90 F. 593 | 6th Cir. | 1898
niter stating tlie ease as above, delivered the opinion of tlie court.
Error is assigned to the action of the court below in holding that the trustees in the mortgage, and bondholders, were bound bv the adjudication in the state court establishing the petitioner’s right to recover. We are satisfied, from an examination of the record, that the court did so hold. The opinion of the court admits of no other construction, and in this we think there was error. The proposition that a judgment or decree is binding only on parties thereto is
It is difficult to understand, in view of Ihe record, on what satisfactory basis the court below undertook io apportion the damages included in the judgment of the state court, so as to adjudge what part was for injury to the right of ingress and egress; for, as we have seen, the judgment included other elements of damage. There is, however, no assignment of error'on the action of the court in this respect, though the objection is urged in the brief; and our conclusion (hat the court below must adjudicate for itself the question of right to recover, as well as the amount of such recovery, renders any further discussion of the case unnecessary at this time.
The distinction to which we have referred between the right to use a public highway on the part of the public, arising out of the ad ion of the county court in establishing such a highway, and a private easement acquired by grant or contract, sufficiently shows that the Kentucky eases relied on by counsel for appellant are inapplicable, and comment on those cases is unnecessary. Indeed, the case of Bradbury v. Walton, 94 Ky. 163, 21 S. W. 869, relied on by appellant, clearly and elaborately states this distinction, and supports the view we have expressed. The decree of the circuit court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.