7 So. 2d 594 | Fla. | 1942
Final judgment for defendant is before us for review on writ of error. The plaintiff sued to recover damages charging defendant maintained a private nuisance; that same depreciated the market value of plaintiff's home and injured his health.
On motion the court struck the claim for damages affecting the market value of plaintiff's home. The court, however, allowed an amendment to claim *436 damages for the depreciated rental value of the plaintiff's home.
A plea of res judicata was filed alleging in substance that theretofore the subject matter now in suit had been litigated in a case wherein State ex rel. Melvin Ford, et al., plaintiffs v. Lindsley Lumber Co., et al., defendants were parties; that the latter suit was in equity and was to abate the nuisance here charged as a public nuisance. This plea was held good.
We have two questions. Was the plea of res judicata good and what is the proper measure of damages if plaintiff prevails?
The law of res judicata has many times been declared by this Court. McGregor v. Provident Trust Co.,
We held in effect, in Pompano Horse Club Inc. v. State ex rel. Bryan,
It was held in Delliher v. Stone Webster,
Coming now to a discussion of the case of Mercer, et vir., v. Keynton, et al.,
We have not overlooked defendants in error's contention that while the plea might not be good as a plea of res judicata yet, it is good as an estoppel by judgment. One essential element of estoppel by judgment is identity of parties suing in the same capacity. Section 536 Black, supra. There might be merit in this contention if suit had been brought in the name of the State to enforce a purely personal right. We hold that the plea was bad in law.
Passing now to the second question, it appears that the nuisance is remedial. It may be abated and in that event the damage would cease. For that reason the plaintiff's recovery be limited to the loss of the use value of his property during the period of the nuisance. 39 Am. Jur. (Nuisance) Section 130, et seq. 46 C. J. 828.
The judgment is reversed for further proceeding not inconsistent with this opinion.
BROWN, C. J., BUFORD and TERRELL, JJ., concur.