Greenberg v. Taylor, 20122
| Decision Date | 20 May 1963 |
| Docket Number | No. 20122,20122 |
| Citation | 382 P.2d 191,152 Colo. 342 |
| Parties | Lillian GREENBERG, Plaintiff in Error, v. Irene TAYLOR, Defendant in Error. |
| Court | Colorado Supreme Court |
Mellman, Mellman & Thorn, Denver, for plaintiff in error.
Francis S. Mancini, Donald S. Molen, Denver, for defendant in error.
We will refer to plaintiff in error as plaintiff or Lillian, and to defendant in error as Irene or defendant.
Lillian brought the action in the trial court and in her complaint alleged that she was the owner of two lots of land to which we will refer as Lots 33 and 34, and that she was also the owner of an easement over the west sixteen feet of Lots 1, 2, 3 and 4, which last mentioned lots were owned by Irene. She further alleged that she and her predecessors in interest had acquired an easement over the lots in question by possession and use thereof which was adverse, open, continuous and notorious for more than eighteen years; that on or about January 1, 1956, Irene had constructed a chain link fence across the right-of-way claimed as an easement by Lillian, and thereby unlawfully interfered with the use thereof. The prayer of the complaint was for an injunction restraining defendant from interfering with the use by plaintiff of the claimed right-of-way.
Defendant denied that plaintiff had acquired an easement over said lots by adverse user or otherwise. Affirmatively, she alleged that the matters in issue were litigated in actions formerly determined by the district court of Denver. She further alleged that in the case of Gould and Prisner v. Taylor, No. A-43833 in said court, the issues were 'similar' to those in the instant case; that plaintiffs in that action were predecessors in interest of Lillian, and that on January 17, 1946, said action was dismissed. Irene further alleged that in City and County of Denver v. Carl T. Taylor and Irene E. Taylor, No. A-98886 in the district court of Denver, the issues were 'similar' to those in the instant action, and that on March 6, 1956, that action was dismissed. That by reason of such judgments 'the issues herein are res judicata'.
Defendant moved the court for the entry of a summary judgment, which upon hearing was sustained and the action dismissed over objection of counsel for Lillian. The trial court ruled, inter alia, as follows:
'4. Plaintiff derives title through Earl C. Gould and John C. Prisner, former owners of Lots 33 and 34. On May 18, 1945, in this court, in action No. A-43833, Gould and Prisner instituted an action against defendant based upon their claim of an implied easement and adverse possession of the identical easement here sought to be established. That action was tried on January 17, 1946, and judgment entered for defendant. No Findings of Fact or Conclusions of Law appear in the file, nor does there appear a decree vesting any particular right in defendant. (Emphasis supplied.)
'5. It is the contention of plaintiff that at the time No. A-43833 was filed the statute of limitations had not run and that it continued to run until 1956 when defendant built a fence across the alleged easement. The court cannot agree with this contention. In case No. A-43833, the issue before the court was the rights of all parties in the strip of land in question. Regardless of the form of the complaint, it was an action under Rule 105 to determine rights in real estate. The general judgment can only be interpreted as a finding that as of that date plaintiff's predecessors had no rights and defendant owned the property free of any easement. There has not been sufficient time run since that judgment to gain a title by adverse possession for eighteen years.'
From the record made in the trial court and now before this court, and from the general judgment rendered in the former case, it cannot...
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...against the Hiltys which was asserted in the plaintiffs' first amended complaint was not barred by res judicata. See Greenberg v. Taylor, 152 Colo. 342, 382 P.2d 191 (1963) (the estoppel of a judgment extends only to the facts and conditions as they were at the time the judgment was rendere......
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