author: ROBERTSON, Justice, for the Court:

text:
    CITY OF MOUND BAYOU v. ROY COLLINS CONSTRUCTION COMPANY, INC. and D.D. Freeland Construction Company d/b/a A Joint Venture.
    No. 55841.
    Supreme Court of Mississippi.
    Sept. 19, 1984.

      Tyree Irving, Greenville, for appellant. William S. Adams, Jr., Cleveland, for ap-pellee.
    Before WALKER, P.J., and ROBERTSON and SULLIVAN, JJ.
   ON MOTION TO DOCKET AND DISMISS

ROBERTSON, Justice, for the Court:

I.

This matter is before the Court today on Appellees’ motion to docket and dismiss. At issue is whether an incorporated municipality may be exempt from our general rule requiring that an appellant make a deposit for court costs in order to perfect its appeal. Also at issue is the extent to which our recently promulgated Rule 48, regulating the perfection of an appeal, supersedes the former statutory procedural requirements for designation of the record on appeal and giving notice thereof to the court reporter.

These matters are not without importance, theoretical and practical, nor have their contours and answers heretofore been clear. We hope they may now become so.

II.

The procedural history of this case, in pertinent part, begins on April 23, 1984. On that date, the Circuit Court of the Second Judicial District of Bolivar County, Mississippi entered judgment in the amount of $215,679.47 in favor of Roy Collins Construction Company, Inc. and D.D. Freeland Construction Company, d/b/a A Joint Venture, (“Collins and Freeland” or sometimes “Appellees”) and against the City of Mound Bayou, Mississippi (“the City”), an incorporated municipality of the State of Mississippi.

Twenty-eight days later, on May 21, 1984, the City filed with the Clerk of the Circuit Court its notice of appeal. On the same day, in lieu of prepayment of costs as ordinarily required by Rule 48(h), the City of Mound Bayou filed with the Clerk of the Circuit Court a document which provides

CERTIFICATE REQUIRED BY RULE 48(h)(1) OF MISSISSIPPI SUPREME COURT RULES

Comes now the city of Mound Bayou, defendant herein, by and through one of its attorneys of record, and estimates the cost of preparation of the record on appeal, including, but not limited to, the cost of the preparation of transcript, to be $1,200.00. However, said sum is not being tendered to the Clerk of the Court at this time because under the provisions of Mississippi Code Annotated § 11 — 51— 101 (Supp.1983), defendant city of Mound Bayou is entitled to appeal without prepaying the estimated cost.
This 21st day of May, 1984.
Respectfully submitted,
CITY OF MOUND BAYOU
BY: /s/ Tyree Irving TYREE IRVING
Walls, Buck & Irving, Ltd.
163 North Broadway Street
Post Office Box 634
Greenville, Mississippi 38702-0634 (601) 335-6001
One of the Attorneys for the

CITY OF MOUND BAYOU

No deposit for costs was made and, apparently, no such deposit has been made to this date.

Thereafter, on June 22, 1984 — some 32 days following the attempted perfection of the appeal — the City of Mound Bayou filed with the clerk of the Circuit Court a designation of the record on appeal which provides as follows:

DEFENDANT’S DESIGNATION OF RECORD

Now comes the city of Mound Bayou, by and through one of its attorneys of record, and designates the entire record, including all pleadings (both pretrial and postrial), discovery documents, witness testimony, proceedings in chambers, and opinions, decisions and orders of the Court, for inclusion in the record on appeal.
Respectfully submitted,
CITY OF MOUND BAYOU
BY: /s/ Tyree Irving TYREE IRVING
Walls, Buck & Irving, Ltd.
163 North Broadway Street Post Office Box 634
Greenville, Mississippi 38702-0634 (601) 335-6001
One of the Attorneys for the

CITY OF MOUND BAYOU

Collins and Freeland now employ two separate tactics in an attempt to short circuit the City’s appeal before it really gets started. First, Collins and Freeland contend that the City’s failure to make the cost deposit ordinarily required by Rule 48(h)(1) within 30 days following entry of judgment means that the appeal has not been perfected and now may never be perfected. Second, Collins and Freeland argue that the City failed to designate the portions of the proceedings at trial to be transcribed within ten days of the perfection of the appeal as heretofore required by Miss.Code Ann. § 9-13-33 (Supp.1983). This, too, say Appellees, means that the City’s appeal has been fatally lost.

III.

A.

The primary issue presented on the instant motion is whether the City of Mound Bayou, as an incorporated municipality of the State of Mississippi, is obligated by Rule 48(h)(1) to prepay costs as an incident to the perfection of an appeal. There is no question but that other appealing litigants are so required. The City, however, cites Miss.Code Ann. § 11-51-101 (1972) and argues that it has been exempted from that requirement.

Appellees Cpllins and Freeland counter (assuming arguendo that the City’s construction of Section 11-51-101 is correct as an original proposition) that this statute has been overridden by Rule 48(a) which provides

In all cases, both civil and criminal, in which an appeal is permitted by law as of right to the Supreme Court, there shall be one procedure for perfecting such appeal. That procedure is prescribed in this rule. All statutes, rules or decisions in conflict with this rule shall be of no further force or effect. [Emphasis added]

A problem with the City’s argument at the outset is that it fails to keep well in mind the distinction between a supersedeas bond, on the one hand, and a deposit for or prepayment of court costs, on the other. The statute invoked by the City, Section ll-51-101(a), exempts the City from having to secure and file a supersedeas bond in order to prevent enforcement of the judgment pending appeal. We find nothing in that statute mentioning the City’s liability for prepayment of court costs or the like. The statute reads:

(a) The state, and any county, city, town or village thereof, and the officials representing the state, county, city, town or village, in any suit or action, ... shall be entitled to appeal from a judgment, decree, decision, or order of any court or judge, from which an appeal may be taken, without giving an appeal bond; and in such case, if an appeal bond would operate as a supersedeas in favor of a private person, the appeal, without bond, shall have the same effect in the cases herein provided for and this provision shall apply to all the courts of the state. [Emphasis added]

The instant controversy regards the prepayment of court costs, primary among which are the fees of the court reporter for preparation of the transcript. Section 11-51-101(a), however, appears to concern only “appeal bonds” which “would operate as a supersedeas”. This latter language contemplates a situation where, as here, a monetary judgment has been entered against the City. Whereas a private litigant would have'to file a supersedeas bond in order to be secure from execution on the judgment pending appeal, Section 11 — 51— 101(a) provides without doubt that the City of Mound Bayou may take this appeal without bond.

We retreat to a more basic point of beginning. Neither the state nor any of its political subdivisions has any liability to pay anything to anybody, except as expressly authorized by law. Such laws are ordinarily found in statutory form. Occasionally they undergird and are embodied in the holdings of this Court. See Pruett v. City of Rosedale, 421 So.2d 1046, 1051-52 (Miss.1982) (partial abolition of sovereign immunity). We thus consider whether, prior to the advent of our Rule 48, there was any valid rule of law in this state obligating political subdivisions, when appealing to this Court, to prepay court costs.

In this context, Section 11-51-101 is by no means irrelevant to the issue at bar. This statute may not do what the City hopes, but it is nevertheless a manifestation of the public policy of this state to the effect that any of its political subdivisions are generally entitled to litigate without being deprived of the use of its assets during the pendency of the litigation.

A further manifestation of that public policy is Miss.Code Ann. § 11-53-13 (1972). That statute provides

Neither the state, nor any county, city, town, or village, ..., shall be required to pay costs before commencing a suit, nor to give security for costs before or after the commencement of a suit.

This statute appears to relate to the action in the trial court. No exaggeration of its words or their meaning is necessary to have it read “...[No] city...shall be required. . .to give security for costs.. .after the commencement of a suit” — an appeal, of course, occuring after the commencement of a suit.

The public policy noticed here is but one segment of the rule of sovereign immunity stated above, that no political subdivision may be required to respond in judicial proceedings except as has been expressly authorized by law. Also derived from this public policy are our rules that statutory damages may not be assessed on appeal where a judgment against a political subdivision is affirmed, Rankin County, Mississippi v. Wallace, 230 Miss. 413, 420, 92 So.2d 661, 665 (1957), that a political subdivision is not liable for interest on a judgment, City of Jackson v. Reed, 233 Miss. 280, 305-307, 103 So.2d 6, 7-8 (1958), and, in general,

“that a subdivision of the state is not liable for costs unless the statutes expressly so allow or provide.”

Moorhead Drainage District v. Pedigo, 210 Miss. 284, 297, 49 So.2d 378, 383 (1950).

That political subdivisions may ultimately be stripped of their sovereign immunity, which has heretofore shielded them from the payment of damages in certain types of cases, does not suggest that they be denied the privilege of litigating and appeal-' ing without prepayment of costs, for the public policy underpinnings of that immunity remain strong. Any such prepayments must necessarily be made out of the public coffers. The monies there ought be committed, to the extent consistent with justice and fairness, to the funding of needed public services and benefits.

The point is made by a consideration of what would happen if an appealing political subdivision such as the City of Mound Bayou were ultimately to prevail on appeal. If it prevailed, this would no doubt be because this Court held, when the controlling rules of law were applied to the facts of the case, that the City was not liable. If, however, the' City had been required to prepay court costs, it would have lost the use of the sums so prepaid during the time the case was pending on appeal, which, as everyone knows, can frequently run to two years or more. And the public would have been deprived of the services that could have been purchased with those monies.

There is a further consideration applicable in those cases where the political subdivision may become liable for costs if it be unsuccessful on its appeal. Such litigants are invariably solvent, and if worse comes to worst, they have the authority to tax. There is no appreciable risk that such litigants will fail to respond to any order for the assessment of costs.

We find that, prior to the promulgation of Rule 48, there was in effect a valid rule that permitted the state and its political subdivisions to appeal without prepayment of costs. Collins and Freeland have suggested no authority to the contrary. This brings us to the question presented: whether Rule 48 abrogates this immunity from prepayment of costs. We hold that it does not.

Rule 48 sets forth a single (and, hopefully, simple) procedure for the taking of an appeal to this Court. The promulgation of that rule for the accomplishment of that purpose was well within the authority of this Court. The suggestion tendered by Collins and Freeland here, however, would carry us beyond our authority, for these Appellees would have us invade and supersede a long-established important public policy of this state and a clear rule emanating therefrom. This we decline to do.

In the context of the overriding and apparently sound public policy described above and the rule of immunity emanating therefrom, we hold that Rule 48(h) does not require the state or any of its political subdivisions, as party appellants, to make the deposit for court costs required of other appealing litigants. Where a political subdivision is the appellant, it is sufficient that it file with the clerk a certificate claiming its immunity, similar to that filed here by the City of Mound Bayou. In this connection we note the last sentence of Rule 48(h)(1):

An appeal shall not be dismissed for informality in the form or contents of this certificate nor for the timing of its filing.

B.

Next, Collins and Freeland assert in their Motion to Docket and Dismiss that the City of Mound Bayou has failed timely to designate the record in conformity with Miss.Code Ann. § 9-13-33 (Supp.1983). That statute, unlike the rule just discussed, is wholly procedural in nature, operation and effect. It provides that any person appealing a case shall notify the court reporter in writing not later than ten days after perfecting his appeal of the fact that a copy of the notes of the court reporter is desired.

The facts reflect that the appeal was perfected on May 21, 1984. On June 22, 1984, some 22 days past the ten day time limitation of the statute, the City filed “Defendant’s Designation of Record”. Apparently this was done in response to a suggestion by the Circuit Clerk that Section 9-13-33 remained in full force and effect.

The City of Mound Bayou argues that Rule 48 has superseded the notice to the court reporter requirements of Section 9-13-33. In large part, the City is correct. Section 9-13-33 is wholly procedural. No important public policy considerations are implicated. It is within our rule-making authority to preclude enforcement of Section 9-13-33 in its entirety if we find such conducive to the proper administration of justice. Newell v. State, 308 So.2d 71, 78 (Miss.1975); Haralson v. State, 308 So.2d 222, 224 (Miss.1975); see also, Fairley v. State, 343 So.2d 483, 484 (Miss.1977) (use of rule-making power suggested) (Sugg, J., dissenting).

The question before the Court is, to what extent have we via the promulgation of Rule 48 pretermitted the enforcement of Section 9-13-33? Our subject matter being entirely procedural, the answer necessarily derives from a consideration of the requirements of Rule 48 and the extent to which they conflict with the terms of the statute.

Rule 48(b) requires that a copy of the notice of appeal be served upon the court reporter. That notice gives the reporter actual knowledge that an appeal is being taken.

Rule 48(h)(1) provides that the appellant shall make its cost deposit and file with the clerk a certificate of compliance. The rule provides that a copy of this certificate should be served on the court reporter, at which time the reporter shall commence preparation of the transcript.

These requirements make it apparent that Rule 48 is in hopeless conflict with much of what is in the first four subpara-graphs of Section 9-13-33. This, of course, brings into play the proviso in Rule 48(a) to the effect that all statutes, rules or decisions in conflict with this rule shall be of no further force or effect.

The fundamental accomplishment of Rule 48 is that the appeal is perfected by the filing of the notice and prepayment of costs (which, in this case, is excepted). Everything else that an appellant may do or fail to do goes to the question of whether the appellant has diligently prosecuted his appeal — all the more reason why we are loathe to incorporate the requirements of Section 9-13-33 into the simple procedural scheme of Rule 48.

We hold that Rule 48 supersedes subparagraphs (1), through (4) of Section 9-13-33. Cf. Fairley v. State, 343 So.2d 483, 484 (Miss.1977) (suggestion that rule-making power be used to supersede 9—13—33) (Sugg, J., dissenting). Because subpar-agraphs (5) through (7) of Section 9-13-33 in no way conflict with Rule 48, they remain in full force and effect.

Having dispatched some of the niceties of Section 9-13-33(1) through (4), we add a point for clarification. Upon receipt of a copy of the notice of appeal and the certificate of compliance with Rule 48(h)(1), the court reporter becomes obligated to prepare the entire transcript of all proceedings had at trial.

The City of Mound Bayou has fully complied with the notice-to-the-court-reporter features of Rule 48. The certificate attached to the notice of appeal reflects that it was served on Mrs. Grace Tice, court reporter, on May 21, 1984. The City’s certificate of compliance with Rule 48(h)(1) similarly shows service on the court reporter on May 21, 1948. This clearly confirms to the requirements of the 30 day time limit. The motion to strike the court reporter’s notes is overruled.

Nothing said here is intended to discourage the parties from reaching agreements regarding reduction of the transcript by excluding or omitting portions of the testimony or exhibits not relevant to the issues to be raised on appeal. The deposit-for-costs requirement of Rule 48(h)(1), coupled with our rules regarding assessment of costs at the end of the appeal, ought in the ordinary ease provide a salutary incentive to such agreements, although we are aware this frequently is not so.

We take this opportunity to remind the bar of this state that there is much money and time to be saved via agreed, expurgated records — with no loss of fair advantage to the litigant pursuing legitimate self-interest on appeal. What — and all — we are saying here is that, absent agreement of the parties to the contrary, the court reporter should not omit from his or her transcript any part of the trial proceedings.

MOTION TO DOCKET AND DISMISS OVERRULED.

WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE and SULLIVAN, JJ., concur.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and PRATHER, J., not participating.

      . Rule 48(h)(1), Miss.Sup.Ct.Rules. Rule 48, was promulgated by this Court on September 28, 1983, as an Appendix to Moran v. Necaise, 437 So.2d 1222, 1225-1227 (Miss.1983). The rule became effective on January 1, 1984.

      . Miss.Code Ann. § 9-13-33 (Supp.1983)

      . In the light of Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), see Miss.Laws of 1984, ch. 495 [Senate Bill No. 2441].

      . Performance of duties imposed upon Appellants under Section 9-13-33 are not jurisdictional. Haralson v. State, 308 So.2d 222, 224 (Miss.1975). We have waived the requirement altogether, Fairley v. State, 343 So.2d 483 (Miss.1977), although we recently enforced it in a pre-Rule 48 case where the notice was given 107 days late. Garrett v. Nix, 431 So.2d 137, 140 (Miss.1983).

      . The first four subparagraphs of Section 9-13-33 provide:
      (1) In all cases in which the trial is noted by the official court reporter, any person appealing the case shall notify the court reporter in writing not later than ten (10) days after perfecting his appeal of the fact that a copy of the notes is desired. The notice must be handed to the court reporter personally or mailed to him at his usual place of abode. In either case the attorney making the request shall file with the clerk of the court a copy of the notice with a statement of how the notice was served, and a copy thereof shall in like manner be served upon appellee’s attorney, and the said notice shall designate the portions of the record, proceedings, testimony and evidence to be contained in the record of appeal.
      (2) Within ten (10) days after the service and filing of such a designation and notice, any other party to the appeal may in like manner serve and file a designation of additional portions of the record, proceedings, testimony and evidence to be included. Within ten (10) days after the service and filing by any appellee of his designation and notice, appellant may in like manner serve and file a designation in rebuttal of additional portions of the record, proceedings testimony and evidence to be included. In cases where a new trial is granted, and an appeal is desired and is otherwise allowable, the parties filing and serving designations of record, as herein set forth, may likewise designate the portions of the record, proceedings, testimony and evidence of the former trial or trials in lieu of a bill of exceptions in the same manner and within the respective periods of time after the adjournment of the term of court at which the last trial is held.
      (3) The appellant and appellee shall state in their respective designation that part of the clerk’s record and reporter's transcript of the testimony and evidence they desire to be transcribed and included in the record and that part that might be omitted altogether.
      (4) All pleading, process, and testimony of witnesses, not essential to the decision of the questions presented by the appeal shall be omitted, unless specified to be included in the notices and designations aforesaid.

      . Subparagraphs (5) through (7) of Section 9-13-33 read as follows:
      (5) Upon receipt of such notice, it shall be the duty of the court reporter to immediately acknowledge receipt thereof and to transcribe and file his notes accordingly within sixty (60) days thereafter.
      (6) The court reporter shall receive two dollars (|2.00) per page for the same, which shall be taxed as costs, and the court reporter shall file with the clerk the original and one (1) carbon copy of his notes so transcribed, together with all exhibits to the testimony, for which carbon copy no charge shall be made. The original of such transcript shall be used by the clerk in making up the record for the supreme court, and the clerk shall omit such pleading, process and other documents except as designated in the notice aforesaid, and no other fee shall be allowed for this part of the record. Provided, however, that in criminal cases where appeals are taken and no appeal bond is filed the transcript fee herein provided shall be paid to the court reporter of the county treasury at the rate of two dollars ($2.00) per page, after the examination and approval of an itemized account of same by the district attorney and allowance thereof by the board of supervisors of the county.
      (7)The term "official court reporter” as used in this section shall include reporters regularly employed by the Mississippi Public Service Commission, and such reporters shall receive the same compensation as provided herein for official court reporters.


source: Caselaw Access Project

license: Public Domain

text:
    Albert S. KINCHEN, Marie A. Knotts, Bobby Ray Alston, and Briarwood Home Owners Association, Appellants, v. Kenneth C. LAYTON and Veldron R. Layton, Appellees.
    No. 54369.
    Supreme Court of Mississippi.
    Sept. 26, 1984.

      Larry L. Lenoir, Gulfport, for appellant.
    Charles K. Pringle, Biloxi, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice, for the Court:

I.

What are “temporary structures” within the context of use restrictions found in protective covenants on the Briarwood West-First Addition in Harrison County, Mississippi, is the question at the core of this civil dispute.

Kenneth C. Layton and Veldron R. Lay-ton, Defendants below and Appellees here, own various lots within the subdivision. In June, 1982, Kenneth C. Layton (“Layton”) installed upon Lot 10 a manufactured structure clearly intended for use as a home. He states that he intends that the home be permanent.

Albert S. Kinchen, Marie A. Knotts and Bobby Ray Alston, Plaintiffs below and Appellants here, are neighboring property owners who argue that the manufactured home is a “temporary structure” and as such may not be placed upon the lot consistent with the protective covenants.

After trial on the merits, the Chancery Court found

“that the structure now situated on Lot 10, Briarwood West-First Addition Subdivision is neither a trailor, mobile home, nor temporary structure”,

and that nothing in the protective covenants prohibited the placement of the structure on the lot in question. Accordingly, on August 13, 1982, the Chancery Court entered its final decree dismissing the complaint of Kinchen, et al, with prejudice.

Suggesting error in the resolution of the underlying question, Kinchen, et al, appeal. Because we find that the findings of the Chancellor were not only supported by substantial evidence but were eminently correct, we affirm.

II.

At all times relevant hereto, the protective covenants for the Briarwood West-First Addition contained the following provision:

“6. TEMPORARY STRUCTURES: No structure of a temporary character, basement, tent, shack, garage, or other outbuilding shall be placed upon or used on any lot at any time for purpose either temporarily or permanently.'”

The controversial structure placed upon Lot 10 in June of 1982 was manufactured in Georgia. The evidence reflects that it was transported to Harrison County in two sections. After removal of the wheels, running gears and tow bars, the sections were placed on previously prepared masonry peers. The two sections were then connected, and certain additions and refinements were made by Layton.

The structure contains 1,204 square feet of living area which is centrally heated and air conditioned. It has been refined by Layton by the addition of a dutch gable and gutter on the roof, a front porch, a covered walkway along the rear, and a carport on one end. In addition, a concrete driveway and sidewalk to the front door have been installed.

There was no issue below as to whether the structure met the applicable zoning, building, plumbing and electrical codes, nor as to whether all necessary permits had been secured by Layton before the structure was installed. Further, there is no suggestion that the structure violates any other provision of the protective covenants applicable to Briarwood West-First Addition.

Kinchen, Knotts and Alston own homes in the vicinity of Lot 10. They object strenuously to the appearance of the structure in question. They suggest that it has the appearance of a trailer or mobile home. That the structure was transported to the site where it was installed on wheels is not the crux of Appellants’ objections. They acknowledge that the same structure could have been built, stick-by-stick, on the site and it would still be offensive to them.

III.

Unless restricted by law — either the publicly made or the privately created variety — the Laytons may use their property as they see fit, for it is the past and present public policy of this state that

“ordinarily that miniscule portion of this planet’s soil as a person owns may be put to such use as that person desires.”
Andrews v. Lake Serene Property Owners Association, Inc., 434 So.2d 1328, 1331 (Miss.1983).

The law of this and every other state that we know anything about favors free and unobstructed use of real property. Manley v. Draper, 44 Misc.2d 613, 254 N.Y.S.2d 739, 742 (1963); Hussey v. Ray, 462 S.W.2d 45, 48 (Tex.Civ.App.1970).

A logical outgrowth of this public policy has been the established rule of construction that restrictive or protective covenants, where ambiguous, are construed strongly against the person seeking enforcement. In Kemp v. Lake Serene Property Owners Association, Inc., 256 So.2d 924 (Miss.1971), this Court stated:

“Generally courts do not look with favor on restrictive covenants. Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is most strongly against the person seeking the restriction and in favor of the person being restricted.” 256 So.2d at 926.
Andrews v. Lake Serene Property Owners Association, Inc., 434 So.2d 1328, 1331 (Miss.1983).

A corollary rule is that clear wording of protective covenants will not be disregarded merely because a use is restricted. So long as prohibition is expressed in unambiguous language, enforcement is available in the courts of this state to persons of proper standing. Andrews v. Lake Serene Property Owners Association, Inc., 434 So.2d 1328, 1331 (Miss.1983).

It is within the actual and judicial knowledge of this Court that protective or restrictive covenants banning the use of residential subdivision property for certain trailers, mobile homes or temporary structures do exist. Such covenants may be employed and enforced, so long as clear language is used. Over twenty years ago, this Court correctly stated in Schaeffer v. Gatling, 243 Miss. 155, 159, 137 So.2d 819, 820 (1962).

“If the original owner of the subdivision had desired to prohibit the use of house trailers as residences, this could easily have been accomplished by designating house trailers as prohibited use, or by restricting architectural design, by placing a minimum on the floor space for a residence, or by prohibiting temporary residences.” 243 Miss, at 159, 137 So.2d at 820.

Earlier in the same opinion, this Court had said:

“Covenants [restrictive] of this kind should be fairly and reasonably construed and the language used will be read in the ordinary sense [citation omitted]. The entire instrument should be considered in ascertaining its meaning, but the restrictions should not be extended by strained construction, especially when, as in this case, the restrictive covenants expressly permit the use being made of the land.”
Schaeffer v. Gatling, 243 Miss. 155, 159, 137 So.2d 819, 820 (1962); see Andrews v. Lake Serene Property Owners Association, Inc., 434 So.2d 1328, 1331-32 (Miss.1983) (intent must be clear, citing Schaeffer); Kemp v. Lake Serene Property Owners Association, Inc., 256 So.2d 924, 926 (Miss.1972) (such covenants strictly construed against persons seeking restriction, citing Schaeffer); Wiener v. Pierce, 203 So.2d 598, 603 (Miss.1967) (implication must be plain and unmistakeable, citing Schaeffer)] Frederic v. Merchants & Marine Bank, 200 Miss. 755, 766, 28 So.2d 843, 847 (1947) (restrictions should not be left to implication but should be clearly defined); see also Great Atlantic & Pacific Tea Co. v. Lackey, 397 So.2d 1100, 1101-03 (Miss.1981) (no implied covenant will be inferred); Delta Wild Life & Forrestry, Inc. v. Bear Kelso Plantation, Inc., 281 So.2d 683, 686-87 (Miss.1973) (restrictions should not be left to implication).

The rules of construction well in mind, we turn to the heart of this case.

IV.

All agree that we have no case which concerns the question whether a manufactured dwelling transported to the site is a “trailer”, “mobile home”, or “temporary structure” within the meaning of protective or restrictive covenants impressed upon the land. In that sense, this is a case of first impression.

The litigants have called to our attention numerous cases litigated and decided in other states. It does indeed appear, as the Laytons argue, that the trend of authority in the last twenty years is toward a recognition of the increasingly important role manufactured homes have come to play in providing housing for the citizens of this country. Size, design and appearance have been greatly improved over the trailers and mobile homes of the not-too-distant past.

Cases reflecting this discernible trend include: North Cherokee Village Membership v. Murphy, 71 Mich.App. 592, 248 N.W.2d 629 (1976); Heath v. Parker, 93 N.M. 680, 604 P.2d 818 (1980); Manley v. Draper, 44 Misc.2d 613, 254 N.Y.S.2d 739 (N.Y.1963); Hussey v. Ray, 462 S.W.2d 45 (Tex.Civ.App.1970); Brasher v. Grover, 551 S.W.2d 302 (Mo.Ct.App.1977); Crawford v. Boyd, 453 S.W.2d 232 (Tex.Civ.App.1970); Yeager v. Cassidy, 20 Ohio Misc. 251, 253 N.E.2d 320 (1969); Douglas Township v. Badman, 206 Pa.Super. 390, 213 A.2d 88 (1965); and Morin v. Zoning Board, Town of Lincoln, 102 R.I. 457, 232 A.2d 393 (1967); contra Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528 (1970); Brownfield Subdivision, Inc. v. McKee, 61 Ill.2d 168, 334 N.E.2d 131 (1975); McBride v. Behrman, 28 Ohio Mise. 47, 272 N.E.2d 181 (1971).

A review of the above cases has been useful, as has our consideration of the arguments by the parties, particularly the Laytons, regarding the evolving credibility of the manufactured home in our society. In the end, however, these matters little inform today’s decision, for under our law properly drafted protective covenants may ban from property to which they are applicable the most modern, most aesthetically pleasing “manufactured home” ever built. On the other hand, the shabbiest, most dilapidated mobile home may be placed upon property where that use has not been prohibited. Our question then is whether the use to which the Laytons have put Lot 10 of the Briarwood West-First Addition is one prohibited by the applicable covenants when those covenants are properly construed.

Looking at the language of the covenant involved, we find it clear that the structure in question is not a “basement, tent, shack, garage or other outbuilding”. We focus then upon whether the structure is of a “temporary character”. The phrase “temporary character” is not defined in the covenants. It would seem to import a structure which by reference to nature and design was not likely to remain where it was placed for any substantial period of time.

The problem we confront is, how does one determine the “temporary character” vel non of a structure? We can easily determine its height, its floor space, its type of construction or even within wide latitude its aesthetic appearance. “Temporary character”, however, is a quality which arguably either no structure has, or, in a wider sense, every structure has.

These points lead inescapably to the conclusion that the covenant in issue is ambiguous. As such it must be construed most strongly against the parties seeking to enforce it and to restrict land use. Those parties here are Kinchen, Knotts, Alston and the Briarwood Homeowners Association.

Under the circumstances, the structure as it has been described to us in the record seems clearly suitable as a home of some permanence. Stick-by-stick built structures of the same basic design and functional utility would not be prohibited under these covenants. The fact that this structure was in large part put together in another state and transported to Harrison County, Mississippi would not seem to deprive it of its trait as of “permanent character”. Brasher v. Grove, 551 S.W.2d 302, 306 (Mo.Ct.App.1977); Heath v. Parker, 93 N.M. 680, 682, 604 P.2d 818, 820 (1980).

In summary, when strictly construed against the parties seeking enforcement, these covenants simply are not sufficient to proscribe the placement and use of the structure in question on Lot 10 of the Briarwood West-First Addition subdivision of Harrison County, Mississippi.

No resort to notions of clear error or manifest wrong are necessary to affirm the determination of the trial judge here, for he was eminently correct when he determined that the structure in question was “neither a trailer, mobile home, nor temporary structure”. This, of course, was tantamount to a holding that the structure was not “of a temporary character”. Assignments of Error Nos. 1 and 2 are rejected.

V.

Appellants Kinchen, et al, finally charge that the Chancery Court “erred in finding that the structure does not constitute a nuisance”. We have carefully reviewed the evidence and considered the argument of counsel in support of this point. We find no error.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


author: FAULKNER, Justice.

text:
    Sahid BAHAKEL v. CITY OF BIRMINGHAM.
    82-1051.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Alfred Bahakel, Birmingham, for appellant.
    Herbert Jenkins, Jr., Birmingham, for appellee.
   FAULKNER, Justice.

This appeal involves an action for an unlawful arrest. Sahid Bahakel sued the City of Birmingham, Franklin Tate, and Marva Gibbs. Bahakel’s original complaint, alleging malicious prosecution, was dismissed as to the city and Tate by the Jefferson Circuit Court. On February 18, 1983, this Court affirmed the dismissal as to the city and reversed and remanded as to dismissal of Tate. Bahakel v. City of Birmingham, 427 So.2d 143 (Ala.1983).

On May 20, 1983, Bahakel filed an amended complaint, asserting wanton misconduct and negligence on the part of the city in failing to establish and follow adequate standards. The circuit court dismissed the amended complaint on June 22, 1983. Bahakel seeks review of the circuit court’s dismissal of his amended complaint.

The issue presented here is whether an amendment of the complaint asserting additional grounds of recovery should be allowed where this Court has previously affirmed the dismissal of the complaint. This issue was previously before this Court in Hammond v. Realty Leasing, Inc., 351 So.2d 893 (Ala.1977).

In Hammond, this Court wrote: “[AJmendments under Rule 15, Alabama Rules of Civil Procedure, are to be freely allowed and Rule 15 must be liberally construed. However, Rule 15 does not allow a party to amend his or her original complaint after an unsuccessful appeal, unless the mandate of the appellate court express- - ly permits such amendment.”

Our prior decision in this case, 427 So.2d 143, Bahakel did not provide for any further amendment of the original complaint. Therefore, on the authority of Hammond, the circuit court’s dismissal of the amended complaint is affirmed.

AFFIRMED.

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


author: ALMON, JUSTICE.

text:
    Myrtle ABSTON and Billy Abston v. Clifton ABSTON.
    83-141.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    John A. Bivens of England & Bivens, Tuscaloosa, for appellants.
    Wyman 0. Gilmore of Gilmore & Gilmore, Grove Hill, for appellee.
   ALMON, JUSTICE.

This is an appeal from a judgment entered on a stipulation of the parties. The judgment ordered appellants to execute a warranty deed returning appellee’s house and land which he had deeded to them pursuant to their agreement to care for him for life. It also ordered them to return the proceeds of a certificate of deposit which they had transferred from his name to theirs, less $2500.00 which they were to keep under the terms of the stipulation.

Appellants are represented by different counsel on appeal than they were at trial. Their only argument for reversal is that Code 1975, § 8-9-12, only allows the grant- or to annul conveyances of realty where “a material part of the consideration is the agreement of the grantee to support the grantor for life.” They argue that the judgment of the trial court improperly allowed appellee to void a contract for the payment of money in consideration of their agreement to support him for life.

This argument overlooks two crucial facts: 1) the complaint sought recovery of the certificate of deposit on the basis of fraud, not on the ground of a cancellation of a contract for support; 2) the judgment was entered on a stipulation of the parties ■ which resolved all of the issues raised in the complaint, and the appellants do not attack the stipulation as having been procured by fraud, duress, or mistake. Cf. Price v. American National Bank of Gadsden, 350 So.2d 328 (Ala.1977).

This appeal presents nothing for our review. The judgment of the trial court is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    William J. BUSH and Mary E. Bush v. ALABAMA POWER COMPANY, a corporation; Country Club of Mobile. James David ARMSTRONG, By and Through his father and next friend, William ARMSTRONG, et al. v. Douglas LAING. James David ARMSTRONG, etc., et al. v. COUNTRY CLUB OF MOBILE. James David ARMSTRONG, etc., et al. v. ALABAMA POWER COMPANY, a corporation.
    83-255 to 83-258.
    Supreme Court of Alabama.
    Sept. 14, 1984.

      Ronald P. Slepian and Richard H. Sforzi-ni, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for William J. Bush and Mary E. Bush.
    Patrick M. Sigler, Mobile, for James David Armstrong, William E. Armstrong, and Doras Armstrong.

      Edward S. Allen, of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, and Carroll H. Sullivan, of Gaillard, Little, Hume & Sullivan, Mobile, for Alabama Power Co.
    Bert S. Nettles, Sidney W. Jackson III, and Forrest S. Latta, of Nettles, Barker & Janecky, Mobile, for Douglas Laing.
    Alton R. Brown, Jr. and Michael S. McGlothren, of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for Country Club of Mobile.
   PER CURIAM.

William Bush, Mary E. Bush, and James David Armstrong appeal from a summary judgment granted in favor of Alabama Power Company, the Country Club of Mobile (the Club), and Douglas Laing, in this action to recover damages for personal injuries.

In March 1980, the Club hired Lonnie Manning, an independent contractor, to replace the bulbs in the lights on its outdoor tennis courts. Manning’s employee, James David Armstrong, assisted him. They assembled a scaffold on the tennis courts in order to be able to work on the lights located at the top of poles which varied in height from 25 to 35 feet. The scaffold, when assembled, was 33'3" tall.

William Bush was employed part time by Douglas Laing, the Club’s tennis professional. Laing, in turn, was employed by the Club.

On March 27, 1980, when Manning and Armstrong had completed their work on the lights for the day, Laing instructed Armstrong and Bush to place the scaffold in the northeast corner of court six. As they were pushing the assembled scaffold to the corner, the upper section of the scaffold came into contact with an uninsulated 7200-volt distribution line owned by Alabama Power Company. At the point of contact, the electrical wire was approximately 30 feet above the level of the tennis court. Both young men were seriously injured as a result of the electrical shocks that they received.

In 1951, the Club had granted Alabama Power Company an easement to construct, operate, and maintain power lines across its property. That same year, the system of wires which this ease involves was installed. Subsequently, the Club built the outdoor tennis courts and, around 1962, erected the lighting fixtures. The power lines traversed the easternmost side of the tennis courts. There were no lights or light poles along the side of court six or in the northeast corner where Bush and Armstrong were instructed to place the scaffold.

At some time before the date of the accident, Alabama Power had removed the fuses from the switch into which these wires were fed and had replaced them with solid links. In the event of a fault in the line, such as contact with a scaffold, a fuse would “blow” and cut off the electricity surging through the line within a matter of seconds. A solid link, however, prevents the line from de-energizing when a fault occurs. In this case, because there were solid links in the switch, the electricity continued flowing through the electrical lines and the scaffold and bodies of Bush and Armstrong until they were forcibly moved. Solid links are helpful where there are frequent power outages caused by such things as branches brushing the lines. The Club had experienced numerous power outages, necessitating repeated visits by Alabama Power to replace the fuses in this switch. The day after the accident, the line was reenergized, but the solid links were removed, and 60-amp fuses were reinstalled. In 1981, the entire system of wires was rerouted off the tennis court.

The Bushes and Armstrong separately filed suit against Alabama Power, the Club, and Laing, alleging that each of them had negligently and wantonly breached a duty of care owed to them. The Bushes’ claim against Laing was the first to be disposed of. Summary judgment was granted in favor of Laing. The judgment was made final under Rule 54(b), A.R.Civ.P., and the Bushes appealed to this Court. That appeal was subsequently dismissed upon the Bushes’ own motion. The two actions were then consolidated by the trial court.

The parties have engaged in extensive discovery, including interrogatories, depositions, and production of documents. The record on appeal, which is 3,500 pages, reflects the facts recited above, and in addition contains the pleadings, additional affidavits, and some exhibits. On October 10, 1983, two weeks before the trial of these actions was to commence, the trial court granted summary judgment as to all defendants in both suits. It is from this final judgment that the plaintiffs appeal.

We first address the judgment entered in favor of Alabama Power Company. The Bushes and Armstrong allege that the power company was negligent or wanton in that it failed to insulate the lines, failed to locate them in a safe position, and failed to employ a fuse in the switch.

This Court has stated, consistently and repeatedly, the duty of a power company with regard to the use and location of uninsulated electrical wires:

“The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.”

Foster v. Alabama Power Company, 395 So.2d 27, 30 (Ala.1981), citing Curtis on Law of Electricity, § 510. In other words, Alabama Power must either insulate its electrical lines, or locate them in a position where they pose no danger to human life. However, the duty to insulate does not arise absent notice, actual or constructive, that persons may come into contact with the uninsulated wires. Alabama Power Company v. Alexander, 370 So.2d 252 (Ala.1979).

On the other hand, whether a power company has a duty to use a fuse or some type of automatic circuit breaker in its switches is being presented to this Court for the first time. Armstrong cites Alabama Power Company v. Guy, 281 Ala. 583, 206 So.2d 594 (1967), as general support for this duty. That case is distinguishable because the plaintiff therein alleged that he was injured as a result of Alabama Power’s failure to properly maintain and repair the oil circuit breaker. Whether there was a duty to use an oil circuit breaker in the first place was not an issue.

Other jurisdictions, however, have recognized a power company’s duty to employ a fuse or some other safety device when it is foreseeable that persons may come into contact with the uninsulated wire. Ledet v. Lockport Light and Power Co., 15 La.App. 426, 132 So. 272 (1931); Abilene Gas and Electric Co. v. Thomas, 194 S.W. 1016 (Tex.Civ.App.1917). There was also deposition testimony in this case by an expert that a fuse provides protection to persons who may come into contact with an uninsulated wire. Several electrical engineering experts testified and agreed that the power company’s failure to employ a fuse in this switch fell below good electrical practices. From this arises an inference that when there arises a need to protect persons from harm, there is a duty to use a fuse instead of a solid link. The testimony was that a fuse would have “blown” and the wire would have been de-energized, substantially reducing the severity of the injuries to Bush and Armstrong.

Neither the duty to insulate an electrical wire nor the duty to use a fuse which quickly de-energizes a wire after a fault arises unless it is foreseeable that persons may come into contact with the wire. The ultimate test of a duty to use care is found in the foreseeability that harm may result if care is not exercised. Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974). This is a general principle of negligence law. The question then, is whether, under the facts developed and offered both in support of and in opposition to Alabama Power Company’s motion for summary judgment, it was foreseeable that persons would come into contact with the electrical wires which stretched across the tennis court at a height of 30 feet. We cannot say that it was or was not, as a matter of law.

It is undisputed that the tennis courts and the lights for the courts had been in place since the 1960’s. It is also undisputed that the power company had been out to the site to work on the switch into which this system of wires is attached. The switch is located on a pole in one corner of the tennis courts, and, from the switch and this pole, it is possible to see the tennis court layout, the lights, and the system of wires. Additionally, the power company had been on the site to do extensive repairs to this system after Hurricane Frederic came through in September 1979. This accident occurred less than seven months later.

The Bushes and Armstrong contend that on these facts reasonable men may differ as to whether the power company knew, or should have known, that persons may come into contact with the uninsulated wire. We agree. The record shows that the wires crossed over the tennis court area, and that there were lights at various spots around the tennis courts. The lights were atop poles 25 to 35 feet in height. Whether the power company, under these facts, should have foreseen that someone would come in contact with its uninsulated wires while repairing the lights is purely a question of fact. “Where the facts, upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury.” Alabama Power Company v. Alexander, 370 So.2d at 254. Therefore, it was error to grant summary judgment in favor of Alabama Power Company, because a genuine dispute exists.

Against the Club, the Bushes and Armstrong assert claims for damages stemming from the Club’s negligent or wanton failure to provide a safe work place, failure to warn of the dangerous and unsafe condition which existed on the tennis- courts, and failure to notify the power company of the dangerous condition.

It is undisputed that Armstrong is the employee of an independent contractor (Manning). This was settled in the case of Armstrong v. Aetna Insurance Company, 448 So.2d 353 (Ala.1984), an earlier decision of this Court arising out of this accident. Bush is employed by Laing, not the Club. Laing is an employee of the Club. Bush is an invitee of the Club.

The only status of the Club with which we are concerned in this case is its position as a landowner. Its duty as an employer is not in issue, because neither Bush nor Armstrong is its employee. If it were an employer of Bush and Armstrong, it would have a duty to provide a safe work place. However, as a mere landowner, it has no such duty. Therefore, the Bushes’ and Armstrong’s claim for damages resulting from the Club’s failure to provide a safe work place must fail.

The Club, as a landowner, has a duty to invitees to maintain the premises in a reasonably safe condition, or if it is unsafe, to warn of all hidden defects and dangers which are known by it, but which are unknown by, or are not such as ought to be known by, the invitee. Quillen v. Quillen, 388 So.2d 985 (Ala.1980). Bush and Armstrong are invitees. They entered the property to perform work for the benefit of the Club. The Club’s duty to warn of a dangerous condition arises only if the condition is hidden from the invitees and it is known to, or ought to be known to, the Club.

The Bushes and Armstrong argue that the electrical lines were a hidden danger. The Club, on the other hand, contends that the wires were open and obvious. It is undisputed that the wires run directly over the tennis courts and that the view of them is not obstructed in any way from the level of the tennis court. However, there was testimony from Alabama Power’s employees that from the ground, it is almost impossible to differentiate an insulated wire from an uninsulated one. There was also testimony that even if a person knows that a wire is uninsulated, it is still impossible to determine whether it is energized. It is the fact that the wire is uninsulated and energized that makes it dangerous. The engineering experts stated that sometimes people, even though they may observe the wires, are not consciously aware of them because they become part of the background and environs. Whether the lines were a hidden danger or whether they were, in fact, open and obvious is a question of fact within the province of the jury. There is evidence that although the wires were in clear view, they were not “seen,” and the fact that they were energized and uninsulated was not obvious. There is also evidence that the view of the wires was clear and unobstructed and that Bush and Armstrong should have seen them and realized the danger.

Similarly, it is a question of fact whether the Club, through its agents and employees, knew of .the dangerous condition existing on its property. There was testimony from Laing that he knew the wires were there. Whether he realized that they presented a dangerous condition is, again, a fact question: Several other Club employees testified that they were vaware of the wires but, again, whether they were aware of any danger is a question of fact for the jury. Whether or not Laing was negligent is a question of fact.

A landowner’s duty to warn arises only if the danger is known, here to the Club, and unknown to the invitees. These preliminary fact questions are for the jury. It was error to grant the Club’s motion for summary judgment on these disputed facts.

The fact that both Alabama Power and the Club may have been negligent does not, as a matter of law, relieve either one from liability. This Court has long recognized that to be liable for injuries caused by negligence, it is enough if the negligence is but one cause of the injuries, so long as it is also a proximate cause of the injuries:

“ ‘ “ * * * ‘As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes, other than plaintiff’s fault, is the proximate cause of the injury.’ ⅜ * * ”
“ ‘So also in this case, negligence may have existed oh the part of others which concurred with the alleged negligence of the appellee to proximately cause the appellant’s injury. To recover, the negligence, causing the appellant’s injury in this case, need not be the sole proximate cause of her injury, but only its proximate cause, if she was free from negligence contributing thereto.’ ”

Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 290, 267 So.2d 132, 138 (1972), quoting Shepherd v. Gardner Wholesale, Inc., 288 Ala. 43, 256 So.2d 877 (1972), in turn quoting Chambers v. Cox, 222 Ala. 1, 3, 130 So. 416, 418 (1930) (emphasis added in Lawson).

The defendants contend that the two men were contributorily negligent because they were not paying attention and looking out for their own safety as reasonable persons might have, and that had they been doing so, they would not have come into contact with the wires. We have discussed the testimony before the court on motion for summary judgment that persons may observe electrical wires but not be consciously aware of them or know that they are uninsulated and energized. It is a question of fact whether Bush and Armstrong appreciated the danger and used due care to protect themselves. Again, this is a question for the jury. Alabama Power Company v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975). It was error to grant summary judgment in favor of the power company, the Club, and Laing on this basis.

The judgment of the trial court is reversed, and the cause is remanded for trial.

REVERSED AND REMANDED.

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


text:
    Ex parte Robert Lee BUTLER. (Re: Robert Lee Butler v. State).
    83-803.
    Supreme Court of Alabama.
    Sept. 14, 1984.
    Robert Lee Butler, pro se.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for respondent.
   SHORES, Justice.

In quashing the writ, we note the fact that although the conviction for theft of property in the second degree is a nullity (having been announced after the jury was dismissed and after the defendant had left the courtroom, Hayes v. State, 107 Ala. 1, 18 So. 172 (1894)), this in no way affects the sentence of the defendant under the Habitual Felony Offender Act for burglary in the third degree, the defendant having been convicted of two prior felonies.

WRIT QUASHED.

MADDOX, JONES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: SHORES, Justice.

text:
    Hurston Leo KENT, as father of Dana LaGail Kent, deceased v. Perry Franklin SINGLETON and Albert Franklin Singleton.
    83-491.
    Supreme Court of Alabama.
    Sept. 21, 1984.

      John T. Crowder, Jr. and Richard E. Browning of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
    Edward T. Hines and Joe B. Thompson, Jr. of Garretts, Thompson & Hines, Brew-ton, for appellees.
   SHORES, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of the defendant in a wrongful death action tried on a count of wantonness. We affirm.

On April 10, 1981, Dana LaGail Kent, the deceased daughter of the plaintiff, was killed in a single-vehicle accident on Cow Pen Creek Road in Escambia County, Alabama. Kent and the defendant, Perry Franklin Singleton, both eleventh grade students at Escambia Academy, were on their way to a store after leaving a party celebrating their junior-senior prom. As they were traveling on Cow Pen Creek Road in a pickup truck owned by the defendant’s father, the defendant lost control of the vehicle, and it left the road. As a result of the accident, Dana Kent was killed and the defendant sustained serious injuries.

At trial, the defendant testified that he had no opinion as to how fast he was traveling prior to the accident, but that he did not remember traveling at an excessive speed. Two state troopers testified, however, that in their opinion the defendant was traveling at a speed of at least 80 miles per hour.

After the accident, the defendant was taken to Greenlawn Hospital in Atmore, Alabama, where he was given a blood alcohol test at the direction of Woodrow D. Stewart, a state trooper who investigated the accident. The test revealed a blood alcohol level of .12, but the record does not disclose the identity of the person who withdrew the blood sample from the defendant, nor whether standard procedures were followed for taking blood alcohol tests.

This case was tried before a jury in the Circuit Court of Escambia County. During the course of the trial, the plaintiff attempted to offer into evidence results of the blood alcohol test; the offer was objected to by the defendant, and the objection was sustained by the trial judge. At the conclusion of the evidence, the case was sent to the jury, which returned a verdict for the defendant. A timely post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial was made by the plaintiff and denied by the trial judge.

The following issues are raised by the plaintiff on appeal:

1. Did the trial court err in refusing to admit the results of the blood alcohol test administered on the defendant?

2. Was the jury verdict contrary to the great weight and preponderance of the evidence?

We answer both questions in the negative. For sake of clarity, we discuss the issues separately.

The plaintiff argues that he complied with the requisites of Ala.Code 1975, § 32-5A-194 (1983 Repl.Vol.), which authorizes the introduction of blood alcohol test results into evidence. We have held that to admit test results pursuant to the predecessor of § 32-5A-194, which was similar to the present statute with regard to the matter now in question, the party must strictly comply with the statute. Patton v. City of Decatur, 337 So.2d 321 (Ala.1976); see also, Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala.Civ.App.1977). Thus, we must determine whether the plaintiff strictly complied with § 32-5A-194. For purposes of our inquiry, the relevant portion of § 32-5A-194 reads as follows:

“When a person shall submit to a blood test at the direction of a law enforcement officer under the provisions of section 32-5-192, only a physician or a registered nurse (or other qualified person) may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath or urine specimens.” (Emphasis added.)

Kathy Folmar, a registered lab technologist employed at Greenlawn Hospital at the time of the accident, testified as to the circumstances surrounding the withdrawal of the blood sample from the defendant. On cross-examination, Ms. Folmar testified:

“Q. Did you see the blood drawn yourself?
“A. No, sir, I didn’t.
“Q. Did you see the procedure that was followed to draw the blood?
“A. No, I didn’t. I was not in the emergency room.
“Q. I am sorry?
“A. “I was not in the emergency room when it was drawn.
“Q. Do you know who was in the emergency room?
“A. No, sir, I do not.
“Q. So you can’t testify of your own personal knowledge as to how that blood was drawn other than what you think the hospital policy is?
“A. I did not see it but I know the procedure and policy.
“Q. But you don’t know of your own personal knowledge that that procedure and policy was followed, do you?
“A. No, I don’t.”

As the testimony of this witness demonstrates, it cannot be determined that the blood sample taken from the defendant was withdrawn by a person authorized under the statute. We conclude, therefore, that the trial court correctly refused to admit this evidence pursuant to § 32-5A-194.

The plaintiff argues alternatively that the test results are admissible without reference to § 32-5A-194. Indeed, this Court has held that the statute is not an exclusive means for admitting blood alcohol test results. Thus, in McGougk v. Slaughter, 395 So.2d 972, 977 (Ala.1981), we stated:

“[E]ither defendant must have shown the tests were taken in conformity with § 32-5-193 [the predecessor of § 32-5A-194], or he must have laid the proper foundation for their admission under general evidence principles.’’ (Emphasis added.)

In Aycock v. Martinez, 432 So.2d 1274 (Ala.1983), we discussed the requirements necessary for the admission of blood alcohol test results pursuant to general evidence principles. There, in determining whether an adequate foundation had been established where a blood sample had been taken by a coroner, we said:

“While we find no Alabama cases which specifically outline all the requisite elements of a predicate for the admission of scientific test results, it is generally held that such a predicate must show that the circumstances of the taking of the sample, the identification, maintenance, and transporting of it, and the testing itself are scientifically acceptable and reasonably expected to produce results which are accurate and reliable. See, e.g., 29 Am.Jur.2d, Evidence, 830 (1967).”

432 So.2d at 1277.

The plaintiff contends that the circumstances of this case adequately insure the reliability of the blood alcohol test performed on the defendant. We do not agree.

The record does not indicate that the test performed on the defendant was conducted according to accepted scientific methods. The record is silent with respect to the qualifications of the person who withdrew the blood sample. All that the record shows is that on April 10, 1981, a blood sample was taken from the defendant at Greenlawn Hospital by a person whose qualifications are unknown. The mere fact that the blood sample was taken at a hospital does not insure its reliability.

The plaintiff also contends that the jury verdict in this case is unjust and should be set aside. Where the jury verdict is not plainly erroneous, however, we cannot consider other possible conclusions that might have been reached. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978). A jury verdict is presumed correct and will not be set aside unless it is so contrary to the evidence “as to convince this court that it is wrong and unjust.” Dixie Electric Company v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975). Moreover, this presumption of correctness is strengthened where, as here, the trial court denies a motion for a new trial based upon a claim that the verdict is not supported by the evidence. Smith v. Blankenship, 440 So.2d 1063 (Ala.1983).

The jury as the trier of fact is in a better position than this Court to make determinations based upon evidence submitted at trial, and after reviewing the record, we find that there is sufficient evidence to sustain the jury’s decision. We decline, therefore, to set aside the verdict.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.

      . While both Perry Franklin Singleton and his father, Albert Franklin Singleton, were named as defendants, we will refer to the son as "the defendant.”

      . By his own admission at trial, the defendant had consumed at least three and perhaps as many as five cups of beer prior to the accident.

      . Testimony was adduced at trial which described standard procedures for withdrawing blood for blood alcohol tests. Significantly, the area of the subject’s body from which the blood is drawn is cleaned with a non-alcohol solution to preserve the integrity of the sample.


text:
    Jerry GALIN, Fred Galin and Diann Richter v. Katherine JOHNSON, et al.
    83-553.
    Supreme Court of Alabama.
    Sept. 21, 1984.

      Don L. Hardeman of Hardeman, McClellan & Copeland, Cullman, for appellants.
    Henry T. Henzel, Birmingham, and Bland, Bland & Weldon, Cullman, for ap-pellee Katherine Johnson.
    John Mark Sapp of Sapp, Sapp & Sapp, Cullman, for appellees Susie Smith, Everett Galin, Amanda Williamson and Fritz Galin.
   SHORES, Justice.

Lena Galin died testate on January 8, 1978. Her will was admitted to probate, and letters testamentary were granted her executrix, Katherine Johnson, on May 6, 1982, by the Probate Court of Cullman County, Alabama.

The beneficiaries under the will are her surviving children and the three children of one of her sons. Under the specific provisions of her will, Lena Galin granted her executrix broad discretionary powers to administer her estate. The will specifically provides:

“None of the parties named as executrix or executors herein shall be required to make bond as such and none of them shall be required to make any settlement accounting or inventory in or out of Court as such executrix or executor.”

The will also authorized and empowered the executrix to sell the estate property, real and personal, and to divide the proceeds among the beneficiaries of the will. She granted the executrix the power to make the appropriate deeds and conveyances and to sell the property for cash or credit. The will provided that the executrix could exercise the same “discretion as [testatrix] could do if living.” It also provided that “[a]ny beneficiary hereund[er], including the executrix or executors is authorized and empowered to purchase from the executrix or executors.”

Katherine Johnson sold three parcels of real estate included in the estate on January 7, 1983. A parcel consisting of fifty acres she sold to herself. Another parcel containing sixty acres was sold to her daughter, Amanda Williamson, and a third parcel containing some twenty acres was sold to her sister, Susie Smith, who is also a beneficiary under the will. The total sales price for the three parcels was $70,-875.00

Following the sales, the executrix informed the grandchildren beneficiaries of the sales price and tendered them checks each in the amount of $3,791.00, equal to their pro rata share of the proceeds from the sales. The administration of the estate was removed from the Probate Court of Cullman County to the Circuit Court of Cullman County on the petition of Jerry Galin, one of the grandchildren beneficiaries. On April 20, 1983, he and the two other grandchildren beneficiaries filed suit against Amanda Williamson, Susie Smith, Fritz Galin, and Everett Galin, heirs and/or purchasers from the estate, and against Katherine Johnson individually and in her capacity as executrix of the estate.

In Count I of their complaint, the grandchildren allege that the sale of the land was illegal and improper and ask that the sales be set aside and that the land be sold at public auction. Count II of their complaint alleges that the executrix wasted and converted the estate and seeks her removal as executrix and an accounting of the assets of the estate.

In response to the complaint, Katherine Johnson, on May 23, 1983, filed a motion for a more definite statement and a motion to dismiss. On May 24, 1983, the remaining defendants also filed a motion to dismiss and a motion for a more definite statement. In each of their motions, the defendants allege that the sales and purchases of the property complained of in the complaint were properly made under the authority and the power granted in the last will and testament of Lena Galin, and that it affirmatively appears in the allegations of the complaint and the accompanying exhibits that the sales and purchases of the estate lands were proper.

The hearing on the defendants’ motions was held on June 2, 1983. At that time, Katherine Johnson submitted a brief in support of her motions. The trial court gave the plaintiffs two weeks to respond to Mrs. Johnson’s brief and gave them leave to amend their complaint. Plaintiffs filed their brief on August 26, 1983. Subsequently, on January 3, 1984, the trial court dismissed the complaint and made the following findings:

“The Last Will and Testament of Lena Galin provided for a sale of any of the subject property to any beneficiary under said Will, including the Executrix. There is no public policy, statutory, or case law, which prohibits such a Will provision and such provision will be given the intended effect. This authorization by the testator, by implication, authorizes a sale, either public or private, with or without notice. The limitations appear to be that the Executrix must use such discretion as a testator would use and with regard to the sales of the property in question, the sales should result in a ‘fair price’ and be conducted and concluded in ‘good faith.’ In light of these provisions of law, none of the allegations of the Complaint state a cause of action.”

Under the trial court’s order, the plaintiffs had twenty days in which to amend their complaint. They declined to amend and filed this appeal.

When reviewing the grant of a motion to dismiss, the proper test to be applied is “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Dempsey v. Denman, 442 So.2d 63, 65 (Ala.1983), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Upon consideration of such a motion, the allegations of the complaint are construed in a light most favorable to the complainant, with all doubts and allegations resolved in his favor. Weeks v. East Alabama Water, Sewer and Fire Protection District, 401 So.2d 26 (Ala.1981).

The intention of the testator is the law of the will, which should be considered as a whole, giving effect to each provision where possible. It is the Court’s duty to carry out the testator’s intention where that intent can be ascertained. Smith v. Smith, 387 So.2d 134 (Ala.1980); Cates v. Bush, 295 Ala. 256, 326 So.2d 742 (1976). To determine that intent we look to the four corners of the instrument. Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972). If the language of the will is unambiguous and clearly expresses the testator’s intent, that language must govern. Matter of Estate of Hensley, 413 N.E.2d 315 (Ind.App.1980).

Appellants argue that the sale by the executrix to herself is voidable, even though the will allows such a conveyance. The rule forbidding the purchase of estate property by an executor at his own sale does not apply where the will provides otherwise, as in the present situation. 33 C.J.S. Executors and Administrators § 288 (1955).

The language of paragraph four of the testatrix’s will clearly shows her intent to give her beneficiaries or any of them, including her executrix or executors, the power to buy the estate property. It reads:

“4. I nominate and appoint Katherine Johnson as executrix of this my last will and testament, and if for any reason she fails, declines or refuses to serve, I appoint Jerry Galin and Fred C. Galin as executors hereof, and if either of them fails, declines or refuses to serve, then the other shall serve with all the authority and powers conferred herein on both. None of the parties named as executrix or executors herein shall be required to make bond as such and none of them shall be required to make any settlement accounting or inventory in or out of Court as such executrix or executor. My executrix or executor, whether one or more, is authorized and empowered to sell all the property comprising my estate, whether real, personal or mixed; and divide the proceeds among the beneficiaries hereunder, and any sum which shall be due Ernest R. Galin from the proceeds of any sale shall be managed by my executors hereunder as Trustees for his benefit without bond or accounting. Such Trustees in the management thereof to have the same authority and discretion as if the Trust property were their own. To carry out the provisions of the will, my executrix, or the one acting as executor, is authorized and empowered to sell any property herein given, devised and bequeathed, and to make appropriate deed and conveyances to the purchaser or purchasers, using such discretion as I could do if living. Such sale or sales to be made for cash or for credit as the executrix sees fit. Any beneficiary here-un[der], including the executrix or executors is authorized and empowered to purchase from the executrix or executors.”

Katherine Johnson purchased a parcel of land and conveyed parcels to the other purchasers who were also beneficiaries, under the express authority of the above paragraph. The grandchildren do not allege fraud, accident, or mistake in their complaint. Their only basis for setting aside the sale is the alleged inadequacy of the price obtained for the property, and the fact that they were not notified prior to the sale. These facts, in and of themselves, under the provisions of this will, are not sufficient to compel a decree setting aside the sales. See, Penny v. Jackson, 85 Ala. 67, 4 So. 720 (1887). Whether to sell the land at public or private sale, or at all, was left to the discretion of the executrix. A court should interfere with that discretion only where there is fraud or a manifest abuse of that discretion. Koplon v. Koplon, 274 Ala. 214, 148 So.2d 245 (1962); Burton v. Jones, 212 Ala. 353, 102 So. 807 (1925).

The Supreme Court of Pennsylvania considered a situation similar to the one before us in In re Wallace’s Estate, 299 Pa. 333, 149 A. 473 (1930). There the will expressly provided that the executor of the estate would have the first opportunity to purchase the estate property, consisting of an interest in a newspaper. The Court there held that the rule forbidding the purchase of estate property by the executor does not apply where the will expressly provides otherwise. We agree with that analysis.

Appellants primarily rely on the case of Craig v. Craig, 372 So.2d 16 (Ala.1979). They argue that the rule in that case is applicable to the present situation. Craig held that the sale by the executor of estate lands to himself is voidable at the option of the distributees of the estate, upon timely application, except in one situation. The single exception to this rule is where the executor or administrator has an interest in the property sold, and the land is sold fairly, at a public sale, and so as to command the best price. In that instance, the sale is not voidable. Craig, supra, at 19. See, also, Bank of Wetumpka v. Walkley, 169 Ala. 648, 53 So. 830 (1910); Penny v. Jackson, supra. That rule has no application to the present situation. In the present case, the will conferred on the executrix not only a general power of sale, but, in addition, expressly authorized her to purchase the land herself. The will in Craig, to the contrary, directed the executor to sell eighty acres and use the proceeds to reimburse the executor for hospital bills, doctors’ bills, medical expenses, and attention paid to the testator by the executor. Contrary to the terms of the will, the executor deeded the eighty acres to himself, in consideration of “support and medical bills.” There, the Court upheld the trial court in setting aside the sale.

Where by the language of the will the clear intention of the testatrix is expressed, giving her executrix the right to sell estate property and to purchase the same herself, the rule making sales of estate property by the executor of the estate to himself voidable at the option of the beneficiary has no application. We can only speculate as to why the testatrix granted her executrix such broad and unlimited power to administer her estate, but she has a legal right to do so, and our duty is to effectuate her unambiguous intention. We agree with the trial court that the sales are valid, and the judgment on the defendants’ motions to dismiss was proper and is affirmed.

In Count II of their complaint, the grandchildren ask for an accounting and the removal of Katherine Johnson as executrix. The fitness of an executor named in a will is controlled by statute. Riley v. Wilkinson, 247 Ala. 231, 23 So.2d 582 (1945). Section 43-2-290, Ala.Code 1975, states the grounds for the removal of an executor as:

“(1) Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties; or when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate.
“(2) Failure to make and return inventories of accounts of sale; failure to make settlements as required by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate.
“(3) The wasting, embezzlement or any other maladministration of the estate.
“(4) The using of any of the funds of the estate for his own benefit.
“(5) A sentence of imprisonment in the penitentiary, county jail or for hard labor for the county for a term of 12 months or more.”

This Court held in Binford v. Penney, 255 Ala. 20, 49 So.2d 665 (1950), that the power to remove an executor does not extend beyond the grounds set forth in the statute.

The procedure to follow in seeking the removal of an executor is also statutory. Section 43-2-293, Ala.Code 1975, states:

“Application for the removal of any executor or administrator, or for an additional bond, must be in writing, verified by oath, must specify the grounds of complaint and must be made to the court from which letters issued, or in which the administration is pending; and may be made by any creditor, legatee, devisee, heir or distributee, or by any coexecutor, coadministrator or the sureties, or any of them.”

The grandchildren have made no attempt to follow the procedure as outlined in the Code. Their complaint is devoid of any statutory ground for removal of the executrix and is unverified. Thus, it was correctly dismissed.

The grandchildren also seek an accounting. The will of Lena Galin expressly exempted the executrix from the necessity of making an inventory or report or from filing any final settlement. This provision is in keeping with the provisions of § 43-2-311, Ala.Code 1975, which states:

“Any testator may, by express provision in his will to that effect, exempt an executor from filing an inventory or making any report or final settlement, and when such provision is made, such inventory, report or final settlement shall not be required except in the following cases....”

That section also provides the proper procedure to follow when dissatisfied with the actions of the executor. That section requires that the “execut[rix], heir, legatee, or other person interested in the estate” make an affidavit showing that his interest in the estate is endangered.

Because of the foregoing, the grant of the defendants’ motions to dismiss was proper; therefore, the judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur.


author: MADDOX, Justice.

text:
    Norman TIDWELL v. Susan STRICKLER and Howard Strickler.
    83-858.
    Supreme Court of Alabama.
    Sept. 21, 1984.

      Tom Drake, Cullman, and Sherman B. Powell, Jr., Decatur, for appellant.
    James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellees.
   MADDOX, Justice.

This is an appeal of a suit to recover possession of approximately two acres of farm land in Winston County.

The following facts are undisputed: The property in question is located in the southwest quarter of the northwest quarter of section 22, township 10, range 7 west, in Winston County. The entire southwest quarter of the northwest quarter of section 22 was at one time owned by two sisters, Mrs. Ira Alford and Mrs. Mattie Hunter Hulsey. Mrs. Alford owned the west half, and Mrs. Hulsey the east half.

On or about December 1, 1954, Mrs. Alford and her husband, J.W. Alford, conveyed to O.B. and Myrtie Hunter, in addition to other property not at issue,

“16 acres more or less S. of the Double Springs and Cullman highway on the West side of the SW ¼ of NW ¼ Sec 22 TP 10 R7W beginning on the N line running east and west beginning in center of said 40 acres thence South to the line running east and west of said 40 acres all in TP 10 R7W.”

Thereafter, the Hunters conveyed the same to their daughter Betty (Hunter) Hunter, and her husband, John O. Hunter. On or about May 26, 1982, John O. and Betty (Hunter) Hunter conveyed the following to Howard and Susan Strickler (plaintiffs):

“All that part of the West of the Southwest quarter of the Northwest quarter of Section 22, Township 10, Range 7 West lying South of U.S. Highway 278 and East of the Houston Road, County Road 63; containing two acres more or less.”

Norman Tidwell purchased the entire east half of the forty acres from the heirs of Mattie Hulsey by way of several deeds dated between 1974 and 1976.

In 1982, the Stricklers employed W.H. Owens, a surveyor and engineer, to survey the dividing line between the east and west halves of the southwest quarter of the northwest quarter of section 22. That survey appears as Appendix A.

On January 25, 1983, the Stricklers brought suit in Winston County Circuit Court, seeking to recover possession of:

“All that part of the West ½ of the Southwest ¼ of the Northwest xk of Section 22, Township 10, Range 7 West, lying south of U.S. Highway 278 and East of the Houston Road, County Road 63; containing 2 acres, more or less, situated in Winston County, Alabama, LESS AND EXCEPT a strip of land in the NW corner of said tract where a building is located which is occupied by the defendant.”

Tidwell answered, asserting title by prescription and/or adverse possession, and disputed the accuracy of Owens’s survey, upon which the Stricklers’ claim was based. After an ore tenus hearing on July 6, 1983, the trial court rendered the following order on January 31, 1984:

“ORDER

“This cause coming on to be heard on the pleadings and the testimony and evidence taken in open court, now upon consideration of the foregoing, it is ordered, adjudged and decreed as follows:
“1. The plaintiffs Susan Strickler and husband Howard Strickler shall have and recover of defendant Norman Tidwell the possession of the following-described real property, namely:
“All that part of the West ¾⅛ of the Southwest Vs of the Northwest Vi of Section 22, Township 10, Range 7 West, lying South of U.S. Highway 278 and East of the Houston Road, County Road 63, containing 2 acres, more or less, situated in Winston County, Alabama.
“2. The Court strongly suggests to plaintiffs that they record in the office of the Probate Judge of Winston County, Alabama, Plaintiff’s Exhibit 2 in this cause.
“3. Obviously, the Court cannot adjudicate any questions of title, adverse possession, or similar questions as to persons who are not parties to this lawsuit.
“4. The costs, in this cause are taxed against the defendant, for which if not paid, let execution issue according to law.”

Tidwell appeals here, asserting that the trial court erred by: (1) failing to establish a boundary line between the conterminous landowners; (2) failing to determine that he (Tidwell) owns the disputed property under color of title, by adverse possession or prescription; and (3) failing to apply principles of tacking to establish his adverse possession claim. We affirm.

The basic dispute is over the triangular or pie-shaped parcel of land bounded on the west by Houston Road (which is designated on Owens’s survey by the word “pavement”), on the north by U.S. Highway 278, on the south by southern boundary of the southwest lk of the northwest Vt of section 22 (designated on Owens’s survey as N-88°-54'-30"E), and on the east by the disputed dividing line between the forty acres (designated as N-0°-58'-15"W). The Stricklers contend that they own the parcel by virtue of their deed from the Hunters and by their claim that the eastern boundary of their property is the disputed dividing line, as shown on Owens’s survey. Tid-well, on the other hand, claims the parcel by virtue of his ownership of the eastern half of the forty acres, the western boundary of which, he claims, is and always has been, Houston Road. In the alternative, he contends that, even if Houston Road is not ■the western boundary of his property, he and his predecessors have openly, hostilely, continuously, notoriously, and exclusively possessed the disputed parcel for ten years, thereby acquiring title by adverse possession.

We must first reiterate our oft-quoted standard of review in these cases; a judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed correct and need only be supported by credible evidence. If so supported, the trial court’s conclusions will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Grooms v. Mitchell, 426 So.2d 820 (Ala.1983); Evans v. Green, 411 So.2d 788 (Ala.1982); McGilberry v. Belcher, 347 So.2d 370 (Ala.1977).

Tidwell maintains that no boundary line was established by the trial court, in violation of Code 1975, § 35-3-3; which provides in pertinent part that “[t]he judgment shall locate and define the boundary lines involved by reference to well-known permanent landmarks.”

We have previously held that decrees establishing boundaries between coterminous lands must be reasonably definite and certain in their descriptions and that ascertained boundary lines must be capable of being physically identified, their description leaving no room for the exercise of discretion as to their location. Ray v. Robinson, 388 So.2d 957 (Ala.1980). The trial court’s present description was sufficiently certain. Not only did the Court refer to ascertainable and definite boundaries, such as public roads and government survey lines, which the evidence shows are fixed by permanent markers, but it also incorporated by reference Owens’s survey showing these boundaries. While mere reference to a survey, without a further undertaking to describe a boundary, renders a decree insufficient, nevertheless, where permanent monuments, natural or artificial are shown in evidence or are incorporated in the decree, they will suffice to fix a boundary: Ray, supra, citing Limbaugh v. Comer, 265 Ala. 202, 90 So.2d 246 (1956).

As to Tidwell’s adverse possession claim, in Alabama there are basically two types of adverse possession; statutory adverse possession, and adverse possession by prescription. Both require the common elements of actual, exclusive, open, notorious, and hostile possession under a claim of right, but the statutory version, which requires possession for only ten years rather than the twenty years required by the prescription version, also requires that the possessor hold under color of title, have paid taxes on the property for ten years, or have derived his title by descent or devise. Code 1975, § 6-5-200. Downey v. North Alabama Mineral Development Co., 420 So.2d 68 (Ala.1982). However, in cases like the present one, where adverse possession is claimed by a conterminous owner, the three latter requirements do not apply. Thus, a conterminous landowner, like Tid-well, must prove open, notorious, hostile, continuous, and exclusive possession for only ten years. He need not prove either a deed or color of title to the property, annual listings for taxation, or descent or devise from a predecessor in order to maintain his claim. Mardis v. Nichols, 393 So.2d 976 (Ala.1981).

Nevertheless, as in all adverse possession cases, possession cannot be presumed to be hostile. Cockrell v. Kelly, 428 So.2d 622 (Ala.1983). The burden rests upon the party asserting the adverse claim to prove actual, hostile, open, notorious, exclusive, and continuous possession for the statutory period, Grooms, supra, and such proof must be by clear and convincing evidence. Storey v. Patterson, 437 So.2d 491 (Ala.1983). Whether the evidence establishes adverse possession is a question of fact, the determination of which, when made upon evidence presented ore tenus, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly wrong or manifestly unjust. Smith v. Clark, 341 So.2d 720 (Ala.1977). In view of evidence presented at trial tending to show that prior to Tidwell’s suits, no one had ever disputed the Stricklers’ or their predecessors’ title, that Tidwell’s predecessors had farmed the parcel only with the Stricklers’ predecessors’ consent, that between 1954 and 1975 the land was allowed to lie fallow, overtaken by weeds, that after Tidwell acquired the eastern half of the forty acres in 1975, he too farmed the disputed property only with the permission of the Stricklers’ predecessors, and that he offered to purchase the disputed parcel from them, we have grave doubts as to whether either Tidwell’s or his predecessors’ possession of the land in question was hostile, open, notorious, exclusive, or continuous. Therefore, we cannot say the trial court erred in finding no adverse possession by Tidwell.

We are aware that because Tid-well had not owned the conterminous property or possessed the tract for at least ten years, his only possibility of establishing adverse possession rested upon application of the principles of tacking. We are also aware that tacking is, generally, permitted in favor of conterminous landowners. Johnson v. Brewington, 435 So.2d 64 (Ala.1983). We are not, however, convinced, as is Tidwell, that the trial court did not apply the principle here. Even though the trial judge did not set forth specific findings of fact, we believe that he had ample evidence before him concerning Tidwell’s predecessors’ possession and use of the disputed property, and that he considered the applicability of tacking but simply found Tid-well’s predecessors’ possession, like Tid-well’s, to be nonadverse. In the absence of specific findings of fact by the trial court, we will assume that the trial judge made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight of the evidence. Powers v. Board of Control, 434 So.2d 745 (Ala.1983). The findings we have described are supported by the evidence.

AFFIRMED.

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