Pinkerton v. Pritchard

• Decision Date: 05 February 1946
• Docket Number: No. 5192,5192
• Citation: 71 Ariz. 117,223 P.2d 933
• Parties: PINKERTON v. PRITCHARD et al. . Nov, 13, 1950. Leonard S. Sharman, of Phoenix, for appellant. Milton, L. Ollerton, of Phoenix, for appellees. PHELPS, Justice. The facts in this case are that on
• Court: Arizona Supreme Court

Page 933

223 P.2d 933

71 Ariz. 117

PINKERTON v. PRITCHARD et al.

No. 5192.

Supreme Court of Arizona.

Nov, 13, 1950.

Leonard S. Sharman, of Phoenix, for appellant.

Milton, L. Ollerton, of Phoenix, for appellees.

PHELPS, Justice.

The facts in this case are that on February 5, 1946, plaintiff-appellant filed an action in ejectment in the superior court of Maricopa County against defendant J. A. Pritchard, one of the appellees herein, in which he alleged that he was the owner of the north 16 feet of Lot 1, Smith & Ward Subdivision, Maricopa County, Arizona; that defendant wrongfully withheld the possession thereof from him and asked for judgment declaring defendant to have no interest therein and for restitution of the property. Defendant answered and among other things alleged he had an interest amounting to an easement in said strip of land for road purposes. The following May 28, 1947, after trial of the issues, judgment was entered for defendant the terms of which judgment will be hereinafter discussed.

On June 14, 1947, plaintiff filed an action in the same superior court against defendant Pritchard and Universal Air Conditioning Company, a corporation, alleging that he was the owner of the strip of land involved in the former cause of action and alleged that defendant on or about the 29th day of May, 1947, was then and ever since had been unlawfully and wrongfully trespassing upon said strip of land by using it for parking and storing vehicles and other personal property thereon and by maintaining a fence along and across said 16-foot strip. He asked for judgment for damages and restraining defendants from maintaining said fences and from using said strip of land, 'in any manner whatsoever other than that allowed by order of this court' (unquestionably referring to the judgment entered May 28, 1947).

Defendants answered and among other things set up the judgment of the former litigation as res judicata of all the issues raised in the instant case and asked for the dismissal of said cause of action. At the close of plaintiff's case defendants' counsel moved for a dismissal of the case upon the ground of res judicata which was later granted and judgment entered accordingly. From this judgment plaintiff has appealed. He rests his appeal upon the following assignment of error: 'The court erred in granting defendant's motion to dismiss the action as being res judicata.'

In order to determine this question it is necessary to analyze the pleadings in the respective causes of action. Clearly the first cause of action is one in ejectment wherein plaintiff sought to have the court declare him to be the fee simple owner of the strip of land therein described and that defendant Pritchard be required to surrender possession thereof to him.

The judgment plead as res judicata reads in part as follows:

'It is ordered, adjudged and decreed that the defendant, J. A. Pritchard, be, and be hereby is, granted an easement for roadway purposes over and across the following described real property:

'The North sixteen (16) feet of Lot One (1), Smith & Ward Subdivision, according to the map or plat thereof on file and of record in the office of the County Recorder of Maricopa County, Arizona, the same being a subdivision of the North Half (N 1/2) of the Southeast Quarter (SE 1/4) of Section Seventeen (17), Township One (1) North, Range Three (3) East of the Gila and Salt River Base and Meridian, appurtenant to Lot One (1) of said subdivision, Maricopa County, Arizona.

'It is further ordered, adjudged and decreed that the plaintiff, Burk L. Pinkerton, be, and he hereby is, permanently enjoined and restrained from interfering with or encroaching upon said easement over and across said North sixteen (16) feet of Lot One (1) of Smith & Ward Subdivision, Maricopa County, Arizona, and from claiming any right, title or interest in said real property, other than the right to use said property, with others, for a roadway; * * *.' (Emphasis supplied.)

A pertinent portion of the findings of fact upon which the above judgment is predicated is as follows: 'That on or about October 23, 1919, plaintiff, Burk L. Pinkerton, acquired title in fee simple to the whole of Lots 9 and 16 and to Lots 1 and 8, (which included said North 16 feet of Lot 1), by warranty deed recorded in the office of the County Recorder of Maricopa County, Arizona, in Book 175 of Deeds at page 288 thereof. * * *' (then follows a description of property) and as a conclusion of law the court found as follows: '2. That the sale by plaintiff on May 29, 1922, of a part (Lots 1 and 8) of a larger tract of land (Lots 1, 8, 9 and 16) which was subject to a visible and apparent easement for roadway purposes constituted an implied grant of the easement for roadway purposes over and across the North 16 feet of Lots 1 and 8 of said subdivision, for the benefit of all of said Lots 1, 8, 9 and 16, in said subdivision.'

The order and decree above set out in the judgment is conflicting and ambiguous and not in harmony with the findings of fact and conclusions of law. It grants to the defendant an easement in the strip of land involved for road purposes. This language thereby fixes the limit and extent of defendant's easement therein and right to the use thereof. Then ti undertakes to restrain plaintiff from 'claiming any right, title or interest in said real property other than the right to use said property with others, for a roadway.' This language, literally construed, divested plaintiff of the legal title to his property without vesting it in any other person, thus leaving the title thereto suspended in midair. This conflicts with the former part of the judgment to the effect that defendant is given only an easement in the land for road purposes and, of course, amounts to an absurdity. It was wholly beyond the power and jurisdiction of the court to accomplish such an end. We therefore hold that the language used in the judgment did not have the effect of divesting plaintiff of his legal title to said property and that it was not the intent of the court to accomplish that end. We further hold that the things that were determined by that judgment and which are res judicata so far as the instant case is concerned are: (1) that plaintiff was and is the owner of the legal title to the 16-foot strip of land here involved with the right to use said strip of land together with others as a roadway; (2) that defendant Pritchard has an easement thereon for road purposes only; (3) that plaintiff was not then entitled to damages from the defendant for the alleged wrongful withholding of possession thereof from plaintiff.

Let us now examine the pleadings in the instant case.

1. Plaintiff alleges he is the owner of the strip of land in question.

2. He alleges defendants are trespassing upon it to his damages in the sum of $500.

3. He prays for damages for such trespass and that defendants be restrained from using said strip of land for any purpose except as allowed by the judgment above set forth.

Under no circumstances can it be said that the issues determined by the judgment of May 28, 1947, are res judicata of the issues raised in the instant case. The latter action is not an attempt to recover possession of the strip of land in question or to enlarge his ownership interest therein. It seeks merely to require defendants to limit their use of the easement granted to Pritchard by the judgment of May 28, 1947, to its use for road purposes only and to recover damages for their wrongful use thereof by using such strip of land for purposes wholly outside of and beyond the grant described in the judgment. It is immaterial by what name we denominate the present cause of action. Suffice it to say that it is not possessory in its nature. However, we believe it clearly falls within the designation of the common law action of trespass on the case. In other words, an action in tort. See 28 C.J.S., Easements, § 107. And we hold that while plaintiff's complaint is inartfully drawn and that it would have been better pleading to allege the character of his ownership yet it was not imperative that he do so. The allegation of ownership and the right to its use except as limited by the easement decreed by the court is sufficiently supported by proof of ownership of the legal title. Ownership has been held by this court in City of Phoenix v. State ex rel. Harless, 60 Ariz. 369, 137 P.2d 783, 786, 146 A.L.R. 1255, as covering different estates in real property. The court there said: 'The word 'owner' has no technical meaning, but its definition will contract or expand according to the subject matter to which it is applied. As used in statutes it is given the widest variety of construction, usually guided in some measure by the object sought to be accomplished in the particular instance. It has led some courts to declare that the word has no precise legal signification and may be applied to any defined interest in real estate. Merrill Ry. & Lighting Co. v. City of Merrill, 119 Wis. 249, 96 N.W. 686.' Therefore when plaintiff introduced the judgment in the former litigation of May 28, 1947, together with the judgment roll in evidence he showed that he had the legal title to the property in question and satisfied the allegations of his complaint relative to ownership. The relief sought in the instant case is entirely consistent with the allegations of the complaint. We said in the case of Sharp v. Western Union Telegraph Co., 39 Ariz. 349, 6 P.2d 895, 898, that '* * * where the prayer follows the allegations of damages, the two together are the best evidence to the trial court of what relief is sought. * * *' And again in the case of Johansen v. Arizona Hotel, Inc., 37 Ariz. 166, 291 P. 1005, 1007, we said: '* * * If the complaint states facts showing damages it is sufficient, although it does not close with an ad damnum clause, if it contains a prayer for judgment in a specified amount. * * *' ...