Scheidel

Francis X. Scheidel, Jr. (Scheidel), appeals a summary judgment in favor of Keith Lister and Lister Investment Co., Ltd. (Lister), on Scheidel’s action seeking to establish a prescriptive easement over property that was sold free and clear of all liens and encumbrances in a bankruptcy judgment which is final. The trial court’s ruling was made on the basis that the order of the bankruptcy court selling the property “free and clear” bars Scheidel’s action under principles of res judicata. We hold principles of res judicata are inapplicable and we reverse.

Scheidel lays claim to a prescriptive right of ingress and egress over a strip of land slightly wider than one car width, running between the back yard, including a garage, of his San Diego office building property at 2150 Fourth Avenue, and the business properties at 321 Ivy Street and 2131 Third Avenue. Scheidel asserts the easement, the only means of his access to the back yard and garage, was cut off when Lister built a three-foot-high wall across the property lines of the property at 2131 Third Avenue which Lister purchased in the bankruptcy proceeding.

Scheidel purchased 2150 Fourth Avenue in 1978. In 1981, the…