Lane v. Page, 16923

• Decision Date: 15 December 1952
• Docket Number: No. 16923,16923
• Citation: 126 Colo. 560,251 P.2d 1078
• Parties: LANE v. PAGE et al.
• Court: Colorado Supreme Court

Page 1078

251 P.2d 1078

126 Colo. 560

LANE v. PAGE et al.

No. 16923.

Supreme Court of Colorado, en Banc.

Dec. 15, 1952.

Rehearing Denied Jan. 5, 1953.

Van Cise & Van Cise, Earl J. Hower and Harold H. Harrison, Denver, for plaintiff in error.

Paul A. Johnson, Wheatridge, Carl Cline and Alex S. Keller, Denver, for defendants in error.

STONE, Justice.

In a former action, plaintiffs Page petitioned for declaratory judgment, alleging their ownership of three certain tracts of land and the ownership by defendant Lane of two tracts adjoining them on the west; that a real controversy existed between plaintiffs (and other joined defendants) and defendant Lane over the use of a roadway or avenue adjacent to defendant Lane's tracts; that defendant Lane had placed a blockade across said roadway and contended that he had a right so to do; that plaintiffs were entitled to injunctive relief if by the judgment it was decreed that they were entitled to the use of said roadway, and that the recorded plat would reveal an unconditional dedication of said roadway to the occupants of said tracts. Therein, plaintiffs prayed for declaratory judgment, holding that they could or could not use said roadway, and, if such use were permitted, then for an injunction against interference therewith, 'and for other further or different relief as may seem just and proper in the premises.'

Upon trial of said cause, the court found and adjudged that said roadway or avenue was not a public thoroughfare or public highway, and that plaintiffs had no right to travel over the same. On review in this court, in Page v. Lane, 120 Colo. 416, 211 P.2d 549, 551, said judgment was reversed and the case remanded 'with directions to enter a decree giving plaintiffs the right to the use of the avenue as dedicated without interference or obstruction by the defendant, and that the defendant be enjoined from such interference.' So far as appears, no judgment further than so ordered was entered or sought on remand.

The present action was brought, after our decision in the prior case, to recover damages alleged to have resulted to plaintiffs Page prior to the bringing of their former action, from the blockading of the roadway, which, in said action, we held they had the right to use.

The trial court therein gave plaintiffs judgment against defendant Lane in substantial amount, and he seeks reversal here on numerous grounds, but we think the only ground we need consider is that of the asserted bar to the present action by the declaratory judgment sought and awarded in the former proceeding.

All the items of damage upon which plaintiffs rely in this second action had accrued prior to the bringing of the former declaratory judgment suit, and plaintiffs were then in position to bring suit for the recovery thereof. Then, as now, under our rules of procedure, all that would have been necessary for such recovery was the addition to the allegations in the complaint in their...