McCullar v. Conner, 8 Div. 416

Citation252 So.2d 422,287 Ala. 455
Decision Date19 August 1971
Docket Number8 Div. 416
CourtSupreme Court of Alabama
PartiesKate Wann McCULLAR v. Lynn CONNER.

Pitts & Hamby, Tuscumbia, for appellant.

Norman W. Harris, Decatur, for appellee.

MADDOX, Justice.

Complainant Lynn Conner, as owner of a five acre tract of land, brought an action in the Equity Division of the Circuit Court of Lawrence County, claiming that Kate Wann McCullar and others, including Alfred C. Harrison, as Adjutant General of the State of Alabama, were blocking or obstructing a right of way to his property. A drawing, not to scale, of the property involved is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Conner contended that the five acre tract he owned and the McCullar property at one time were held by a common grantor and that a right of way to his property along what was described as Burden's Alley was reserved in each deed given transferring the property shown on the drawing as the McCullar property. Conner also claimed a right of way over the Courtland Air Base property, saying he had used it for more than twenty years. McCullar barricaded what Conner claimed was a public road which had not been abandoned and when the Adjutant General barricaded the road which Conner had been using on the Air Base to get to his property, he filed this action claiming that he was entitled to get to his property by what he said was the public road or that he was entitled to a right of way across the Air Base property by reason of the fact that he had used it for more than twenty years.

The trial judge heard the evidence ore tenus and also viewed the property personally, and directed a survey to be made. In his final decree he found that a public road existed from the property of the complainant Conner eastward along what was described as Burden's Alley to a public road which ran north and south along the half section line of Section 34 (the perimeter of Courtland Air Base). He made no finding with regard to Conner's claim that a right of way across the Air Base existed by virtue of usage and possession for more than twenty years. The trial judge ordered Kate Wann McCullar to remove the obstruction from what he determined to be a public road. McCullar then perfected this appeal.

McCullar claims here in Assignment of Error number 1 as follows:

'For that the trial court was without jurisdiction to render a decree in this cause in that the late wife of the Complainant, Frances T. Conner, was a deceased tenant in common to the real property in controversy and that she died intestate in 1949 leaving heirs and next of kin who were necessary and indispensable parties but who were made neither parties Complainant nor parties Respondent to which your Appellant duly excepted.'

We have checked each page of the record to which our attention has been directed by Assignment of Error number 1, and fail to find on either of these pages a ruling of the trial court which the appellant claims to be erroneous. There was a motion to exclude the evidence made during the trial but our attention has not been directed to any ruling by the trial court on this motion to exclude.

The appellant refers our attention to portions of the record which contain a discussion between appellant's attorney and the trial court on the question of whether there was a variance between the allegations and proof in that the complainant alleged he owned the five acre tract, but the evidence showed that the heirs or next of kin of the late Frances T. Conner were necessary and indispensable parties to the cause since they were remaindermen in her one-half interest which she held as a tenant in common with her husband, the complainant. The appellant also made a motion to exclude the evidence but our attention has not been called to the page of the transcript where the court ruled on the motion to exclude the evidence. This Court has held that where there is reference to certain record pages following an assignment of error and we fail to find any such ruling on the page or pages referred to, no question is presented for our determination. Henry v. Jackson, 279 Ala. 225, 184 So.2d 133 (1966). This Court has also held that an assignment of error which does not specify any ruling of the trial court which is claimed as error presents nothing for review. Doughty v. City of Fayette, 278 Ala. 121, 176 So.2d 481 (1965). But even assuming the validity of the assignment of error, it would avail appellant nothing. Appellant contends that Conner owned only one-half of the property and held a life estate in the other half and that the remaindermen were indispensable parties and a decree could not be rendered without their presence. Conner sought to remove an obstruction of a public road. The trial court found in his favor and ordered the obstruction removed. In Purvis v. Busey, 260 Ala. 373, 71 So.2d 18 (1954), the Court said:

'Where a road is shown to be a public road, a private individual is entitled to an injunction against encroachment or obstruction thereon when he has sustained special damages different, not merely in degree, but in kind from that suffered by the public at large. Sandlin v. Blanchard, 250 Ala. 170, 33 So.2d 472.'

Under the facts of this case, the trial court found a public road existed along the perimeter of the Courtland Air Base and that the appellant had obstructed this road. Conner, showing sufficient special damages from that suffered by the public at large, could maintain such an action without joining the remaindermen. The interest of the remaindermen in the property could not in any wise be affected by the decree. If and when they get possession of the property they may not object to the obstruction of the public road leading to the property but that possibility in no wise affects Conner's present right to sue in his individual capacity and as holder of the life estate in the property.

Appellant's Assignments of Error numbers 2 and 3 are as follows:

'Assignment of Error No. Two--For that the Trial Court erred in assuming jurisdiction and proceeding to final decree in this cause in that this cause was barred by the Statute of Limitations of Ten Years by virtue of Title 7, Section 20, of the Code of Alabama, 1940, as last amended, at the time of the filing of the Bill of Complaint in this cause to which your Appellant duly excepted.'

'Assignment of Error No. Three--For that the Trial Court erred in assuming jurisdiction and proceeding to final decree in this cause in that this cause was barred by the Complainant's (Appellee's) own laches at the time of the filing of the Bill of Complaint in this cause to which your Appellant duly excepted.'

The two assignments of error are deficient in that they do not specify any ruling of the trial court on any page of the record referred to in the assignments of error. There are references made to the record but our attention is called to no Ruling of the trial court which is alleged to be erroneous. Furthermore, the court did not commit error in Assuming jurisdiction. The appellant apparently complains that the trial court erred in not denying relief to the complainant because the cause of action was barred by the statute of limitations or by laches. We pretermit discussion of the point that the trial court should have denied relief because the claim was barred by limitations or laches.

In Assignments of Error numbers 4, 5, 6, 7, 8, and 9, the appellant claims the court erred in appointing a surveyor, and failed to follow the requirements of law contained in Title 47, Sections 5, 6, 7 and 8, Code of Alabama, 1940. Before final decree, the trial judge entered an order in which he found 'that a survey of the North-South half-section line of Section 34, Township 4 South, Range 8 West is essential in order that the ends of justice be met.' He directed the Register to appoint a surveyor by order dated June 19, 1970. By order dated June 23, 1970, the Register directed a survey to be made on June 26, 1970. Our attention has not been directed to any objection to the entry of these orders before or after final decree. Appellant claims that under the statute, the trial court should have given at least 10 days' notice of the appointment and set a date for hearing objections to the appointment. Appellant is correct in asserting that the provisions of Title 47, Sections 5, 6, 7 and 8 are to the effect that the court decree should fix a date on which to hear objections and to direct the parties to...

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