text:
    Patsy HENSON v. ESTES HEALTH CARE CENTER, INC. and Insurance Company of North America.
    82-892.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      C. Delaine Mountain and Herbert M. Ne-well, III, Tuscaloosa, for appellant.
    Michael K. Wright of Norman, Fitzpatrick & Wood, Birmingham, for appellee Insurance Co. of N.A.
    Wilbor J. Hust, Jr., of Zeanah, Donald & Hust, Tuscaloosa, for appellee Estes Health Care Centers, Inc.
   SHORES, Justice.

This is an appeal of a workmen’s compensation case.

On August 7, 1981, Patsy Henson sustained an injury to her right hand in the course of her employment with Estes Health Care Center (Estes). She took leave of her employment and sought medical treatment. In January 1982, her treating physician reported that she had a 35% permanent partial disability of the right hand. Henson related this information to the claims representative at Insurance Company of North America (INA), her employer’s compensation carrier. The claim was settled strictly according to § 25-5-57(a)(3)(a), Code 1975 (scheduled permanent partial disability), using the 35% medical disability rating, and it was approved by the Circuit Court of Tuscaloosa County.

It is undisputed that INA did not consider Henson’s alleged loss of her wage earning capacity when computing the amount of the settlement. It is also undisputed that at the time of the settlement, Henson had not attained “maximum medical improvement” or returned to work. She claims she has been unable to work since the date of the accident because of her inability to write legibly in the medical charts, a requirement of her position as a licensed practical nurse. She claims this is a direct result of the August 7,1981, injury.

Henson brought this action against Estes and INA, seeking in count one to vacate her settlement on the ground that it was procured by fraud, undue influence, and coercion. Code 1975, § 25-5-56. In the remaining counts, she seeks damages for tor-tious misrepresentation and negligence. Count one is the only one before us on this appeal. INA and Estes filed motions to dismiss all the counts. INA’s motion was considered as a motion for summary judgment, and the matter was set for a hearing. Although designated a hearing on the motions, the record indicates that a trial on the merits of the action to set aside the settlement was held, and that is what we shall consider it. Witnesses were sequestered and called under Rule 43(b), A.R.Civ.P., as hostile witnesses. Costs were taxed to Henson, the losing party. Evidence was offered and admitted, and the trial judge’s judgment was made upon “consideration of the evidence, argument and law submitted by counsel.” The trial court held that “no misrepresentation was made to the plaintiff therefore the defendants’ Motions to Dismiss are granted as a matter of law and there is no genuine issue as to any material fact.” We affirm.

Henson admits that her medical disability was 35% to her right hand, but contends that when it is compounded by her diminished ability to earn, her disability translates to a much more severe one. In other words, she claims that the settlement should not have been based on the schedule for permanent partial disability to a member as set forth in § 25-5-57(a)(3), but on the computations set out under § 25-5-57(a)(3)(g) (compensation for permanent partial disabilities not enumerated) or § 25-5-57(a)(4) (permanent total disability).

The gist of Henson’s argument is this: She claims that INA and Estes had a duty to disclose to her that she had a potential claim for her loss of earning capacity under either of the above sections. She claims that their failure to disclose is actionable concealment and is the type of fraud which requires the court to set aside her settlement.

A duty to disclose arises from a confidential relationship, of which there is no evidence in this case, or from the particular circumstances of the case. Code 1975, § 6-5-102. Henson argues that she had no counsel for the settlement and relied entirely upon the INA claims representative for information. She claims that a duty to disclose arises in this situation. Her reliance upon INA and Estes to disclose what the act says she may recover was unjustified. There is no duty to disclose laws which are accessible to and presumed to be known by all. Spry Funeral Homes, Inc. v. Deaton, 363 So.2d 786 (Ala.Civ.App.1978).

Henson also claims that INA’s claims representative misrepresented that she was not entitled to more than she actually received. She testified that INA’s claims representative told her that if she settled the claim, she would receive $7,536.86. This amount is the scheduled amount for a 35% permanent partial disability of the hand. In response to Henson’s inquiry of whether that was all she could get, the claims representative allegedly said, “Yes, that’s all you will receive due to the fact that it is a 35 percent disability.” Henson’s testimony about whether she ever told INA that she was disabled to an extent greater than 35% of the hand was equivocal.

The claims representative testified that she was unable to recall her exact words when discussing the settlement with Henson, but her general practice was to tell claimants that “according to their [medical disability] rating, [this is what] we’re willing to pay.” A careful review of the record does not indicate that INA or Estes had knowledge from any source that Henson was more disabled than the physician’s report indicated. The claims representative said that the settlement was made in reliance upon the physician’s disability rating. Henson agreed to the settlement with the understanding that it was made before she had reached maximum medical improvement.

This was an ore tenus hearing, and the trial court’s findings on the material, disputed facts will be given a presumption of correctness. We cannot overrule the trial court’s judgment absent a showing of insufficient evidence or a verdict which is palpably wrong. Gulledge v. Frosty Land Foods International, Inc., 414 So.2d 60 (Ala.1982). The trial court could have determined that INA and Estes did not, and could not, have known that Henson was more disabled than reported because of vocational limitations caused by the initial injury. It was, therefore, proper to find that the alleged statements of the claims representative were not misrepresentations.

AFFIRMED.

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

      . Originally, this appeal had been filed in the Court of Civil Appeals. That Court determined that this action was basically a claim for fraud and transferred the appeal to this Court. This action is brought pursuant to § 25-5-56, Ala. Code 1975, part of the Alabama Workmen’s Compensation Act, and is clearly a compensation case which is reviewable by the Court of Civil Appeals by petition for writ of certiorari. Ala.Code 1975, § 25-5-81(d). Nonetheless, we retain jurisdiction, in the interest of avoiding further delay, and write to the merits.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    CASUALTY INDEMNITY EXCHANGE, a corporation v. Jack YOTHER d/b/a Mickey Motors.
    82-949.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      William C. Gullahorn, Jr., Albertville, and William A. Scott, Jr. and William G. Gantt of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellant.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellee.
   SHORES, Justice.

This case grew out of the following facts:

In May 1982, Jack Yother, d/b/a Mickey Motors, purchased an automobile policy of insurance from Casualty Indemnity Exchange (CIE), covering Yother’s 1979 International Harvester tractor-trück. During the pre-dawn hours of August 1,1982, while this policy was in full force and effect, the tractor was stolen from the insured’s place of business. The tractor was never recovered. It is undisputed that there was a loss, and that it was covered by the aforesaid policy.

Yother submitted proof of loss for the stolen tractor to his insurance agent, claiming a loss of $40,000, the policy limit. In response, he received the following letter:

“Dear Mr. Yother:
“This is to inform you that Casualty Indemnity Exchange has rejected your Proof of Loss which you submitted to them on September 17, 1982.
“The reason for the rejection is that they are not in agreement with actual cash value you have placed on the 1979 International Tractor. They consider the tractor to have a value no greater than $35,-000.00.
“Since a dispute has arisen you are entitled to call upon that provision of your policy which provides for arbitration. “Please follow the procedure outlined in the provision and direct your correspondence to the writer.
“Yours truly,
“Robert C. Carroll, Adjuster”

The provision of the insurance policy referred to in Carroll’s letter states:

“2. Appraisal. If the insured and the company fail to agree as to the amount of loss, each shall, on the written demand of either, made within sixty days after receipt of proof of loss by the company, select a competent and disinterested appraiser, and the appraisal shall be made at a reasonable time and place. The appraisers shall first select a competent and disinterested umpire, and failing for fifteen days to agree upon such umpire, then, on the request of the insured or the company, such umpire shall be selected by a judge of a court of record in the county and state in which such appraisal is pending. The appraisers shall then appraise the loss, stating separately the actual cash value at the time of loss and the amount of loss, and failing to agree shall submit their differences to the umpire. An award in writing of any two shall determine the amount of loss. The insured and the company shall each pay his or its chosen appraiser and shall bear equally the other expenses of the appraisal and umpire.”

The insured notified CIE by letter that he had elected to invoke the arbitration clause to settle the dispute over the actual cash value of his tractor. The insured and CIE subsequently executed a “Memorandum of Appraisal,” in which the insured appointed Elmer Mann as his appraiser, and CIE named Buddy O’Neal as its appraiser.’

Mann, a local International Harvester truck and tractor dealer, had sold the insured the 1979 International Harvester tractor-truck. Mann was familiar with both the features and condition of the tractor at the time it was stolen. O’Neal, owner of a truck lot, had never seen the tractor and had no personal knowledge of its condition. After a telephone conversation and a personal meeting, the two men failed to agree on the value of the tractor.

Pursuant to the policy provision, Mann and O’Neal selected and appointed Leon Lucas, an employee of International Harvester Company, as umpire. Prior to submitting the matter to Lucas, however, Mann and O’Neal executed an instrument divided into the following sections: “(1) Declaration of Appraisers”; (2) “Selection of Umpire”; (3) “Qualification of Umpire”; and (4) “Award.” The first three sections relate to acknowledgement by the appraisers and the umpire of their respective duties. The fourth section, entitled “Award,” states that the undersigned appraisers and umpire “have appraised and determined and do hereby award as the actual value” of the stolen property, and provides a space for the amount of the award to be inserted. Although the two appraisers were still not in agreement as to the value to be awarded, both signed the form in blank and forwarded it to Lucas. Lucas, without consulting either appraiser or the insured, entered a figure of $36,500 and signed the form, dated December 16, 1982. The insured received notice of the award on January 10, 1983.

The insured appealed from the Award of Arbitration, as provided by § 6-6-15, Code 1975, and asked the circuit court to set it aside. He alleged that the award was void because it was not made in substantial compliance with applicable provisions of the Alabama Code, and because the insured was not given notice of the hearing and was not allowed to present any evidence of the value of the tractor. The award was entered as a judgment in the records of the Circuit Court of Marshall County, pursuant to § 6-6-15, Code.

Following a hearing, the trial court set aside the award, stating in part:

“(a) That the procedure contemplated in Code Sections 6-6-1 through 6-6-16 was not substantially followed in that no notice of any kind was given to the plaintiff, Jack Yother, and he had no opportunity to present any evidence to any of the arbitrators or appraisers except to the arbitrator or appraiser designated by him.
“(b) That said statutory scheme referred to in said Code Sections was not otherwise substantially followed.
“(d) That the parties hereto did not agree for the dispute between them to be resolved pursuant to said Code Sections.”

CIE appeals, and we affirm.

CIE argues that the procedure employed in determining the actual cash value of Yother’s tractor was an appraisal, not an arbitration. As such, CIE contends that the trial court, by relying on § 6-6-1, et seq., to vacate the award, erred because those Code provisions do not apply to an “appraisal award” made pursuant to an insurance contract. We agree that an appraisal is distinguishable from arbitration and is not subject to the various procedural requirements imposed upon the arbitration process. But whether the procedures required are those of an arbitration or of an appraisal must be determined from the intent of the disputants or from the character of the questions and issues to be answered, or both. 5 Am.Jur.2d Arbitration and Award, § 3 (1962).

CIE claims that Yother knowingly entered into an appraisal agreement to resolve the dispute over the actual cash value of his tractor, and that neither party intended for that determination to be subjected to the various procedural requirements under the arbitration article of the Code; in support of that agreement, CIE points out that neither the policy provision nor the “Memorandum of Appraisal,” signed by the insured, uses the word “arbitration.” However, we note that the letter from CIE’s adjuster, rejecting the insured’s original loss claim, advises him that he is entitled to “call upon that provision of [his] policy which provides for arbitration.” And the insured responded that he desired to exercise his right “as per policy agreements of arbitration.”

Arbitration and appraisal are generally distinguished in the following manner:

“A distinction is often drawn between an arbitration and a mere appraisal or valuation, or proceeding in the nature of an appraisal, the fundamental difference between the two proceedings being held to lie in the procedure to be followed and the effect of the findings. In other words, the point is made that appraisers, unlike arbitrators, act without hearing or judicial inquiry upon their own knowledge or information acquired independent of the evidence of witnesses; and that the appraisal ordinarily settles only a subsidiary or incidental matter rather than the main controversy as does an arbitration award.”

6 C.J.S. Arbitration, § 3 (1975).

“An agreement for arbitration ordinarily encompasses the disposition of the entire controversy between the parties upon which award a judgment may be entered, whereas an agreement for appraisal extends merely to the resolution of the specific issues of actual cash value and the amount of loss, all other issues being reserved for determination in a plenary action before the court. Furthermore, appraisers are generally expected to act on their own skill and knowledge; they may reach individual conclusions and are required to meet only for the purpose of ironing out differences in the conclusions reached; and they are not obliged to give the rival claimants any formal notice or to hear evidence, but may proceed by ex parte investigation so long as the parties are given opportunity to make statements and explanations with regard to matters in issue.”

5 Am.Jur.2d Arbitration and Award, § 3 (1962).

Conceding, as CIE argues, that the two proceedings are different, we hold that the trial court did not err in setting aside the award in this case, whether it is labeled arbitration or appraisal.

First, because the insured was given no notice of the hearing, he was denied the opportunity to offer testimony or other evidence of the condition and value of his tractor at the time of loss. He testified that he requested, on two separate occasions, that he be permitted to appear before the hearing. The insured stated that he made one request to Mann, his appraiser, and another request to his insurance agent, Gerald Martin. He further testified that Martin told him that his request would be forwarded to CIE. This evidence was not challenged. The fact that neither the policy provision nor the agreement expressly provides for notice to the parties is not determinative.

“It has been held that even though neither the insurance policy nor the arbitration or appraisal agreement provides for it, notice to the parties of a hearing before the appraisers or arbitrators appointed to determine the amount of a loss under the policy is nevertheless necessary when one of the parties manifests a desire to be heard.”

Annot., 25 A.L.R.3d 711 (1969).

Secondly, a hearing was never conducted. It is undisputed that the two appraisers signed a blank award form without having agreed upon a value for the tractor-truck, and that Lucas, the umpire, entered the amount of the award without having consulted the appraisers or having received evidence from the insured as to the tractor’s condition. Thus, the policy provision was not complied with. It requires concurrences of two of the three, i.e., the two appraisers and the umpire, and it is not controverted that Lucas alone made the award without notice to the insured, without a hearing, and without any evidence. Mann’s testimony in this regard was undisputed:

“Q. Did you sign each of these documents on the same day?
“A. The two of us, yes.
“Q. And Mr. O’Neal signed on the same day?
“A. Yes.
“Q. Now, the bottom document says in part: We hereby certify that we have truly and conscientiously performed, et cetera, and do hereby award as the actual cash value of the property on the 16th day of December, 1982, the amount of the loss thereto by ... blank ... on that day . . . the following sum, to-wit: actual cash value $36,500. Was that figure, $36,500, in this document when you signed it?
“A. No.
“Q. Was it in this document when Mr. O’Neal signed it?
“A. No.
“Q. Did you agree that $36,500 was the actual cash value of Mr. Yother’s truck?
“A. No.
“Q. Why did you sign the bottom document?
“A. Well, the idea I had and that Mr. O’Neal had on arbitration, we thought that if he and I couldn’t agree ... if we picked a third party, we were bound by his appraisal.
“Q. And you all couldn’t agree?
“A. No.

In Dufresne v. Marine Ins. Co., 157 Minn. 390, 196 N.W. 560, 562 (1923), a case involving facts similar to those of the present case, the Supreme Court of Minnesota stated:

“[Sjince the universal idea of a proper determination of a controverted matter between man and man rests upon a fair hearing of both sides, it would seem to follow that an arbitration without such hearing should not be upheld, unless it satisfactorily is made to appear either that a hearing was not contemplated or else that it was waived. The court expressly found that plaintiff did not waive notice of the hearing, and that he expected and intended to be present and give evidence, but was prevented from attending and presenting his evidence because of lack of notice and knowledge of the meeting of the appraisers. The finding is sustained, we think. The claim cannot be successfully maintained that this is a case where no hearing was contemplated either because of the character of the subject to be appraised or because of the expert qualifications of the appraisers selected. Two of the appraisers had never seen the automobile. It could not be produced. They could therefore act only upon information obtained from others. And naturally, in such a case, the owner who has sustained the loss should have an opportunity to adduce evidence as to the value and qualities of the article.”

It is fundamental that one is entitled to notice and an opportunity to be heard where property rights are affected. The insured asserted that right, and it was denied. CIE argues only that the policy provision is silent with respect to notice and, because it is, that the insured was entitled to none. We cannot agree, where the evidence is undisputed that he demanded notice and an opportunity to produce evidence. The foregoing statement by the Minnesota court is applicable under the facts of this case, whether it is considered a hearing held by “appraisers” or an arbitration hearing.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Donald SEARIGHT v. CUMMINGS TRUCKING COMPANY.
    82-970.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      C. Michael Quinn, Birmingham, for appellant.
    Michael B. Maddox, Birmingham, for ap-pellee.
   MADDOX, Justice.

This is a summary judgment case, in which the sole issue is whether summary judgment was proper, especially since the theory of the action was one of negligence.

The facts are basically not in dispute. Construing the facts in favor of the appellant, they are as follows: The defendant/appellee sent a truck to Shaw Warehouse Company (the employer of the plaintiff) to pick up some merchandise. The plaintiff, a forklift operator, drove a forklift, holding the merchandise on a wooden pallet, on to the defendant’s truck. The truck was nearly full, and plaintiff could not drive the forklift and pallet completely into the truck from the loading dock. Consequently, he stopped the forklift so that the front of the forklift was in the truck and the rear of the forklift was on the loading dock. Plaintiff had no responsibility to remove the merchandise from the pallet and stack it in the truck. That was the truck driver’s responsibility. Plaintiff left the forklift and pallet in this position and went to another part of the warehouse. The truck driver, after unloading the merchandise and obtaining the order slip from the warehouse office, started to pull away from the dock. The forklift had not been moved. After workers shouted to the driver, the driver stopped the truck, leaving about two feet between the truck and loading dock. The driver attempted to back the truck to the dock, but stopped and shut down the truck. During the rest of the occurrence, the driver, acting on instruction of the dock supervisor, stood to one side and watched. After the plaintiff returned, he and the supervisor attempted to remove the forklift from the rather precarious position in which it was situated. The supervisor drove another forklift with a pinching device and instructed the plaintiff to mount the forklift and to hold the brake. The plaintiff stated that he was told to sit on the forklift, which he refused to do. He did stand to the side with one foot on the dock and one foot on the brake of the forklift. While the supervisor was attempting to “get a better grip” on the stricken forklift, the pinchers of the second forklift struck the plaintiff, causing him to fall to the loading dock, thus allegedly causing his injury. The plaintiff, in his deposition, stated that it was known by the supervisor that the second forklift had mechanical problems, and that the forklift would roll forward after being placed in reverse gear.

The critical question under these facts is whether the alleged injury suffered by the plaintiff was a foreseeable consequence of the alleged negligent act of the defendant’s truck driver.

Because of the nature of negligence actions, with their questions of reasonableness, proximate causation, and foreseeability, summary judgment will not ordinarily be granted. Tolbert v. Gulsby, 333 So.2d 129 (1976). Generally, proximate cause is a question for the jury. Hall v. Booth, 423 So.2d 184 (Ala.1982); Havard v. Palmer & Baker Engineering, Inc., 293 Ala. 301, 302 So.2d 228 (1974); Giles v. Gardner, 287 Ala. 166, 249 So.2d 824 (1971); McCaleb v. Reed, 225 Ala. 564, 144 So. 28 (1932).

In Hall v. Booth, this Court quoted from Havard:

“The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if care is not exercised. Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941)

Hall, supra, 423 So.2d at 186.

Were we to affirm the trial court’s granting of summary judgment, we would have to hold as a matter of law that the acts of defendant, through its driver, were not the proximate cause of the plaintiff’s injuries. This we are not prepared to do.

For the reasons stated, we must reverse the trial court’s granting of summary judgment, and remand the cause.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    O.H. FLORENCE as Judge of Probate of Jefferson County, Alabama v. C. Molton WILLIAMS and Elizabeth Linn Williams Wheelock.
    81-790.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Charles Cleveland of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for appellant.
    Gerald D. Colvin, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellees.
   ALMON, Justice.

This appeal is from a judgment of the circuit court which issued a writ of mandamus directed to the probate judge ordering him to vacate an order granting the City of Birmingham’s application for condemnation of certain lands for the construction of an off-street parking facility.

This condemnation proceeding involves two complicated sets of transactions between the City of Birmingham and private developers.

On June 28, 1979, the City of Birmingham (City) entered into an agreement with Canal-Randolph of Alabama, Inc. (Canal) for the purchase of Lots 13 through 18 (the Molton Hotel site) in Block 48 of downtown Birmingham. The terms of the agreement provided that Canal would acquire the land by purchase and would sell a one-half interest in the property to the City. Canal would then construct on the site a multistory office building, which would include a 750-space parking deck. The City or its Parking Authority would reimburse Canal for its parking deck construction costs, and the parking deck would belong to the City under a condominium agreement. The contract also gave either party an option to purchase the other party’s one-half interest for a price determined by a specified formula. Canal purchased the property for $1,609,225.00 and on August 16, 1979, the City purchased a one-half interest in the property for $804,612.51. During this period, Canal entered into a joint venture agreement with Continental Cities Company, Inc. with respect to Canal’s one-half interest in the Molton Hotel site.

When Canal-Continental failed to comply with the construction schedule, the City exercised its option under the original contract to purchase Canal-Continental’s one-half interest for $1,298,000.00.

On this same date, November 4,1980, the City entered into a contract to sell the Molton Hotel site to Birmingham Associates, a general partnership composed of the principal officers of Johnson-Rast & Hays Co., Inc. (JR & H), for $2,050,000.00. Birmingham Associates then entered into a joint venture agreement with Equitable Life Assurance Society of the United States, and Birmingham Associates assigned the contract to purchase the Molton Hotel site to the joint venture. The purchase agreement provided that the City would construct, pay for, and maintain a parking deck with at least 350 spaces on property east of and immediately adjacent to the office building which would be constructed on the Molton Hotel site by the joint venture. A sufficient number of the spaces, not to exceed 30, would be assigned to JR & H employees.

On November 25, 1980, the City received a parking feasibility report which recommended the construction of three off-street parking facilities in downtown Birmingham to satisfy both existing and projected needs of its populace. The study recommended that Lots 19 through 24 (the Exchange Bank and Williams properties) of Block 48 be the location of a parking deck to include 630 spaces with 12,000 square feet of commercial area. The city council passed a resolution to construct a 630 space parking facility on Lots 19 through 24 but did not authorize the construction of any commercial space within the proposed off-street facility.

On January 23, 1981, the City filed in probate court its application for condemnation of Lots 19 and 20 (the Exchange Bank property), and Lots 21 through 24 (the Williams property) of Block 48, downtown Birmingham. The condemnees filed motions to dismiss, answers, objections, and a petition for removal to federal court. The federal court, however, remanded the case to the probate court. After a two-day hearing, the probate judge entered an order granting the petition for condemnation and then set a hearing date for the appointment of commissioners.

On July 21, 1981, the condemnees filed a joint petition for mandamus to the circuit court, seeking an order directing the probate judge to vacate his order and to dismiss the City’s application for condemnation. The circuit judge granted a stay of the probate court proceedings and conducted a hearing which was limited to a review of the proceedings before the probate court. Exchange National Bank thereafter settled with the City and was no longer considered a party to the mandamus proceeding. On June 1, 1982, the circuit court issued a final judgment which held the proposed condemnation to be an unconstitutional taking of private property for a primarily private purpose in violation of Ala. Const, art. XII, § 235 and Ala. Const, art. IV, § 94 (1901, amended 1956). The circuit judge thereby granted the writ of mandamus and ordered the probate court to vacate its order granting the condemnation application. The City filed a notice of appeal on behalf of the probate judge as nominal defendant and obtained a stay of the circuit court order pending appeal.

The issues presented for review are 1) whether the presumption in favor of the findings of the trier of fact attaches to the probate judge’s findings or to the circuit court’s findings when exercising a general superintendance over the probate court; 2) whether the City has statutory authority to condemn the Williams property to construct an off-street public parking facility; 3) whether there was sufficient evidence from which the probate judge could have determined that the proposed parking facility did not violate Ala. Const, art. XII, § 235; and 4) whether there was sufficient evidence from which the probate judge could have determined that the proposed condemnation did not violate Ala. Const, art. IV, § 94 (1901, amended 1956).

Standard of Review

Various presumptions attend the trial court’s findings of fact. When the trial court hears the evidence without a jury, its findings of fact will not be disturbed unless clearly erroneous or manifestly unjust. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980). This presumption of correctness also accompanies findings of fact made by a circuit judge in a mandamus proceeding where the judge actually hears the evidence upon which its findings are based. Freeman v. Smith, 409 So.2d 770 (Ala.1982); Anderson v. Mullins, 281 Ala. 609, 206 So.2d 856 (1968); Southern Railway Co. v. Todd, 279 Ala. 260, 184 So.2d 341 (1966); Chestang v. Burns, 258 Ala. 587, 64 So.2d 65 (1953). In condemnation proceedings, moreover, the conclusion of the trier of fact is entitled to great weight. State v. Central of Georgia R.R., 293 Ala. 675, 309 So.2d 452 (1975).

Yet how do these presumptions apply where the probate judge, exercising jurisdiction under Code 1975, § 18-1—1, and the circuit judge, exercising a general superintendence over the probate court under Code 1975, § 12-11-30(4), both make findings of fact? These presumptions are limited to situations where the trial court actually sees and hears the evidence upon which its findings are based:

“[T]he trier of fact, the trial court without a jury, unlike an appellate court later reviewing the matter from a written record, occupies a position of peculiar advantage enabling it to see and hear firsthand the evidence as it is presented. From that vantage point the trier of fact can observe the demeanor of the witnesses, listen to the inflections and intonations of their voices during oral testimony, and study their eyes, facial expressions, and gestures—all of these sensory perceptions which play a critical role in the factfinder’s determination of which witnesses are to be afforded credibility when conflicting testimony is given. Consequently, this court will rarely disturb the judgment of the trial court .... ”

Thomas v. Davis, 410 So.2d 889, 892 (Ala.1982) (citations omitted). Conversely, where the court hears no oral evidence in reaching its findings, this Court indulges no presumption of correctness in favor of the judgment of the trial court. Ex parte British Steel Corp., 426 So.2d 409 (Ala.1982) (citations omitted).

The circuit court rendered its decision on the record from the probate court and its judgment is not entitled to a presumption of correctness. The evidence before the probate court was mostly uncontro-verted, so we deem resolution of the standards-of-review issue to be largely academic. A question of law was presented to the circuit court as well as to this Court.

Authority to Condemn for the Construction of an Off-Street Public Parking Facility

Whether a municipality has statutory authority to condemn property for off-street public parking facilities is an issue of first impression for this Court.

Section 11-47-170, Code 1975, which grants municipalities general condemnatory powers, provides that

“[wjhenever in the judgment of the council or other governing body of a city or town it may be necessary or expedient for the carrying out and full exercise of any power granted by the applicable provisions of this title or any other applicable provision of law, the said town or city shall have full power and authority to acquire by purchase the necessary lands ... or, for the purposes for which private property may be acquired by condemnation, may proceed to condemn the same in the manner provided by this article, or by the general laws of this state governing the taking of lands or the acquiring of interests therein for the uses for which private property may be taken .. .. ”

Section 11-47-241(1), Code 1975, specifically grants to cities having a population of 34,000 or more the authority “to plan, establish, develop, acquire, construct, enlarge, improve, maintain, equip, operate, regulate and protect parking facilities.” The term “parking facility” includes any “building for off-street parking of motor vehicles.” Code 1975, § 11-47-240(3). Section 11-61-2, Code 1975, enlarged the scope of this provision by granting to any city or town the aforementioned powers.

Although we agree with the circuit court’s initial premise that the power of eminent domain cannot be exercised until conferred by statute, either in express words or by necessary implication, Dean v. County Bd. of Education, 210 Ala. 256, 97 So. 741 (1923), we do not agree with the circuit court’s conclusion that no statutory authority exists for a city to condemn property for an off-street public parking facility-

The circuit court thought it significant that Code 1975, § 11-47-241, and § 11-61-2, did not specifically grant cities the power of eminent domain in connection with parking facilities and that Code 1975, § 11-47-170, the general condemnation statute, failed to mention the specific purpose of off-street public parking. In so holding, the circuit court failed to adhere to the rule of statutory construction which requires that all statutes relating to the same subject or having the same general purpose be read together to constitute one law. American Life Ins. Co. v. State, 226 Ala. 383, 147 So. 168 (1933); City of Mobile v. Smith, 223 Ala. 480, 136 So. 851 (1931). Yet, when these three statutes are read in pari materia, it is clear that § 11-47-170 allows cities to condemn property to carry out the parking facility powers bestowed by § 11-47-241 and § 11-61-2 if construction of an off-street public parking facility is a purpose “for which property may be acquired by condemnation . ... ”

Because Code 1975, § 11-47-170, fails to define the phrase “for the purposes for which property may be acquired by condemnation ...,” we must examine prior law, related statutes, and constitutional provisions to determine the legislative intent. State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So.2d 509 (1963).

Our court has determined that property may not be condemned except for a recognized public use. Gralapp v. Mississippi Power Co., 280 Ala. 368, 194 So.2d 527 (1967). This “public use” requirement is also contained within Ala. Const. art. XII, § 235, which mandates that municipalities pay just compensation when exercising “the privilege of taking property for public use.” Although we have not specifically ruled upon whether use of property for off-street public parking in urban areas is a “public use,” other jurisdictions clearly recognize this use as being public. See, e.g., Miller v. City of Georgetown, 301 Ky. 241, 191 S.W.2d 403 (1945); Bowman v. Kansas City, 361 Mo. 14, 233 S.W.2d 26 (1950). The Alabama legislature, moreover, has implicitly recognized that the use of property for off-street public parking in urban areas constitutes a public use in its declaration that providing off-street parking in urban areas is necessary to the health, safety and general welfare of the public. Act of October 1, 1971, No. 2079, § 1, 1971 Ala.Acts 3335. We therefore hold that the use of property for off-street public parking in urban areas is a “public use” which constitutes a purpose “for which property may be acquired by condemnation ...” in accordance with Code 1975, § 11—47-170.

The Williamses argue, however, that because the term “acquire,” found in a 1933 statute, was construed to relate to a transaction “by purchase or gift” but not to a transaction “by condemnation,” we should likewise construe the present statutory language to preclude the authority to condemn. J. Blach & Sons, Inc. v. Hawkins, 238 Ala. 172, 189 So. 726 (1939).

When the same words are used in different statutes relating to different subjects, the extent of the meaning of the words is not always the same. City of Mobile v. Harker, 204 Ala. 26, 85 So. 425 (1920). The statute in the Blach opinion authorized municipalities to “acquire” property outside of the municipality for public utility rights-of-way. The policy considerations militating in favor of a strict construction of the Blach statute, which denied condemnatory powers to acquire property outside municipal boundaries, are not present here. In the first place, the Williams property is located within municipal boundaries and hence within the City’s ostensible condemnatory powers. More importantly, the limitation of the term “acquire” to “by purchase or gift” would render the § 11-47— 171 term “acquire by purchase” redundant and the term “acquire by condemnation” oxymoronic. Because we cannot presume that the legislature used language without any meaning or application, Robinson v. State, 361 So.2d 1113 (Ala.), on remand, 361 So.2d 1115 (Ala.Crim.App.1978), we cannot adopt the Williamses’ strict construction of the statutory term “acquire.” The City therefore possessed the requisite statutory authority to condemn private property located within its borders for an off-street public parking facility.

Whether the Proposed Parking Facility was a Public Use within the Meaning of § 285

Article XII, § 235, of the Alabama Constitution requires that a municipality taking property for a public use pay just compensation. This provision has been interpreted to provide that property may not be condemned except for a recognized public use. Gralapp v. Mississippi Power Co., 280 Ala. 368, 194 So.2d 527 (1967). Although this Court now recognizes that condemnation for off-street public parking facilities is a public use, we must nevertheless determine as a matter of law whether the City’s proposed use of the parking facility is indeed public.

The term “public use” should be given an elastic or liberal meaning when used in the context of eminent domain proceedings. Brammer v. Housing Authority of Birmingham District, 239 Ala. 280, 195 So. 256 (1940). As a general rule, an acquisition which primarily benefits the public while incidentally benefiting a particular private sector is deemed condemnation for a public use:

“In order to constitute public use, it is not necessary that the whole community or any large part of it should actually use or be benefited by a contemplated improvement. Benefit to any considerable •number is sufficient.
“Nor does the mere fact that the advantage of a public improvement also inures to a particular individual or group of individuals deprive it of its public character.”

Kansas City v. Liebi, 298 Mo. 569, 593, 252 S.W. 404, 407 (1923) (citations omitted). Furthermore, where the legislature has declared a use or purpose to be a public one, its judgment should be respected by the courts. Alabama Power Co. v. Gulf Power Co., 283 F. 606 (M.D.Ala.1922). This deference also extends to municipalities enacting ordinances pursuant to this legislation. See Berry v. Alabama Power Co., 257 Ala. 654, 657, 60 So.2d 681, 683 (1952).

Applying these principles to the facts surrounding the City’s proposed parking facility, we find sufficient evidence to sustain the probate judge’s finding that the proposed use was public, thereby warranting condemnation of the Williams property. In particular, the facts militating in favor of the public nature of the City’s proposed use of the parking facility include the following uncontroverted facts: 1) that the resolution to condemn the Williams property explicitly defined the parking facility to be constructed on the condemned property as being “public”; 2) that the central business district of downtown Birmingham needed additional parking facilities and a parking survey recommended the construction of three downtown parking facilities to meet these needs; 3) that the City included spaces for 630 cars, far in excess of the 350 spaces requested by the adjacent private developer; 4) that no contracts to include any commercial space within the parking facility were in existence; 5) that no contracts to lease the facility or its airspace to any private developers were in existence; and most importantly, 6) the fact that the parking facility will be open to the general public to serve the existing needs of the downtown business community of Birmingham.

Undoubtedly, commercial enterprises such as the office building to be constructed by Birmingham Associates adjacent to the proposed parking facility will derive benefit from operation of the facility. In particular, the City will reserve 30 of the 630 spaces for tenants of this office building, yet these spaces will be located on the Bank property immediately adjacent to the office building. The remaining 600 spaces will be open to the public on a “first come-first serve” basis, and the tenants occupying the reserved spaces must pay the same price as the general public. This de minimis private benefit, however, is not sufficient to detract from the public purpose of the facility:

“Once it is determined that the taking is for a public purpose the fact that private persons may receive benefit is not sufficient to take away from the enterprise the characteristics of a public purpose.”

Redevelopment Agency of City and County of San Francisco v. Hayes, 122 Cal.App.2d 777, 804, 266 P.2d 105, 122, cert. denied, 348 U.S. 897, 75 S.Ct. 214, 99 L.Ed. 705 (1954).

Although the line of demarcation between public and private use is oftentimes difficult to discern, a survey of the cases addressing this issue reveals the predominance of public use in the face of coexisting private benefit. In Nicrosi v. City of Montgomery, 406 So.2d 951 (Ala.Civ.App.1981), the condemnation of property for drainage improvement was held to be a public use in spite of the fact that private real estate developers who stood to benefit from the condemnation would reimburse the City for the costs of condemnation:

“That the expenses incident to condemnation and the award itself are to be paid by private parties is immaterial when the property thus being acquired by the City is to be used for a public benefit . ... ”

Id. at 952 (citations omitted).

Other jurisdictions have likewise upheld the condemnation of property for the construction of off-street public parking facilities in the face of seemingly discriminatory private benefit. In Bowman v. Kansas City, 361 Mo. 14, 233 S.W.2d 26, 33 (1950), the condemnation of private property for use as an off-street public parking facility was upheld, despite the fact that the parking facility would be leased for private operation and would compete with other private facilities in the downtown retail district of Kansas City. In Barnes v. City of New Haven, 140 Conn. 8, 98 A.2d 523 (1953), the Connecticut Supreme Court upheld its parking authority act:

“Nor does the possibility that the act may prove of greater benefit to store owners in the shopping district than to some other residents of the city render it invalid as discriminatory, any more than would the outlay of public funds to pave a particular section of street, with its greatest benefit to the immediate abutters than to others.... Again, the leasing of a parking facility by the authority to another to operate would not be inconsistent with the public character of the facility, since the fact that such private lessee may gain thereby is merely incidental to the public purpose of operating it for the use of the public.”

Id. at 18, 98 A.2d 529 (citation omitted). More recently in Seligsohn v. Philadelphia Parking Authority, 412 Pa. 372, 194 A.2d 606 (1963), cert. denied, 376 U.S. 952, 84 S.Ct. 970, 11 L.Ed.2d 971 (1964), the Pennsylvania Supreme Court concluded that a proposed parking facility was predominantly for public use although the proposed garage would be physically connected to two large private department stores in Philadelphia. In a later Pennsylvania decision, Campbell v. Bethlehem Parking Authority, 20 Pa.Cmwlth. 445, 342 A.2d 114 (1975), the city made assurances to two private developers that adequate parking facilities would be available in the downtown business district. When a proposed parking facility was then located in close proximity to these developments, the court nevertheless upheld the public nature of the facility, which would serve not only the needs of the adjacent bank and shopping mall but also the needs of the entire central business district.

A comparison of these holdings to the case at bar reinforces the public nature of the City’s proposed parking facility, for if condemnations were upheld as being predominantly for public use despite such private nexuses as reimbursement for condemnation costs by private developers, lease of facilities to private enterprise, and enclosed walkways from the parking facilities to private buildings, the City’s proposed parking facility should be deemed for public use due to the absence of these private contacts.

The circuit court, however, found that the City’s proposed parking facility was primarily for private use. The court cited as precedent for its holding the case of Baycol, Inc. v. Downtown Development Authority of the City of Fort Lauderdale, 315 So.2d 451 (Fla.1975). That decision is distinguishable from the case at bar. In Baycol, the development authority sought to condemn property to erect an off-street parking facility. The authority then planned to lease the airspace to private developers who would construct a shopping mall on top of the parking facility. It was an undisputed fact that but for the shopping mall, there would be no need for the parking facility. The public purpose was therefore deemed to be only incidental to a predominantly private one, and the condemnation was enjoined. In the case at bar, however, the City never resolved to lease the parking facility or its airspace to private developers. More importantly, the City’s proposed parking facility will be constructed to serve existing needs of the entire central business district and will serve a public need even if, arguendo, no office building is constructed on the Molton Hotel site.

The circuit court’s inquiry into the necessity of the proposed facility, its location, and the supposedly flawed survey methodology was inappropriate:

“The general principle is well established that the delegation of the power of eminent domain to a grantee, without restriction, carries with it the power to locate the route, and its location or necessity will not be interfered with by the courts if it is made by the utility in good faith and is not capricious or wantonly injurious....
“... Necessity to condemn is a legislative question, not judicial. It is granted by statute to petitioner.... The province of the court is to see that the right is not abused.... ”

Berry v. Alabama Power Co., 257 Ala. 654, 657, 60 So.2d 681, 683 (1952). Because the legislature delegated to the City the power to condemn property for off-street public parking, the circuit court could not second-guess the City’s decision to condemn, in the absence of clear evidence of capricious, arbitrary conduct on the part of the City. Alabama Elec. Co-op., Inc. v. Watson, 419 So.2d 1351 (Ala.1982).

Where no contracts between the City and private developers were in existence and the condemnation resolution contained no mention of commercial leases, the circuit court could not buttress its findings of predominantly private use upon mere speculation and conjecture. Even if the City did lease a small portion of its floorspace to commercial interests customarily found in parking facilities, the private use and income therefrom would be so small as to be merely incidental to the public parking activity. Larsen v. City and County of San Francisco, 152 Cal.App.2d 355, 313 P.2d 959, 965 (1957).

We therefore find sufficient evidence to sustain the probate court’s determination that the proposed parking facility was primarily for public use in accordance with § 235 of the Alabama Constitution.

Whether the City’s Sale of the Molton Hotel Site to Birmingham Associates Constituted a Grant of Money in Violation of § 94

Article IV, § 94, of the Alabama Constitution, as amended by Amendment 112, prohibits municipalities from granting public money to any individual. The circuit court determined that the City’s sale of the Mol-ton Hotel site to Birmingham Associates was for less than its value and constituted a grant of money by the City in violation of § 94. The court then characterized the proposed parking deck as an integral part of the contract between the City and Birmingham Associates and found the condemnation to be violative of § 94 also.

A careful view of the record reveals the absence of any testimony as to the fair market value of the Molton Hotel site at the time of the sale to Birmingham Associates. Without this evidence, the circuit court could not determine whether the City actually sold the property for less than its market value. Even if testimony of fair market value is proffered below, this Court is reluctant to evaluate the adequacy of consideration in a commercial contract:

“When a contract of a public body is an ordinary commercial contract, with benefits flowing to both parties and a consideration on both sides, it is not a lending of credit by the public body.”

Rogers v. City of Mobile, 277 Ala. 261, 278, 169 So.2d 282, 298 (1964).

The judgment of the circuit court vacating the order of the probate court is reversed and the cause remanded for further proceedings in the probate court.

REVERSED AND REMANDED.

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


author: ADAMS, Justice.

text:
    CITY OF BIRMINGHAM, a municipal corporation v. STEGALL COMPANY, INC. LENZ-RAMSEUR, INC. and Brown Mechanical Contractors v. CITY OF BIRMINGHAM, a municipal corporation CITY OF BIRMINGHAM, a municipal corporation v. LENZ-RAMSEUR, INC., a corporation, et al. STEGALL COMPANY, INC. v. CITY OF BIRMINGHAM, a municipal corporation.
    81-915, 81-969, 81-995 and 82-769.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      James K. Baker and David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellant/cross-appellee.
    J. Gusty Yearout of Lorant, Harris & Yearout and David D. Shelby, Birmingham, for appellees/cross-appellants.
   ADAMS, Justice.

We are concerned here with several appeals that have been consolidated. The City of Birmingham appeals from the denial of its petition to enforce license taxes alleged to be due from Stegall Company, Inc., Lenz-Ramseur, Inc., and Brown Mechanical Contractors. The above-named companies appeal from the denial of their counterclaim for a declaratory judgment that the city’s license classification for air conditioning and heating contractors is null and void because it is violative of the federal and state constitutions.

The issues raised on these appeals are as follows:

1.Did the trial court correctly hold that Section 69 (and to the extent applicable, its predecessors) of the Birmingham License Code is not invalid and unconstitutional on its face, though it discriminates among members of the class of contractors?
2. Did the trial court correctly hold that Section 69 is not invalid and unconstitutional insofar as it authorizes a revenue tax on business conducted, at least in part, outside the corporate limits of Birmingham?
3. Did the trial court correctly hold that Section 69 was applied arbitrarily and capriciously to the defendant heating and air conditioning contractors?

We answer these questions in the affirmative, and we affirm the decision of the trial court.

The pertinent facts are as follows:

In 1981, the City of Birmingham’s Director of Finance conducted audits of those companies that were taxed for licenses to do air conditioning and heating contracting under License Classification 69 of the city’s 1980-81 License Code. When possible, the audit for a year was made from available records and information furnished by the taxpayer. When records for a particular year were not available, the city’s auditors made estimates based on records of the taxpayer for other years.

Classification 69 has no maximum fee for a license to engage in air conditioning and heating contracting. The license tax due each year for such contracting is measured by a percentage of a contractor’s gross receipts for the preceding year.

The city filed a petition in the Circuit Court of Jefferson County to enforce payment of license taxes allegedly owed by Stegall, Lenz-Ramseur, and Brown Mechanical for the calendar years 1977-1981. The three companies answered the petition jointly, and added a counterclaim for a declaratory judgment that Section 69 of the license code is null and void. The companies, though they admitted that the license taxes sued for had not been paid, denied that the taxes were due on the basis that they were discriminatory, confiscatory, double taxation, and violative of their rights to equal protection and due process of the law.

The trial court held that the ordinance establishing Classification 69 was constitutional, but that it was applied arbitrarily and capriciously to the three taxpayers in that auditors without proper training and established guidelines to follow determined which gross receipts from outside the city would be used in computing the license fees due.

The companies argue that Classification 69 is invalid and unconstitutional on its face because it provides for the taxation of air conditioning and heating contractors based on a percentage of their gross receipts without a maximum license fee, while the license taxes imposed on all other contractors have maximum fees. They say that the separate classification of air conditioning and heating contractors constitutes discrimination among contractors as a class without any rational basis.

The trial court found that air conditioning and heating contractors were treated differently than other contractors under the license code of the city. However, the court, following the test approved by this court in Ray E. Loper Lumber Co. v. State, 269 Ala. 425, 113 So.2d 686 (1959), concluded that there is at least a conceivable state of facts which would support the discrimination in Classification 69. We agree. In Haden v. Watson, 270 Ala. 277, 281, 117 So.2d 694, 697 (1960), this court said:

Legislative classifications in tax matters are presumably valid, the burden being on the challenger to prove that such a classification or subclassification does not rest on a reasonable basis and such statutes are not to be deemed unconstitutional or invalid if any state of facts can be conceived which would support the subject of the tax.

The record contains evidence that a large portion of the business of air conditioning and heating contractors is generally the sale of equipment and the fabrication of duct work. Moreover, counsel for the city has argued that Classification 69, like other classifications in the license code, was established to require only one license for air conditioning and heating contractors, though their manufacturing and selling activities might otherwise justify a requirement of multiple licenses.

We now address the companies’ argument that Classification 69 is invalid and unconstitutional because it provides for double taxation and impermissibly authorizes the levy of a revenue tax on business not carried on within the corporate limits of Birmingham. The trial court disagreed, citing this court’s decision in Standard Oil Co. v. City of Selma, 216 Ala. 108, 112 So. 532 (1927), as authority for its holding. We think the trial court was correct.

In Standard Oil Co. v. City of Selma, the court considered whether an ordinance that fixed a license tax of 1 cent per gallon on gasoline shipped, transported, or delivered from within the corporate limits of Selma to points outside those limits, but within its police jurisdiction, was in conflict with Code 1923, § 2173, which stated:

No municipality of this state shall assess or collect any privilege or license tax, . .. for carrying on any business .. . when the conduct and operation of such business is wholly outside the corporate limits of such municipality.

The court carefully indicated that the tax in that case, as in this case, was “only for conducting a business within the city itself,” and concluded:

... we do not see how that section can be construed as an inhibition upon the taxation of a business whose plant or managing office is located within the corporate limits of the tax-imposing city, and whose business, or that phase of it which is taxed, and is properly taxable, is conducted from its plant or office so located. The tax is forbidden only “when the conduct and operation of such business is wholly outside the corporate limits of such municipality.” (Italics ours.)

The court said further:

... the inhibition laid on the taxing power of municipalities does not apply to any business any phase or feature of which is conducted within the corporate limits.

216 Ala. at 110, 112 So. at 533.

We think that this holding is controlling in this case, since the companies have failed to show that Classification 69 imposes a tax on anything other than the privilege of doing business within the City of Birmingham alone, as measured by those gross receipts of an air conditioning and heating contractor that are produced by the conduct or operation of such business within that municipality.

We turn to a consideration of the taxpayers’ argument that Classification 69 has been unconstitutionally applied to those within the subclassification of air conditioning and heating contractors. The companies assert that in the process of conducting audits to determine the total gross receipts of those contractors licensed under Classification 69, the city’s auditors have included and excluded receipts from work conducted outside the City of Birmingham without any formal training, guidelines or standards for making such inclusions and exclusions. After a thorough review of the record, we agree with the trial court that this auditing process was conducted in an arbitrary and capricious manner.

At trial, one auditor indicated that she would exclude those receipts for work conducted outside Birmingham if there was an office with a payroll and with purchase licenses for its location. Her testimony was directly contradicted by the testimony of the Director of Finance for the City of Birmingham. He said that all gross receipts from business conducted within the State of Alabama would be included. In addition, the tax and license administrator for the city testified that such receipts would not be included if they were received by a “branch office,” however, he said that there were no established criteria or procedures for determining whether an office was a branch office.

It is axiomatic that a law must be applied equally to all members of a class established by the law. As this court stated in State v. Pure Oil Co., 256 Ala. 534, 538, 55 So.2d 843, 846 (1951) (emphasis added):

“Tests for the determination of the operation or administration of a law or ordinance as to a classification contained therein within the Constitutions, state and federal, are that the class (1) must be germane to the purpose of the law; (2) must bring within its influence all who are under the same conditions and apply equally to each person or member of the class, or each person or member who may become one of such class; (3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class; (4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable under the facts of the case, and not oppressive and prohibitive. [Citations omitted.] This is necessary to secure uniformity in the operation, administration, and proper distribution of the burden of government.” [Citations omitted.] Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 105 So. 214, 218.

Having considered the facts concerning the audits in the light of the above-quoted authority, we conclude that the application of Classification 69 with regard to the inclusion of gross receipts for business conducted outside of the City of Birmingham was arbitrary and capricious, and, therefore, invalid. The city’s request for relief was properly denied by the trial court.

The city also appeals from the trial judge’s denial of its motion to reopen the case against Stegall solely for the purpose of formally introducing into evidence the audit of Stegall prepared by a city auditor. At trial, the attorney for the city failed to formally introduce the audit though it was the subject of both direct and cross examinations. We do not think that it is necessary to address this issue, because we agree with the trial court’s conclusion that Classification 69 was arbitrarily and capriciously applied to Stegall, as well as Lenz-Ramseur and Brown Mechanical.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.


author: BEATTY, Justice.

text:
    I.N. HICKOX, Unit Manager, Citronelle Unit v. VESTER MORGAN, INC.
    81-922.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Edward G. Hawkins and Douglas L. Brown of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.
    Horace Moon, Jr. and William G. Jones, III, Mobile, for appellee.
   BEATTY, Justice.

Defendant appeals from a $40,000.00 judgment entered in favor of the plaintiff for damages to plaintiff’s property following an oil spill and as a result of the defendant’s oil operations on plaintiff’s land. The defendant claims error by the Circuit Court of Mobile County in its denial of his post-trial motions and in the trial court’s submission of certain issues to the jury. We affirm.

The plaintiff, Vester Morgan, Inc. (Morgan), filed a complaint against I.N. Hickox, Unit Manager, Citronelle Unit, seeking the recovery of damages as a result of several events which took place on plaintiff’s property. The property involved is a 40-acre tract of land in Mobile County in which the mineral and surface rights have been severed. Morgan is the owner of the surface rights.

Hickox, the legal representative of the Citronelle Unit (a large group of oil and gas producers who operate the unit field for the mutual benefit of the group as a whole) is engaged in the extraction of oil and gas on the Morgan property. This property is included in the Citronelle Unit. On or about December 15, 1980, a power oil line belonging to the Citronelle Unit erupted and caused a spill of approximately 30 barrels of oil on property northwest of the Morgan property. The oil entered a small creek which carried it into low lying areas on the Morgan property. A road was bulldozed down a hill to the creek by Hickox in an attempt to reclaim the oil. Morgan was not informed of the spill, but discovered it when on the property during Christmas holidays. The defendant claims every effort was made to protect and restore the land following the spill.

The plaintiff, however, not satisfied with the way the spill and resulting clean-up were handled, and because of other events which had occurred on his property, filed this lawsuit. The complaint as amended sought recovery for damages on several counts and reads in pertinent part as follows:

“FIRST CAUSE OF ACTION

“1. Heretofore and on, to-wit, November or December, 1980, Defendant I.N. Hickox, Unit Manager, Citronelle Unit, A, B and C as owners of the pipeline running over and across properties of the Plaintiff, did so negligently maintain said line as to allow it to get into a state of disrepair and as a result of said negligence said pipeline burst, came disconnected, or otherwise erupted to cause an oil leak or spill onto, over and upon the lands of the Plaintiff.

“2. As a direct and proximate result of the negligence of Defendants as aforesaid, and the resulting oil leak or spill therefrom, Plaintiff’s lands were injured and damaged in that they were sprayed with oil, trees and shrubbery were damaged and injured, natural water flow across Plaintiffs property was polluted by oil and Plaintiff’s property was rendered of less value.

“SECOND CAUSE OF ACTION

“2. Heretofore and on, to-wit, December 15, 1980, said Defendants did trespass upon Plaintiff’s land in violation of any privilege or license possessed by them in that during December, 1980, said Defendants did allow oil to flow over and upon Plaintiff’s property, brought heavy equipment onto Plaintiff’s property, i.e., a bulldozer or other similar type of equipment, and on property of the Plaintiff did excavate lands, remove trees, grass, shrubbery and other natural growth in an area approximately thirty (30) feet in width by one hundred (100) yards in length. That as a result of Defendants’ direct trespass in violation of Plaintiff’s possessory rights and right to peaceful enjoyment of said property, and as a further result of the excavation of Plaintiff’s property, said property is eroding.

“THIRD CAUSE OF ACTION

“2. Heretofore and on, to-wit, February, 1981, Defendants I.N. Hickox, Unit Manager of Citronelle Unit, and A, B and C were notified of their trespass upon Plaintiff’s property and were further notified that as a result of the excavation of Plaintiff’s land it was eroding and further deteriorating. Defendants were further notified that the continuous maintenance of a battery of oil tanks, commonly referred to as B-19-10 TB, upon Plaintiff’s property was creating a nuisance in that said tanks were rusting, and allowing oil residue to flow out and upon Plaintiff’s property. Defendants were further notified that the continued maintenance of a slush pond upon Plaintiff’s property was a continued nuisance and was hindering the free use of Plaintiff’s properties.

“3. Subsequent to said notice in February, 1981, Defendants in total disregard for the notice given to them in February, trespassed upon Plaintiff’s property with heavy equipment, did excavate additional areas of Plaintiff’s property consisting of approximately one acre of land and during such excavation did remove trees, shrubbery and other natural growth upon Plaintiff’s property and did create another area for erosion of Plaintiff’s land. That said trespass by said Defendants was with full knowledge of the notice given to them in February, and was done in a reckless and oppressive manner in total violation of the property rights of Plaintiff.”

“FOURTH CAUSE OF ACTION

“1. Heretofore and on, to-wit, June 17, 1981, said Defendants did trespass upon Plaintiff’s land in violation of any privilege or license possessed by them in that on that date and subsequent thereto, said Defendants brought heavy equipment on the Plaintiff’s property, i.e., a bulldozer or other similar type equipment and on property of the Plaintiff did excavate lands, remove trees, grass, shrubbery, and other natural growth in an area approximately two hundred seventy (270) feet in length by four hundred (400) feet in width.

“FIFTH CAUSE OF ACTION

“2. Plaintiff alleges that the acts of the Defendants during and subsequent to the month of June, 1981, constituted an intentional nuisance in that the Defendants’ actions constituted a severe and intentional interference with the use and enjoyment of Plaintiff’s property. As a result of the actions of the Defendants, Plaintiff’s property has been rendered of less value and Plaintiff has been denied the free and peaceful possession, use and enjoyment of its property.

“SIXTH CAUSE OF ACTION

“2. On, to-wit, June 15, 1981, and subsequent thereto, said Defendants did enter upon Plaintiff’s land and, with heavy equipment, did bulldoze or excavate land, remove trees, grass, shrubbery, and other natural growth in an area of approximately 2.5 acres. As a result of Defendants’ entry onto Plaintiff’s land, in violation of Plaintiff’s possessory right to the peaceful enjoyment of its property, and in violation of any easement, license or privilege possessed by the Defendants, the Plaintiff has been denied the use, free and peaceful possession, and enjoyment of its property.

“3. The Plaintiff alleges that the acts of the Defendants constituted an impermissible private condemnation and taking of the Plaintiff’s right to and in the peaceful possession, use and enjoyment of Plaintiff’s property without just compensation.

“SEVENTH CAUSE OF ACTION

“2. This action is brought pursuant to Section 35-14-1 of the Code of Alabama (1975).

“3. The Defendants, in violation of any privilege or license possessed by them did, on to-wit, June 15, 1981, and subsequent thereto, trespass upon Plaintiff’s land and cut down, deaden, girdle, destroy or take away hundreds of trees and saplings of the kind and variety described in Section 35-14-1 of the Code of Alabama (1975).

“4. The Plaintiff alleges that it was owner of the land and trees and that the Defendants’ actions were done without the. consent of the Plaintiff.”

“EIGHTH CAUSE OF ACTION

“2. Heretofore and on, to-wit, December 15, 1980, Defendant I.N. Hickox, Unit Manager, Citronelle Unit, as owner of the pipeline running over and across property at or near property of the Plaintiff, did with gross negligence fail to maintain said pipeline as to allow it to get into a state of disrepair and as a result of said gross negligence, said pipeline burst, came disconnected, or otherwise erupted to cause an oil leak or spill onto, over and upon the lands of the Plaintiff.

“NINTH CAUSE OF ACTION

“2. Heretofore and on, to-wit, December 15,1980, said Defendants did wantonly trespass upon Plaintiff’s land in violation of any privilege or license possessed by them in that during December, 1980, said Defendants did allow oil to flow over and upon Plaintiff’s property, brought heavy equipment onto Plaintiff’s property, i.e., a bulldozer or other similar type of equipment, and on property of the Plaintiff did excavate lands, remove trees, grass, shrubbery and other natural growth in an area, approximately thirty (30) feet in width by one hundred (100) yards in length.”

At the close of the plaintiff’s evidence, the defendant’s motion for a directed verdict was denied by the trial court. Except for the claim for trees cut, the trial court granted Hickox’s renewed motion for a directed verdict on Count IV, and on Morgan’s private condemnation theory in Count VI. The trial court also denied the plaintiff’s attempt to include a gross negligence count by amendment to the complaint; thus Count VIII was stricken. All other claims for relief were submitted to the jury for a determination of damages, including punitive damages where requested.

The defendant claims several errors by the trial court, including the trial court’s denial of his motion for judgment notwithstanding the verdict or, in the alternative, an order granting a new trial. Hickox argues on appeal that his motions for directed verdict and for judgment notwithstanding the verdict should have been granted because there was not a scintilla of evidence to support the claims. More specifically, he contends that the trial court erred in submitting the following to the jury:

(1) All claims for punitive damages;

(2) All claims for relief under Code of 1975, § 35-14-1; and

(3) The claims regarding the oil tanks and containment pit in Count III of the complaint.

The rule with regard to a grant or denial of a motion for a directed verdict is well settled in Alabama. The evidence presented must be viewed in a light favorable to the non-moving party, and if any reasonable inference might be drawn adverse to the movant’s position, it was proper for the trial court to overrule the motion and let the issue be resolved by the jury. State Farm Mutual Automobile Ins. Co. v. Boyer, 357 So.2d 958 (Ala.1978); Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975). This Court in State Farm, supra, stated, at 961-962:

“ ‘... It is not for the court to [be the] judge of the sufficiency of the evidence or decide which of the conflicting tendencies of the evidence should be adopted by the jury, nor to draw the reasonable inferences from the evidence for the jury.
“ ‘ “A court should never direct a verdict when the evidence is such as to afford a reasonable inference of the existence of any fact unfavorable to the right of the party asking the affirmative charge to the verdict.” ’ ” Quoting Jones v. Bell, 201 Ala. 336, 77 So. 998 (1917).

Alabama courts, following the scintilla rule in civil cases, have held that where the evidence furnishes a scintilla of evidence in support of the theory, the question must go to the jury. Huff v. Vulcan Life and Accident Ins. Co., 281 Ala. 615, 206 So.2d 861 (1968). Applying these principles, we conclude that evidence was presented from which the trial court correctly submitted the case to the jury for determination.

Defendant argues that there is not a scintilla of evidence to support any of plaintiffs theories of recovery other than the negligence count on the oil spill, the tree damage for the construction of the new well site, and the tree damage for the road bulldozed to the creek following the oil spill. The evidence presented, however, established that Hickox owed money to the plaintiff for damage to the trees and surface, and had admitted this to the plaintiff but never made any efforts to pay. The evidence established that Hickox had paid some of the surrounding property owners for damage to their property.

Further, our review of the record discloses disputed evidence regarding the other theories under which plaintiff sought recovery. This supports the trial court’s submission of these counts to the jury. With regard to the trespass claims, the defendant relies on the lease and unitization agreement under which he operates to provide the authority for his actions. He cites as support the following easement found in the unitization agreement:

“12.1 Grant of Easements. The parties hereto, to the extent of their rights and interest, hereby grant Operators the right to use as much of the surface of the land within the Unit Area as may be reasonably necessary for the operation and development of the Unit Area hereunder; provided, that nothing herein shall be construed as leasing or otherwise conveying to Operators a site for a gas processing and extraction plant or camp site.”

The agreement relied on by Hickox, however, goes on to state:

“12.3 Surface damages. Operators shall pay the rightful owners for damages to growing crops, timbers, fences, improvements and structures on the Unit Area resulting from operations thereunder.”

With regard to the defendant’s repeated reference to his reliance on the leases as well as the unitization agreement, he fails to point out to this Court any provisions in the leases which support his position. Further, our review of the record leaves us without a provision which would directly support defendant’s claims. We do note, as pointed out by the plaintiff, that the leases admitted into evidence contained the following provision in support of plaintiff’s position:

“8. Lessee shall bury its pipelines below plow depth when requested by Lessor. No well shall be drilled nearer than two hundred (200) feet to the house or barn on said land without the written consent of Lessor, and Lessee shall be responsible for all damages caused by Lessee’s operations other than damages necessarily caused by the exercise of the rights herein granted. No injections of fluids herein authorized shall be made in fresh water strata which are capable of furnishing Lessor fresh water for irrigation, domestic or stock uses.” (Emphasis added.)

The facts and the evidence of the present case should be viewed in the light of these provisions. Whether Hickox’s actions were authorized under the lease and unitization agreement or whether defendant exceeded the scope of his authority, thus becoming a trespasser, were questions for the jury. Tutwiler v. Etheredge, 285 Ala. 219, 231 So.2d 93 (1970). In addition, Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974), stands for the proposition that a jury question was presented as to whether the actions of Hickox in allowing the oil to spill constituted a trespass. Both the action in clearing for the new well site and the question of the extent to which the surface might be reasonably occupied for the new well site was also a proper question for the jury. Williams v. Gibson, 84 Ala. 228, 4 So. 350 (1887).

The defendant next claims the trial court erred in submitting any claims for relief under Code of 1975, § 35-14-1, to the jury. He contends that the trees were cut under an honest belief that he had the right to cut the trees and that the easement quoted earlier from the unitization agreement authorized the cutting.

It is true that § 35-14-1 is a punitive statute aimed at deterring defendants from cutting trees on property they do not own. Evidence was presented which posed a question of fact for the jury as to whether defendant was within the terms of the statute. Hickox was not the owner of the trees, and he knew that Morgan was the owner. Hickox took the trees and had not paid for these trees. The trial court gave an extensive charge to the jury on each count in the complaint and especially with' regard to § 35-14-1 and as to defenses available to Hickox. A part of that instruction is as follows:

“There is another charge that I will give you, and I will give that now, so that there will be no problem there. That the cause of action refers to this Section 35-14-1. Let me read that to you. It says that any person who cuts down, deadens, girdles, boxes, destroys or takes away if already cut down or fallen, any cypress, pecan, oak, pine, cedar, poplar, walnut, hickory or wild cherry trees or saplings of that kind on land not its own, wilfully, that’s important, and knowingly, wilfully and knowingly, those are important words in this statute, without the consent of the owner of the land, must pay to the owner $20.00 for every such tree or sapling and for every other tree or sapling not hereinbefore described, so cut down, deadened, girdled, boxed or destroyed or taken away by any person, he must pay to such owner the sum of $10.00.
“Now, the, this statute 35-14-1 is what we call a punitive statute. It’s a statute made for punishment, and I will explain to you punitive damages later on, but this is a statute to punish a person for taking something that doesn’t belong to him. It’s a form of stealing. But timber was very important to our country in the early days, and this is a very old statute. This was first passed in 1867, a very old statute. It has been modified a little bit since that time, but basically it’s a very old statute, and it was for a form of punishment.
“But, on the other hand, if a person had a right to cut down the trees and timber, then he should not be punished for doing what they had the right to do, and therefore, this statute would not apply. In addition thereto, this statute does not apply unless it is shown that a person entered the property of another and cut down the trees of another, wilfully and knowingly. Remember I told you those were important words, if it is not proved that such action was in fact wilful and knowing, then this statute does not apply. It’s a punitive statute.
“If you believe from the evidence that Mr. Hickox honestly believed that he had the right to cut down the trees on the drillsite or on the roadway that we have talked about, then you cannot find him guilty under this statute or that cause of action as stated pertaining to 35-14-1.
“Now, on the other hand, I told you that, and I think everybody agrees that the Plaintiff should be compensated for the trees cut down, and the measure of damages there for such trees would be ... the value of the trees. And if you believe that it was done, the cutting down of the trees was done wilfully and knowingly, and that there was no right to cut down these trees, or that Mr. Hickox did not honestly believe that he had the right to cut down these trees, then you may also grant punitive damages as provided for in 37-14-1.”

We find no error on the part of the trial court in submitting this cause of action to the jury for a determination.

The defendant claims there was no evidence of wantonness which would justify the submission of any issue of punitive damages to the jury. There was evidence presented, however, of at least one .oil spill prior to the one at issue here and Hickox knew he had no right to spill oil on Morgan’s land. The evidence also established that Hickox knew he owed money to the plaintiff for damage to land for which he had made no effort to pay. Other evidence, including the fact that the plaintiff was not informed of the oil spill or subsequent clean-up but had discovered it, that the containment pit was covered by soil taken from another part of the Morgan property without Morgan’s consent, and that Hickox had made no effort to pay for damage that he readily admitted he owed, raised a reasonable inference that Hickox’s acts were intentional and that he knowingly invaded Morgan’s rights as the surface owner. Wantonness in a trespass action is shown by mere “knowledge on the part of the defendants of the invasion of the plaintiff’s rights.” Calvert & Marsh Coal Co. v. Pass, 393 So.2d 955 (Ala.1980). Finally, as discussed in the previous section, from the evidence presented, the jury could have found that Hickox came within the purview of § 35-14-1, thus warranting punitive damages.

The defendant contends that he did not trespass by covering the sediment pit as set out in Count III. Vester Thompson, Jr., a witness for the plaintiff, testified however that Hickox, in filling the containment pit, should have “remove[d] the liquid oil first, and then sand in and walk it with the heavy equipment to make it dense.” Further, testimony by Thompson showed that the material used in covering the sediment pit was taken from an adjacent area near the pit on the Morgan property. Other testimony by Mr. Morgan, the suface owner, with regard to covering the sediment pit, established that no permission was given for this action and that “they bulldozed from other parts of my land and brought the dirt over and put it in there.” Clearly, this evidence presented a question from which the jury could have determined that this action did not fall within the authorized unit operations to extract oil and gas, and that these actions were not consented to by Morgan.

I-n his final point the defendant contends that the trial court erred in denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial because the jury verdict was against the weight and preponderance of the evidence and that the jury’s award of damages was excessive. Assessment of damages is left largely to the discretion of the jury in the first instance and to the discretion of the trial judge on a motion for new trial. F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, 140 So.2d 824 (1962). We have discussed the evidence presented and the fact that the issue of punitive damages was properly considered by the jury. Damages assessed by a jury are presumed to be correct and will not be set aside as excessive unless the amount is so great as to plainly indicate it was the result of passion, bias, prejudice, or improper motive. W.T. Ratliff Co. v. Henley, 405 So.2d 141 (Ala.1981); Mobile Dodge, Inc. v. Waters, 404 So.2d 26 (Ala.1981). Under these facts, we can find no reason to disturb the verdict on the basis of the damages assessed by the jury.

We conclude that the trial court was not in error in the submission of this case to the jury and in denying the defendant’s post-trial motions.

Let the judgment be affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Adolph HAYES, et al. v. Ross R. COTTER, Jr., and Cotter Enterprises, Inc., a corp.
    81-927.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Winn S.L. Faulk, Dothan, for appellants.
    Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellees.
   FAULKNER, Justice.

This is a land line dispute between coterminous land owners. The disputed segment was approximately sixty by nine hundred feet. The defendants, Ross Cotter and Cotter Enterprises, Inc., owned record title to the strip. The plaintiffs, Adolph Hayes and the Mt. Zion Baptist Church of Enterprise, Inc., claimed title by adverse possession. The trial court, sitting without a jury, found in favor of the defendants and the plaintiffs appealed.

The descriptions contained in the parties’ deeds provided that their common boundary was the line separating the northeast quarter of the southwest quarter of section 12 from the northwest quarter of the same quarter section located in Coffee County, Alabama. The southern boundaries of both parcels were marked by Alabama highway 248. The plaintiffs’ property lies due east of the defendants’.

The plaintiffs produced numerous witnesses to support their claim of adverse possession. Ray Sconiers, who was 78 years old at the time of the trial, testified that he moved onto the land now owned by the defendants when he was three. At that time his family’s land included the parcel directly across the roadway from the Cotter parcel as well as the Cotter property itself. When he was thirteen or fourteen, Sconiers helped his father and Mr. Hayes build a fence along their land line south of the road. The fence ran in a southerly direction from the southern edge of the road. Although they did not build a fence along the border of the property in question north of the road, the Sconiers and Hayes families would plow up to a “turn row” which wás, in Sconier’s words, “on the same line” as the fence across the road.

Theodore Whitehurst farmed a portion of the Cotter parcel from 1933 until 1949. He testified that when he took possession of the land the owner, Mr. Sconiers, showed him the eastern boundary of the property and every year he plowed up to a turn row which was “straight across the road” from the fence south of the road. He also testified that the Hayes property was cultivated up to the same turn row during that period of time.

Earl Henderson purchased part of the Sconiers’ place in 1937 or 1938. He owned what later became the northern half of the Cotter parcel. He testified that the portion of his eastern boundary below the woods was marked by a turn row in line with “that old line across the road.”

The plaintiffs also produced witnesses who had farmed the Hayes property. Their testimony was in accord with that of the witnesses who had lived on the Cotter parcel. B.H. McDonald moved onto the Hayes place in 1923.' He testified that the fence was in existence when he moved onto the land and that at the time of the trial it was still in the same location. According to McDonald there was a “piled high furrow” north of the road between the Hayes property and the Sconiers place, and that “you could look down that plowed furrow and compare it right straight with the fence south of the road.”

Fate Terry, age 56 at the time of the trial, moved onto the Hayes property as a child. He cultivated the Hayes property, including the property where the Mt. Zion Baptist Church was later built, at the same time that Theodore Whitehurst was farming the Cotter parcel. Terry testified that the line where he and Whitehurst turned around when plowing their respective plots was “straight and level across” from the fence.

In 1945 Ervin and Arsolar Hayes conveyed a one-acre segment of land at the southwest corner of their property to the Mt. Zion Baptist Church, which was later incorporated as the Mt. Zion Baptist Church of Enterprise, Inc. Fate Terry continued to farm the remainder of the Hayes property, including that portion of the disputed strip to the north of the church property.

The Neal family replaced the Terrys as tenants on the Hayes place in the late 1950’s. Richard Neal testified that he would plow to a “rise on the line” which Hayes had shown him. Neal described the location of the rise as “parallel with the fence across the road.”

The Neals moved away and were replaced by Clem Henderson in 1962 or 1963. Henderson occupied the Hayes property up to and including the time of the trial. He testified that he had planted a crop each year as far west as a turn row which “lined up with” the fence.

During the early 1970’s, a subdivision was built on the property across the road from the Cotter parcel. When platting the subdivision the surveyor used the fence line as the eastern boundary of the subdivision because it was accepted by the coterminous land owners as the property line.

When Cotter bought the parcel north of the road to develop as a subdivision, he hired Veston Bush to survey the property. Bush testified that the south 190 feet of the strip in dispute (the portion adjacent to, and claimed by, the church) was in “high vegetation” when he first inspected the property. The next 310 feet had been plowed and the northernmost portion, about 400 feet deep, was wooded. Bush prepared a survey and made a drawing of the dimensions of the property on a photograph depicting the acreage surrounding the land line.

On the basis of Bush’s survey Cotter began preparing the land for construction of buildings. According to Clem Henderson, Cotter’s builders bulldozed part of his corn field. The disagreement over the land line ensued and the plaintiffs filed suit.

“If a coterminous landowner holds actual possession of a disputed strip under claim of right, openly and exclusively for a continuous period of 10 years, believing that he is holding to the true line, he will acquire title to that line, even though the belief as to the correct location of the line originated in a mistake. It is immaterial what he might or might not have claimed had he known he was mistaken. While intent to claim the disputed strip is required, there is no requirement that the intent be to claim property of another, as such a rule would make adverse possession dependent upon bad faith. Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully.”

Reynolds v. Rutland, 365 So.2d 656, 657-658 (Ala.1978); Hagler v. Clark, 337 So.2d 327, 329 (Ala.1976); Smith v. Brown, 282 Ala. 528, 535, 213 So.2d 374, 380 (1968).

The plaintiffs in the instant case produced numerous witnesses who testified that the Hayes family and their tenants cultivated the disputed strip continuously from 1923 until 1979. Cultivation by a coterminous landowner up to a turnrow is a sufficient possessory act to constitute adverse possession. Cambron v. Kirkland, 287 Ala. 531, 535, 253 So.2d 180, 183 (1971); Withers v. Burton, 268 Ala. 365, 371, 106 So.2d 876, 880-881 (1958).

Three witnesses testified on behalf of the defendants. John Morgan sold the property to Cotter. Morgan testified that he had not farmed the land for fifteen to twenty years before he sold it and that he did not know exactly where the line was. Cotter himself knew nothing of the history of the land. When Veston Bush, the surveyor hired by Cotter, was asked whether, in his professional judgment, he saw any evidence of adverse possession when examining the property, he replied “[nothing] except the plowed field was being used.”

When evidence is presented ore tenus and a trial court establishes a boundary between coterminous land owners, the decree is presumed correct and need only be supported by credible evidence in order to withstand appeal. Nelson v. Garrard, 403 So.2d 230, 232 (Ala. 1981). In the case sub judice, however, defendants cited us no evidence rebutting the plaintiffs’ testimony of adverse possession nor did we find any such evidence during examination of the record. In light of the uncontroverted testimony that the plaintiffs and those in privity with the plaintiffs cultivated the disputed parcel, and where the undisputed evidence proves all the elements of adverse possession, the trial court’s decree was clearly erroneous. Bussey v. Bussey, 403 So.2d 907 (Ala.1981).

While the evidence of cultivation was uncontroverted, we note that the northernmost 400 feet of the disputed strip was wooded. There was no evidence that the plaintiffs ever adversely possessed the wooded portion of the disputed parcel. Therefore, as to the wooded portion, the trial court’s decree is due to be, and is, affirmed.

The southernmost 190 feet of the disputed strip was also uncultivated when Mr. Bush made his survey. It was, however, cultivated for a sufficient length of time before the church was built to enable plaintiffs to claim title to that segment. Once title vests by adverse possession the possessor retains title unless divested in some manner in which any other property owner might be divested. Barry v. Thomas, 273 Ala. 527, 531, 142 So.2d 918, 922 (1962); Marsh v. Gragg, 228 Ala. 269, 272, 153 So. 219, 221 (1934).

The decree of the trial court is affirmed in part and reversed in part. The case is remanded to determine the exact location of the boundary established by adverse possession by cultivation of the disputed area.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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