Alabama Power Co. v. Cornelius ( 1924 )

The counts upon which this case was tried, amended counts 1 and 3, were in trespass, and the things complained of and damages claimed constituted a single and continuous trespass and injuries proximately resulting therefrom and were not subject to the defendant's demurrer. The cases relied upon by appellant's counsel are unlike this one. The case of Sudduth v. Central of Georgia R. R., 197 Ala. 393, 73 So. 28, involved a complaint which charged in the same count trespass and case; that is, trespass in entering and laying the tract and an independent wrong as to the operation of trains. In the case of So. R. R. v. McIntyre, 152 Ala. 223, 44 So. 624, the count condemned charges trespass on the plaintiff's premises and in addition thereto that defendant created an obstruction, not on the plaintiff's land, but elsewhere, which interfered with the ingress and egress of the plaintiff.

As we understand, the theory upon which this case was tried was that the poles were placed and the wires were strung within the 50 feet of what purported to be a public highway, and not on the plaintiffs' land exclusive of said 50 feet; the defendant therefore contending that it committed no trespass, as the plaintiffs did not have the ownership and possession of said strip, and that it was owned and possessed by Jefferson county for the benefit of the public. The plaintiffs' contention was that, nothwithstanding it was within the limits of what purported to be the highway, said highway was located on their land which had never been legally conveyed or dedicated; that the strip in question was a part of the homestead, nothwithstanding it was owned by the plaintiffs jointly, and, being a part of the homestead, there could have been no dedication except by a conveyance and separate acknowledgment by the wife. It may be conceded that the contention is correct if the land involved was a part of the homestead at the time of the attempted dedication, but, if it was not, it can be dedicated by parol or in writing without the statutory formalities essential to the conveyance of the homestead. Hill v. Houk, 155 Ala. 448, 46 So. 562; East Birmingham v. Birmingham Machine Co., 160 Ala. 461, 49 So. 448; West End v. Eaves, 152 Ala. 334, 44 So. 588. The question therefore arises, Was the strip in question such a part of the homestead as to require the legal formalities essential to the conveyance of the homestead? The undisputed evidence shows that the place was worth $3,000 at the time of the conveyance by W. F. Cornelius to Jefferson county, and the trial court erred in excluding said deed in so far as the same went to his interest in the land. True, as suggested in brief of counsel for appellee, a tenant in common is entitled to a homestead exemption to the land held in common, but this does not give each owner the right to claim the full exemption to the joint property. The homestead is not increased on account of their fractional interests in the land, so as to make up in quantity what is wanting in extent of ownership. Snedecor v. Freeman, 71 Ala. 140; Campbell v. Noble, 145 Ala. 233,41 So. 745. The result is each of these plaintiffs would be entitled to an exemption not in excess of $1,000 in value each, and not to the extent of $2,000 each. The homestead being greater in value than $2,000, the sale or dedication of the excess by the owner operates as a selection of the remainder as the homestead to the exclusion of the alienated tract. Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742. The plaintiffs' proof shows that the place was worth $3,000, and there was no proof offered that the disposition of the strip in question reduced the value of the remainder below $2,000.

As to the interest of Mrs. Cornelius, while there was proof that she consented to building the road, she did not convey her interest in the land as the statute requires, which was essential to a valid dedication. Vansandt v. Weir, 109 Ala. 104,19 So. 424, 32 L.R.A. 201. The evidence shows that the deed made by the husband included her signature, which was placed there by him without her knowledge or consent. Whether this was or was not a fraud on his part, she cannot be charged with same by way of an equitable estoppel as the proof shows that she was ignorant of said deed when the road was constructed. Whether or not there is a liability to W. F. Cornelius, who dedicated his interest as for an additional burden or servitude upon the highway upon which he is an adjacent owner, we do not determine, as neither counts 1 or 3 proceed upon this theory, and count 2 was eliminated.

For the error above mentioned, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.