City of Birmingham v. Mead Corp.

• Decision Date: 25 May 1979
• Citation: 372 So.2d 825
• Parties: The CITY OF BIRMINGHAM, a Municipal Corp. v. The MEAD CORPORATION, a corporation, et al. 77-735.
• Court: Alabama Supreme Court

Page 825

372 So.2d 825

The CITY OF BIRMINGHAM, a Municipal Corp. v. The MEAD CORPORATION, a corporation, et al.

77-735.

Supreme Court of Alabama.

May 25, 1979.

Rehearing Denied July 6, 1979.

James L. North, Frank M. Young, III, Philip W. Norwood, Birmingham, for appellant.

Norman K. Brown, Bessemer, for The Mead Corp., appellee.

J. Fred Powell and William F. Murray, Jr., Birmingham, for United States Steel Corp., appellee.

Irvine C. Porter and James W. Porter, II, Birmingham, for appellee-defendant and counter-claimant, City of Homewood.

Kenneth Perrine, Birmingham, for Mason Corp., a corp., W. T. Mayfield, Jr., Mary Clyde Mayfield, W. C., Renneker, Ann M. Renneker, individuals, Mayfield Mfg. Co., Inc., a corp.

PER CURIAM.

This litigation has been before this court several times. City of Homewood v. State of Alabama ex rel. City of Birmingham, 358 So.2d 424 (Ala.1978); Mead Corporation v. City of Birmingham, 350 So.2d 419 (Ala.1977); Mead Corporation v. City of Birmingham, 295 Ala. 14, 321 So.2d 655 (1975). It concerns the validity of an annexation election conducted by the City of Birmingham in the Oxmoor Valley region of Jefferson County on March 8, 1975. This election was conducted under the auspices of the Judge of Probate of Jefferson County pursuant to the provisions of Article 2, Chapter V, Title 37, Code 1940, Recompiled 1958 (Now Code 1975, §§ 11-42-40 through 11-42-88).

Pursuant to statutory requirement, the annexation was officially commenced by the adoption of Birmingham City Council Resolution No. 146-75 on February 4, 1975. After this resolution was adopted, but before the conduct of the election, the City of Homewood attempted a number of consensual annexations under the provisions of Title 37, § 137(1), Code 1940 (1973 Cum.Supp.). All of these attempted annexations have since been set aside and held void by the Circuit Court of Jefferson County).

Birmingham brought an action against Homewood seeking to enjoin the annexation by Homewood of any property lying within the Oxmoor territory, the subject of the February 4, 1975, City Council Resolution. Homewood responded that the scheduled Oxmoor Annexation would be invalid and asked the court to enjoin the conduct of that election by the City of Birmingham. Certain property owners, but not voters, in the Oxmoor territory moved to intervene in that litigation.

On the same date that Homewood filed what was denominated a third-party complaint, the Mead Corporation filed an independent action in the Bessemer Division of Jefferson Circuit Court against Birmingham and others attacking the legality of the forthcoming election. The judge of the Bessemer Division entered a temporary restraining order and preliminary injunction prohibiting the conduct of the election. United States Steel Corporation later moved to intervene in this litigation, which intervention was allowed.

In the meantime, Birmingham sought the dissolution of the injunctive order before the Bessemer Division. The court refused to dissolve that injunction and Birmingham petitioned this court for extraordinary relief and, by order dated March 6, 1975, in SC 1158 Ex parte: City of Birmingham, a Municipal Corp., Petition to Stay or set Aside Temporary Restraining Order, this court ordered that the Oxmoor Annexation election be held as scheduled on March 8, 1975. The election was then conducted and the voters in the Oxmoor territory voted to come into the City of Birmingham by a vote of 60 to 1. The probate judge then entered a Declaration of Result of Annexation Election to this effect on March 19, 1975.

Following the conduct of the Oxmoor Annexation election and Birmingham's successful petition to this court for a writ of mandamus directed to the judge of the Bessemer Division, the litigation commenced there by Mead was transferred to the Birmingham Division for trial. See: Mead Corporation v. City of Birmingham, 295 Ala. 14, 321 So.2d 655, supra. Thereafter, by agreement of the parties, the Mead litigation was scheduled to be tried to conclusion before any hearing of the Homewood litigation.

The Mead litigation was tried in Jefferson County Circuit Court on September 28, 1976, and continuing on October 28, 1976. Thereafter, in a judgment and final decree dated December 21, 1976, the Honorable William C. Barber, Circuit Judge, found in favor of Birmingham and against Mead and U.S. Steel and directed that a final order of annexation be entered by the Judge of Probate of Jefferson County decreeing that the Oxmoor territory forthwith be incorporated into and become a part of Birmingham. Mead and U.S. Steel appealed to this court from that judgment. The final decree entered by Judge Barber is set out verbatim in Justice Maddox' dissenting opinion in Mead Corporation v. City of Birmingham, 350 So.2d 419, at 422-428, supra.

On petition of parties involved in the Homewood litigation (SC 2383 Ex parte: Mason Corporation, an Alabama Corp., et al.), this court entered an order on March 1, 1977, enjoining Birmingham or any other party from undertaking any action with respect to the Oxmoor territory in furtherance of the final order of annexation entered in the probate court pending the conclusion of the Homewood litigation still pending before Judge Barber in the Jefferson County Circuit Court.

Upon a hearing of the consolidated Mead litigation appeal, 350 So.2d 419, supra, this court did not reach the substantive issues raised by the parties because it held that the trial court was without jurisdiction to issue its final decree of December 21, 1976, due to the absence from the Mead litigation of the City of Homewood, which the court held was an indispensable party as a result of its claim to certain property in the Oxmoor territory by virtue of its purported annexation following the resolution passed by the Birmingham City Council. This court remanded the Mead litigation for further proceedings before the Circuit Court of Jefferson County with Homewood joined as a party.

On remand, the Mead litigation and the Homewood litigation were consolidated, which the majority had suggested in the Mead appeal, and resulted in a final decree entered on June 14, 1978. In this decree, the trial court held the annexation invalid and addressed only two issues: The sufficiency of the legal description of the land sought to be annexed and the reasonableness of the annexation. The City of Birmingham again appealed. We reverse and render.

The trial court found that the description of the land to be annexed was vague, indefinite and uncertain and, for that reason, the annexation was void. We disagree. While the description is not perfect, it does sufficiently describe the property to be annexed so that it is capable of being located on the ground. While it may be true that it is necessary to look to memorials such as county maps and general surveys of the state to locate the property on the ground, this is not a sufficient reason for voiding the annexation. In Foshee v. Kay, 197 Ala. 157, 72 So. 391 (1916), this court held that, although the legal description utilized in an incorporation proceeding was incorrect in that it stated that the property in question was in Township 20 instead of Township 21, this error was inconsequential because other available evidence showed that the property to be incorporated was not incapable of being located on the ground. The appellees, in fact, do not contend that the property cannot be located, they simply assert that it would be difficult to do. This is not the test. In 2 McQuillin, Municipal Corporations (1966 Ed.), § 7.31, the test is stated as follows: ". . . The description should be sufficient, so that the affected territory may be ascertained . . ." The appellees, themselves, have demonstrated that the territory can be ascertained.

The trial court applied the proper standard on the first trial of this issue and said:

" 'The Court has evaluated the testimony of two expert witnesses concerning this point . . . Each witness reviewed the legal description and noted certain ambiguities, each of which was discussed in some detail.

" 'Substantial accuracy ...