author: BEATTY, Justice.

text:
    L.J. MOSS v. CHAMPION INSURANCE COMPANY.
    82-505.
    Supreme Court of Alabama.
    Oct. 7, 1983.
    Rehearing Denied Dec. 9, 1983.
    J. Earl Smith of Smith & Smith, Dothan, for appellant.
    William L. Lee, III, and William C. Carn, III, of Lee & Mclnnish, Dothan, for appel-lee.
   BEATTY, Justice.

This is an appeal by the defendant from a judgment for the plaintiff in a declaratory judgment action. We reverse and remand.

The plaintiff, Champion Insurance Company (Champion), issued a policy of comprehensive general liability insurance to the defendant, L.J. Moss, individually and doing business as Central Roofing and Termite Company. The policy provided, among other things, the following:

“The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
“A. bodily injury or
“B. property damage
“to which this insurance applies, caused by an occurrence.... ”

“Occurrence” is defined in the policy as “an accident including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

During the period of time when this policy was in force the insured entered into a contract with Juanita Michael whereby the insured agreed to re-roof Mrs. Michael’s house. This contract was made on or about March 16, 1982. Work began on the roof four or five days later. The work on the roof was finished about May 15, 1982. During the period between those dates, there was rain almost every day.

Mrs. Michael subsequently filed an action against Moss to recover for damage she allegedly incurred due to rain which fell into her attic and ceilings because, as she claimed, the roof was uncovered much of the time that the re-roofing job was being performed. Moss called upon Champion to defend him, and Champion filed this declaratory action, contending that it was not obligated either to defend Moss or to pay any judgment rendered against him.

The case was heard without a jury and on evidence presented ore tenus, at the conclusion of which the trial court ruled in Champion’s favor, concluding that Mrs. Michael’s damage was not caused by an “occurrence” under the policy, because:

“[I]t stands to reason that if a roof is removed from a house in southeast Alabama in the Spring of the year and the attic space is left partially or wholly exposed for a period of time, one can reasonably expect that house to be damaged by rain....”

The issue before us is whether or not the damage complained of was caused by “an accident ... neither expected nor intended by the insured.” Moss, called as an adverse witness, testified to this issue, relating that he first had a crew of from three to four people who began the re-roofing job and worked about two weeks on it. Moss testified, “One of the reasons ... why [that crew] worked as long as [they] did, it rained every day [they were] down there.” He was asked:

“Would it be a fair statement to say then that you could expect, because of the time of the year it was and knowing the weather conditions, that it was going to rain?”

Moss answered:

“I didn’t know that. You don’t ever know that here.”

Moss explained that the roof was steep, composed of wood shingling, and that the crew would take off part, “dry it in,” and then repeat that process. The first crew left the job, and Moss employed another crew of three who stayed a week or ten days. During this time it continued to rain, and “we couldn’t go fast with it.” He stated “that roof was so steep ... I mean eight on twelve, that is a steep roof. They had to take off those boards, shingles.” After about ten days, the second crew left the job, and Moss employed still another crew, who did complete the job around the middle of May. Moss went to the job every day and, in his words, it rained “all the time we worked on it.”

Moss was asked, concerning the time during which the roof was being worked on, “[D]id they ever attempt to cover up Mrs. Michael’s roof?” He replied that he instructed his men to dry it in with felt, and that they had done so, using fifteen pound felt building paper, the same substance “ninety-five percent of the roofing men use ... to dry it in and then get the roof on.”

He acknowledged that he learned of leakage in the roof during the time they were putting the roof on, and explained it this way:

“Her home had a dead valley about— that dead valley is built like that.... And, a dead valley, the roofer does — it is built up like that, see? (Witness indicating.) So, that is where her damage come in. Most of it, I would say. She had a little damage that didn’t come in from there, but most of the damage came from that dead valley.”

It was Moss’s opinion that rainwater leaked under the dead valley because, he said, “without a doubt, they didn’t get the felt nailed down good enough.” The condition causing the leak could not be seen.

Moss explained further that the original roof was made of wood shingles which had to be removed and decking applied. He had gone inside Mrs. Michael’s house and observed that her old roof, which had no decking underneath, was leaking into a back room and a closet. Later, Mrs. Michael complained of leaks which had started after he began the work. He saw a rug which was soaked, and the ceiling, but no other damage.

Mrs. Michael testified that earlier she had sustained damage to her roof caused by hail and had called in three roofers, including Moss, to give her an estimate, ultimately contracting with Moss. She stated that the first crew worked approximately ten days, coming at various times and leaving at various times. It was raining off and on, and, she said, one “could anticipate and expect it would rain during that period of year.” The crew removed the twin peaks (on the roof) and roofed it completely with new shingles. They also totally removed the roof and placed one piece of plastic in the center of the twin peaks which, she said, was gone “before the men were at the end of the street, ... [because] the wind was blowing very-hard. ” When the roof was removed, she said, it “was open right into the ceiling, right into [the] attic” and “they started putting on the plywood and felt and those parts were okay.” She described the process as one in which the crew would put down plywood on a section and then cover that, but the other section was left open. Meanwhile, she added, there was a period of time, for five to eight days, that no roofers came, and during that time her roof was just open and the house exposed to the elements.

It is clear from our cases that the term “accident” in such a policy does not necessarily exclude human fault called negligence. United States Fidelity and Guaranty Company of Alabama v. Bonitz Insulation Company of Alabama, 424 So.2d 569, 571 (Ala.1982), citing Employers Insurance Company of Alabama, Inc. v. Alabama Roofing & Siding Company, 271 Ala. 394, 124 So.2d 261 (1960). (In the latter case the insured roofing contractor left a partially replaced roof overnight, with sufficient protection from rain; however, water leakage caused damage. Held: judgment for plaintiff contractor against insurer affirmed.) The decision in Alabama Roofing, supra, followed that in Employers Insurance Company of Alabama v. Rives, 264 Ala. 310, 87 So.2d 653 (1955), and involved the same policy language as that in the instant policy. We quote from Alabama Roofing, 271 Ala. at 396, 124 So.2d 261:

“Rives entered into a contract with one Williams to install pumps at a filling station and to connect the pumps with underground tanks. In performing this work Rives' employees negligently failed to tighten a connecting nut. As a result of this negligence the well of one Davis became contaminated with gasoline. Davis brought suit against Rives to recover for the damage he had suffered as a result of the contamination of his well....”

Under those facts, this Court ultimately held that the judgment of the trial court in favor of Rives against his insurance company should be upheld, because “accident” as used in the policy did not necessarily exclude negligence. In Bonitz, supra, this Court did not distinguish Alabama Roofing, supra, on the ground insisted upon by the insurance company, i.e., that the damage complained of occurred after the roofing contract:

“In both cases, there was a ‘continuous or repeated exposure to conditions’ within the definition contained in the policy resulting in property damage. When the property damage began vis-a-vis the roof leaks, there was an occurrence.... As Bonitz is merely charged with negligence in installing the roof, there is no evidence that they either expected or intended the roof to start leaking....”

Harleysville Mutual Casualty Company v. Harris & Brooks, Inc., 248 Md. 148, 235 A.2d 556 (1967), a case dealing with the application of the policy term “accident,” contains analyses of several cases bearing on the point, notably Haynes v. American Casualty Company, 228 Md. 394, 179 A.2d 900 (1962) (construction contractor who pointed out property line and then left construction site not charged with duty to foresee that his employees would cross line and commit trespasses on another’s property); Cross v. Zurich General Accident & Liability Insurance Company, 184 F.2d 609 (7th Cir.1950) (“accident” found in damage to glass windows during cleaning because of obvious lack of intent to cause damage by insured and definite steps taken by insured to prevent damage); O’Rourke v. New Amsterdam Casualty Company, 68 N.M. 409, 362 P.2d 790 (1961) (roofing company allowed to recover from insurer for rain damage to interior of house under facts disclosing that his telephone calls to weather bureau resulted in his being told “no rain in sight,” thus establishing that roofer’s precautionary actions had removed possible damage from realm of his foresight or reasonable expectation).

The Harleysville decision quoted from O’Rourke, supra, which had analyzed similar cases, and observed that “these cases involved conscious acts, as a result of which it could reasonably be foreseen that the damage which actually occurred would result.”

In the instant case, the trial court premised its holding upon a finding that the attic space was partially or wholly exposed. With respect, we do not agree that such a fact would establish the absence of an “accident” under this policy. The fact that the roof was exposed for a period of time by the employees of this roofing contractor does not, under the cases cited, automatically cause him to lose his insurance coverage, any more than his own negligence would do so. Bonitz, supra. Quite the contrary, the authorities absolve the insured where there is a lack of intent to cause damage or where he has taken reasonable steps to prevent damage and thus could not reasonably foresee the damage caused.

Of course, the presence of successive periods of rain during the pertinent period of time here was not denied. Neither was it disputed that the roof in question was a difficult one. There was no evidence that Moss himself was responsible for the rain, for the departure of two of his roofing crews from the job, or that he was responsible for the delays in finishing it. Moss testified that he had instructed his men to “dry the roof in” with felt. That the attempt was made to keep the roof covered as the work progressed was established by the testimony of Mrs. Michael herself. That it became insufficient was not attributable to Moss, who, for aught that appears from the evidence, did not intend the damage, and who by his personal efforts could not have reasonably foreseen the negligence of his crews in their failure to follow his instructions. Mrs. Michael’s complaint against him charged him with negligence (and breach of contract), not conscious acts made with intent to cause damage. His instructions establish his definite steps taken to prevent damage. And finally, after the “repeated exposure to conditions,” the roof leaked. Thus, there was an “occurrence” under the policy, and the plaintiff, Champion, is obligated by the terms of the policy to defend the Michael action and perform other duties contracted for thereunder. We find, therefore, that the conclusions of the trial court, under the evidence, were clearly erroneous and against the great weight of the evidence. First Alabama Bank of Montgomery, N.A. v. Martin, 425 So.2d 415 (Ala.1982).

We contrast this finding with our opinion in United States Fidelity & Guaranty Co. v. Warwick Development Co., 446 So.2d 1021, in which we had the same policy definition of an “occurrence.” In United States Fidelity & Guaranty Co., we held that a “reliance upon misrepresentations” claimed by the plaintiffs did not constitute an occurrence. We further found under the facts of that case that there was no “property damage” within the definition of the policy provisions.

The judgment in the present case must be, and it is, reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur.


source: Caselaw Access Project

author: BEATTY, Justice. JONES, Justice

license: Public Domain

text:
    Roy Ronald LOWE, etc. v. Roy FULFORD and Leah Fulford, etc.
    81-464.
    Supreme Court of Alabama.
    Oct. 7, 1983.
    Rehearing Denied Dec. 9, 1983.

      Edward F. Morgan, Tuscaloosa, and C.O. Burkhalter, Gordo, for appellant.
    Olin W. Zeanah and Wilbor J. Hust, Jr., of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   ON APPLICATION FOR REHEARING

BEATTY, Justice.

The original opinion in this case, dated June 3, 1983, is withdrawn, and the following opinion is substituted therefor.

This appeal concerns the question of which party or parties should receive the balance of proceeds recovered from two wrongful death actions. Following a declaratory judgment in favor of the defendants, plaintiff appeals. We affirm in part, reverse in part, and remand.

This controversy involves only issues of law, and the following facts are undisputed.

On September 17, 1973, Elva Fulford and her daughter, Lou Anne Fulford Lowe, were involved in a one-car accident. As a proximate result of the accident, Elva Ful-ford died on September 17 and her daughter died three days later on September 20. Fulford was survived by her husband, Roy Fulford, and two daughters, Leah Fulford and Lou Anne Fulford Lowe. Lou Anne Fulford Lowe was survived by her husband, Roy Ronald Lowe, a sister, Leah Fulford, and her father, Roy Fulford.

For ease of discussion we refer to the two estates as the “Fulford Estate” and the “Lowe Estate.” Roy Fulford was appointed administrator of the Fulford Estate, and Roy Ronald Lowe was appointed as administrator of the Lowe Estate.

Separate wrongful death actions were filed by the administrators against General Motors Corporation (GMC) in the Circuit Court of Tuscaloosa County in January 1974. These cases were removed to the United States District Court for the Northern District of Alabama and were consolidated for trial. A jury verdict was rendered in favor of each administrator against GMC. Later, GMC was granted a new trial, which resulted in a judgment in each case in favor of GMC. Following appeal by each administrator to the Fifth Circuit Court of Appeals, each case was reversed, and the original judgment reinstated, but the cases were remanded to the trial court. The trial court remitted the original jury verdict by fifty percent, and final judgments were entered against GMC and in favor of each administrator. Initial distributions, including cost of litigation and uncontested sums distributed to the surviving heirs, have been made and those payments are not contested here.

Roy Ronald Lowe, individually and as administrator of the Lowe Estate, filed a petition for declaratory judgment to determine who was entitled to the balance of the proceeds recovered in the two wrongful death actions. Generally the plaintiff claims he is entitled to all the Lowe Estate, of which he has already received one-half, and to one-fourth of the Fulford Estate. The Circuit Court of Tuscaloosa County ruled that defendant Leah Fulford was entitled to the balance of proceeds from the Fulford Estate and that defendants Roy Fulford and Leah Fulford were entitled to the balance of the Lowe Estate. The court further found that Roy Ronald Lowe had received all he was entitled to from the Lowe Estate and was not entitled to any of the proceeds at issue designated to the two estates.

The question for this Court to determine is who is entitled to the remaining one-fourth of the proceeds recovered from the wrongful death action allocated to the Ful-ford Estate and the remaining one-half of the proceeds recovered from the wrongful death action allocated to the Lowe Estate. No other monies are questioned by the plaintiff.

The Fulford Estate

The plaintiff contends that he is entitled to the one-fourth of the proceeds designated to the Fulford Estate through Lou Anne Fulford Lowe. We agree with plaintiff’s argument that at the time of Mrs. Fulford’s death the heirs at law entitled to share in her inheritable estate included Lou Anne Lowe. Heirs are determined at the time of death. White v. Fowler, 245 Ala. 209, 16 So.2d 399 (1944). We cannot agree, however, that the Lowe Estate was entitled to receive any of the monies recovered in the wrongful death action brought on behalf of Mrs. Fulford. Because Mrs. Lowe died some four months before the wrongful death action was filed and almost two years before the initial judgments were entered in June of 1975, she had no property right in the wrongful death cause of action. Mrs. Lowe’s right was personal and ceased to exist upon her death.

We recognize that there are two lines of authority concerning whether the death of a beneficiary prior to the commencement of a wrongful death action forecloses recovery in favor of the beneficiary’s estate. However, due to the punitive nature of the Alabama Wrongful Death Statute, we conclude that where a beneficiary dies prior to the commencement of an action, that beneficiary’s estate is not entitled to any of the damages recovered. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912 (1911), although not directly on point, provides guidance in this case. In Holt a man died leaving a widow and, three children. While a wrongful death action was pending the widow remarried and subsequently died. Thereafter, damages were recovered and the second husband petitioned the court for one-half the proceeds as surviving spouse. The court rejected the petition, finding no property right in the wife. The court held:

“The gist of the argument is that Mrs. Holt’s interest in the cause of action arising out of the death of her first husband became a part of the property of her estate.... [W]e state our conclusion that the mere right to sue for damages conferred by section 2486 of the Code, is not property, within the meaning of the statutes of distribution.
“... It is also well settled that, in the absence of statutory provision, rights of action for torts purely personal do not survive, and are not assignable. — Weller v. Jersey City Railway Company, 68 N.J.Eq. 659, 61 Atl. 459; Id., 6 Am. & Eng.Ann.Cas. 442. Scores of adjudicated cases might be cited to both these propositions. The right to prosecute an action for the wrongful death of his decedent is vested by the statute creating the right (Code, § 2486) in the personal representative for a definite legislative purpose, to prevent homicide. In prosecuting such action, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy, and upon recovery as a quasi trustee for those who stand in the relation of distributees to the estate strictly so called. — White v. Ward, 157 Ala. 345, 47 South. 166, 18 L.R.A. (N.S.) 568. And the right is vested in the personal representative alone. No one else, under any circumstances except in case of the death of a minor child, where section 2485 gives a preferred right to the father or mother, can maintain the action in any forum. The mere right of action is therefore nonassignable at law and in equity. The right of disposition is inherent in every notion of property. On these considerations of general law, we are of opinion that Mrs. Holt had no property right in the cause of action created by statute: Her right was personal merely.
“Another consideration conduces to the same conclusion. By section 2 of the Code, ‘personal property’ is defined to include ‘money, goods, chattels, things in action and evidences of debt, deeds and conveyances.’ In a certain broad sense, ‘things in action’ include demands in tort for injuries strictly personal. In a narrower sense, it includes only assignable rights of action, and this is the sense in which it is generally used. — Gibson v. Gibson, 43 Wis. 23, 28 Am.Rep. 527; People v. Tioga, 19 Wend. (N.Y.) 73. The words associated with ‘things of action’ in the statutory definition indicate the legislative intention to use the term consonantly with its general use; that is, in its more limited meaning. The context speaks of tangible subjects of property right and evidences of debt. There is also a significant collocation of things in action and evidences of debt. No debt arises out of tort in advance of judgment. ...
“Our conclusion is that, whatever may have been the case if judgment had been recovered prior to the death of Mrs. Holt, under the facts shown, the probate court correctly adjudged the appellant to be without right in the premises.” (Emphasis added.) 174 Ala. at 215-217, 56 So. at 912.

Applying Holt to the present facts, there was not even so much as a pending action at the time of Mrs. Lowe’s death; and judgment thereon was not recovered until May 1981. Mrs. Lowe, having died before the wrongful death action was reduced to judgment, had no property right in the potential wrongful death action on behalf of her mother. We affirm the trial court’s holding that the plaintiff, Roy Ronald Lowe, individually, and as administrator of the estate of Lou Anne Lowe, deceased, is not entitled to share in the proceeds at issue designated to the Fulford Estate.

The Lowe Estate

The proceeds recovered from the wrongful death action on behalf of Mrs. Lowe were designated to the Lowe Estate. On the basis of the statutory scheme for distribution of personalty to surviving spouses in effect at the time of Mrs. Lowe’s death, September 20, 1973, plaintiff received one-half of the monies recovered. Code of 1975, § 43-3-12. In seeking to obtain the remaining one-half of the proceeds at issue before this Court, plaintiff contends that the statute of distribution in effect at the time of his wife’s death should be declared unconstitutional on the grounds of impermissible gender-based discrimination in violation of the Fifth and Fourteenth amendments.

As stated in the trial court’s order:

“At the time of Mrs. Lowe’s death on September 20, 1973, the Ala.Code, Title 16, §§ 10, 12 (1940, Recomp.1958), subsequently Ala.Code, §§ 43-3-10, 43-3-12 (1975), set forth the statutory scheme for distribution of personalty to surviving spouses. Ala.Code, § 43-3-10 (1975), provided at that time that a widow, if there was no children, would receive all of the personal estate of her spouse upon his death. Ala.Code, § 43-3-12 (1975), provided at that time that a widower would receive one-half of the personal estate of his spouse upon her death.”

Plaintiff contends that because the statute controlling at the time of his wife’s death was unconstitutional he should be entitled to 100% of the proceeds recovered in the wrongful death action, just as his wife would have received 100% of his personalty if he had died with her surviving.

We agree with the trial court’s order as to the following:

“Generally courts are reluctant to reach constitutional questions, and should not do so, if the merits of the case can be settled on non-constitutional grounds. White v. U.S. Pipe & Foundry Co., 646 F.2d 203 (5th Cir.1981). Courts will inquire into the constitutionality of a statute only when and to the extent that the case before the court requires. Steward Machine Co. v. Davis, 89 F.2d 207 (5th Cir.1937), aff’d, 301 U.S. [548], 558 [57 S.Ct. 883, 81 L.Ed. 1279]. A court has a duty to avoid constitutional questions unless essential to the proper disposition of the case. Doughty v. Tarwater, 261 Ala. 263, 73 So.2d 540 (1954); Moses v. Tarwater, 251 Ala. 361, 58 So.2d 757 (1952); Lee v. Macon Co. Board of Education, 231 F.Supp. 743 (M.D.Ala.1964).
“No matter how much the parties may desire adjudication of important questions of constitutional law, broad considerations of the appropriate exercise of judicial power prevents such determinations unless actually compelled by the litigation before the court. Troy State University v. Dickey, 402 F.2d 515 (5th Cir.1968). Legislative enactments will be assumed to be valid until assailed by someone injuriously affected thereby. State v. Montgomery, 177 Ala. 212, 59 So. 294 (1912).
“If a statute is declared unconstitutional on the grounds of denial of equal protection due to different treatment being discriminatorily accorded such as through underinclusiveness, a court may satisfy the Constitution’s commands by either extending benefits to those excluded from the scope of ... its coverage or by invalidation of the statute in its entirety. Ransom v. Ransom, 401 So.2d 746 (Ala.1981). There the Alabama Supreme Court, just as the Court of Civil Appeals in Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.1979), decided to breathe constitutionality [sic] validity into the act in question to effectuate the legislative intent....”

In holding that the plaintiff was entitled to one-half the Lowe Estate, the trial court’s order enacted in February 1982 manifests that he applied the wording of Code of 1975, § 43-3-10, as amended, Acts 1981, 1st Ex.Sess., No. 81-967, effective August 20, 1981, which reads as follows:

“The personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as real estate, and according to the same rules; if a spouse having a separate estate dies intestate, leaving a spouse living, the surviving spouse is entitled to one half of the personalty of such separate estate absolutely and to the use of the realty during his or her lifetime.”

Unfortunately, the trial court considered this as the latest amendment to Code of 1975, § 43-3-10. In fact the statute was amended by Acts 1981, 3rd Ex.Sess., No. 81-1170. The second 1981 amendment, approved November 30, 1981, effective retroactively as of 9:30 a.m., August 20, 1981, rewrote § 43-3-10 to read as follows:

“The personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as real estate, and according to the same rules; except that in any event the surviving spouse is entitled to no less than one half of the personalty of such separate estate absolutely.”

It is clear from the record that this change in the law was neither comprehended by the trial court nor brought to its attention by the attorneys. Nevertheless, at the time the trial court’s order was entered the law did allow the surviving spouse, in this case the husband, a minimum of one-half the remaining personalty after the payment of debts and charges against the estate.

Contrary to the trial court’s conclusion, Code of 1975, § 43-3-10, had in fact been amended three times. The most recent pronouncement of legislative intent for § 43-3-10, as of the date of judgment, was found in Act 81-1170, and it supported appellant’s contention that he was entitled to 100% of the proceeds recovered in the wrongful death action on behalf of his wife. The latest legislative effort in § 43-3-10 as of the date of judgment stated that the surviving spouse was entitled to no less than one-half of the personalty and also stated that “[t]he personal estate of persons dying intestate as to such estate ... is to be distributed in the same manner as real estate, and according to the same rules.” Reading § 43-3-10 in pari mate-ria with § 43-3-1, which provided for the descent and distribution of real estate of an intestate, leads us to conclude that the legislature intended that a surviving spouse receive all the personalty when there were no children. Section 43-3-1 read in pertinent part:

“The real estate of persons dying intestate, as to such estate descends, subject to the payment of debts and charges against the estate as follows:
“(2) If there are no children or their descendants then the whole to the surviving spouse of the intestate.”

To summarize, Mrs. Lowe died September 20, 1973, and at that time §§ 43-3-10 and 43-3-12 provided the statutory scheme for distribution of personalty to surviving spouses. Under § 43-3-12, Mr. Lowe received one-half of the proceeds recovered in the wrongful death action on behalf of his deceased wife. On August 20, 1981, the legislature amended § 43-3-1 and § 43-3-10, and repealed completely § 43-3-12 by Act 81-967. Later, on November 30, 1981, Act 81-967 was amended and superseded by Act 81-1170, effective retroactively as of August 20, 1981. The only difference in these two acts was in the rewording of § 43-3-10. Construing § 43-3-10, as it read at the date of judgment, in pari materia with § 43-3-1, we conclude that it was the intent of the legislature that when there were no surviving children the surviving spouse, here Mr. Lowe, was to receive 100% of the personalty absolutely. Therefore, regarding the balance of the proceeds designated to the Lowe Estate, we must reverse the judgment and remand this case for further proceedings in accord with this opinion.

APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All Justices concur in the granting of rehearing; all Justices concur in the opinion as it relates to the Fulford Estate except JONES and ADAMS, JJ., who dissent; all Justices concur in the opinion as it relates to the Lowe Estate, except TOR-BERT, C.J., and JONES and FAULKNER, JJ., who concur in the result.

JONES, J., writes separately in dissent as to the Fulford Estate, joined by ADAMS, J., and to concur in the result as to the Lowe Estate, joined by TORBERT, C.J., and FAULKNER, J.

JONES, Justice

(concurring in the result in part and dissenting in part).

I concur in the result of the second portion of the majority’s opinion, dealing with the Lowe Estate, and respectfully dissent as to that part of the opinion dealing with the Fulford Estate.

The majority relies on Holt v. Stollenwerck in denial of Plaintiffs intestate share of the Fulford Estate proceeds. I agree that Holt is authority for so holding. I would overrule Holt, for I believe its holding incorrectly focuses upon indeterminate time factors relating to the wrongful death claim, and thereby overlooks the correct distribution of proceeds mandated by statute and case law. Because Mrs. Lowe survived her mother, Mrs. Fulford, and because Mrs. Lowe was an heir when the wrongful death cause of action accrued— that being the date of her mother’s death— proceeds recovered from prosecution of that action should pass to Plaintiff through his wife, Lou Anne Lowe, according to the statute of distribution. •

The majority correctly states: “[A]t the time of Mrs. Fulford’s death the heirs at law entitled to share in her inheritable estate included Lou Anne Lowe. Heirs are determined at the time of death. White v. Fowler, 245 Ala. 209, 16 So.2d 399 (1944).” 442 So.2d at 31. The majority opinion, however, focusing on the existence vel non of a property right of Mrs. Lowe in the wrongful death cause of action, incorrectly concludes that her “right was personal and ceased to exist upon her death.”

Code 1975, § 6-2-38(a), states:

“An action by a representative to recover damages for wrongful act, omission or negligence causing the death of the decedent under sections 6-5-391 and 6-5-410 must be commenced within two years from the death.”

This statute clearly delineates a two-year period for wrongful death suits, such period beginning upon the accrual of the cause of action — the date of death. Therefore, at the time of Lou Anne Lowe’s death, which occurred subsequent to Mrs. Fulford’s death, the wrongful death cause of action, arising from Mrs. Fulford’s death, had accrued.

In the recent case of Blansit v. Cornelius & Rush Coal Co., Inc., 380 So.2d 859 (Ala.1980), this Court, in addressing the issue of proper allocation of death benefits, stated:

“While § 6-5-410 of the Alabama Code requires a ‘personal representative’ of the decedent to commence a wrongful death action, the real parties in interest, and the intended beneficiaries under the statute, are the heirs of the decedent determined by the statute of distribution. Board of Trustees of the University of Alabama v. Harrell, 43 Ala.App. 258, 188 So.2d 555 (1965).” 380 So.2d at 861.

In Hardin v. Sellers, 270 Ala. 156, 117 So.2d 383 (1960), the Court stated, concerning the proceeds recovered:

“Indeed, the recovery does not go to the wife or the husband, but to the estate of the decedent as stated in South & North Alabama Railroad Co. v. Sullivan [59 Ala. 272, 279 (1877) ].
“ ‘To whom does the compensation go? Not to the husband, wife or child. The statute contains no provision that the recovery shall go to these. It shall be “distributed as personal property of an intestate is now distributed.” That is, it goes to the estate of the decedent, with the limitation, that the fund “shall not be subject to the payment of the debts of the deceased.” ’ ”

270 Ala. at 159, 117 So.2d 383.

Six years after Hardin, the Court, in Stevens v. Thompson, 279 Ala. 232, 184 So.2d 140 (1966), discussed the quoted language from Sullivan relating to the disposition of wrongful death proceeds. The issue arose in the context of deciding whether a witness was competent to testify under the Dead Man’s Statute, Code 1940, Title 7, § 433, which declares one having a pecuniary interest in the decedent’s estate incompetent to testify “as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit.”

In Stevens, the Court, citing Holt and other cases, held that the estate of a decedent is not interested in the result of a wrongful death action because the damages recoverable in such suit are not assets of the estate, but, instead, are paid directly to the distributees by the personal representative. In so holding, the Stevens Court noted the apparent conflict between the language in Hardin and Sullivan and the Holt line of cases:

“These statements that a recovery under the Homicide Statute goes to the estate of the decedent are in conflict with the foregoing authorities (holding that damages recoverable under the Homicide Statute are not assets of the estate) and will not be followed.”

Careful study of Stevens, and authority cited therein supporting the proposition that assets recovered are not part of the estate, shows the Court only disagreed with statements indicating that a wrongful death “recovery ... goes to the estate,” thereby making the estate interested in the outcome of the wrongful death litigation. See, e.g., Atlantic Coast Line R. Co. v. Flowers, 241 Ala. 446, 3 So.2d 21 (1941) (witness not disqualified because estate not interested in suit); Stephens v. Williams, 226 Ala. 534, 147 So. 608 (1933) (estate of decedent not interested in result of suit and administratrix competent to testify).

No inconsistency exists between the cases as regards the distribution of wrongful death proceeds, the problem which faces us in the instant case. Our case law clearly recognizes the statutory mandate that wrongful death proceeds go directly to the heirs of the deceased according to the statutory scheme of intestate succession. Baggett v. Sellers, 282 Ala. 235, 210 So.2d 796 (1968) (damages recovered must be distributed according to statute of distribution); Hatas v. Partin, 278 Ala. 65, 175 So.2d 759 (1965) (personal representative is conduit for collecting damages and passing them over to those entitled under statute); Stephens v. Williams, supra, (administratrix is statutory representative, suing for sole benefit of beneficiaries named in statute); Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882 (1921) (distributees of decedent’s estate are sole beneficiaries of proceeds); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911) (property right in damages vested exclusively in distributees of intestate); Louisville and Nashville R.R. Co. v. Street, 164 Ala. 155, 51 So. 306 (1909) (sum recovered not asset of estate, not subject to decedent’s debts or liabilities, and sum recovered is distributable in accordance with our statute of distribution).

In order to ascertain the proper allocation of wrongful death proceeds, one must look to the statute of distribution in effect at decedent’s date of death. The heirs, ascertained at the date of death, are entitled to share, according to statute, in any proceeds forthcoming from a wrongful death action. Apart from the statutory “payment of the debts” exception recognized in Hardin, supra, no sound reason exists to support different treatment in the distribution of wrongful death proceeds as compared to other personal property of the decedent.

The entitlement to wrongful death proceeds, if any, vests in heirs entitled to take under the laws of intestate distribution effective upon the decedent’s death. The mere fact that the action yielding those proceeds is not commenced, or has not come to judgment, upon the death of one entitled to take, does not alter the fact that the proceeds, under these circumstances, pass to the heirs-at-law of the person so entitled. Any contrary holding interjects uncertainty and unfairness into the distribution process by allowing fortuitous circumstances to control the disposition of the proceeds.

Holt’s result-oriented holding creates more problems than it solves. Through a mysterious and contortional process of reasoning, it seeks to transpose the legal incident fixing the heirs entitled to share in the proceeds of a wrongful death recovery from the date of death to some indefinable future event — the date of judgment, a date which is subject to the unilateral manipulation of the personal representative.

Suppose the personal representative is one of the heirs who stands to increase his distributive share by the death of another heir before the date of judgment. Particularly when death of another heir is impending, why not await that heir’s death before filing suit, or entering judgment, or executing the release, as the case may be? A rule of law that permits, even encourages, such control, by unmonitored manipulation, is nonsensical and violative of the whole of the statutory scheme of intestate succession. In all circumstances, the operative legal incident, triggering the distributee determination, should be fixed as a matter of law, rather than, in the single circumstance of wrongful death, depend upon subsequent extraneous events.

Holt took very simply written, direct language in the wrongful death statute, which clearly contemplates distribution of wrongful death proceeds in the same manner as other personal property, and carved out of whole cloth a special rule relating only to wrongful death recovery. I find absolutely no authority for the proposition that, in intestate administrations generally, those funds collected through litigation go to the statutory heirs determined as of the date such suits are reduced to judgment or are otherwise payable.

If I am mistaken in this regard, and, indeed, if it is the law that heirs of one who dies intestate are determined as of the date of death only to the extent of liquidated assets (that is, personal property in hand as of the date of death), then I will gladly stand corrected; for it is the basis of my dissent that, except for the mandate exempting the proceeds from the payment of debts, wrongful death proceeds are to be handled in every respect the same as other personal property.

For example, suppose the deceased had been injured in an automobile wreck, suffered medical expenses, loss of earnings, pain and suffering, etc. He filed suit and, during its pendency, died intestate from causes unrelated to the accident. Clearly, the action (as opposed to the cause of action) survives and is revivable pursuant to § 6-5-462. No one would even suggest that the recovery affected by the administrator for this tort would be distributed in any manner different from monies recovered from a contractual obligation, or from a bank account, or from any other personal property comprising the assets of the estate.

Unquestionably, all the personal property of such an estate, whether its source consists of funds in hand, or monies collected by litigation enforcing contractual causes of action or survivable tort actions, “must be distributed according to the statute of distributions,” subject, of course, to the payment of debts. For a general discussion of estate debts and rights of action, see 33 C.J.S. Executors and Administrators §§ 100 and 102 (1942). With the same degree of certainty, the heirs-at-law are determined as of the date of the intestate’s death. Why, then, in the face of the statutory mandate that “damages recovered [for wrongful death] must be distributed according to the statute of distributions,” should a different rule obtain with respect to when the wrongful death distributees are to be determined?

The only difference that can be gleaned from the controlling statutes is that distribution of personal assets generally is subject to the payment of debts, while distribution of wrongful death proceeds is not subject to the payment of debts. Surely, nothing in this “not subject to the payment of debts” difference in the wrongful death statute suggests a difference in the manner of determining the persons entitled to share in the distribution of wrongful death benefits. Indeed, to judicially create such a difference is to thwart the legislative expression of public policy with regard to the eligible heirs-at-law of a wrongful death decedent.

Holt and the instant majority opinion suggest that the punitive nature of our Homicide Statute supports the different treatment rationale as between proceeds of estates generally and wrongful death proceeds. I maintain just the opposite view. I find absolutely no authority, nor in reason could there be any, for the proposition that the wrongful death tortfeasor, under Alabama’s “punitive damages only” rule, has standing to raise as a defense the fact that the wrongful death decedent left no surviving heirs-at-law. This point is dramatized by the contrary result that obtains in a compensatory claim under the Workmen’s Compensation Act, where death benefits are denied because the deceased employee leaves no surviving dependents. See Patterson v. Sears-Roebuck & Co., 196 F.2d 947 (5th Cir.1952).

But, first, we need to understand the majority’s “punitive damages” rationale. The majority’s point is to the effect that, because the damages are merely punitive, the heirs-at-law are determinable at the time of judgment (or at the time the proceeds are otherwise collectible) as opposed to the statutory heirs at the time of decedent’s death. The “punitive damages only” significance, supposedly, is that heirs who die between the date of death and the collection of the proceeds no longer have a sufficient nexus with the punishable wrong as to share in the proceeds of the “civil fine.” The language of the Homicide Statute simply does not lend itself to the implementation of such a policy.

Perhaps the clearest example refuting the “punitive damages only” rationale employed by the majority to justify a different rule of distribution in wrongful death cases is where the wrongful death decedent leaves no surviving heirs; thus, the net proceeds of the recovery effected by the personal representative escheat to the State. Even in the absence of statutory distributees, the overall legislative policy of punishing the wrongdoer as a means of preserving human life is being implemented without regard to whether the victim of the wrong fortuitously left surviving heirs.

Indeed, a majority of the states which permit compensatory damages only to specifically named dependents hold, consistent with Patterson, supra, that prior death of the heirs (i.e., the non-existence of named classes authorized to recover) abates the action. For a collection and analysis of the cases, see 43 A.L.R.2d 1291, Effect of Death of Beneficiary Upon Right of Action Under Death Statute (1955), and 43 A.L.R.2d Later Case Service at 548-550 (1980). A different rule obtains and no abatement of wrongful death actions results, where the decedent leaves no heirs-at-law; thus, I am unable to find any justification in this or any other proffered rationale for a rule of law that treats wrongful death proceeds in a manner different from personal assets generally, except as expressly provided by statute — i.e., that wrongful death proceeds are not subject to the payment of debts. Moreover, Massachusetts is the only other state whose wrongful death statute was once the same as our § 6-5-410, and this dissent accords with the Massachusetts Supreme Judicial Court’s interpretation of that state’s earlier punitive wrongful death statute. Johnston v. Bay State St. Ry. Co., 222 Mass. 583, 111 N.E. 391 (1916).

In conclusion, an explanation for my concurrence in the result of the majority’s opinion as to the Lowe Estate is appropriate. Having disagreed with the majority’s holding as to the Fulford Estate, and consistent with my reasons therefore, I would apply the law applicable at the time of Mrs. Lowe’s death in determining the wrongful death distributees of her estate. This would lead me to a determination of the issue of constitutionality of the gender-based classifications contained in those applicable statutes. As did the trial judge, I would find such classifications unconstitutional. Again, as did the trial judge, I would defer to the subsequent acts of the legislature which removed the gender-based distinction and render these descent and distribution statutes constitutional in the same manner as did Act No. 81-1170 (passed November 30, 1981, made retroactive to August 20, 1981). Under that statute, the surviving spouse, where there are no children, receives the entire intestate personalty. (Obviously, if the trial judge had correctly used Act No. 81-1170 rather than the repealed Act No. 81-967, he would have reached this same conclusion.)

But my views with respect to distribution of the Fulford Estate wrongful death proceeds do not prevail. Therefore, I join the majority; and, pursuant to its holding and rationale as to the Fulford Estate, I would look to the law in effect at the time of the rendition of the Lowe wrongful death judgment. While I agree with the holding of the Court that the whole of the Lowe Estate proceeds be distributed to the surviving spouse, again I must differ as to the applicable law mandating this result.

Except for correcting the trial court’s erroneous reference to repealed Act No. 81-967 (which retained the gender-based distinction as between surviving spouses) and applying Act No. 81-1170 (which repealed Act No. 81-967 and abolished this unconstitutional classification by providing that either surviving spouse takes 100% of intestate personalty), the majority’s opinion adopts the reasoning of the trial court. Herein lies our point of difference. In my opinion, the law in effect on May 25, 1981 (the date of the Lowe judgment), contained no unconstitutional gender-based classification as it related to the surviving spouse where there are no children.

The trial court’s analysis of the Lowe Estate begins with this sentence:

“At the time of Mrs. Lowe’s death on September 20, 1973, the Ala. Code, Title 16, §§ 10, 12 (1940, Recomp.1958), subsequently Ala.Code, §§ 43-3-10, 43-3-12 (1975), set forth the statutory scheme for distribution of personalty to surviving spouses.”

The error of the trial court is readily apparent. Having rejected the plaintiffs contention that wrongful death distributees are determined at the time of the intestate’s death with respect to the Fulford Estate, the trial court was bound to apply the same principle in its resolution of the Lowe Estate issue. It is inconsistent on its face to reject plaintiffs claim in the Ful-ford Estate by looking to the date of judgment as opposed to the date of death, and, at the same time, apply the law at the time of Mrs. Lowe’s death in determining the distributive shares in her estate.

Such error could be error without injury only if the law at the time of death and at the time of judgment is the same. But not so. The judgment subject to distribution was entered in May 1981; and the law applicable to the distribution of these proceeds is Act No. 80-764 (effective May 28, 1980), § 43-3-1. This statute removed all gender-based distinctions as between spouses and ordered that intestacy real estate descends wholly to the surviving spouse where, "as here, there are no children. The only portion of § 43-3-10 applicable to a surviving spouse where there are no children, then as now, provided that personal property is to be distributed in the same manner as realty — that is, the surviving spouse takes all. Any pre-existing contrary provisions of § 43-3-12 (containing the gender-based distinction and repealed by Act No. 81-1170) could not contravene the clear wording of § 43-3-1, as last amended in May 1980.

In other words, when the Lowe judgment was entered and subject to distribution (in accordance with the Fulford portion of this opinion), the law then in effect — which contains no gender-based classification, where, as here, there are no children — mandates that the husband take 100% of the wrongful death recovery in the Lowe Estate. So, instead of looking to a subsequent legislative act to guide the court as to the appropriate correction of an unconstitutional act (conforming the act to constitutional standards), we need only apply the then existing constitutional act, and award the husband the remaining one-half of the Lowe Estate proceeds.

ADAMS, J., concurs as to the Fulford Estate; TORBERT, C.J., and FAULKNER, J., concur as to the Lowe Estate.

      .We note that Act 81-967 also repealed § 43-3-12, which relates to the husband’s distributive share of the wife’s estate. Further, § 43-3-1, which provides for the descent and distribution of realty, was amended by this Act.

      . When Act 81-967 was amended and superseded by Act 81-1170, the only change was the rewording of § 43-3-10.

      . We note that §§ 43-3-1 through 43-3-12 have now been repealed by Acts 1982, No. 82-399, § 8-102, effective January 1, 1983.

      . I have termed Holt "result-oriented” because a contrary holding would have permitted the second husband of the decedent’s widow (who also died before judgment) to collect the proceeds of the recovery by the personal representative based on the first husband’s death. But this is "the way the cookie crumbles.” In intestate administrations, generally, in-laws frequently end up with shares of such estates.


author: ALMON, Justice.

text:
    ALCAZAR TEMPLE, etc., et al. v. COURTESY FORD SALES, INC.
    82-29.
    Supreme Court of Alabama.
    Oct. 28, 1983.
    Rehearing Denied Dec. 2, 1983.

      Jack Crenshaw, Montgomery, for appellants.
    Richard H. Gill and Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
   ALMON, Justice.

This is an appeal from a permanent injunction granted by the trial court restraining the defendant from obstructing the right of the plaintiff to have free ingress and egress over a strip of land owned by defendant.

In 1964 defendant Alcazar Temple of the Ancient Order of the Nobles of the Mystic Shrine for North America purchased an eighty-foot-wide strip of land from Luke Johnson and his wife. The strip ran east and west 280 feet from the Eastern Bypass in Montgomery, Alabama, to Alcazar Temple’s land, and Alcazar Temple acquired it for access to its land.

The Johnsons retained parcels to the north and south of the strip conveyed to Alcazar Temple. In 1969 they sold these parcels to plaintiff Courtesy Ford Sales, Inc. Courtesy Ford established a used car lot on the south parcel and a recreational vehicle lot on the north parcel. In 1982 Alcazar proposed to build walls along the length of the strip it had bought from the Johnsons. Courtesy Ford brought this action to have the court enjoin Alcazar Temple from building the walls or otherwise interfering with Courtesy Ford’s easement for ingress and egress over the strip.

The 1964 deed from the Johnsons to Al-cazar included the following paragraph:

“The aforegranted property has been acquired by the Grantee herein for the purpose of affording passageway to the Eastern By-Pass from the West side of property acquired by the Grantee from Stuart W. Patton and Gladys T. Patton. The Grantor, Luke Johnson, reserves the right of ingress and egress over the aforegranted 'property at such location or locations as he may desire for the purpose of entering his property which borders the aforegranted property on its North and South sides. It is understood that this shall be a covenant running with the land, and shall be binding on the successors and assigns of the Grantee and the heirs and assigns of the said Luke Johnson.”

(Emphasis added.)

Alcazar Temple argues that this reservation should be limited by a construction that the exercise of the right of ingress and egress must be reasonable. Such a construction would contradict the face of the deed, which says the grantor and his assignees have the right of ingress and egress over the property granted to Alca-zar Temple “at such location or locations as [they] may desire.” Alcazar Temple purchased its strip with this broad reservation. To construe the instrument so as to require Courtesy Ford to choose one or two points at which Alcazar Temple would build gates in its wall would work an enlargement of the estate purchased by Alcazar Temple and a diminution of the estate purchased by Courtesy Ford.

“It is a fundamental precept of property law that courts should construe instruments so as to give effect to the intent of the parties.” Brashier v. Burkett, 350 So.2d 309, 311 (Ala.1977); Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951). “The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required.” Wilkins v. Ferguson, 294 Ala. 25, 27, 310 So.2d 879 (1975).

The intent of Luke Johnson, to reserve an easement for ingress and egress at any locations he or his successors might choose at any time, is manifest from the face of the deed. The trial court correctly held that the proposed wall would interfere with Courtesy Ford’s right of enjoyment of its easement and properly enjoined Alcazar Temple from obstructing Courtesy Ford’s right of free ingress and egress. The judgment is therefore affirmed.

AFFIRMED.

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


author: C.C. TORBERT, Jr. Chief Justice

text:
    OPINION OF THE JUSTICES NO. 305.
    Supreme Court of Alabama.
    Nov. 10, 1983.
   Honorable George C. Wallace Governor of the State of Alabama State Capitol Montgomery, Alabama

Dear Governor Wallace:

We have received your letter of November 3, 1983, requesting an advisory opinion regarding the several constitutional questions you describe. We quote from your letter as follows:

“The constitutional questions all relate to the special legislative elections ordered by the federal courts. The Constitution of Alabama of 1901, Article IV, Section 46, provides, in part,
“ ‘... The terms of office of the Senators and representatives shall commence on the day after the general election at which they are elected.’
“The federal court has ordered that a special legislative election be held, which election is scheduled to be held on Tuesday, November 8, 1983. In certain court orders, the United States District Court for the Middle District of Alabama has ordered, contradictorily, that the legislative terms of the currently elected Legislature extend for ‘one year’ but also ordered that their terms end on December 31, 1983, and that the terms of the newly elected Legislators (those elected in the election to be held on November 8, 1983) will begin on January 1, 1984. Thus, the first reference (‘one year’) would seemingly coincide with the Constitution of the State of Alabama, whereas the second reference is in direct conflict with the Constitution of the State of Alabama. This conflict and the related circumstances cause severe problems and uncertainty in the operation of the government of the State of Alabama under the Constitution of Alabama.
“Thus the question is when do the newly elected legislators legally begin their terms of office and when do the terms of office of the currently elected members end? Regardless of the Court’s response to the prior question, there are other constitutional questions relating to the federal court ordered special legislative elections, for which the advice of the Supreme Court is deemed appropriate.
“This next constitutional question is that the Constitution of Alabama of 1901, Amendment 39, provides for an organizational session to be held on the second Tuesday of January following the election of the Legislature. In the event that a special session of the Legislature is deemed necessary prior to this date but after the Legislature has been elected, in order to facilitate the operation of state government and to conserve the money of the taxpayers of the state, may the Legislature organize itself during a special session but prior to the transaction of legislative business?
“A third constitutional question has arisen on which I would also appreciate your advice. The Constitution of Alabama of 1901, Amendment 339, provides for regular sessions to be held annually on the first Tuesday in May, ‘or on such other days as may be prescribed by law.’ The Alabama Legislature, by legislation has provided a different date by law. Code of Alabama 1975, Section 29-1-4, while also treating the subject of organizational session in the same fashion as does the constitution, states as follows:
“ ‘... annual sessions of the Alabama Legislature shall commence on the third Tuesday in April of the first year of the term of office of the legislators, on the first tuesday of February of the second ...
“Opposing opinions are being expressed as to whether or not the meeting date for the next general session of the Legislature should be governed as the second year of the normal quadrennium or whether it should be treated as the first year.”

Having reviewed the opinion and order of the federal court in Burton v. Hobbie, 561 F.Supp. 1029 (M.D.Ala.1983) (three judge panel), (order not published), we note the described conflict between the order, which reads: “The terms of office of all present members of the Alabama Legislature, both House and Senate, shall expire at midnight December 31, 1983,” Burton v. Hobbie, supra, and Ala. Const, art. IV, § 46 (1901), which provides in pertinent part: “The terms of office of the senators and representatives shall commence on the day after the general election at which they are elected _” (Emphasis added.) Likewise, we note the seeming discrepancy between the federal court's order and its opinion which reads that “... the 1982 elections were for a one-year term.” Burton v. Hobbie, supra, at 1034-35.

We note that the order reads as follows:

“In accordance with the opinion of this Court made and entered this date, it is ordered that:
“1. Alabama Legislative Act 83-154, dated February 17, 1983, and precleared by the Attorney General of the United States on February 28, 1983, is hereby APPROVED.
“2. Said Act 83-154 will be implemented by elections which shall be conducted pursuant to said Act this fall.
“3. The present members of the Alabama Legislature elected pursuant to Act No. 82-629 shall serve out their one-year terms of office pursuant to Act No. 82-629.
“4. The terms of office of all present members of the Alabama Legislature, both House and Senate, shall expire at midnight December 31, 1983.
“5. Said elections shall be conducted pursuant to Act No. 83-154 in all districts, both House and Senate, of the state.”

We now proceed to interpret the federal court order and the provisions of Alabama’s Constitution so that the provisions of the order and the provisions of Alabama’s Constitution will be in harmony insofar as that is possible. We first consider the language of the order which refers to “one-year terms” but also states that “[t]he terms of office of all present members of the Alabama Legislature ... shall expire at midnight December 31, 1983.” Ordinarily, when rules of statutory construction are applied, and there is a conflict in statutory language, the common rule of construction is that the more specific statement will prevail against a more general statement. See e.g., Jefferson County v. Braswell, 407 So.2d 115 (Ala.1981). If we applied this rule here, we would construe the federal court’s order to read that the terms of the present members of the Legislature would not expire until midnight December 31, 1983, and consequently, the terms of office for the legislators elected on November 8, 1983, would not commence until 12:01 a.m., January 1, 1984.

We do not believe, however, that this general rule of construction is applicable in this case, because it is clear from the opinion in Burton v. Hobbie, supra, that the federal court intended that the newly elected legislators would take office as soon as possible, because they opined that “... Alabama citizens have a right to be represented as soon as practicable by a validly elected legislature.” (Emphasis added.) The federal panel also opined:

“Clear and unequivocal notice was given to members of the Legislature and the public that the 1982 elections were for a one-year term. Incumbent legislators therefore have no legal or moral right to complain that their terms are being foreshortened. Moreover, it would be grossly unfair for this Court to extend the terms of the present incumbents when there may well be individuals who decided not to run in 1982 for a one-year term. The greatest harm, however, would befall the citizens of Alabama, who would be forced to endure three additional years of representation by a malappor-tioned Legislature.”

In interpreting the federal court order and attempting to make it harmonize with provisions of Alabama’s Constitution, we are of the opinion that the terms of the members of the Legislature elected on November 8, 1983, commenced on November 9, 1983. We reach this conclusion because we are of the opinion that the members of the legislature elected in 1982 have already served their “one-year terms,” and this interpretation of the federal court order would be consistent with the provisions of Art. IV, § 46, Constitution of Alabama, 1901, which specifically provides that the terms of members of the Legislature shall commence on the day after the general election at which they are elected. This interpretation also comports with the general rule that federal courts will not intrude into matters of state concern any more than is necessary to protect federal constitutional rights. Furthermore, this interpretation would mean that the federal court order would give effect to the opinion expressed in the federal order that “... Alabama citizens have a right to be represented as soon as practicable by a validly elected legislature.” This interpretation of the federal order means that a “validly elected legislature” would take office immediately after its members were elected, and this interpretation would comport with the provisions of art. IV, § 46, Constitution of Alabama, 1901.

We now consider your second question concerning the applicability and effect of the provisions of Amendment 39 to the Constitution of 1901 relating to the organizational session of the Legislature to be held on the “second Tuesday in January next succeeding their election.” Amendment 39 has been superseded by Amendment 57 but without substantial change as to the provision relating to organizational sessions. Specifically, you inquire of the Justices whether the Legislature may organize itself during a special session called by you. It is clearly within your power and authority as Governor to convene the Legislature on extraordinary occasions. See Ala. Const, art. V, § 122.

However, with respect to matters involving the organization of the Legislative Department, and each House thereof, we call to your attention that Amendment 57 provides in part as follows:

“The legislature shall convene on the second Tuesday in January next succeeding their election and shall remain in session for not longer than ten consecutive calendar days. No business can be transacted at such sessions except the organization of the legislature, the election of officers, the appointment of standing committees of the senate and the house of representatives for the ensuing four years, which election and appointment may, however, also be made at such other times as may be necessary_” (Emphasis added.)

Of course, we assume that the Legislature organized itself for the quadrennium during the session which convened on the second Tuesday in January, 1983, as provided by Amendment 57.

Our Constitution provides that the powers of government of the State of Alabama shall be divided into three distinct departments — the legislative, the executive and the judicial; and except as expressly provided in the Constitution, neither shall exercise the powers of the others. Ala. Const, art. Ill, §§ 42, 43. See also, In re Opinion of the Justices No. 185, 278 Ala. 522, 179 So.2d 155 (1965).

Except as may be specifically provided for or otherwise restricted by the Constitution, the power and authority as to matters involving its organization reside solely with each House of the Legislature, just as does its respective power to “determine the rules of its proceedings.” Ala. Const, art. IV, § 53. In this case, however, Amendment 57 expressly provides that the Legislature has the power to elect its officers and appoint its standing committees “at such other times as may be necessary.” The Justices of this Court have heretofore advised the Senate of Alabama, where the Lieutenant Governor was deceased and the President pro tem had resigned, that the members of the Senate had the authority to elect one of its members as President pro tem who then would assume the duties as presiding officer. In re Opinions of the Justices No. 46, 237 Ala. 62, 185 So. 376 (1938).

As to matters of legislative procedure where the rules of the Senate did not provide, nor did the Constitution specially prohibit nor permit, the filing of a minority report of a committee on conference, it was the opinion of the Justices that it was a matter within the power of each House to determine the rules of its procedure; therefore, each House had the power to determine how it would handle conference committee reports. In re Opinion of the Justices No. 220, 295 Ala. 26, 322 So.2d 107 (1975).

In summary, it is the opinion of the Justices that the Legislature may elect officers and appoint committees at such other times, including a special session, whenever either House determines the same to be necessary. The constitutional provisions of Amendment 57 restricting the transaction of other legislative business and the limitation on the number of days of the session applies only at the organizational session mandated to be held on the second Tuesday in January next succeeding their election for the quadrennium.

With regard to your third question, it is our opinion that the federal court, in implementing a constitutional reapportionment plan for this state, desired that there be as little disruption as possible to state constitutional and statutory provisions relating to the election of legislators, the convening of the legislature, and the terms of office of legislators. Although legislative elections were permitted under a reapportionment plan, Act No. 82-629, which had not been precleared, it was done so as an interim measure to allow elections to proceed. Burton v. Hobbie, supra. Moreover, the federal court made clear to both the public and the members of the legislature that the 1982 legislative elections were for a “one-year term” and that special elections for the fall of 1983 would be required if Act No. 82-629 was found unconstitutional. Burton v. Hobbie, supra.

Normally, legislators are elected, along with a host of other state and county officials, at a general election every four years. Ala.Code 1975, §§ 17-2-1 and 17-2-3. But, Alabama law provides that “[w]hen a vacancy occurs in the office of senator or representative in the legislature, when the legislature will be in session prior to the next general election for that office” a special election may be called for the purpose of filling the vacancy. Ala.Code 1975, § 17-18-1. Because the federal court denominated the 1983 legislative elections as “special elections,” we are of the opinion they are special elections as provided for under Ala.Code 1975, § 17-18-1, and thus were not intended to alter either the time of the commencement of the 1984 annual session of the Alabama Legislature, which is scheduled for the first Tuesday in February, or the fact that legislative candidates elected are to serve out the remainder of the quadrennium.

Respectfully submitted,

C.C. TORBERT, Jr. Chief Justice

HUGH MADDOX JAMES H. FAULKNER RICHARD L. JONES RENEAU P. ALMON JANIE L. SHORES T. ERIC EMBRY SAMUEL A. BEATTY OSCAR W. ADAMS, Jr. Justices

      . Even though art. IV, § 46 refers to “general” elections and the election ordered by the federal court was a "special election," denominated as such in the opinion of the federal court, we are of the opinion that the "special election” was held pursuant to the provisions of Code 1975, § 17-18-1, which provides:
      "Special elections are to be held in the following cases:
      “(1) When a vacancy occurs in the office of senator or representative in the legislature, when the legislature will be in session prior to the next general election for that office;
      "(2) When a vacancy occurs in the office of representative in the congress of the United States, by which the state may be deprived of its full representation at any time congress will be in session prior to the next general election for that office;
      "(3) Whenever any general or special election for members of the legislature or for representatives in congress is not held;
      "(4) When any vacancy occurs in any state or county office filled by election of the people not otherwise provided for by the Constitution or laws of this state; and "(5) In such other cases as are or may be provided for by law....”
      Code 1975, § 17-18-7, provides:
      "Special elections are to be held and conducted, the returns thereof made and certificates given and, unless otherwise provided, regulated in all respects by the provisions in relation to general elections." (Emphasis added.)


text:
    BAY MINETTE PRODUCTION CREDIT ASSOCIATION v. FEDERAL LAND BANK OF NEW ORLEANS, et al.
    81-1047.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    J. Connor Owens, Jr. of Owens & Simpson, Bay Minette, for appellant.
    Windell C. Owens, Monroeville, for appel-lees.
   ALMON, Justice.

This appeal involves a question of merger of legal and equitable title in one who receives both a deed to mortgaged property and an assignment of mortgages covering various parcels of property including, but not limited to, the ones conveyed to him by deed. The trial court held that the plaintiff, a subsequent mortgagee of a parcel not covered in the deed, was not entitled to the relief of having the prior mortgages extinguished under the doctrine of merger.

Cecil L. Murphy, Sr. (Cecil), and his wife Margaret Ann Murphy executed a mortgage to Peterman State Bank (PSB) on October 21, 1975. The mortgage recited a face amount of $65,000 and covered the house and lot in Peterman, Alabama, where the Murphys lived (the home property). The Murphys renewed the loan secured by this mortgage for several years and received additional advances from time to time. They executed additional mortgages on this home property in 1976 and 1977, by which time the debt had increased to $155,-000.

On October 26, 1979, the Murphys renewed their debt to PSB, and on November 12, 1979, they executed another mortgage to PSB. This mortgage recited that Cecil and his wife were indebted to PSB in the amount of $257,000 and conveyed additional lands, to which we shall refer as the farm property and the Monroeville lots. This is the mortgage which appellant sued to have extinguished by virtue of the doctrine of merger.

On November 16, 1979, Cecil executed a note in favor of plaintiff/appellant Production Credit Association (PCA) for the sum of $362,000. The note was secured by a mortgage on the farm property. This mortgage to PCA, dated November 16, 1979, is the basis for PCA’s request for the court to extinguish the November 12 mortgage to PSB. The Federal Land Bank of New Orleans holds a first mortgage on the farm property, which the parties concede is prior to both of the mortgages at issue here.

The Murphys continued to renew their debt to PSB until August 20, 1980, when they executed renewal notes for $112,000 and $70,000. Both notes were due and payable on August 20, 1981, and recited that they were secured by all of the mortgages which the Murphys had executed to PSB.

On July 16, 1981, Cecil and his wife executed a warranty deed to Max H. Murphy (Max) and Evelyn J. Murphy, Cecil’s parents, conveying various parcels, including the home property and the two Monroeville lots. The deed recited that the home property was conveyed subject to a mortgage to PSB, but did not mention a mortgage in connection with the Monroeville lots.

On July 21, 1981, PSB assigned to Max and his wife its interest in the mortgages and notes executed by Cecil and his wife to PSB. The mortgage assignment included the 1975, 1976, and 1977 mortgages on the home property and the November 12, 1979, mortgage on the farm property and the Monroeville lots. Max paid $205,455.56 to PSB for these assignments, which was the total amount of principal and interest due on the notes to PSB.

PCA filed this action on August 5, 1981, and amended its complaint on March 22, 1982, alleging that the notes evidencing Cecil’s debt to PCA were in default. The complaint set out in more detail the facts outlined above, then prayed the court to ascertain the principal indebtedness due from Cecil to PCA and to order that the November 12 mortgage from Cecil to PSB be declared extinguished by virtue of the doctrine of merger. Finally, the complaint requested that the court order the farm property sold, with the proceeds applied to satisfy first the Federal Land Bank mortgage and then PCA’s mortgage, and fix the amount of any deficiency in the payment of the debt owed to PCA.

The court entered a default judgment against Cecil, holding that he owed PCA $573,893.32. Max defended the action on the issue of merger and extinguishment of the PSB mortgage which he held. The court heard this aspect of the case without a jury and entered a judgment that PCA was not entitled to the relief sought. PCA appeals from that judgment.

PCA contends that the court erred in failing to find a merger and in admitting evidence of debts Cecil owed to his father Max. Max counters that the question of merger depends largely on the intentions of the parties and that the disputed evidence was relevant to this question of intent. Max further argues that merger is not appropriate because the mortgage covers property not included in the deed.

In Alabama, legal title passes to the mortgagee upon execution of a mortgage and the mortgagor retains an equity of redemption, which he may convey. Under the doctrine of merger, the uniting of legal title and the equity of redemption in one owner ordinarily extinguishes the mortgage. First Nat. Bank of Mobile v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981); Trauner v. Lowrey, 369 So.2d 531 (Ala.1979); McDuffie v. Faulk, 214 Ala. 221, 107 So. 61 (1926); Barnett & Jackson v. McMillan, 176 Ala. 430, 58 So. 400 (1912).

Exceptions to the doctrine of merger are noted in A.M. Robinson Co. v. Anniston Land Co., 217 Ala. 648, 117 So. 29 (1928), and Boatright v. Fennell, 213 Ala. 10, 104 So. 1 (1925). In the former case, the Court observed,

“... one, having a mortgage on real estate, becoming the owner of the fee, ordinarily the result is a merger; yet it is a qualification thereof (1) if the intention of the parties was to keep alive the mortgage, or (2) if it is to the interest of the mortgagee to do this, or (3) necessary to his protection, and (4) this can be done without prejudice to the rights of the mortgagor or third parties as between such original parties the doctrine of merger will not apply.”

217 Ala. at 649, 117 So. at 30. See also, First Nat. Bank of Mobile v. Gilbert Imported Hardwoods, supra.

In Boatright v. Fennell, supra, the following statement appears: “It is held that a deed, to a part of the mortgaged lands, given to the assignee of the mortgage, without more, is not a merger or extin-guishment of the mortgage on the lands described therein.” Id., 213 Ala. at 11, 104 So. at 2 (citations omitted). The Court held, “The mortgage on the whole tract as described was valid and existing and subject to redemption, without diminution by reason of the conveyance of the portion of the land embraced in the deed by the mortgagor to the complainant.” Id., 213 at 12, 104 So. at 3. The holding in Boatright is a binding precedent establishing that Max’s mortgage on the farm and the Monroeville lots cannot be extinguished because Cecil did not convey the farm to Max.

In the case at bar, PCA seeks to have the November 12 mortgage on the farm and the Monroeville lots extinguished even though Cecil did not deed the farm to Max. It argues that this result should obtain because the debt evidenced by all of the PSB mortgages has been extinguished. PSB did not advance any more money to Cecil when he executed the two notes secured by the November 12 mortgage on the farm and the Monroeville lots. These notes, aggregating $180,000, renewed the loans made on the security of the mortgage on the home. The mortgage on the farm and the Monroeville lots was additional security, however, executed for the consideration of forebearance to foreclose on the home mortgage and yet another renewal of the loan with accumulated interest.

Max paid PSB the full amount of the principal and interest due on the notes for the assignment of the mortgage and notes. PCA argues that this merged legal and equitable title to the home and the Monroeville lots in Max and that the mortgage on the farm should also be extinguished because the entire debt has been paid. The notes, however, were assigned to Max, not cancelled. Max now holds these notes in the amount of $205,455.56 as a personal debt against Cecil, secured by the mortgages which Max now holds. The evidence to which PCA objected shows that in July 1981 Cecil owed Max approximately $242,000 in unsecured debt. After the transactions of that month, Max had paid out another $205,000, but he held clear title to the home and the Monroeville lots and had a security interest against the farm property. The evidence of Cecil’s outstanding debt to Max was certainly relevant to Max’s intentions in purchasing the mortgages and tends to show that the mortgage should not be extinguished.

PCA points out that Code 1975, § 35-11-4, provides that when one has liens on several things, some of which are also subject to subordinate liens, the subordinate lienholders may require him to resort first to the things upon which he has exclusive liens, if he can do so without risk of loss to himself. Max replies that this section requires written notice, which PCA has not given him, but we do not think this contention is as pertinent to the issue as the fact that § 35-11-4 does not operate to extinguish a prior mortgage such as Max’s. Max has made no effort to foreclose his mortgages and so the provisions of § 35-11-4 have not been brought into effect. Moreover, nothing in PCA’s complaint or proof sought a partial merger to the extent of the value of the home property and the lots.

For the reasons stated, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

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

      . On December 19, 1979, Cecil executed another note to PCA for $50,000, also secured by the November 16 mortgage.


text:
    Archie WELLS v. Harvey CROFT.
    82-196.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    J. Mason Davis and Houston L. Brown, Birmingham, for appellant.
    William D. Hudson of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellee.
   ALMON, Justice.

This is an ejectment action in which a suggestion of adverse possession was interposed as a counterclaim. The defendant appeals from the granting of plaintiffs directed verdict on the ownership issue and the judgment entered on a jury verdict which awarded the plaintiff money damages.

This controversy concerns the ownership of approximately forty acres of realty in Etowah County, Alabama. Both the plaintiff Harvey Croft and the defendant Archie Wells derive their respective claims to this tract of land from its former record title holder, the late Willie Patterson.

The following facts are uncontroverted: 1) on several occasions, Patterson expressed an intent to sell this property; 2) in 1973 Archie Wells and his family moved onto a portion of this realty and remained in possession thereof until the present; 3) at this time, several other groups, including the Laura White Prayer Band, were in possession of other portions of this realty; 4) Wells and his family were not affiliated with the Laura White group, which, in a separate lawsuit, was ejected from the realty and ordered to pay to the estate of Patterson the reasonable rental value for its use of the property; 5) with Patterson’s knowledge, Wells placed cows on the land, grew crops, cleared a living area upon which he permanently attached two mobile homes, installed a septic tank and a butane tank on the property, ran water lines on the premises, sold timber off the property, and buried his son on the property; 6) during this period, Wells never paid any money to Patterson for the purchase of the property or his use thereof; 7) during this period, ad valorem taxes were assessed in the names of Patterson and John Croft, Harvey’s father, who was the sole lineal descendant of Patterson; and 8) Harvey Croft paid these ad valorem taxes each year.

The ownership issue is, however, controverted. Wells claims that his possession of the property results from an oral agreement which he and Patterson made in 1973 whereby Patterson would sell the tract to Wells for a consideration of $6,000. This parol contract required that Wells take immediate possession of the land to make it “livable,” and then, once this condition was satisfied, Wells would pay Patterson $100.00 per month at 6% interest until the $6,000 was paid in full. Wells’s mother testified that she tendered the earnest, money to Patterson and offered to prepay the cost of the deed and abstract; Patterson, however, she said, declined the payments at that time because he had been unable to procure the deed and abstract due to illness. After Patterson’s death, Mrs. Wells claimed that she tendered the full purchase price to Patterson’s executor, who refused the tender.

Harvey Croft, on the other hand, claims to be the owner of record based upon the following transactions: Harvey contends that his father, John Croft, inherited the property from Patterson as his sole lineal heir and then deeded the land to Harvey while reserving a life estate. This deed was not recorded until October 5, 1978.

In August 1977, John Croft, as administrator of Patterson’s estate, filed an affidavit and writ of possession in the DeKalb District Court, seeking to oust Wells from the land. The DeKalb District Court, which lacked subject matter jurisdiction, transferred the case to the Etowah District Court, which granted a judgment in favor of John Croft. Wells then filed a notice of appeal to the Etowah Circuit Court, and the action was sent to circuit court for a jury trial de novo on November 28, 1977.

After numerous pleadings, the death of John Croft, and the intervention of Croft’s son Harvey as a party plaintiff, Wells filed a suggestion of adverse possession in accordance with Code 1975, § 6-6-286. In this document, Wells alleged that because he had been in open, notorious and hostile possession of the realty for more than three years prior to the initiation of this action, he was at a minimum entitled to the reasonable value of his permanent improvements to the land.

The case was tried before a jury. At the close of all the evidence, the trial court granted Harvey Croft a directed verdict on the ownership issue. The court then submitted the question of damages to the jury, which returned a general verdict in favor of Croft in the amount of $10,600.

Wells filed a motion for judgment notwithstanding the verdict and alternatively, for a new trial, which was overruled. The trial court then granted Wells's request for reconsideration, and after a hearing, again denied Wells’s postjudgment motions. Wells then filed a notice of appeal to this Court.

The issues presented for review are 1) whether the trial court committed reversible error in granting a directed verdict in favor of Croft on the issue of ownership where Wells claimed title to the property under Code 1975, § 8 — 9—2(5); and 2) whether the jury verdict, which failed to compensate Wells for his permanent improvements to the property in accordance with Code 1975, § 6-6-286, was against the weight and preponderance of the evidence.

Wells contends that the determination of whether Croft owned the property by virtue of a deed or whether Wells owned the property by virtue of an oral contract to purchase this land which fully complied with Code 1975, § 8 — 9—2(5), was properly a matter for the jury as the trier of facts. Wells also argues that the grant of a directed verdict on this issue unduly prejudiced the jury in its subsequent consideration of damages under Code 1975, § 6-6-286. We agree.

The issue of ownership of the land was clearly in dispute. Although Croft introduced a deed to the property, which he had recorded in 1978, Wells offered testimony as to the existence of an oral contract to purchase the land, which was entered into in 1973 and which satisfied the requirements of the exception in Code 1975, § 8 — 9—2(5). This exception to the Statute of Frauds provides that a contract for the sale of lands, tenements or hereditaments, or of any interest therein, need not be in writing and subscribed by the party to be charged therewith if “the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.”

Wells’s testimony as to the existence of an oral contract to purchase the land, his construction of permanent improvements on the land, and his possession of the land with Patterson’s knowledge was sufficient to establish a prima facie case of a contract outside the Statute of Frauds. See Irvin v. Irvin, 207 Ala. 493, 93 So. 517 (1922) (vendee’s possession of land with vendor’s knowledge and vendee’s construction of improvements as required by vendor sufficient to remove parol contract from Statute of Frauds). The question of possession, moreover, is one properly determined by the trier of facts. Hill v. Cape Coral Bank, 402 So.2d 945, 947 (Ala.1981).

Because the evidence proffered by Wells, if believed by the jury, would have supported a verdict in favor of Wells, it was error for the trial court to direct a verdict in favor of Croft on this issue. See Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979).

Because we find error in the trial court’s refusal to submit the ownership issue to the jury, we must necessarily reverse the judgment, including that aspect of it awarding money damages.

The judgment is reversed and the cause remanded for a new trial on the issues of ownership and damages under the three-year adverse possession statute.

REVERSED AND REMANDED.

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


author: EMBRY, Justice.

text:
    Linda Diane WEBB v. Robert A. GALLOWAY and Tonie Galloway.
    82-292.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Larry C. Jarrell, Troy, for appellant.
    Y. Lee Pelfrey, Clayton, for appellees.
   EMBRY, Justice.

Linda Diane Webb appeals from a denial of what we determine to be a Rule 60(b)(6), ARCP, motion for relief from a nil dicit judgment. The single issue presented is whether the trial court abused its discretion in denying Webb’s motion. Finding no such abuse, after a careful review of the record, we affirm.

While driving a vehicle owned by Ken Jolly, appellant Webb was involved in a two car collision with the appellees, Robert and Tonie Galloway. The Galloways filed suit against Webb and Jolly, alleging personal injury and property damage.

In an attempt to effect service of process upon Webb, a certified letter of notice was sent to the California address listed on Webb’s California driver’s license. The letter was returned, however, marked ^Addressee Unknown.” The attorney for the Galloways thereafter submitted an affidavit pursuant to Rule 4.3, ARCP, indicating Webb’s address was unknown and could not be ascertained with reasonable diligence. Service by publication was then effectuated by publishing notice of the suit on four occasions in the Troy Messenger, a local paper of general circulation.

Thirty days after the last publication, no pleading had been filed by Webb. Consequently, the Galloways successfully sought entry of a nil dicit judgment against Webb on 1 October 1982 in the amount of $16,264 plus costs.

On 19 January 1983 Webb filed a motion and affidavit seeking relief from that judgment. After a hearing, the motion was denied. On 23 February 1983, Webb filed a motion and affidavit seeking reconsideration. Again, a hearing was held, after which the motion was denied. Webb appeals from that order.

Webb’s attack upon the judgment is based on two grounds. First, that the affidavit submitted by the attorney for the Galloways in support of service by publication contains mistaken or fraudulent representations regarding the diligence exercised in locating Webb's address. Webb contends her address could have been found by simply inquiring of the owner of the vehicle and codefendant, Ken Jolly.

Webb’s second argument appears grounded in equity. She asserts that upon-the showing of a lack of notice, and knowledge of the suit, in addition to the presentation of a meritorious defense, a judgment at law should be set aside. This court considers such an argument to be in support of a Rule 60(b)(6) motion.

The trial court enjoys a broad discretion in determining whether to grant such a motion, and it will not be reversed on appeal absent an abuse of discretion. McDonald v. First Savings Association of Wisconsin, 438 So.2d 755 (Ala.1983); see e.g. Charles Townsend Ford v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979).

Evidence adduced at the hearing on Webb’s motion revealed: Webb had left no forwarding address in California; she had never sought to change the address on her driver’s license; she was uncertain whether she had told the investigating officer at the scene of the accident of her change of address. Furthermore, Webb could not remember when she had gone to the police station to notify authorities of her new address after that accident, or to whom she had spoken. Webb never asked codefend-ant, Ken Jolly, if he had heard from the Galloways. Lastly, the attorney for the Galloways had no knowledge that Jolly knew Webb’s address until after the judgment had been entered.

Under these facts, Webb has failed to show an abuse of discretion upon the part of the trial court in denying Webb’s motion. McDonald v. First Savings Association of Wisconsin, supra; Wynn v. Smith, 357 So.2d 973 (Ala.1978); cf. Whitfield v. Sanders, 366 So.2d 258 (Ala.1978) (where failure to inquire about defendant’s address would not support service by publication.) Likewise, we do not think the facts of record are so extraordinary as to require the trial court to set aside the default judgment on the grounds specified in the 60(b)(6) motion. See e.g. Charles Townsend Ford, Inc., 374 So.2d at 902. Cf., Oliver v. Sawyer, 359 So.2d 368 (Ala.1978).

Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

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


text:
    John M. DUDLEY, et al. v. SOUTHERN NATURAL GAS COMPANY.
    82-301.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Robert P. Lane of Phillips & Funder-burk, Phenix City, for appellants.
    E. Terry Brown of Copeland, Franco, Screws & Gill, Montgomery, for appellees.
   ALMON, Justice.

This is an appeal from a judgment enjoining the defendants, who operate a lumber company, from depositing sawdust, timber, scrap metal, or machinery on the plaintiffs pipeline easement. Defendants appeal, arguing that the trial court’s judgment expands the plaintiffs easement without compensating defendants.

Southern Natural Gas Company brought this action against John M. Dudley and Lesley L. Dudley, individually and d/b/a Phenix Lumber Company. The complaint alleged that on or about June 26, 1966, defendants John and Lesley Dudley granted Southern Natural an easement and right-of-way sixty feet in width across their property. The complaint further alleged that defendants were violating the easement by depositing sawdust, wood chips, scrap metal, logs, and other debris upon the easement, and requested the court to enjoin defendants from depositing these materials upon the easement and order them to remove those already deposited. After conducting a hearing on the merits, the trial court granted the relief sought.

Defendants rely on two factors for their assertion that the trial court’s order enlarges the easement without compensating them. The first of these circumstances arises from a condemnation action which Southern Natural originally brought to condemn the easement. After the probate court appraisers awarded the Dudleys $8,500 for the interest sought to be condemned, the Dudleys executed the easement in question for a compensation of $6,000. The Dudleys argue that they granted the easement for this lower compensation in exchange for promises by Southern Natural representatives that they could use the surface of the easement for anything except permanent buildings.

The second factor upon which the Dud-leys rely is within the language of the easement itself. They argue that they are prohibited only from constructing buildings or other obstructions on the easement, and that because the deposited materials cannot be said to be constructed on the easement, this use does not violate the easement.

The easement provides in pertinent part:

“Grantors reserve the right to cultivate or otherwise make use of said lands for purposes and in a manner which will not interfere with the enjoyment or use of the rights, easements and estate hereby granted, but grantors shall not construct nor permit to be constructed any houses, buildings, lakes, ponds, structures, or any obstructions on or over said right of way, or any part thereof, as surveyed or finally determined.”

(Emphasis added.)

The emphasized language in the above quotation clearly prohibits defendants from engaging in the use of which Southern Natural complains. In 1978 defendants had to stop burning sawdust because of environmental regulations, and they began stockpiling it to sell it periodically to paper mills which burn it in furnaces. Southern Natural objected to the stockpiling, but only after Dudley refused to carry through on repeated promises to remove the materials did Southern Natural bring suit.

It appears that the deposits include tons of sawdust sometimes in piles forty feet high. Clearly this would impede Southern Natural’s maintenance of its lines and delay any necessary repairs. The sawdust creates a fire hazard through the danger of spontaneous combustion and risks loss of gas service to a heavily populated area of Alabama and Georgia. The other materials included in the injunction similarly interfere with Southern Natural’s use of its easement.

In Duke v. Pine Crest Homes, Inc., 358 So.2d 148, 150 (Ala.1978), this Court noted:

“It is well settled in Alabama that the owner of the servient estate may himself use the land upon which an easement has been dedicated so long as such right does not conflict with the purpose and character of the easement. Carter v. Stringfellow, 293 Ala. 525, 306 So.2d 273 (1975).”

Southern Natural reports that the cases it has found closest on point in Alabama are Snider v. Alabama Power Co., 346 So.2d 946 (Ala.1977), and Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868 (1926). Because both of these cases involve buildings encroaching on the power company’s right of way, and Dudley claims the deposits do not violate the easements because they are not “constructed,” Southern Natural cites cases from other jurisdictions involving similar fact situations.

In Central Hudson Gas & Electric Corp. of Dutchess County v. Miron, 4 A.D.2d 975, 167 N.Y.S.2d 836 (1957), the court held that sand piled twenty feet high over the pipeline easement constituted an obstruction and warranted an injunction. In Industrial Gas Co. v. Jones, 62 Ohio App. 553, 24 N.E.2d 830 (1939), the court made a similar holding regarding chemical wastes. See also Natural Gas Pipeline Co. of America v. Cox, 490 F.Supp. 452 (E.D.Ark.1980); Sumrall v. United Gas Pipe Line Co., 232 Miss. 141, 97 So.2d 914 (1957); and Central Kentucky Natural Gas Co. v. Hulls, 241 S.W.2d 986, 28 A.L.R.2d 621 (Ky.1951).

For the reasons stated, the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

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