No facts are alleged supporting this averment. It is a bald assertion of the pleader, and seems to be predicated upon repeated acts of trespass alleged to have been committed by the respondents. To make the injury or trespass a continuing one, it must be of such a character as that its recurrence is not dependent upon any act to be done by any person. Thus, where a person erects a dam by which another's land would be inundated and his timber periodically destroyed, though the act done was a single one that of erecting the dam-the trespass would not be single. Every rise of the water occasioned by heavy rains would produce another injury, so that from the very nature of the injuries there would be constantly recurring grievances, and the jury would be unable to fix upon a time when the wrong may be said to be complete. Adverting to the allegation of repeated trespasses, it is only necessary to say, adopting the language of Justice Lumpkin, in Hatcher v. Hampton, 7 Ga. 49: "It has never been supposed, that because one person chooses daily to pull down the fence of another, and turn his stock in his fields, that this would authorize the courts of chancery to restrain the intruder by injunction": Ellsworth v. Hale, 33 Ark. 633. Applying that principle to this case, we cannot hold that the acts of trespass complained of, though oft-repeated, would authorize the writ of injunction in this case.

The only other point now to be considered is the one presented by the last paragraph of the amended bill. 481 As this appears to be the one upon which the complainant relied for the exercise of the jurisdiction of the court, we quote it. It reads as follows: "Your orator further shows and submits unto your honor that his remedy at law for said continuous injuries and trespassing is entirely inadequate for the reason that such remedy at law would necessitate a multiplicity of suits," etc. Waiving all objections to this averment on account of its failure to state the facts from which the conclusion may be drawn that complainant's remedy at law is inadequate, for the reason that such remedy at law would necessitate a multiplicity of suits, it is not a ground for equitable interference in this case. It is not doubted that the prevention of litigation under some circumstances is a subject of equity jurisdiction. And so, too, the necessity of preventing a multiplicity of suits affords an exception to the general doctrine, that equity will not interpose by the extraordinary remedy by injunction when adequate relief may be had in the usual course of procedure at law. But in order to bring the case within the exception and to warrant the interference in such cases, it must be shown that there are different persons assailing the same

right "and each standing on his own pretensions." This doctrine has no application to persons who are guilty of a repetition of the same trespasses, simply because there may be several of them asserting the right to do so under the authority of, and by the direction of, one of them who alone claims the right to the possession of the lands: Hatcher v. Hampton, 7 Ga. 49; Moses v. Mayor, etc., 52 Ala. 210; 1 High on Injunctions, sec. 700.

This case, in its last analysis, may be stated to be, adopting the most favorable view of it as presented by the complainant, a breach by the defendant, landlord, of his covenant for quiet enjoyment arising out of his contract of lease, an unauthorized re-entry by him upon a portion of the leased premises, and the taking of the possession of the same, for which he is liable in an action at law upon his implied covenant of quiet enjoymenta remedy, if pursued, full and adequate to compensate complainant in damages for all injuries he may have suffered by reason of the breach.

482 The decree of the chancellor refusing to dissolve the injunction must be reversed, and a decree will be here rendered dissolving it.

Continued Trespasses May Be Enjoined: Boston etc. R. R. V. Sullivan, 177 Mass. 230, 83 Am. St. Rep. 275, 58 N. E. 689; New York etc. R. R. Co. v. Scovill, 71 Conn. 136, 71 Am. St. Rep. 159, 41 Atl. 246. It is not usual, however, to issue an injunction to restrain a trespass merely because it is such, without showing that the property trespassed upon has some peculiar value that could not admit of due recompense, or that it would be destroyed by repeated or continuous acts of trespass: McGregor v. Silver King Min. Co., 14 Utah, 47, 60 Am. St. Rep. 883, 45 Pac. 1091. Mere trespasses of ordinary character will not be enjoined: Port of Mobile v. Louisville etc. R. R. Co., 84 Ala. 115, 5 Am. St. Rep. 342, 4 South. 106. To justify an injunction, the damage must appear irreparable: Indian River etc. Co. v. East Coast etc. Co., 28 Fla. 387, 29 Am. St. Rep. 258, 10 South. 480; Jerome v. Ross, 7 Johns. Ch. 315, 11 Am. Dec. 484. See further on this subject the extended notes to Jerome v. Ross, 11 Am. Dec. 498-507; Smith v. Gardner, 53 Am. Rep. 346-355.

Injunction. An injury is irreparable, so as to justify an injunction against its continuance, if it is one for which there can be no adequate compensation in money, or which, if continued, may become the foundation of adverse rights, or occasion a multiplicity of suits, or materially lessen the enjoyment of property by its owner: Troe v. Larson, 84 Iowa, 649, 35 Am. St. Rep. 336, 51 N. W. 179. See the note, on irreparable injury, to Dudley v. Hurst, 1 Am. St. Rep. 374-379.

GRIFFIN v. CHATTANOOGA SOUTHERN R. R. CO.

[127 Ala. 570, 30 South. 523.]

HOMESTEAD - GOVERNMENT LAND-CONVEYANCEACKNOWLEDGMENT OF WIFE.-If a married man procures a homestead certificate to government land, and he and his family live upon the land, cultivating it, and claiming it as his homestead, it is a homestead from the time of entry and before patent issues, and a deed conveying a strip of such land to a railroad as a right of way is void, where the wife makes no acknowledgment separate and apart from her husband, as required by the law of the state where the land is situated. (pp. 143, 144.)

C. Daniel, for the appellant.

Burtnett & Culli, contra.

571 TYSON, J. In 1889 the plaintiff procured a homestead certificate from the United States land office for the land sued for. At that time he was a married man, and resided upon the tract of land of which the strip in controversy was a part. He and his family continued to live upon the land from the date of his entry to the time of the trial of this case, improving and cultivating it, claiming it as his homestead. In 1895 he perfected his title and procured a patent to the tract from the United States. In August, 1890, he and his wife executed to the Chattanooga Southern Railway Company, through whom the defendant claims title by mesne conveyances, a quitclaim deed to the strip in controversy as a right of way. There was no separate and apart acknowledgment by the wife to this deed. The only question presented is, Was this necessary in order to make the deed a valid conveyance of the right of way attempted to be conveyed by it? In other words, Was the tract of land over which the right of way was attempted to be granted the homestead of the plaintiff 572 under the constitution and statutes of this state? If this question is answered affirmatively, the separate and apart acknowledgment of the wife was indispensable to the validity of the deed: Code, sec. 2034; McGhee v. Wilson, 111 Ala. 615, 56 Am. St. Rep. 72, 20 South. 619.

Why was it not the homestead of the plaintiff at the date of the execution of the deed? There are two contentions urged against its being the plaintiff's homestead. The first is, that under the homestead and pre-emption laws, the plaintiff acquired no title to the land until he procured his letters patent; that the title was in the United States government, and the only right the

plaintiff had was the right to perfect his title after five years' actual occupancy. That he could not sell or convey it, or any portion of it, except for church, cemetery, or school purposes, or for the right of way of railroads, without destroying his right to complete and perfect his title. The land was not subject to taxation by the state until he acquired the title, and abandonment of it by him at any time before the expiration of the period of occupancy required would destroy his right to ever perfect his title. All this may be conceded, and yet the land was the homestead of the plaintiff. It is not the quality and the quantity of the estate, but the uses to which the land is devoted that impresses it with the characteristic of a homestead. "The great controlling purpose and policy of the constitution is the protection, the preservation, of the homestead-the dwelling place. . . . . It is the home place the roof that shelters-the constitution and statutes protect from liability to the payment of debts, and when the owner is a married man, subject to the restrained alienation. . . . . Usually, it is accompanied by an estate or interest; but if it is not, it is the misfortune of the occupant": Watts v. Gordon, 65 Ala. 546; Tyler v. Jewett, 82 Ala. 93, 2 South. 905; Gaylord v. Place, 98 Cal. 472, 32 Pac. 484; Spencer v. Geissman, 37 Cal. 96, 99 Am. Dec. 248; Watterson v. Bonner, 19 Mont. 554, 61 Am. St. Rep. 527, 48 Pac. 1108.

The second contention is, that if a separate and apart acknowledgment be required, this would be placing a limitation on the plaintiff's right to transfer the right 573 of way in face of the Revised Statutes, section 2288, page 419, authorizing him to do So. This statute is in these words: "Any person who has already settled or hereafter may settle on the public lands, either by pre-emption or by virtue of the homestead law or any amendments thereto, shall have the right to transfer, by warranty against his own acts, any portion of pre-emption or homestead for church, cemetery, or school purposes, or for the right of way of railroads across such pre-emption or homestead, and the transfer for such public purposes shall in no way vitiate the right to complete and perfect the title to their pre-emptions or homesteads." This language does not undertake to regulate or prescribe the formalities of the transfer, other than by warranty deed. It simply confers the right as against the government and nothing more. The deed, when made to convey title to the grantee must conform to the laws of the state where it is executed and the land is situate. This is the prerogative of the states. "When the lex rei sitae requires certain forms to be adopted in order to validate the transfer of property, such forms must

be complied with": Wharton on Conflict of Laws, sec. 683. See, also, sec. 275; United States v. Fox, 94 U. S. 315.

The deed executed by the plaintiff was void, and the affirmative charge requested by him should have been given.

Reversed and remanded.

Public Lands-Title of Individual.-When public lands have been thrown open to private acquisition, one who complies with all the requisites to entitle him to a patent for any particular tract is regarded as the equitable owner thereof: See the monographic note to Schneider v. Hutchinson, 76 Am. St. Rep. 480. Consult, also, State v. Bridges, 22 Wash. 64, 79 Am. St. Rep. 914, 60 Pac. 60; Pioneer Land Co. v. Maddux, 109 Cal. 633, 50 Am. St. Rep. 67, 42 Pac. 295; Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 Pac. 664. A mortgage by one who has entered a homestead and acquired the receiver's final certificate is valid, though given prior to the issue of a patent: Meinhold v. Walters, 102 Wis. 389, 72 Am. St. Rep. 888, 78 N. W. 574.

A Conveyance of a Homestead by a husband and wife without her separate acknowledgment is a nullity: Hodges v. Winston, 95 Ala. 514, 36 Am. St. Rep. 241, 11 South. 200. A conveyance of a homestead not acknowledged by her is void: Thompson v. New England Mortgage Co., 110 Ala. 400, 55 Am. St. Rep. 29, 18 South. 315. See, also, Council Bluffs Sav. Bank v. Smith, 59 Neb. 90, 80 Am. St. Rep. 669, 80 N. W. 270; Shields v. Bush, 189 Ill. 534, 82 Am. St. Rep. 474, 59 N. E. 962.

WOODRUFF v. HUNDLEY.

[127 Ala. 640, 29 South. 98.]

WILLS-SUBSCRIBING WITNESSES.-The statutory requirement that a will must be attested by at least two witnesses, who must subscribe their names in the presence of the testator, is one of the essential requisites to the validity of a will, and must be proved before it can be admitted to probate. (p. 147.)

WILLS-SUBSCRIBING WITNESSES-PRESUMPTION. — Upon proof of the genuineness of the handwriting of the testator, and of the witnesses when dead, it will be presumed that all the requisites of the statute have been complied with, unless the contrary appears upon the face of the will. (pp. 148, 149.)

WILLS-ATTESTING CLAUSE, ABSENCE OF.-A will need not recite that the witnesses subscribed their names in the presence of the testator, nor have any attestation clause whatever. From the mere proof of the genuineness of their signatures, it will be presumed that they subscribed their names regularly. (p. 148.)

but

WILLS-DUE EXECUTION-PRESUMPTION OF FACT.The presumption of due execution of a will is not one of law, of fact, which is for the jury to determine. (p. 149.)

WILLS-SEPARATE DETACHED SHEETS.-A will may be written upon separate sheets of paper, and be valid though they remain disconnected. (p. 150.)

Am. St. Rep., Vol. LXXXV-10