Zirlott v. Radcliff

406 So. 2d 879 (1981)

Odie 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.

Supreme Court of Alabama.

November 20, 1981.

*880 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 witnesses before he rendered judgment.

We do not think the findings of fact made by the trial judge are clearly and palpably wrong. Neither do we think that his conclusions of law, based on those findings, are incorrect. The judgment entered, therefore, is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.