McCullar v. Conner, 8 Div. 416

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

Page 422

252 So.2d 422
287 Ala. 455
Kate Wann McCULLAR
v.
Lynn CONNER.
8 Div. 416.
Supreme Court of Alabama.
Aug. 19, 1971.
Rehearing Denied Sept. 30, 1971.

[287 Ala. 456]

Page 423

Pitts & Hamby, Tuscumbia, for appellant.

[287 Ala. 457] 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 [287 Ala. 458]

Page 424

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 [287 Ala. 459]

Page 425

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 [287 Ala. 460] without their presence. Conner sought to

Page 426

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, ...

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9 practice notes
  • Wayland Distributing Co. v. Gay, 6 Div. 820
    • United States
    • Supreme Court of Alabama
    • September 9, 1971
    ...Hinton & Sons v. Straham, 266 Ala. 307, 96 So.2d 426. Appellant railroads' Charge 17--R is argumentative and was refused without error. [287 Ala. 455] In its oral charge, the court instructed the jury on the reciprocal duty of persons operating motor vehicles on public streets Page 422 and ......
  • Murphree v. Henson, 7 Div. 908
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...that only relevant, material, competent and legal evidence was considered by the Chancellor in arriving at his decree. McCullar v. Conner, 287 Ala. 455, 252 So.2d After consideration of all the evidence presented below, it is our conclusion that if the testimony of those witnesses which is ......
  • Louisville & N. R. Co. v. Harris Transfer Co.
    • United States
    • Supreme Court of Alabama
    • September 12, 1974
    ...County, 290 Ala. 229, 275 So.2d 659; All American Life & Casualty Co. v. Dillard, 287 Ala. 673, 255 So.2d 17; and McCullar v. Conner, 287 Ala. 455, 252 So.2d In this argument, appellee asserts that Assignment 10 is faulty in that it does not refer to any ruling of the trial court. Assignmen......
  • O'Grady v. Bird
    • United States
    • Supreme Court of Alabama
    • September 18, 1981
    ...chapter: Bird filed a motion which accords with § 35-3-21; the court held a hearing before granting the motion (cf. McCullar v. Conner, 287 Ala. 455, 252 So.2d 422 (1971)); and the order directed the surveyor to comply with "the procedure stated in § Upon entering judgment in favor of Bird,......
  • Request a trial to view additional results
9 cases
  • Wayland Distributing Co. v. Gay, 6 Div. 820
    • United States
    • Supreme Court of Alabama
    • September 9, 1971
    ...& Sons v. Straham, 266 Ala. 307, 96 So.2d 426. Appellant railroads' Charge 17--R is argumentative and was refused without error. [287 Ala. 455] In its oral charge, the court instructed the jury on the reciprocal duty of persons operating motor vehicles on public streets Page 422 and hig......
  • Murphree v. Henson, 7 Div. 908
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...that only relevant, material, competent and legal evidence was considered by the Chancellor in arriving at his decree. McCullar v. Conner, 287 Ala. 455, 252 So.2d After consideration of all the evidence presented below, it is our conclusion that if the testimony of those witnesses which is ......
  • Louisville & N. R. Co. v. Harris Transfer Co.
    • United States
    • Supreme Court of Alabama
    • September 12, 1974
    ...County, 290 Ala. 229, 275 So.2d 659; All American Life & Casualty Co. v. Dillard, 287 Ala. 673, 255 So.2d 17; and McCullar v. Conner, 287 Ala. 455, 252 So.2d In this argument, appellee asserts that Assignment 10 is faulty in that it does not refer to any ruling of the trial court. Assig......
  • O'Grady v. Bird
    • United States
    • Supreme Court of Alabama
    • September 18, 1981
    ...chapter: Bird filed a motion which accords with § 35-3-21; the court held a hearing before granting the motion (cf. McCullar v. Conner, 287 Ala. 455, 252 So.2d 422 (1971)); and the order directed the surveyor to comply with "the procedure stated in § Upon entering judgment in favor of ......
  • Request a trial to view additional results

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