Richey v. Bues

McCABTY, O. I., after making the foregoing statement of the case', delivered the opinion of the court. The complaint shows on its face that plaintiff acquired the title upon which he bases his right for recovery since the rendition of the judgment in the former suit, and which, defendant claims, is res adjudicata. According to the rule as laid down by the great weight of authority, the judgment in the former suit only determined the rights of the parties up to the time it was rendéred, and cannot prevent plaintiff from recovering on his subsequently acquired title. In Wells on Bes Adjudicata and Stare Decisis, section 332, the author tersely and, as we think, correctly states the rule as follows: “When one fails to establish and afterwards acquires a new, or partially new, title, the former action does not debar him from seeking to recover on the subsequent acquirement. The former judgment merely settled the fact of title at the time it was rendered; but the second suit relies on a different title and so is in reality not on the same issue.” The following authorities also declare the same doctrine: Perkins v. Parker, 10 Allen (Mass.) 22; McKissick v. McKissick, 6 Humph. (Tenn.) 75; Taylor v. McCrackin, 2 Blackf. (Ind.) 261; 24 A. & E. Ency. L. (2d Ed.), 777; 9 Ency. Pl. and Pr. 624. Applying the law of res adjudicata as announced by the foregoing authorities to the facts alleged in the complaint in this case, we are of the opinion, and so hold, that the demurrer is without merit and was properly overruled. It seems that the trial court and the parties to the suit treated it as an action brought to modify a judgment, whereas it is essentially an original action to quiet title. We must look to the allegations of the complaint in determining the character of the action, and not to what attorneys may label [268] or call it. No facts are alleged showing fraud, mistake, surprise, accident, or anything else connected with the bringing of the former suit, or with the trial thereof upon which to base a decree modifying the judgment rendered in the former case. The facts alleged are sufficient, however, to> support a decree quieting plaintiffs right and title to an easement in and across the premises mentioned for the purpose of enabling him to maintain and keep in repair his pipe line. A court of equity, in an action to quiet title, may, under a general prayer for relief, not only enter a judgment quieting plaintiffs title when the facts warrant it, but, in a case such as the one at bar, where the right to occupy and use lands for a specific purpose is in controversy, may include in the judgment a general order, restraining the defendant from assert-' ing any claim adverse to and in derogation of plaintiffs right, and may also prohibit the defendant from doing any act that would tend to impair or destroy such right. It must be conceded that if the decree were modified, and the injunctive provisions eliminated therefrom, the defendant would be legally bound to respect plaintiffs rights as defined and fixed by the decree so modified, and that, for any invasion of such right by defendant to the injury of plaintiff, the latter would have a right of action, and under a proper proceeding, could obtain precisely the same relief as is given in this case. Therefore we do not think the court exceeded its power in granting in-junctive relief, and thereby terminating the litigation. The general rule as declared by the more recent authorities is that “On a final hearing the court may decree a perpetual injunction if it is necessary for the purpose of complete justice, although not prayed for in the bill.” (10 Ency. Pl. & Pr. 962, and eases cited; 2 Spelling, Extra Relief, 998; 2 High on Injunctions, 1573; Power v. Athens, 99 N. Y. 592, 2 N. E. 609; Webster v. Harris, 16 Ohio 490.) The judgment is affirmed with costs. STRAUP and PEICK, JJ., concur.