Johnson v. Whelan
| Decision Date | 06 February 1940 |
| Docket Number | 29051. |
| Citation | 98 P.2d 1103,186 Okla. 511,1940 OK 68 |
| Parties | JOHNSON v. WHELAN 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 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.
3. Where the owner of a town lot, in ignorance of the true boundary between his lot and the adjoining lot of another party, and under the mistaken belief that it is his property encroaches on a portion of the adjoining lot and erects a part of a structure thereon, and occupies such portion of said lot and maintains such structure thereon, openly peaceably, and exclusively for more than 15 years, he acquires title to such portion of the adjoining lot by prescription, sufficient against all. Sec. 11729, O.S.1931, 60 Okl.St.Ann. § 333.
4. The decision of this Court in White v. Saling, 185 Okl. 46, 89 P.2d 754, and all other decisions in conflict with the rule announced in syllabus 3 and the opinion herein, are expressly overruled.
Appeal from District Court, Oklahoma County; George H. Giddings, Judge.
Suit for ouster and to quiet title by Luella K. Johnson against Agnes M. Whelan and Robert W. Whelan. From a judgment in favor of the defendants, the plaintiff appeals.
Judgment modified and corrected and, as modified and corrected, affirmed.
Fred E. Suits, of Oklahoma City, for defendants in error.
Luella K. Johnson, plaintiff, appeals from a judgment of the District Court of Oklahoma County, favoring Agnes M. Whelan and Robert W. Whelan, defendants. This is the second time these parties have been before this Court in litigation over their rights respecting their respective adjoining properties in Oklahoma City. The history of the previous action is material herein because of the issues upon which the present action was tried and is presented to this Court. The decision of this Court on the former appeal, No. 24118, is Johnson v. Whelan, 171 Okl. 243, 42 P.2d 882, 98 A.L.R. 1096.
In No. 24118, Agnes M. Whelan et vir. filed a pleading to commence the action styled "Petition for Injunction", and therein they described their property and its location with respect to that of Luella K. Johnson, and deraigned their title. They alleged that the prior grantors of the respective parties had entered into an agreement to construct a common driveway on the property line between the respective tracts, and had so constructed the same and maintained it for many years. They alleged that by reason thereof they had acquired a prescriptive right to the enjoyment thereof, that Luella K. Johnson was interfering therewith, and sought injunctive relief. Johnson answered denying the agreement, denying her acquiescence therein, and alleging plaintiffs had deceived her with respect to the location of the property line when she inquired of them at the time she purchased her property. Upon trial judgment was rendered for Whelans as follows: "It is therefore ordered, adjudged and decreed that * * * said defendant and those acting under her are hereby forever enjoined, restrained and debarred from in any way, obstructing, damaging or injuring the concrete drive-way, which is on the property line between (said properties) so as to deprive the plaintiffs of the usual and customary use thereof." This judgment was affirmed. Johnson v. Whelan, supra.
In the action from which this appeal arises, Luella K. Johnson alleges in her amended petition, in substance: The ownership and location of the respective properties; that the Whelans have erected on the rear of their lot a garage that encroaches on her property to the extent of about three feet, that such encroachment is without legal right, and she asked judgment for the ouster of Whelans and the quieting of her title to the occupied strip of property. Whelans answered admitting their garage occupied a portion of plaintiff's lot as alleged, denying plaintiff was the owner of that portion occupied by their garage, and alleging they were the owners thereof. They pleaded res adjudicata, and estoppel by judgment by virtue of the judgment in the former action, and also pleaded the various statutes of limitations.
Upon the issues made by these pleadings the action was tried and judgment rendered.
The judgment appealed from was rendered upon stipulation of the parties as to essential facts and certain instruments in writing as to which there was no dispute. We quote the pertinent part of the journal entry: "* * * is of the opinion and does find * * * that the subject matter of this action is the same as the subject matter of the action of Cause No. 24,118 * * * and further finds that the defendants have an easement in said property herein sued upon and that fact was so adjudicated by said Supreme Court * * * in * * * No. 24,118 * * *."
We are of the opinion that the record before us does not justify applying the rule of estoppel by judgment. The principal issue of fact presented and determined in 24118 was the location of the center line of the drive-way with respect to the property line between the respective properties. In the pleadings in 24118, quoted above, and in the oral testimony of the witnesses, the issue of the location of the center line of the drive-way and the property line was limited to that portion of the properties North of the garages. Thus the fact adjudicated in that action differs entirely from the one herein. Here the parties were litigating over title to a parcel of land not affected by the driveway easement. If it becomes necessary herein to establish the property line and the center line of the drive-way as a preliminary to ascertaining the true location of the garage, it could not be determined anew in this action. The determination of that issue in 24118, would be binding.
Defendants state that as a matter of fact the drive-way extends to the South line of the respective lots, and that in truth the garage is merely a shell erected over a portion of the drive-way. If we could say from the record before us that this is true estoppel by judgment might apply. As pointed out above the pleadings describe the drive-way as leading to, or extending to, or furnishing a means of ingress and egress, to the garages, thereby evincing an intention on the part of the pleaders to end the drive-way in litigation at the entrance to the garage. The stipulation entered into in this case states: "* * * present defendants brought an action against present plaintiff for an injunction to enjoin present plaintiff from asserting any right to the drive-way approaching the garage now in question, * * * and that this court * * * enjoined * * * plaintiff from interfering * * * in the use of * * * said drive-way as a means of ingress and egress to the garage * * *." There are photographs of the drive-way and garage in each of the records, but a careful scrutiny thereof does not disclose whether the South end of the drive-way ends at the entrance to the garage, or whether it extends to the rear of the garage, thereby making the garage "merely a shell erected over the drive-way". We do not think defendants' statement is supported by the record.
We think it can be seen from these preceding statements why estoppel by judgment does not apply.
If the subject matter of this action is the same as the subject matter of the first action as stated by the trial court, and the other factors are present, the rules of the law of res judicata should govern. Our consideration of the records in the actions leads us to the conclusion that res judicata does not govern.
If the real estate involved be considered the subject matter of the actions, the subject matter is not the same. In the first action, the plaintiffs, who are defendants herein, were seeking merely to protect their real estate that was covered as they thought by one half on the common drive-way, and to protect their right to the use of so much of the defendant's (plaintiff's herein) real estate as had previously accorded their grantors. They alleged in their amended petition that the common drive-way occupied equal portions of the lots of the respective owners. They nowhere asserted the ownership of any part of defendant's real estate, and particularly was no part of the real estate described herein sought or involved by the plaintiffs. The small parcel of real estate involved in the present action differs wholly from that involved in the drive-way litigation.
If the purpose of the respective actions, that is, the relief sought and the effects to flow therefrom, be considered the subject matter, there is yet a complete diversity in the subject matter.
The purpose of the plaintiffs in the first action was to establish and protect by law the right to use a common drive-way occupying both properties. This right of use was predicated upon a prior agreement followed by long continued use. The dispute over the actual location of the drive-way with respect to the property line and the defense of ownership injected by the defendant therein were for the avowed purpose of defeating the plaintiffs' claim of an easement.
This action was brought by the plaintiff (defendant in the former action) to...
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