85 So. 6 | Ala. | 1920
The complainant (appellant) filed this bill against defendant (appellee), seeking equity's injunctive process to require defendant to remove obstructions (fences) from a way averred to be a public highway. The determinative inquiry was whether the way described in the bill was a public highway. The testimony on the issues was taken by the oral examination of the witnesses. The court denied the relief prayed; the conclusion prevailing as appears from statements in the court's opinion, that neither dedication nor right in the public by prescription had been effected; that the way against the obstruction of which relief was sought was not shown to have had a fixed location; that it was a shifting, unstable *673
way. The appellee invokes the application of the rule that where the trial court hears the evidence ore tenus its conclusion on the evidence is like that of a jury, not to be disturbed unless plainly erroneous. Fitzpatrick v. Stringer,
The rules of law by which it is to be determined whether dedication of land or a way over land to public use or the creation of such right of use or easement in the public by prescription, has been effected, have been stated in Moragne v. Gadsden,
The whole evidence has been carefully considered; and upon its conflicting effects on the issues indicated it cannot be held here that the trial court erred in the attainment of conclusions that required the denial of the relief sought.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.