized dismissal of the derivative action. It is the position of the plaintiff that the “business judgment” rule cannot preclude him from maintaining this derivative action because the directors’ decision not to pursue the claims on behalf of Alabama Power was without the scope of their authority and therefore invalid. The plaintiff asserts that the proper application of the “business judgment” rule is at trial on the merits where the individual defendants could use the rule to insulate themselves from individual liability.

The plaintiff, in his brief, gives a proper statement of the “business judgment” rule as follows:

“[Corporate management is vested in the board of directors.] If in the course of management, directors arrive at a decision, within the corporation’s powers (in-tra vires) and their authority, for which there is a reasonable basis, and they act in good faith, as the result of their independent discretion and judgment, and uninfluenced by any consideration other than what they honestly believe to be the best interests of the corporation, a court will not interfere with internal management and substitute its judgment for that of the directors to enjoin or set aside the transaction or to surcharge the directors for any resulting loss.”

Quoting H. Henn, Law of Corporations, § 242 (2d ed. 1970). Whether the application of the above rule can be used to terminate a shareholder’s derivative suit has never been presented to this Court. However, the question has been litigated quite often in recent years, in both federal and state courts, with varying results. The trend has been to allow the “business judgment” rule to act as a complete bar to derivative suits, especially where the decision of the board is based on the recommendation of a committee of disinterested directors. Gall v. Exxon Corporation, 418 F.Supp. 508 (S.D. N.Y. 1976), and Abbey v. Control Data Corporation, 460 F.Supp. 1242 (D. Minn. 1978), aff’d 603 F.2d 724 (8th Cir. 1979). The trend has been weakened considerably recently by cases in Delaware and Texas. Maldonado v. Flynn, 413 A.2d 1251 (Del. Ch. 1980), and Maher v. Zapata Corporation, 490 F.Supp. 348 (S.D.Tex.1980). Maldonado and Maher held that the board of directors could not dismiss a derivative suit by reliance on the “business judgment” rule. Maher appears to be the first federal court case to so hold. Against this rapidly fluctuating backdrop, this Court must decide which line of cases it will follow.

As this question has never been presented to this Court, we first look to any statutory authority the board of directors might have had to terminate a derivative suit.

Code 1975, § 10-2A-57 says that “. . . . the business and affairs of a corporation shall be managed under the direction of a board of directors except as may be otherwise provided in this chapter or the articles of incorporation.” The board is also authorized by Code 1975, § 10-2A-64, to delegate matters to a committee of directors and such committee shall exercise the same authority as the board of directors except as to certain fundamental actions that only the board can act upon. While the above statutes do not speak directly to the authority of the board of directors to dismiss a derivative suit, it makes apparent the broad discretion the board has in regard to corporate affairs.

Having found no applicable statute, we turn to decisions of other jurisdictions and the rationale they employ.

The strongest support for the plaintiff’s position can be found in the Maldonado case, cited previously. In Maldonado, certain officers and directors of Zapata Corporation had been granted options to buy Zapata common stock. Subsequently, the board of directors accelerated the date of exercise of the options to allow the directors a tax savings. Maldonado, a shareholder, brought a derivative suit claiming the directors, by accelerating the option exercise date, had breached their fiduciary duty to the corporation and had cost the corporation a tax deduction equal to the amount that the directors had saved on taxes. Four years after suit was brought, the directors appointed a committee of two outside, newly appointed directors who were independent of management. After an investigation, the committee determined the litigation was not in the best interest of the corporation and instructed the corporate counsel to seek dismissal of the suit. In support of its motions for dismissal and for summary judgment, the corporation asserted that a disinterested committee of directors could compel the dismissal of the derivative suit when, in the committee’s business judgment, discontinuance of the action was in the best interest of the corporation.

The Court of Chancery of Delaware held that the “business judgment” rule was irrelevant to the issue of whether the stockholders have a right to bring an action on behalf of the corporation to rectify a breach of fiduciary duty where the corporation refuses to act. The Court went on to state that “[Ujnder our system of law, courts and not litigants should decide the merits of litigation.”

We cannot agree entirely with the decision of the Delaware Court. Maldonado seems to stand for the proposition that anytime a stockholder alleges a breach of fiduciary duty by a director, then no matter what would best serve the corporation, the case must proceed to a trial on the merits. Summary judgments, for all practical purposes, would be done away with in such suits. The application of the “business judgment” rule was not intended to be so limited. Justice Brandéis in United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, 263, 37 S.Ct. 509, 510, 61 L.Ed. 1119 (1917), best states our view:

“Whether or not a corporation shall seek to enforce in the courts a cause of action for damages is, like other business questions, ordinarily a matter of internal management and is left to the discretion of the directors, in the absence of instruction by vote of the stockholders. Courts interfere seldom to control such discretion intra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in dual relation which prevents an unprejudiced exercise of judgment.”

When an independent committee composed of disinterested directors decides not to bring an action on behalf of the corporation, the directors are not authorizing or condoning the alleged wrongful acts but are merely saying that given the fact that the events did occur, it is not in the best interest of the corporation to pursue a legal remedy. The plaintiff in the present case asserts that the “outside” directors cannot approve acts that are ultra vires or illegal. We agree with this assertion but disagree with its application to the present case. The case of Genzer v. Cunningham, 498 F.Supp. 682 (E.D.Mich.1980), states the rule, that we adopt as follows: “[Ujpon finding that a special committee of disinterested directors has determined in good faith and after a thorough investigation that it is not in the company’s best interests to allow an action to proceed, [the ‘business judgment’ rule] would not allow the courts to interfere with the committee’s determination.” The following facts were recited by the trial court in its order granting a dismissal and summary judgment in regard to the committee and its investigation:

“[A] Special Committee was appointed to investigate the Plaintiff’s charges; the Special Committee consisted of two lawyers with unquestioned reputations for integrity — Mr. Massey Bedsole of Mobile and Mr. James Inzer of Gadsden — neither of whom were dependent on the Company for their livelihood; the Special Committee conducted an extensive investigation which included two trips to Montgomery and one to Mobile, on-site inspection of the work in question, interviews of some fifteen (15) witnesses (both Company employees and non-employees) who offered a variety of views on Plaintiff’s charges, inspection of all pertinent documentary evidence, and an invitation which was declined by the Plaintiff to appear before the Special Committee; the Special Committee’s investigation resulted in a written report of some twenty-four (24) pages which concluded that this litigation did not serve the best interest of the Company; the Special Committee’s report was presented only to the ‘outside’ directors of the Company, who were not employed by the Company and were not dependent on the Company for their living; the ‘outside’ directors, all men of substantial and independent means, from towns located throughout the state, included, among others, the Chairman of the First National Bank of Tuscaloosa, the President of Allied Products Corporation, the President of Coca-Cola Bottling Company of Birmingham, the Chairman of First Alabama Bancs-hares, the President of Protective Life Insurance Company, the Chairman of Alabama Bancorporation and the Chairman of Parisian, Inc.; none of the ‘outside’ directors had any connection whatsoever with the transactions under attack in Plaintiff’s Complaint; all employees, officers, ‘inside’ directors and defendants were excused when the ‘outside’ directors considered, discussed, deliberated on, and voted on the Special Committee’s Report; and all ‘outside’ directors unanimously adopted the Special Committee’s Report, concluding that this litigation should be terminated.”

The findings of the Special Committee on each of the matters set out in the complaint were as follows:

“The Fred Jones Matter

“The first person interviewed on June 18 was former State Senator Fred Jones, at his residence on Dresden Drive. Mr. Jones showed us the swimming pool and surrounding area, pointing out the areas involved in the relocation of the service cable, and confirming that he had not been charged by the Company for this work.

“Mr. Jones verified that a Power Company primary had been inadvertently cut in two places by the Company’s contractor, while ditching the Jones’ back yard on or about July 6, 1978, for the relocation of the service cable. In order for the Company to splice the primary, which supplied not only Jones but many other homes, the Jones yard around the swimming pool suffered additional damages. As someone put it, they ‘really tore the yard up’ with the two holes that had to be dug to fix the primary. This was the yard damage that brought about the $640.05 landscaping charge for which the Company was not reimbursed. This charge was not attributable to the relocation of the service cable or the swimming pool excavation. Furthermore, we learned that the damaged primary had been previously located underground through Jones’ back yard apparently without permission. It should have been laid within the easement therefor at the rear of the Jones premises but it was not. No reasons for the mis-locátion [sic] could be ascertained. This constituted a continuing trespass by the Company on the Jones property, and would have been more expensive to remove than the landscaping bill.

“Mr. Jones said he originally expected to have to pay something for the relocation work. Jones was quick to say, however, that after the yard was torn up so badly, he did not feel he ought to have to pay anything.

“Landscaping aside, the circumstances surrounding the initial decision not to charge Jones for relocating his service cable received our close attention. In addition to examining Company records bearing on the matter, and talking to Mr. Jones, the Committee interviewed some twelve other persons during the course of the day on this and the other matters being investigated.

“We found that Jones’ request for his service line to be relocated to make way for the swimming pool was received by Milton Taff, District Manager, Montgomery, through Clark Richardson, a Power Company representative on Capitol Hill, the contact being between mid June and early July, 1978. It seemed that Jones was about to have a contractor ready to start digging for his swimming pool and the service line had not been moved. As Jones put it, he was in a hurry.

“Jones said he had called into the Power Company office a couple of times through regular channels and had received no response; so he mentioned the matter to Clark Richardson on the Hill one day and asked for his assistance. We could find no record of any earlier call from Jones through regular channels. There was some indication that Jones had just overlooked the matter of moving the service cable, and found himself about to get in a jam because the swimming pool contractor was ready to start digging. In any event, he definitely had a time problem on his hands.

“The fact that the request for the relocation came into the office at the District Manager’s level prompted the discussion by Mr. Taff with Division Vice President H. P. Foreman, who made the decision not to charge. Otherwise, if it had come only through regular channels, the Division Vice President would not have been brought into the decision. Other people down the line had the authority to make the decision as to charging the customer. In that event, it is not likely that Mr. Foreman would have known anything about it. While we found instances where the customer had been charged in the past for relocation work, ordinarily there was no charge made for such work required by an installation or improvement resulting in increased load. Such constituted new business. The installation of a swimming pool may not always have been regarded by some individuals in the Company as new business. However, it had come to be so recognized by the Marketing Department, and the initial decision not to charge then Senator Fred Jones for the relocation work could have been appropriately made on that basis. As a matter of fact, the record shows that the installation increased the load at the Jones residence.

“Based on our investigation, it is our judgment that the decision not to charge Mr. Jones for the relocation of his service cable was justified. We do not feel such decision violated acceptable and prudent business judgment. We do not believe this constituted concessions or a rebate in rates or in anywise violated any law. Nor was the rendering of the service without charge in this instance a gift or a favor in the legal sense contemplated by any statute alleged by James Otis Roberts to have been violated. Although, as a matter of hindsight, one could find a basis for criticism, on strictly technical grounds, of some aspects of the Jones matter (such as paperwork completed after the fact), the explanation for all of such was entirely understandable, and no wrongdoing on the part of anyone. Specifically, while Fred Jones was a State Senator at the time, based on our investigation we reject the charge that the rendering of the services without charge violated any law.

“If the Jones request for service relocation had come in through regular channels, no doubt the decision not to charge would have been made lower down in the chain instead of by the Division Vice President. However, the fact that such decision was made by a higher authority in this instance then . was required under Company procedure did not make it either improper or illegal. Neither did the fact that a State Senator was involved. As a matter of voting record, Senator Jones never voted pro-Alabama Power on any measure affecting the Company. Furthermore, at the time of the incident here being considered, Mr. Jones had already made it known he would not be a candidate for re-election. We have reported at length about this matter only because of the serious nature of the charges máde.

“The Eastdale Mall Matter
“The Roberts shareholders suit charges that the compromise agreement worked out in August, 1976 between the Company and the developers of Eastdale Mall, among other things, resulted in the willful and wrongful dissipation of corporate assets of Alabama Power Company. It is alleged that the cost borne by the Company in the course of providing original service to East-dale Mall was excessive in the amount of $96,000. This amount according to Roberts would have been paid by the developer if Company policy had been properly applied.
“Admittedly, operation Bulletin 425 had been promulgated in 1975 a few months prior to the commencement of the construction of Eastdale Mall. If this bulletin had been strictly applied, the Company would have paid some $57,568. The developers of Eastdale contended that they had computed their construction costs and formulated leases based on the terms of a previous guideline or policy which became effective in 1971. A compromise was worked out, resulting in the Company paying some $153,568 toward the installation. This was $96,000 more than it would have borne if operation Bulletin 425 had been strictly applied.
“We feel that this compromise was purely a management decision. Under the circumstances, this Committee believes that the developers of Eastdale Mall could have made a strong case against the Company for damages. The compromise rather obviously avoided a possible lawsuit, or at least a decision by the developers to go less than total electric. The soundness of the business decision is further justified by the fact that the initial combined annual billing for the Eastdale Mall was approximately $400,-000 and for the 12 month period prior to March 20, 1979 was $788,978.87. This return against an investment of $96,000 speaks for itself.
“Furthermore, our investigation reflected that operation Bulletin 425 was not intended to be strictly applied to the construction of malls. Company policy recognizes that malls are unique in the sense here involved, and in each situation a mutually satisfactory business arrangement for the proration of initial installation costs is contemplated.
“The Alabama Christian College Matter
“The decision to install the six poles without charge is viewed by the Committee as simply a management decision and part of the Company’s civic rent. What was done was not controlled by the Company’s contribution policy, and was consistent with long time Company policy of permitting free use of equipment to install light poles on Little League fields, helping cities hang Christmas decorations without charge, and installing flag poles at many of the schools throughout the state without charge. It was interesting to note that while District Superintendent, Roberts, himself, authorized free work at other locations including relocation of a power pole at McGinnis School, a school for retarded children in Montgomery, Alabama.
“The Transfer of James Otis Roberts
“The transfer of Mr. Roberts appears to have been purely an administrative personnel matter and was entirely a management decision, and which transfer is the subject matter of the EEOC litigation filed by Roberts and now pending in Federal Court. From our investigation, we do not believe discrimination was involved. In any event, here, as in the other matters investigated, it is our judgment that a shareholders derivative suit with respect thereto is not in the best interest of the corporation.
“CONCLUSION
“The Committee expresses appreciation to the many Company officials and employees whose cooperation contributed to the completion of this investigation. The facts and circumstances revealed are sufficient to enable the Committee to bring to this Board its conclusions and recommendations.
“We have not found anything during the course of the investigation which in our opinion reflects upon the integrity, soundness or propriéty of any of the decisions or actions of the Company officers and employees. It is our opinion that all of the decisions made and the actions taken were in the judgment of those responsible therefor in the best interest of the Alabama Power Company. Our opinion is that what was done constituted nothing more than the exercise of reasonable management discretion and judgment.
“Based on our investigation, it is our opinion that the shareholders derivative suit should not be further prosecuted. We do not believe it to be in the corporate best interest. We are confident that no violation of law or statute occurred. Neither do we feel that this Company is entitled to recover any monies from any of the officers or employees named as individual defendants in the shareholders derivative suit.
“The Committee has carefully considered the matters involved. It is its unanimous judgment that the continuation of this litigation is not justified, would be disruptive of the orderly functions and processes of corporate management, and in any event is not in the best interest of the Alabama Power Company. If this Board of Directors concurs with the judgment of this Committee, it is recommended that formal'action be taken by the Board to such effect, and that the Board instruct its special counsel to take appropriate action in Court seeking to have the suit dismissed.”

There would be no purpose served by allowing a shareholder to bring a derivative suit after a thorough and good faith determination that such a suit would not be in the best interest of the corporation. To allow a suit under these circumstances would be to substitute the judgment of the court and the shareholder for that of the board of directors when it is obvious that the directors are best situated to make such a determination.

We do not feel that the rule we adopt today will be the death knell of shareholder derivative suits in Alabama. The action of the board and the committee will still be subject to judicial scrutiny as to whether their action was in the best interest of the corporation and whether such determination was made independently and in good faith. Genzer, supra, page 689. If the court finds the action to have been done otherwise, then the case may proceed. The fact that the directors in Maldonado allegedly received some personal gain out of their action could have been used to show a possible lack of good faith and independence. The present case is clearly distinguishable on this point in that none of the directors is alleged to have received any personal gain from the acts complained of.

In recent cases, involving fact situations much more aggravated than the one presented by this case, courts have held the “business judgment” rule could be used to terminate derivative suits absent a showing of fraud or lack of good faith. Abbey v. Control Data Corporation, supra, and Gall v. Exxon Corporation, supra. Whether our decision today would extend to the facts that were presented in the above cases will have to be determined when such a case comes before this Court. We cite these cases merely to illustrate that the extension of the “business judgment” rule we have adopted is certainly not a strained interpretation of the rule when compared to previous decisions of other courts.

As for the trial court’s finding that the plaintiff was not a “fair and adequate” representative of the stockholders, such a determination rests largely within the discretion of the trial judge. First Alabama Bank of Montgomery v. Martin, 381 So.2d 32 (Ala.1980). Only when the discretion is abused will such a determination be reversed. The trial court reached its decision based on the following undisputed facts as stated in its judgment:

“Mr. Roberts is a former employee of the Power Company who resigned on July 21, 1978 when he was transferred to another position; on January 3,1979, Mr. Roberts filed a personal suit against the Power Company alleging age discrimination; on the same day, his attorney wrote the Power Company making certain demands which became the predicate for this derivative suit; on January 25, 1979, the same attorney filed this derivative suit in this Court, asserting as one of its grounds age discrimination, which grew out of the same transaction made the basis of James Otis Roberts’ federal lawsuit; and this derivative suit is directed at top management — the President and three Vice-Presidents — two of whom were sued by Mr. Roberts in his personal suit for age discrimination in federal court. In the light of these facts, it seems clear that the derivative suit, far from seeking to vindicate the rights of other stockholders, was intended to enhance Plaintiff’s position in his personal lawsuit which, if successful, would have reduced the equity of the stockholders whom he was purporting to represent.
“On January 7, 1980, long after these motions were under submission, the Plaintiff amended this derivative action by eliminating the count based on age discrimination. In an accompanying letter, the Plaintiff explained that sometime in the fall a jury had returned a verdict against him on his age discrimination claim in federal Court; and he suggested that this loss would somehow remove his conflict of interest. This Court is not persuaded that this loss diminished or removed the Plaintiff’s real or potential conflict of interest. It seems unlikely, to this Court, that Plaintiff’s loss in his personal lawsuit will give him the requisite detachment, required under Rule 23.1, to stand in the shoes of and make decisions for the stockholders whom he has just unsuccessfully sued.” (Emphasis in original.)

After consideration of the foregoing conclusions of the trial court, we find there was no abuse of discretion.

Accordingly, the action of the trial court in granting Alabama Power Company’s motion for summary judgment is affirmed.

AFFIRMED.

MADDOX, EMBRY and ADAMS, JJ., concur.

FAULKNER, J., concurs specially.

FAULKNER, Justice

(concurring specially).

I concur to affirm the trial court’s judgment, but it appears to me that a lot of time and effort of the trial court, this Court, and the lawyers has been misdirected. The reason: Roberts, being a holder of preferred stock, apparently had no standing to bring this suit. A preferred stockholder, generally, has no voting rights in the management of a corporation. If Roberts, as a holder of preferred stock of the Power Company, did have any management rights of the Company, that fact should have been, shown by the evidence. It was not.

      . It is suggested by the appellee that the trial court might have dismissed this action because Roberts was a preferred stockholder and, therefore, lacked standing to bring suit. The trial court did not address that issue in its judgment; consequently, that issue is not before the Court.


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    William McCULLOUGH, Administrator of the Estate of Alfred Darryll McCullough and William McCullough v. STANDARD FIRE INSURANCE COMPANY OF ALABAMA, et al.
    80-125.
    Supreme Court of Alabama.
    Sept. 25, 1981.

      Roger M. Monroe and R. B. Jones, Birmingham, for appellants.
    Tom E. Ellis of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees.
   ALMON, Justice.

This is an appeal from a summary judgment in favor of appellee, Standard Fire Insurance Company, Rule 54(b), ARCP. We affirm.

Standard Fire Insurance issued an automobile insurance policy to Betty Lou Steele. The policy included liability and uninsured motorist coverage. However, the policy was subject to an endorsement, signed by Mrs. Steele, which excluded the company from liability while her son, Robert Steele, was driving the automobile. The endorsement is as follows:

In consideration of the continuation of this policy in force by the Company it is hereby agreed that, with respect to such insurance as is afforded the Company shall not be liable for loss, damage, and/or liability caused while the automobile described in the policy or any other automobile to which the terms of the policy are extended is being driven or operated by the following named person:
STEELE ROBERT DARRELL

Appellant’s son, a passenger in the Steele auto, was killed when the car, driven by Robert Steele, was involved in a head-on collision. Appellant brought suit against several defendants, including Standard Fire. The basis of the claim against Standard Fire was the uninsured motorist provisions of Mrs. Steele’s policy.

Appellant states the question to be “whether or not, the restrictive endorsement contained in the liability insurance policy issued herein, was effective to cut off any uninsured motorist coverage running to the benefit of plaintiff’s decedent, a passenger in said insured auto.” In answering this question, the trial judge stated:

After due consideration of arguments and briefs and the undisputed facts the Court finds the case of Southeast Title & Insurance Co. v. Thompson, 231 So.2d 201 (Fla.1970), to be the most persuasive. The plaintiff’s son was not an insured, he did not live within the household. This Court knows of no law that gives the right to a stranger to a policy of insurance the right to presume that the car in which he rides is covered by the provisions of an uninsured motorist coverage policy. In effect, the position of the plaintiff in this case is that the exclusory endorsement is valid as to liability coverage and therefore the driver, Robert Darryl [sic] Steele, was an uninsured, and then takes the position that the endorsement excluding liability is not applicable to the uninsured motorist coverage. This Court is not satisfied that such is the law of this state.

The Supreme Court of Florida in Southeast Title adopted the dissenting opinion of Judge Swann of the District Court of Appeals. Although Southeast Title did not involve exactly the same facts as are presented here, we find the reasoning used therein persuasive.

As Judge Swann stated, to uphold the exclusion would not violate public policy. It has been held that “the purpose of the Uninsured Motorist Act, and thus the public policy of the State as to this matter, [is] that Alabama citizens purchasing automo bile liability insurance be able to obtain for an additional premium the same protection against injury or death at the hands of an uninsured motorist as they would have had if that motorists had obtained for himself the minimum liability coverage required by the Safety Responsibility Act” (emphasis added). Higgins v. Nationwide Mutual Insurance Co., 50 Ala.App. 691, 282 So.2d 295, aff’d, 291 Ala. 462, 282 So.2d 301 (1973).

Although the statute, Code 1975, § 32-7-23, provides that no automobile liability insurance shall be delivered or issued for delivery without uninsured motorist coverage, it also allows the insured to reject the coverage. Hence, the coverage spoken to in § 32 — 7—23 is not mandatory, and the failure to carry the coverage does not violate the public policy of this State.

The insurance policy bought by Mrs. Steele did not provide any coverage when her son, Robert Steele, was driving the car. The coverage excluded Robert Steele entirely. The appellant contends the exclusion extended to the liability coverage only. This puts the appellant in the position, as noted by the trial judge, of using the exclusion to show Robert Steele was uninsured, yet claiming the exclusion only applied to the liability coverage. We cannot agree with this contention.

The statute specifically provides for the insured to reject coverage. That is exactly what Mrs. Steele has done, except she did not reject it entirely but only as to her son. We find nothing wrong with this. Had Mrs. Steele wanted to reject uninsured motorist coverage altogether she could have done so. It would seem to us that a partial rejection of the coverage should be no different.

The language of the endorsement is clear. It states simply that the insurance company is not liable if Robert Steele is operating or driving the vehicle involved in this accident.

Having decided that there was no uninsured motorist coverage upon which the appellant could base a claim against Standard Fire, we hold the judgment of the trial court granting Standard Fire s summary judgment is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, BEATTY and ADAMS, JJ., concur.


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    Kathy Ann McKINNEY v. STATE of Alabama.
    80-142.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    George N. Sims, Jr., Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   ALMON, Justice.

The defendant, Kathy Ann McKinney, a juvenile, appeals from an order transferring her case from the juvenile court to the criminal division of the Talladega County Circuit Court. She contends that the order of the circuit court does not comply with Code 1975, § 12-15-34. We reverse and remand.

On June 4, 1980, the State filed a request with the juvenile court to transfer McKinney to the circuit court to be tried as an adult. On June 10, 1980, after a hearing, the juvenile court issued an order to transfer. This order is more than adequate to meet the requirements of § 12-15-34. However, the defendant appealed de novo to the circuit court, as provided in Code 1975, § 12-15-120. The circuit court’s order is as follows:

ORDER
This cause coming on to be heard and the Court having read and understanding the pleadings and having listened to and read the exhibits and heard the testimony ore tenus and the defendant being in open Court with her attorney, The Honorable George Sims, the Court finds as follows, to wit:
1. Kathy Ann McKinney was 14 or more years of age at the time of the alleged conduct made the basis of this prosecution; wherein, she is alleged to have committed an act which would constitute a felony if committed by an adult, to wit: the offense of murder.
2. It is in the best interest of the public to proceed in the disposition of this cause as a criminal prosecution.
3. There are no reasonable grounds to believe the defendant is committable to an institution or agency of the mentally retarded or mentally ill.
Therefore, it is ORDERED, ADJUDGED, and DECREED that the same be transferred to the District Court of Talladega County, Alabama, for criminal prosecution and thereafter be treated as an adult case in the District and Circuit Court of the Twenty-Ninth Judicial Circuit.
Done this 25th day of November 1980.

This order is not sufficient to meet the requirements of § 12-15-34. This Court stated in Young v. State, 387 So.2d 825 (Ala.1980) that:

Code of 1975, § 12-15-34(d), ... requires a district court to consider evidence of six specific (and other relevant) factors in determining whether a transfer motion should be granted. Upon a trial de novo in circuit court, those same factors apply in the determination of the question of transfer, and the circuit court order must reflect consideration of those specific factors. Were it otherwise, we could be faced with the anomalous situation in which on the same issue, the propriety of transfer, two courts would apply different standards. Those factors which each court must consider are:
(1) The nature of the present alleged offense;
(2) The extent and nature of the child’s prior delinquency record;
(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
(4) Demeanor;
(5) The extent and nature of the child’s physical and mental maturity; and
(6) The interest of the community and of the child requiring that the child be placed under legal restraint or discipline. [§ 12-15-34(d), Code of 1975.]
In the present case the order of the circuit court does not meet the standards set out in § 12-15-34(d)....
There is thus no statement or finding in the order of the trial court to show that it considered those specific factors in § 12-15-34(d). This Court has previously held that a transfer order containing a mere restatement of the factors set out in the statute is valid. Brown v. State, Ala., 353 So.2d 1384 (1977). Here, however, there is no such recitation. The order appears to be based on the fact that the charge is a serious crime and on the opinion that the transfer would be in the best interest of society and of the defendant.
The nature of the crime and the best interest of the community are but two of the six mandatory factors to be considered in granting a transfer order. For aught that appears the legislature gave no particular significance or additional weight to these two factors. Consideration of each of the six factors must be made in the transfer order.
Moreover, Code of 1975, § 12-15-34(f) specifically provides:
When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion, which shall include a finding of probable cause for believing that the allegations are true and correct.
In the present order there was no statement of probable cause. Absent such a finding, which is clearly required prior to transfer, this transfer is invalid.

For the reasons stated in Young, this case must be reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


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    Winston WILLIAMS, et al. v. COLBERT COUNTY HOSPITAL BOARD.
    80-208.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Vincent McAlister of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for appellants.
    Jack Huddleston, Sheffield and Joseph H. Johnson, Jr. and David W. Spurlock of Johnson & Thorington, Birmingham, for ap-pellee.
   ALMON, Justice.

Dr. R. Winston Williams appeals from the denial of an injunction which he sought against the Colbert County Hospital Board to have the Board prohibited from applying the Colbert County tobacco tax toward a professional office building. The trial court held that applicable Alabama law did not warrant an injunction. We agree and affirm.

In 1949 the legislature enacted a statute “to authorize in each of the several counties of the state the organization of a public corporation for the purpose of acquiring, owning, and operating public hospitals and other public health facilities in the county _” 1949 Ala. Acts, No. 46, § 1, p. 68; now codified at Code 1975, § 22-21 — 71. In 1957 the legislature authorized the governing body of Colbert County to call an election “for the purpose of determining whether or not the county governing body may levy an additional county privilege or excise tax on tobacco and certain tobacco products.” 1957 Ala. Acts, No. 243, § 1, p. 308 (the Tobacco Tax Act). The proceeds of this tax were to be appropriated “for the use of any public corporation which may be organized in the county for the purpose of acquiring, constructing, equipping, enlarging, improving, operating, and maintaining a hospital in the county,” and could be pledged as security for any indebtedness incurred for this purpose. Id., § 7. In 1975 the legislature amended the 1949 act cited above to broaden the definition of a hospital to be operated in Colbert County to include “one or more buildings designated for use and occupancy as a public hospital, . .. including . . . offices for persons engaged in the diagnosis, treatment or cure of sick or injured persons ’....” 1975 Ala. Acts, No. 798, § 1, p. 1601. The 1949 act definition was similarly amended as to all counties in 1978. 1978 Ala. Acts, No. 468, p. 491; codified at Code 1975, § 22-21-70.

The Colbert County Hospital Board has maintained a hospital since before 1957. Sometime prior to 1978 the Board began planning for a professional office building to adjoin the county hospital and to be rented to doctors who use the hospital. On September 8, 1978, construction began on the professional office building; other substantial renovations and additions to the hospital were to be made at about the same time. Dr. Williams filed this suit on September 12 to have the construction enjoined.

At the final hearing on May 27, 1980, several other Colbert County citizens were added as parties plaintiff; most of them, like Dr. Williams, held an interest in an existing professional office building. The primary ground they relied upon in seeking the injunction was that the Tobacco Tax Act authorized use of the tax revenues only for a hospital as defined when the act was passed in 1957. They contend that the 1975 amendment to the 1949 hospital board act did not affect the Tobacco Tax Act.

We disagree. The statutes are clearly to be read in pari materia; otherwise, how is there to be any “public corporation” to whose use the tax revenues are to be appropriated under the Tobacco Tax Act? State ex rel. Wheeler v. Board of Revenue of Colbert County, 272 Ala. 446, 131 So.2d 858 (1961). 2A Sands, Statutes and Statutory Construction (4th Edition) § 51.03. Because the legislature liberalized the powers of the Board and the facilities which it can operate, the revenues appropriated for the use of the Board may be applied to maintain a “hospital” as now defined.

The judgment denying the injunction is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Mary Ann DAVIS v. Bob MARSHALL, Mann’s Bait Co., Inc.
    80-225.
    Supreme Court of Alabama.
    Sept. 25, 1981.

      L. Merrill Shirley, Elba, for appellant.
    J. Gorman Houston, Jr. of Houston and Martin, Eufaula, for appellees.
   EMBRY, Justice.

This appeal by Mary Ann Davis is from summary judgments entered in behalf of Bob Marshall and Mann’s Bait Co., Inc., dismissing her action against them. We reverse.

Mary Ann Davis filed her action in the Circuit Court of Coffee County, Alabama, Elba Division, by a complaint containing four counts. Each of the defendants filed their motions for change of venue from the Coffee Circuit Court to the Circuit Court of Barbour County, Alabama, Eufaula Division, on the bases that Marshall was not a resident of Coffee County and that Mann’s Bait was an Alabama Corporation which did not do any business, and had not done any business during the times pertinent to this case, in Coffee County, Alabama. The motions for change of venue were granted and the case transferred to the Barbour Circuit Court. At the time, Davis did not contend that error was committed by the Coffee trial court with regard to these rulings. After the case was transferred Davis attempted to amend the complaint by adding a count for work and labor done from 1 March through 7 March 1979, together with a motion to reconsider the motion for change of venue. The latter motions were filed in the Circuit Court of Coffee County. Davis did not seek any appellate review of the action of the Coffee Circuit Court regarding change of venue, and has not to this date, other than to complain of it in this appeal from the judgments entered by the Barbour Circuit Court.

The disposition of a motion for change of venue may not be reviewed by appeal. NYTCO Services, Inc. v. Wilson, 351 So.2d 875, 882 (Ala.1977). This being the case, and Davis not having sought review by petition for the writ of mandamus, there is no error to be predicated upon the ruling of the trial court with regard to the motions for change of venue.

From some date in 1972 through March 1979 Mary Davis poured lead on fish hooks at her home in Coffee County on a piecework basis for Mann’s who furnished her the materials that went into the creation of what was apparently a component of, or a fishing lure. The materials used by her were furnished by Mann’s and procured from Mann’s facility in Barbour County at Eufaula by her father-in-law who took them to Mary Davis at her home in Coffee County. At some period during 1979 the method of paying Davis was changed and she was placed upon a computerized hourly rate payroll and required to keep a time card upon which she would enter the number of hours worked. She was instructed by Marshall, an agent of Mann’s, to only enter hours not exceeding 40, whether she may have worked more than that number of hours or not. From that time forward, she began sending her time cards to Mann’s. She was paid for all hours she claimed on these cards.

In light of Davis’s several admissions, reflected in her deposition upon which the motions for summary judgment were partially submitted, that Mann’s owed her nothing for any work and labor done and the resultant conclusion that her action remains one for wrongful discharge, fraud, etc., we need not address the question of whether a petition for writ of mandamus to the Coffee trial court to withdraw the order transferring the case from Coffee to Barbour County should have been filed. Because it is clear that the claim for work and labor done is, by her own admissions, without merit, writing about the proper method of reviewing the change of venue rulings would serve no useful purpose.

Whatever the relationship between Mann’s and Davis may have been, it is undisputed there was no written contract defining or stating the terms governing the work done by her for Mann’s. When her arrangement with Mann’s was terminated, in March 1979, she applied for unemployment compensation benefits but they were denied by the Appeals Referee, and by the Appeals Board, of the Alabama Department of Industrial Relations. It is claimed by Mann’s that deductions from checks issued in payment for her services were made as though for unemployment compensation contributions, when as a matter of fact these were added to her Alabama Income Tax withholdings and paid to the State. Mann’s further contends that because she annually received income tax refunds she must necessarily have been reimbursed for the deducted unemployment compensation contributions. This cannot be assumed; even if true, it is no answer to her claims for relief. Furthermore the record contains no proof this was the case.

The theories upon which Davis contends she is entitled to recover from Mann’s, although not clearly articulated in her complaint, seem to be:

I. That she was wrongfully discharged and as a result she was caused to apply for unemployment compensation benefits which were denied her because of Mann’s failure to pay its and her contributions to the State.

II. That Mann’s falsely and fraudulently represented to her that a deduction from her weekly gross wages was being paid the State in order that she be provided the protection afforded under the unemployment benefits insurance laws of Alabama.

III. That Mann’s breached an agreement, embodied in its Employee Handbook, to pay Davis for holidays, vacations, and overtime.

IV. That Mann’s and Marshall defamed her by charging her with commission of an indictable offense under the laws of Alabama.

V. That Mann’s owed her for work and labor done for it.

The latter claim we have already disposed of in this opinion when dealing with the matter of rulings on the motions for change of venue. Let us now examine the other claims within the context of the law respecting summary judgment. With respect to I. above, it must be observed that the record does not show that a contract of employment existed between Mann’s and Davis which would prevent her discharge at the option of Mann’s without cause. If we assume she was truly an employee rather than an independent contractor, then it could be only an employment at will subject to termination without cause. United Steelworkers of America, AFL-QIO v. University of Alabama, 599 F.2d 56 (5th Cir. 1979).

Regarding IV. above, even under the overly broad nonrequirements of Rule 8, ARCP, Davis’s claim in count IV of her complaint is insufficient to state a- cause of action.

As to II. and III. above, it is possible there could be a scintilla of proof of a conceivable set of. facts that might create genuine issues of material facts permitting recovery under a cognizable theory or theories of law.

I think there could be disputed material issues of fact concerning violation of Davis’s rights arising from withholding of unemployment compensation insurance contributions from her compensation for services rendered and failing to cause her to come under the umbrella of protection provided by the laws regarding unemployment compensation benefits.

The judgment below is due to be and is hereby reversed and this action remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The views of the author of this opinion regarding the scintilla rule were expressed in a special concurring opinion in Harville v. Goza, 393 So.2d 988, 989 (Ala.1981). It is not a sound rule of evidence, if that is what it is, nor is it a workable and practicable one; nevertheless, it is the rule that obtains in Alabama. See Rule 50, ARCP.


author: ADAMS, Justice.

text:
    J. Ronal CROSS, et al. v. Ernestine Higdon LOWREY, et al.
    80-230.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Sydney R. Prince, III and Edward C. Greene of Inge, Twitty, Duffy & Prince, Mobile, for appellants.

      Rae M. Crowe, Charles J. Fleming, and Edward G. Hawkins of Armbrecht, Jacks on, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
   ADAMS, Justice.

This appeal concerns the right of an oil and gas lessee to challenge the validity of his lessor’s title and is a case of first impression before this court. Cross and others (plaintiffs) ask our review of the propriety of the action of the Circuit Court for Mobile County which granted a motion by appellee Union Oil Company of California (Union Oil Company) for summary judgment. Four counts of plaintiffs’ amended complaint pertaining to Union Oil Company were dismissed. Plaintiffs brought this action against Lowrey and others seeking declaratory relief regarding the disputed ownership of certain mineral interests located in Mobile County. Union Oil Company was named as a defendant because it is the lessee of the mineral interests in dispute.

The dispositive issue on this appeal is whether landlord and tenant law, which prevents a tenant from disputing or challenging his landlord’s title to the leased premises, applies to an oil and gas lease. We hold that it does not, and we affirm the judgment of the trial court.

There are two rival chains of title to the disputed mineral interests. Plaintiffs derive their title under what may be called the “Hackmeyer” chain. Defendants Lowery and others claim title under the “East-land” chain. Union Oil Company secured leases from both sets of claimants, or their predecessors in interest. In November 1976, Union Oil Company advised both sets of claimants that due to the uncertainty of title to the disputed mineral interests, it was suspending all royalty payments attributable to the ownership interests in dispute. Plaintiffs commenced the instant action on July 29, 1977. Another action (to which plaintiffs were not parties) involving the same disputed claims of title, but different mineral properties, was commenced prior to this action. The earlier action involved the same defendants, including Union Oil Company, who supported the claim of those claiming under the “Eastland” chain. That case ultimately came before this court in Trauner v. Lowrey, 369 So.2d 531 (Ala.1979). In that case this court held the “Hackmeyer” chain to be the valid chain of title.

In the instant case, Union Oil Company in its answer asked that the circuit court declare that plaintiffs had no right, title, or interest in the disputed mineral interests. Plaintiffs then amended their complaint, alleging that by its action, Union Oil Company “disavowed the tenancy, asserted a hostile claim of ownership in itself and in others and has otherwise affirmatively sought to defeat the title and interest of the plaintiff-lessors.” Plaintiffs equated Union Oil Company’s action with a'repudiation of the lease and sought a judgment from the trial court declaring the lease void at their option.

Under landlord and tenant law, plaintiffs argue, a repudiation or disavowal of the lease by the tenant effects a forfeiture of the lease at the lessor’s option. Martin v. Carroll, 259 Ala. 197, 66 So.2d 69 (1953), is cited as authority for this principle of law. Plaintiffs argue also that defendants are estopped from denying their lessor’s title and cite Code 1975, § 35-9-1, which provides that a “tenant cannot dispute his landlord’s title, nor attorn to another claimant while in possession, except in cases provided otherwise in this Code.” In essence, plaintiffs theorize that Union Oil Company’s actions in disputing the validity of plaintiffs’ title and, in effect, championing the rival chain of title, allow plaintiffs to elect that Union Oil Company has forfeited its lease with them. In our opinion, the better precedent from other jurisdictions rejects the application of landlord and tenant law to oil and gas leases.

The Arkansas Supreme Court in Arkansas Louisiana Gas Company v. Evans, 232 Ark. 495, 338 S.W.2d 666 (1960), rejected the application of the doctrine of estoppel in landlord and tenant law to an oil and gas lease and held that a lessee could deny the lessor’s title. In Evans, it was held that a mineral lessee more closely held the position of a purchaser than that of an occupier of the land. The Evans court noted that the principle of landlord and tenant law that prevents a lessee from questioning his lessor’s title is a means of preventing a lessee from defeating his lessor’s right to collect rent. Evans, at 338 S.W.2d 669. That rationale has been noted by this court as well. Davis v. Williams, 130 Ala. 530, 30 So. 488 (1901). Distinguishing between a tenant who occupies land, and a mineral lessee, the Arkansas Supreme Court observed:

There are compelling reasons for recognizing a distinction between the two situations. In the usual case a tenant of business property or farm land is not concerned with any question of title. All he pays for is the right of possession, and if his occupancy is undisturbed he has no ground for complaint. To permit him to question his landlord’s title would prevent the latter from bringing an action to collect the rent except at the risk of placing his title in jeopardy. See Tiffany, Real Property (3d Ed.), § 135.

Evans, at 338 S.W.2d 669. This court has recognized the inapplicability of certain landlord and tenant law principles to the somewhat analogous subject of mining leases. Adams v. Riddle, 233 Ala. 96, 170 So. 343 (1936).

The facts in this case are further similar to those considered in Evans because of the presence of a reduction clause in the lease. The lease in the instant case contained the following reduction clause:

Lessor hereby warrants and agrees to defend title to said lease against the claims of all persons whomsoever. . . . Lessee is hereby given the right to acquire for its own benefit, deeds, leases, or assignments covering any interest or claim in said land which lessee or any other party contends is outstanding and not covered hereby and even though such outstanding interest or claim be invalid or adverse to lessor. If this lease covers a less interest in the oil, gas, sulfur, or other minerals in all or any part of said land than the entire and undivided fee simple estate (whether lessor’s interest is herein specified or not), or no interest therein, then the royalties, and other moneys accruing from any part as to which this lease covers less than such full interest, shall be paid only in the proportion which the interest therein, if any, covered by this lease, bears to the whole and undivided fee simple estate therein.

The Arkansas Supreme Court in Evans recognized that by inserting a reduction clause in the lease, “the parties .. . recognize[d] the lessee’s right to question the lessor’s title, and thus they eliminate[d] by contract any possibility of estoppel.” Evans, at 338 S.W.2d 669; Annot., 87 A.L.R.2d 602 at 607 (1963); Fleck, Selected Leasing Problems — Protection Leases, Life Estate and Remainder Interest, Interest in a Particular Stratum, 15 Rocky Mountain Mineral Law Institute 217 (1969). See: Shell Oil Co. v. Howth, 138 Tex. 357, 159 S.W.2d 483 (1942).

Plaintiffs attempt to distinguish Evans from the present case on the basis that in Evans the lessor’s title was patently defective. We reject such a distinction. It is clear from the reasoning in Evans that the Arkansas Supreme Court based its decision on' the inapplicability of estoppel principles of landlord and tenant law to oil and gas leases, and not upon the invalidity of the lessor’s title. Plaintiffs similarly argue that the Evans consideration of the effect of a reduction clause was merely dicta, and that the Arkansas Supreme Court looked to the particular circumstances of that case in reaching its decision. Plaintiffs’ contention is without merit. Our quotation, supra, from Evans clearly negates plaintiff’s contention. “The reduction clause in the lease . . . eliminate[d] by contract any possibility of estoppel.” Evans, at 338 S.W.2d 669. The Arkansas Supreme Court thus found a second and independent basis to deny the application of landlord and tenant law principles to the issues raised in Evans. Next, plaintiffs maintain that the language of the reduction clause in the instant case does not authorize Union Oil Company to champion a competing chain of title. Having decided that the principles of landlord and tenant law which plaintiffs urge us to apply to the present case are inapplicable, we see no reason that prevents Union Oil Company from supporting those claiming under the competing chain of title.

Lastly, we consider plaintiffs’ contention that a landlord-tenant relationship is implied by the language employed in the lease. The lease, plaintiffs point out, contains the following language:

It being the expressed intention of the lessors herein to grant, lease and let unto the lessee herein, and by these presents said lessors, their heirs, successors and assigns, do hereby grant, lease and let unto said lessee, its successors and assigns, all of their right, title and interest in and to all lands and minerals .... [Emphasis added in plaintiffs’ brief.]

Sun Oil Co. v. Oswell, 258 Ala. 326, 62 So.2d 783 (1953), and Williams v. Kitchens, 261 Ala. 340, 74 So.2d 457 (1954), are cited by plaintiffs as supporting their contention. We disagree with plaintiffs’ interpretation of these cases. We find no language in either case to support the application of the principles of landlord and tenant law that plaintiffs espouse to oil and gas leases. Additionally, in Moorer v. Bethlehem Baptist Church, 272 Ala. 259, 264, 130 So.2d 367, 371 (1961), this court observed: “Gas and oil leases and contracts are a part [sic] by themselves. There is scarcely any comparison between them and the ordinary farm or house lease, although there is some resemblance in them to coal or solid mineral leases." [Citation omitted.] We decline to accept plaintiffs’ contention that the language in the lease referring to “lease and let” transforms the relationship of the parties into that of landlord and tenant as plaintiffs contend.

Our holding on the above-discussed issues allows us to pretermit discussion of the additional issues raised by the parties. The judgment of the trial court is affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.


text:
    B. V. RABURN, Jocie Raburn, and Bobby L. Raburn v. George R. RICE and Willie V. Rice.
    80-275.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    John Self, Hamilton, for appellants.
    Nelson Vinson, Hamilton, for appellees.
   ALMON, Justice.

This is an action under Code 1975, § 35-3 — 1, et seq., to determine the boundary line between coterminous landowners.

We will refer to the parties as Rice and Raburn. Rice brought suit to establish by adverse possession his boundary line to include a strip of land north of a survey line up to another line described in the transcript as the “turn row” line.

Raburn’s deed describes a tract of land which extends south to the survey line. The testimony reflects that both Rice and Raburn, or their predecessors in title, farmed their respective parcels up to a turn-row which is north of the survey line.

The trial court, sitting without a jury, heard oral testimony, reviewed the stipulation submitted by the parties and personally viewed both properties and the lines in question. Raburn appeals from the judgment which establishes the boundary at the turn-row.

Raburn contends the evidence fails to support a finding that either Rice or his predecessors in title intentionally, openly, exclusively and notoriously adversely possessed the property up to the turn-row. He contends that the evidence clearly established that Rice did not intend to claim that which he did not own, and that he farmed up to the turn-row under a mistaken belief that it was the true property line. He argues that Rice’s farming up to the turn-row, because it was based upon mistake and because he did not intend to claim that which he did not own, is insufficient to ripen into adverse possession.

We have reviewed the evidence and find it sufficient to support the judgment. “A decree entered by a trial court establishing a boundary line between coterminous landowners is presumed to be correct. When evidence is submitted ore tenus, the decree must only be disturbed if plainly erroneous or manifestly unjust.” Nelson v. Garrard, 403 So.2d 230 (Ala. 1981).

AFFIRMED:

TORBERT, C. J., and FAULKNER, EM-BRY, and ADAMS, JJ., concur.