Zirlott v. Radcliff

Citation406 So.2d 879
PartiesOdie M. ZIRLOTT, George W. West, Marietta West, Truman W. Zirlott, Helen J. Zirlott, Vester Leon Brown, and Mildred Brown v. Vivian Z. RADCLIFF. 80-308.
Decision Date20 November 1981
CourtSupreme Court of Alabama

J. Gordon House, Jr., of Gordon & House, Mobile, for appellants.

Mary Elizabeth McFadden of McFadden, Riley & Parker, Mobile, for appellee.

MADDOX, Justice.

This is an appeal from a Mobile Circuit Court judgment for plaintiff Radcliff granting an easement over defendant Zirlott's property, establishing a boundary line between plaintiff's and defendants' lands, and permanently enjoining defendant Zirlott from barricading or obstructing plaintiff's way of access. We affirm.

Plaintiff owns a parcel of land in Mobile County which lies immediately west of defendants' land, the exact location of the coterminous boundary being a subject of this suit. Defendant Odie Zirlott obstructed a roadway which runs over his lands that plaintiff and her predecessors in title have used as a sole means of ingress and egress for sixty years. Defendant Zirlott maintains he gave plaintiff permission to use the road for family and friends, but barricaded the road when he saw many different vehicles travelling the road.

Judge Braxton Kittrell conducted a three-day bench trial. Forty-three exhibits, surveys and maps, along with testimony of fifteen witnesses, were included in the trial record. The trial judge established the boundary line in dispute, granted a right of way to plaintiff over defendant Zirlott's property for means of ingress and egress, ordered defendant to remove the barricade, and permanently enjoined him from obstructing the roadway. Costs were taxed one-half to the plaintiff and one-half to all defendants. The defendants filed a motion to set aside the judgment, which was denied. The defendants filed notice of appeal. A stay of judgment and supersedeas bond were granted.

It is well settled that the findings of fact of a trial court which hears the evidence ore tenus will not be disturbed on appeal unless those findings are plainly and palpably erroneous. Sandlin v. Sanders, 360 So.2d 977 (Ala.1978); Davis v. Linden, 340 So.2d 775 (Ala.1976). The trial judge had the opportunity to observe the demeanor of the witnesses and it is the duty of the trial judge sitting without a jury to resolve conflicting evidence by relying on his personal observations. In this case, the trial judge examined numerous exhibits and heard testimony from several...

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6 cases
  • Moloney v. Papie
    • United States
    • Alabama Court of Civil Appeals
    • April 20, 2012
  • Haynie v. Byrd
    • United States
    • Supreme Court of Alabama
    • March 25, 1983
    ...evidence presented ore tenus, its judgment will not be disturbed on appeal unless it is plainly and palpably erroneous. Zirlott v. Radcliff, 406 So.2d 879 (Ala.1981); Caudle v. Ellison, 401 So.2d 38 (Ala.1981); Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973). From......
  • Porter v. Porter
    • United States
    • Alabama Court of Civil Appeals
    • August 24, 1983
    ...court's judgment the same weight as a jury verdict and will not be disturbed on appeal unless plainly and palpably wrong. Zirlott v. Radcliff, 406 So.2d 879 (Ala.1981). In addressing defendant's first contention, we determine the effect of an agreement submitted to the court in settlement o......
  • Tidwell v. Tidwell
    • United States
    • Alabama Court of Civil Appeals
    • February 18, 1987
    ...and thus subject to being set aside. We must clothe the trial court's judgment with a presumption of correctness. Zirlott v. Radcliff, 406 So.2d 879 (Ala.1981). As in all cases in which the evidence is heard ore tenus, the findings of the trial court will not be disturbed on appeal unless t......
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