Harding v. Taylor, 36098
| Decision Date | 15 June 1954 |
| Docket Number | No. 36098,36098 |
| Citation | 272 P.2d 443 |
| Parties | HARDING v. TAYLOR et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In order to make a matter res judicata, there must be a concurrence of the four conditions following; (a) Identity in the thing sued for or subject matter of the suit; (b) identity of the cause of action; (c) identity of the persons or parties in the action; and (d) identity of the capacity in the person for or against whom the claim is made.
2. Where an estoppel by a former judgment rendered upon one cause of action is sought to be applied to matters arising in a suit in a different cause of action, the inquiry is whether the question of fact in issue in the latter case is the question of fact actually determined in the former action, and not what might have been litigated and determined therein.
Blanche E. Bradshaw, Oklahoma City, for plaintiff in error.
Sam S. Gill, Oklahoma City, for defendants in error.
Proper disposition of the question presented by this appeal requires recitation of the factual background of earlier litigation which provided the basis for the present action.
In 1921 George Mulligan and wife conveyed a parcel of land (16.45 acres) in SE4, Sec. 31, Twp. 12N, R.3 W.I.M., to J. A. Taylor by warranty deed, describing the land by metes and bounds. In 1926 the grantors platted and dedicated to public use other land adjoining Taylor on the west. The recorded plat showed the east line of the plat to be 908.4 feet west of the east line of this section.
In 1943 Taylor sued numerous parties, including the present defendant, alleging ownership and possession of the property for more than 15 years and that defendants were claiming some interest in the property thus clouding his title; that they interfered with his possession thereof by attempting to fence off a portion (31 feet) of the land which he claimed both by deed and prescription, and asked judgment quieting his title and enjoining defendants from interfering with his possession of the land.
During the trial of that case the court appointed a qualified surveyor who, after a survey of the property, reported his findings to the court. Based upon such survey the trial court found Taylor's (plaintiff's) west boundary line was 908.4 feet west of the east section line and that the east boundary line of the plat under which defendants claimed adjoined plaintiff's west line. Upon this finding the court decreed that certain defendants, including the present defendants, were not encroaching upon Taylor's land, found the issues generally in their favor and denied plaintiff's claim for injunctive relief.
In April 1953, the present plaintiffs, administrators of J. A. Taylor (plaintiff in the original action), filed this action alleging the boundary line was 908.4 feet from the east section line as adjudicated in the first action; notwithstanding such judgment which was binding upon defendant, she had destroyed plaintiff's fence and had commenced erection of her own fence some 6 feet over on plaintiff's property. They sought a temporary injunction and asked that upon final hearing she be enjoined permanently from trespassing upon or erecting a fence upon their property.
Defendant answered alleging her ownership of the property (Lot 16, Block 1, West Lawn Garden Addition) under the recorded plat, the east boundary line of which had been established in the prior lawsuit wherein she was a party defendant; that the judgment entered in the original action found all the issues generally in defendants' favor and such judgment became final and was not appealed from.
The parties entered into a stipulation, the substance of which is stated below and agreed same could be received in evidence.
1. The parties, the land and the issues involved are the same as in the original action, and that judgment was res judicata as to matters therein described.
2. The west line of plaintiffs' property and the east line of defendant's property are 908.4 feet west of the east section line of the section (sec. 31, Twp. 12, R.3).
3. The county surveyor had determined the 908.4 foot boundary line is approximately 6 1/2 feet west of a line of telephone poles crossing this land from north to south; fence defendant seeks to erect is approximately 6 1/2 feet east of line of survey markers fixing the 908.4 boundary line.
4. At and since time of original suit there was a tree approximately on the line where defendant now seeks to establish a fence and defendant at that time had a fence attached to the tree; after that judgment plaintiff (in original suit) tore the fence down; over the following years defendant would erect a fence and Taylor would destroy same and erect a fence along line of surveyor's markers, which fence defendant tore down; when defendant started the present fence she destroyed the fence erected along surveyor's markers some 6 1/2 feet west of the fence she sought to build.
At the trial both parties relied upon and introduced in evidence records and proceedings in the original suit. After both sides had rested the trial court announced that he would like to hear the evidence of the surveyor and, over defendant's objections, plaintiffs were permitted to reopen the case for the purpose of offering such testimony.
The witness (R. W. Thomas) testified the made the survey at the direction of the judge who tried the original case. Previously two other surveyors had worked the area in an effort to establish the true line but there was some discrepancy in their work so the court directed the witness to make a survey and establish location of the 908.4 foot boundary line. This he did and, as requested, set iron stakes or monuments, on the true boundary which stakes were approximately 6 1/2 feet east of the line of telephone poles and thus marked the 908.4 foot boundary line from the east section line as called for. At the time of his survey there was a tree near the line and defendant had a fence attached to such tree which was approximately upon the line where defendant sought to build the fence involved in this case. No other line was taken into consideration from any tree or other...
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...unquestionably sound and must be applied where applicable. Among them are: Runyan v. City of Henryetta, Okl., 321 P.2d 689; Harding v. Taylor, Okl., 272 P.2d 443; McKee v. Producers' and Refiners' Corp., 170 Okl. 559, 41 P.2d 466; Callahan v. Graves, 37 Okl. 503, 132 P. 474, 46 L.R.A.,N.S.,......
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...the question of fact actually determined in the former action, and not what might have been litigated and determined therein. Harding v. Taylor, Okl., 272 P.2d 443; Johnson v. Whelan, 186 Okl. 511, 98 P.2d In McKee v. Producers & Refiners Corp., 170 Okl. 559, 41 P.2d 466, 469, the court quo......
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Wilson v. Lee Evans Drilling Co.
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