Bard Ranch Co. v. Weber
| Citation | 557 P.2d 722 |
| Decision Date | 14 December 1976 |
| Docket Number | Nos. 4472 and 4529,s. 4472 and 4529 |
| Parties | BARD RANCH COMPANY, a corporation, and Eldon Johnston, an individual, Appellants (Defendants below), v. Wayne WEBER and Evelyn Weber, Appellees (Plaintiffs below). Wayne WEBER and Evelyn S. Weber, Appellants (Defendants below), v. JOHNSTON FUEL LINERS, INC., a Wyoming Corporation, and the Bard Ranch Company, a corporation, Appellees (Plaintiffs below) (two cases). JOHNSTON FUEL LINERS, INC., a Wyoming Corporation, and the Bard Ranch Company, a corporation, Appellants (Plaintiffs below), v. Wayne WEBER and Evelyn S. Weber, Appellees (Defendants below). Wayne WEBER and Evelyn S. Weber, Appellants (Plaintiffs below), v. BARD RANCH COMPANY, a corporation, and Eldon Johnston, an Individual, Appellees (Defendants below) (two cases). to 4533. |
| Court | Wyoming Supreme Court |
William R. Jones, Jones, Jones, Vines & Hunkins, Wheatland, for Bard Ranch Co., Eldon Johnston, and Johnston Fuel Liners, Inc.
Jack R. Gage, Hances, Carmichael, Gage & Speight, P. C., Cheyenne, for Wayne and Evelyn S. Weber.
Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and ARMSTRONG, District Judge, Retired.
By opinion dated March 7, 1974 1 this court affirmed the legal existence of a roadway easement traversing Section 21, T. 24 N., R. 67 W., 6th P. M., Platte County, Wyoming. Rather than ending the controversy our opinion was followed by two more actions, three applications for contempt, two of which were granted and one of which was denied, and the six appeals listed in the capation. 2 We would have preferred to render an opinion which would settle once and for all this unfortunate and we think unseemly bickering between two neighboring but not neighborly landowners, but unfortunately we must require more determination of the factual situation by the district court.
As disclosed in our opinion in Weber, supra, 3 Johnston therein sought temporary and permanent injunctions against the installation of a gate across an existing private road in such a manner as to interfere with the safe and convenient use thereof by Johnston. Weber claimed that the right-of-way had been assigned to him by the owner thereof, being the grantee named in the original conveyance. Johnston claimed as successor in ownership of the lands for the benefit of which the right-of-way had been granted. The judgment of the trial court in Docket 12-177, being the only part of that action made a part of the record in the several proceedings with which we are now concerned, declared Johnston to be the owner of the right-of-way over lands of Weber in Section 21 as an appurtenance to undescribed lands owned by Johnston in the same township, and declared that an easement
'* * * is hereby established to be fifty (50) feet in width, being twenty-five (25) feet on either side of the presently established and existing roadway traversing said section 21 * * *.' (Emphasis added)
The judgment then went on to enjoin Weber from interfering with Johnston's use of the roadway and from 'damaging, altering or changing the surface of said roadway and the entire easement upon which the same is established.' (Emphasis ours) Weber was permitted to maintain the cattleguard and gate which had led to the institution of the suit but was required to extend the approaches thereto in a straight line for a distance of 150 feet on each side thereof. He was also permitted to maintain ramps for access from the roadway to his lands but only in such manner as to avoid accumulation of any water on the roadway.
Following entry of mandate upon affirmance and on May 24, 1974 Weber filed in the district court a new action, Docket 12-473, seeking to enjoin Johnston from interfering with a power pole and two ditches or laterals which were claimed either to be outside the right-of-way established by the district court's judgment in 12-177 or, if within such boundaries, to have been installed prior to the institution of that action by Johnston against Weber. 4 By judgment entered August 7, 1974, the district court enjoined Johnston from such interference, finding that while both the pole and laterals encroached upon the right-of-way, they had been installed prior to the institution of that suit. Appeal was taken by Johnston and that cause docketed in this court as No. 4472.
On November 15, 1974 Docket 12-540 was filed by Weber to enjoin interference with laterals or ditches adjacent to or within the boundaries of the right-of-way, but at locations further north than the one involved in appeal No. 4472. Johnston responded with a motion to dismiss this later suit which motion was sustained and the amended complaint dismissed by order entered January 13, 1975. Appeal by Weber from this order was docketed as No. 4533.
There separate applications for contempt citations were filed: the first of these by Johnston on November 26, 1974 in Docket 12-177 to have Weber adjudged in contempt for violation of the judgment establishing the right-of-way; 5 a similar application by Weber filed December 12, 1974 in Docket 12-177 to have Johnston adjudged in contempt; 6 and on the same date Weber's application in Docket 12-473 to have Johnston adjudged in contempt for violation of the injunction entered August 7, 1974. 7 By separate orders entered Jnauary 13, 1975, Weber was found guilty of contempt on the Johnston application and fined $500, Johnston was found guilty of contempt on the first Weber application and fined $500, and Weber's application in Docket 12-473 was denied. Appeals were taken by Weber from the order holding him in contempt, and by Weber and Johnston from the order holding Johnston in contempt, which appeals were respectiviely docketed herein as Nos. 4529, 4530, and 4531. Weber also appealed from the dismissal of his application for contempt against Johnston in Docket 12-473, which appeal was herein docketed as No. 4532.
Before separately considering the various appeals we shall make some general observations concerning the previous action and its relation to the pending actions and proceedings. As stated in Johnston's brief, the first action was
Weber defended only on the basis that Johnston owned no right-of-way and the exact location of the roadway, either generally through Section 21 or at the specific location of the cattle guard, was not an issue in the case. The judgment of the district court, which in part protected Johnston's ownership of the easement from obstruction by an improper cattle guard, did go on to enjoin Weber from damaging, altering or changing the roadway 'or the entire esasement upon which the same is established.' While the judgment relied upon the original conveyance as the legal basis for claim of easement, it did not adhere to the description contained therein (being a definite courses-and-distances description tied in to established sections corners) and did not itself attempt to fix the boundaries thereof, but as stated above, declared the easement to encompass 25 feet 'on either side of the presently established and existing roadway traversing said Section 21 * * *.' 8
Neither party objected to this and pertinently to the present case the only dispute posed for our consideration was the borad issue of ownership. We held only that the conveyance of the land for the benefit of which the easement had been obtained carried the easement with it as an appurtenance, and after passing upon other questions not germane to the present appeals affirmed the judgment.
With the final observation that not only was the judgment devoid of any legal description of the easement owned by Johnston but the civil engineers testifying for the opposing parties in the present proceedings have disagreed materially as to the location of the 'presently established and existing roadway' and the boundaries of the right-of-way, 9 which disputes have been only partially settled by findings of the district court, we proceed to consider the specific appeals.
No. 4472-Injunction against Johnston's interference with pole and laterals
Notwithstanding the limited factual and legal situation involved in the earlier judgment and affirmance, Johnston argues in support of his appeal in No. 4472 that the judgment is res judicata not only on the issues actually litigated and settled by the judgment, but upon all rights and obligations of the parties with respect to the easement, wherever it might extend. Citing 46 Am Jur 2d, Judgments § 395, p. 561 for the general proposition that under this doctrine one who 'has litigated, or had an opportunity to litigate, the same matter in a former action' (emphasis ours) will not be permitted to litigate it again in a subsequent action, Johnston argues that it was incumbent upon Weber in the earlier action to present any evidence that might support his claims to an interest in poles, ditches or other improvements which might limit or restrict the easement anywhere along its course, and having failed to do so, the earlier judgment must be considered not only to have sustained the general validity of the easement and the effect of the gate, but also to have determined that Weber could have no other claims against Johnston as to the right-of-way throughout its entire course and wherever it might subsequently be factually determined to exist upon the ground. Upon this premise it is then agrued that the independent action, 12-473, filed after our affirmance of 12-177, constituted a collateral attack by Weber upon that final judgment which cannot be permitted.
This contention is made despite the fact that Johnston, contrary to the requirements of Rule 8(c), W.R.C.P. 10 did not affirmatively plead in defense of Weber's suit (12-473) that the matter was res judicata. We are also impressed...
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