[84 Ariz. 2] David K. Wolfe, Tucson, for appellant.
Perry A. Devere and Paul G. Rees, Jr., Tucson, for appellee Stephenson.
Wm. Gordon, Tucson, for appellee Yoas.
UDALL, Chief Justice.
This was an action instituted by plaintiff-appellant, United Liquor Company, an Arizona corporation (Kemper Marley, president) to quiet title to a claimed appurtenant easement for ingress and egress (including but not limited to the right to drive, haul, herd and transport livestock, feed, personnel and equipment by means of trucks and other vehicles, or by drovers) to that portion of its cattle range holdings comprising some 25,000 to 30,000 acres in the 'Tinaja gathering area'; or in the alternative for a 'private way of necessity', for the same use, across less than one mile of defendants' patented lands. The named defendants-appellees are Margaret B. Stephenson, a widow, and Richard H. Yoas, a single man. Inasmuch as Yoas' interest is solely that of a seller under a contract of conditional sale to Mrs. Stephenson, we shall hereafter refer to the latter as the defendant and to the corporate entity as plaintiff.
On January 4, 1954, plaintiff acquired from Howell Manning approximately 200 sections of range lands (this includes leased federal and state lands plus some patented
holdings) that lie west of the Tucson-Nogales highway and the Southern Pacific Railroad whose tracks in the main parallel said highway. Manning retained his headquarters 'Canoa Ranch' that adjoins defendant's property and gave plaintiff oral permission to use his shipping pens located thereon. Due to the roughness of the terrain and the way it lies, undoubtedly the most convenient and practical route for plaintiff to get into and out of the 'Tinaja area' from the Nogales highway is across defendant's land along the route sought for this easement or private way of necessity. Mr. Manning testified, though it was denied by defendant, that he was asked by Mrs. [84 Ariz. 3] Stephenson in the year 1951 to build what is now referred to as the 'bladed road' leading up the bluff and onto the mesa, which is along the old cattle trail used by him since the year 1921 in driving cattle a few times each year to and from the 'Tinaja area'. Admittedly this is the only road that heavy trucking equipment could use. Such is the route now in question.
The highly reputable law firm of Duane Bird and Thomas L. Hall of Nogales represented defendant in the early stages of this controversy. At the lengthy trial she was ably represented by Attorneys Thomas L. Hall and Frank Barry (of Tucson), both men of high integrity. The 650-page reporter's transcript reflects the skill and adroitness with which these capable attorneys presented her defense. Toward the end of the trial the presiding judge suggested 'Maybe you can settle this lawsuit.' After the evidence was all in and just before the attorneys were to argue the issues to the court, counsel for both sides announced that a settlement had been reached. This resulted in the case being removed from the calendar for about two weeks, and during this interim the defendant went over the head of her attorneys and conferred directly with the trial judge. Thereafter the court held defendant did not fully understand the alleged settlement and therefore was not bound by it.
Judgment was entered for defendant, denying plaintiff any relief whatever. Plaintiff's motion for a new trial or entry of judgment according to the complain or or the stipulation for judgment entered by plaintiff and defendant was denied. This appeal followed.
Plaintiff frames the issues as follows:
1. The establishment of an easement by prescription.
2. The establishment of an easement of necessity, i. e., the condemnation of a private way of necessity.
3. The authority of an attorney to settle and compromise an action.
4. Refusal of the trial court to accept all uncontradicted probable evidence.
If defendant is legally bound by the stipulation entered into between her attorneys and plaintiff's attorney then such a holding will be determinative of this appeal, obviating the necessity of deciding the other issues involved.
An attorney does not, by the general authority arising out of his employment, have an implied or inherent power to compromise and settle his client's cause of action. But, where express authority is given, the attorney may compromise any matter, and his action in so doing is binding upon his principal. Smith v. Washburn & Condon, 38 Ariz. 149, 297 P. 879. Where an attorney is authorized by his client to compromise a lawsuit the attorney has the [84 Ariz. 4] legal right to do so and the client is bound thereby unless the settlement is grossly unfair. Allen v. Fewel, 337 Mo. 955, 87 S.W.2d 142.
The dispute concerning the settlement arose as follows: Court reconvened, after recessing to view the premises, and the judge stated:
'In this case both sides rested. We viewed the premises and the Court said he would hear oral arguments, and prior to hearing oral arguments counsel announced that they had agreed upon a settlement and prior to any oral arguments before a decree was submitted apparently they are not agreed on any settlement and that is what
we are here for this morning.' (Emphasis ...