Judgment reversed with directions for a new trial.
Leonard S. Sharman, of Phoenix, for appellant.
Milton L. Ollerton, of Phoenix, for appellees.
Phelps, Justice. La Prade, C. J., and Stanford and De Concini, JJ., concur. Udall, Justice (dissenting).
[71 Ariz. 120] 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 [71 Ariz. 121] 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 he 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 [71 Ariz. 122] 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 ...