Cleckler v. Morrow

Supreme Court of Alabama

Cleckler v. Morrow

43 So. 784, 150 Ala. 524, 1907 Ala. LEXIS 422

CourtSupreme Court of Alabama

DecidedApril 20, 1907

StatusPublished

Cited by1 cases

This text of 43 So. 784 (Cleckler v. Morrow) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cleckler v. Morrow, 43 So. 784, 150 Ala. 524, 1907 Ala. LEXIS 422 (Ala. 1907).

Pincite

Opinion

TYSON, C. J.

Edward King and 14 others made application to the commissioners’ court of Marshall county to establish a private road, under section 2496 of the Code of 1896. This appellant was not one of the petitioners, but was one among' the owners of land through which the road was to pass and proposed to be taken. It appears, from the report of the viewers appointed to view and mark out the route for the proposed road, that the value of the land proposed to be taken, belonging to appellant, was assessed, as was that of the appellee. It is apparent from this statement that his interest in the subject-matter of the litigation is not antagonistic to that of the appellee, but that they belong to the. same side of the. controversy.' The adversary parties to each of them are Edward King and the 14 other persons who made the application to the commissioners’ court.

In a proceeding to establish a public road, the adversary party to the landowner or owners is the commissioners’ court of the county.—Commissioners’ Court of Lowndes County v. Bowie, 34 Ala. 461, and the cases cited. Where a public highway is established, the compensation to the landowner is paid by the county, and the road is under the control and supervision of the court of county commissioners. — Section 2443 et seq. of Code of 1896. Where a private road is established, the compensation to the landowner must be paid by those making an application to have it established, and it must be opened, and kept in repair bv them. — Section 2497 of Code of 1896.

In prosecuting the appeal from the order of the commissioners’ court to the. circuit court, the parties to it should have been Edward King and the other petition[527]*527ers, and not the appellee or the commissioners. We have said this much in order that, upon another trial, there may be an orderly contest between the proper parties. And the only matter to be contested is the amount of damages to which the appellee may be entitled for that part of his land proposed to he taken. — Section 2450 of the Code of 1896.

Whether there ivas a necessity for the road, or a reasonable demand for it, and whether the report of the viewers should be set aside, were not matters to be reviewed by'the circuit court. The motion to strike pleas 2 and 7 should have, therefore, been granted. The motion to dismiss the appeal ivas properly denied.

Reversed and remanded.

Haralson, Simpson, and Henson, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

TYSON, C. J.

Edward King and 14 others made application to the commissioners’ court of Marshall county to establish a private road, under section 2496 of the Code of 1896. This appellant was not one of the petitioners, but was one among' the owners of land through which the road was to pass and proposed to be taken. It appears, from the report of the viewers appointed to view and mark out the route for the proposed road, that the value of the land proposed to be taken, belonging to appellant, was assessed, as was that of the appellee. It is apparent from this statement that his interest in the subject-matter of the litigation is not antagonistic to that of the appellee, but that they belong to the. same side of the. controversy.' The adversary parties to each of them are Edward King and the 14 other persons who made the application to the commissioners’ court.

In a proceeding to establish a public road, the adversary party to the landowner or owners is the commissioners’ court of the county.—Commissioners’ Court of Lowndes County v. Bowie, 34 Ala. 461, and the cases cited. Where a public highway is established, the compensation to the landowner is paid by the county, and the road is under the control and supervision of the court of county commissioners. — Section 2443 et seq. of Code of 1896. Where a private road is established, the compensation to the landowner must be paid by those making an application to have it established, and it must be opened, and kept in repair bv them. — Section 2497 of Code of 1896.

In prosecuting the appeal from the order of the commissioners’ court to the. circuit court, the parties to it should have been Edward King and the other petition[527]*527ers, and not the appellee or the commissioners. We have said this much in order that, upon another trial, there may be an orderly contest between the proper parties. And the only matter to be contested is the amount of damages to which the appellee may be entitled for that part of his land proposed to he taken. — Section 2450 of the Code of 1896.

Whether there ivas a necessity for the road, or a reasonable demand for it, and whether the report of the viewers should be set aside, were not matters to be reviewed by'the circuit court. The motion to strike pleas 2 and 7 should have, therefore, been granted. The motion to dismiss the appeal ivas properly denied.

Reversed and remanded.

Haralson, Simpson, and Henson, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

43 So. 784, 150 Ala. 524, 1907 Ala. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleckler-v-morrow-ala-1907.

Opinion

Related

Cite This Page — Counsel Stack