Williams v. Nearen
| Decision Date | 24 February 1989 |
| Citation | 540 So.2d 1371 |
| Parties | Wilburn WILLIAMS v. Cliff NEAREN and Ethel Nearen. Cliff NEAREN and Ethel Nearen v. Wilburn WILLIAMS. 87-696, 87-826. |
| Court | Alabama Supreme Court |
T.J. Carnes of Carnes & Carnes, Albertville, for appellant/cross-appellee.
Don L. Hardeman of Hardeman & Copeland, Cullman, for appellees/cross-appellants.
Wilburn Williams filed an action against Cliff and Ethel Nearen for obstructing a public road. Williams alleged that the road that turns to the east from Union Grove-Parches Cove Road and which runs generally along the northern boundary of the Nearens' land is a public road. He further alleged that the Nearens had obstructed the road by digging a ditch across it, and requested that the court enjoin the Nearens from obstructing the public road. The Nearens counterclaimed, alleging trespass. After a bench trial, the court entered judgment for Williams. The judgment stated:
Williams appeals, arguing that the court erred by declaring the road to be "approximately ten feet" wide and by restricting the use of the public road to "transporting farm produce, supplies, cattle and farm equipment, and for similar uses." The Nearens also appeal, arguing that the trial court erred when it declared the road to be a public road and when it granted Williams an injunction.
When a trial court hears ore tenus testimony, as in this case, its judgment based upon that testimony is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, we find the judgment to be plainly and palpably wrong. McInnis v. Lay, 533 So.2d 581 (Ala.1988). This rule does not apply when the trial court erroneously applies the law to the facts before it. McInnis, supra; League v. McDonald, 355 So.2d 695 (Ala.1978).
The Nearens contend that the trial court erred when it declared the road to be a public road. Having reviewed the record, we find no error in the court's judgment, based largely on ore tenus evidence, that the road is a public road.
Having established that the road is a public road, Williams is entitled to an injunction against an encroachment or obstruction of the road only if he has sustained special injury different, "not merely in degree, but in kind from that suffered by the public at large." Osborne v. Cromeans, 514 So.2d 32, 35 (Ala.1987). The Nearens argue that Williams did not establish that he suffered any injury different from that suffered by the public at large.
The Nearens point out that Williams still has access to his property and argue that, because he has access, he suffers no special injury. No doubt if Williams was landlocked, he would suffer special injury; however, it is not accurate to say that because Williams has access to his property, he necessarily has not suffered special injury. Whatever access Williams may otherwise have, the loss of access to his pasture and livestock caused by an obstruction or encroachment to the road certainly constitutes a special injury "different not merely in degree, but in kind from that suffered by the public at large."
Williams challenges the trial court's judgment that the road...
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State v. Pressley, 2100618.
...of law.” Ex parte Cash, 624 So.2d 576, 577 (Ala.1993) (citing Moore v. McNider, 551 So.2d 1028 (Ala.1989), and Williams v. Nearen, 540 So.2d 1371 (Ala.1989)).Discussion In Jester v. State, 668 So.2d 822 (Ala.Civ.App.1995), a father loaned his son money to buy an automobile. The son had sign......
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...of law." Ex parte Cash, 624 So. 2d 576, 577 (Ala. 1993) (citing Moore v. McMider, 551 So. 2d 1028 (Ala. 1989), and Williams v. Nearen, 540 So. 2d 1371 (Ala. 1989)).Discussion In Jester v. State, 668 So. 2d 822 (Ala. Civ. App. 1995), a father loaned his son money to buy an automobile. The so......
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