Wheadon v. Pearson

• Decision Date: 13 December 1962
• Docket Number: No. 9696,9696
• Parties: d 45 Gene WHEADON and Deane Wheadon, his wife, Plaintiffs and Appellants, v. George B. PEARSON and Sarah K. Pearson, his wife, Defendants and Respondents.
• Court: Utah Supreme Court

Page 946

376 P.2d 946

14 Utah 2d 45

Gene WHEADON and Deane Wheadon, his wife, Plaintiffs and Appellants, v. George B. PEARSON and Sarah K. Pearson, his wife, Defendants and Respondents.

No. 9696.

Supreme Court of Utah.

Dec. 13, 1962.

Bean & Bean, Layton, for appellants.

Nielsen, Conder & Hansen, Salt Lake City, for respondents.

CALLISTER, Justice.

In a prior action plaintiffs sought to establish a right of way over the adjoining land of the defendants upon the theory of a prescriptive easement--that plaintiffs and their predecessors had adversely used the alleged right of way for a continuous period in excess of 20 years. Defendants' motion for summary judgment was granted at the pretrial hearing when it was determined that the claimed period of adverse use did not amount to 20 years because for a five year period the adjoining parcels of land had been under the common ownership of the plaintiffs. ¹ A motion for a new trial was denied. No appeal was taken from this judgment.

Subsequently, plaintiffs filed the action now under consideration, alleging a right of way by way of an implied easement over the same strip of defendants' property--that the right of way was created by the division of a parcel of land into two contiguous parcels, a portion of one being used during the single ownership as a right of way for the benefit of the other. ² The complaint was dismissed for the reason that the prior action was res judicata. Plaintiffs appeal from this ruling.

Both sides to this controversy cite and rely upon East Mill Creek Water Co. v. Salt Lake City. ³ In that case Mr. Justice Wade stated:

'* * * there are two kinds of cases where the doctrine of res judicata is applied: In the one the former action is an absolute bar to the maintenance of the second; it usually bars the successful party as well as the loser; it must be between the same parties or their privies; it applies not only to points and issues which are actually raised and decided therein but also to such as could have been therein adjudicated, but it only applies where the claim, demand or cause of action is the same in both cases. In such case the courts hold that the parties should litigate their entire claim, demand and cause of action, and every part, issue and ground thereof, and if one of the parties fails to raise any point or issue or to litigate any part of his claim, demand or cause of action and the matter goes to final judgment, such party may not again litigate that claim, demand or cause of action or any issue, point or part thereof which he could have but failed to litigate in the former action. On the other hand where the claim, demand or cause of action is different in the two cases then the former is res judicata of the latter only to the extent that the former actually raised and decided the same points and issues which are raised in...