Opinion
4 Div. 106.
April 17, 1941. Rehearing Denied May 22, 1941.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
L. A. Farmer, of Dothan, for appellants.
This court held on former appeal that the agreement relied on by complainant was the valid and binding agreement of the parties and had been executed by them in full in accordance with its terms. If so it cannot be executed again. See 234 Ala. 180, 174 So. 620. The judgment of a court of competent jurisdiction, rendered on the merits, as between the parties is final and conclusive of the matter in controversy, so long as it remains unreversed. The decree in the former cases is res adjudicata. 34 C.J. 818; Tankersly v. Pettis, 71 Ala. 179; Wood v. Wood, 134 Ala. 557, 33 So. 347; Terrell v. Nelson, 199 Ala. 436, 74 So. 929; Perry v. King, 117 Ala. 533, 23 So. 783; Mason v. Mason, 5 Ala. App. 377, 59 So. 699.
W. L. Lee and Alto V. Lee, III, both of Dothan, for appellee.
A judgment or decree will operate as a bar to a second suit only when it is shown that the matter in controversy in the second suit was actually involved in the first. The doctrine of res adjudicata can have no application in this case. Allison v. Little, 93 Ala. 150, 9 So. 388; Phillips v. Thompson, 3 Stew. P. 369; Pruitt v. Holly, 73 Ala. 369; Strauss v. Meertief, 64 Ala. 299, 38 Am.Rep. 8; Irwin v. Alabama Fuel Iron Co., 215 Ala. 328, 110 So. 566; Adams v. Powell, 225 Ala. 300, 142 So. 537; Pratt Consol. Coal Co. v. Morton, 14 Ala. App. 194, 68 So. 1015.
The bill seeks injunctive relief against obstruction of an easement or right of way, and from the decree granting relief sought defendants prosecute this appeal.
The lands of the parties adjoin and on a former appeal (McKay et al. v. Lunsford, 234 Ala. 180, 174 So. 620), it was noted that the line between them had by written agreement been fixed and established, and this agreed line was here given full force and effect. In the above cited case relief was granted complainant as for obstruction of the right of way on one forty acres described in the decree as the NW 1/4 of SE 1/4, Sec. 7, T., 2, R. 26, Houston County, Alabama. In the present suit relief is awarded against any obstruction of the right of way consisting of a strip of land sixteen feet wide and lying on the north side of the NE 1/4 of SE 1/4, Sec. 7, T. 2, R. 26, Houston County, Alabama.
The submission of the present cause for final decree was rested in a large part upon the proof considered in the former litigation, with some additional testimony. The decree rendered appears not to be here contested upon the finding of facts by the chancellor. The insistence for reversal is rested upon the theory the former litigation constitutes res adjudicata and this theory is rested in turn upon the contention that the written agreement referred to on former appeal was sufficiently extensive to include the present forty acres and the cases of Tankersly v. Pettis, 71 Ala. 179; Wood v. Wood, 134 Ala. 557, 33 So. 347; Terrell v. Nelson, 199 Ala. 436, 74 So. 929; Perry v. King, 117 Ala. 533, 23 So. 783, are cited in support of this argument.
The burden was, of course, upon defendants to establish the plea, and the mere record of the former proceedings is insufficient for this purpose. The lands or subject matters of the two suits are not the same, and the chancellor states that the trespass complained of in the present suit was admittedly committed by respondents subsequent to the rendition of the judgment or decree in the former case, and that subsequent to the date of said former decree "the respondents have obstructed aforesaid right of way in an effort to prevent its use by complainant for aforesaid purpose".
It is clear enough, therefore, under these circumstances there is no foundation for a plea of res adjudicata. 34 C.J. 811; Allison v. Little, 93 Ala. 150, 9 So. 388; Phillips v. Thompson, 3 Stew. P. 369; Pruitt v. Holly 73 Ala. 369; Strauss v. Meertief, 64 Ala. 299, 38 Am.Rep. 8.
The only defense interposed in the court below and here argued in brief relates to the plea of res adjudicata. As we are of the opinion this defense was not established by the proof, it results that the decree is due to be affirmed. It is so ordered.
Affirmed.
THOMAS, BROWN, and FOSTER, JJ., concur.