Grunert v. Spalding

104 Wis. 193 | Wis. | 1899

Lead Opinion

The following opinion was filed March 14,1899:

Dodge, J.

1. The first question which naturally arises, and the only one which affects all of the causes of action, is whether or not the lands in the year 1876 were within the taxing jurisdiction of the officers of the town of Marinette. It is vigorously contended by the appellants that because this town has been laid out and extended northwesterly from township 30, range 23 east, to township 42, range 11 east, thus having a length of about 110 miles, and there being places in the course of such extension where said town was only two or three miles wide, it falls within the rule laid down in Chicago & N. W. R. Co. v. Oconto, 50 Wis. 189. In that case the authority of the taxing officers of the town in question was assailed for the reason that the lands assessed were entirely outside the inclosing boundary of the territory wherein the taxing officers resided; that is to say, two distinct and separate parcels of territory were attempted by the ordinance to be called one town. Each portion was separate and'distinct from the other, surrounded by its own boundaries, and access from one to the other was necessarily intercepted by some part of another town or towns. In that case, after an exhaustive study of the history of such civil divisions, and of the derivation and terminology of the word town, it was held that such an arrangement as there presented was not within the constitutional permission given to boards of county supervisors. ' The ultimate decision, being that a town must consist of contiguous territory, was predicated upon the proposition that the significance of the word was a single inclosed space, and could not be satisfied by two distinct entities; the further consideration evidently having weight with the court, that such an arrangement as there presented was restrictive of the sovereign power of the legislature to organize assembly districts consisting of contiguous territory and bounded by county, precinct, town, or ward lines.

The reasons involved and necessarily considered in determining the shape and boundaries of the civil subdivisions of the state are essentially legislative in their character. Those reasons are too numerous and various for expression. Especially are they complicated within the forest portions of the state. Distances there cease to be measured by miles, but by possibility of intercourse. Relationships of interest and convenience are affected largely by the courses of the rivers and their tributaries. Large areas exist, or did exist, utterly devoid of inhabitants, which it is obvious cannot properly be laid off into towns by themselves; for the town contemplated by the constitution is a civil entity, exercising some functions of government,— conditions which cannot be met in the absence of inhabitants to exercise that government.

In the present case it appears that the town of Marinette was. laid off generally as tributary to the Menomonee river, and that the southerly or southwesterly line of that town approximately followed the divide between the tributaries.-, of the Menomonee and the tributaries of the Peshtigo. The-value. of the remote portions of the town consisted in the growing timber, which, as appears, by the findings, was largely the property of people having a location, if not a domicile, near the mouth of the Menomonee, and in the extreme southeastern part of the town. At the moment of' assessment, on the 1st of May, much of such property is in a transitional state, having been severed from the land, and being on its way along the streams from- where it grew to-the sawmills where it is to be converted. Serious, though perhaps not insuperable, entanglements may well arise in. the exercise of the various functions of town government over such property, if, at different stages of its progress, from the tree to the mill boom, it- is, in different jurisdictions. The expenditure of town-taxes for-roads was largely-controlled by the consideration- of affording access from-, these settled portions to the remote lands owned there, and these roads made territory connected by- them more con-' tiguous and accessible than- other- regions much nearer in, miles. These considerations, and many, others which might, be mentioned, serve only to- emphasize the proposition before announced, that the legislature, and those bodies exercising legislative powers, are properly and necessarily invested with the discretion and judgment how to harmonize such conflicts. The judicial branch of the government has. no equipment for such service, and whatever abuses may arise under the system of control by legislature and its delegates, promptly responsible- to popular criticism, they would certainly be greatly increased, though perhaps varied in, kind, were the courts to attempt to- assume this function. Washburn v. Oshkosh, 60 Wis. 453, 457. We cannot presume any motives but right ones- as controlling county officers in the exercise of the discretion delegated to them, by the constitution in the formation of these towns. Counsel strenuously argue that the purpose was to. reach for taxation remote property, to lighten the burdens of those resident in the southeastern part of the town; but it was clearly right that these valuable timber lands should pay their share of the tax burdens of the state, and it is by no means certain that the least equitable arrangement is that those taxes should go to the treasury of the community who owned the lands, where were made the contracts with reference to them, and where the government would be called into action to render the aid and protection which are the ultimate justification of all taxes. Wagoner v. Evans, 170 U. S. 588. Suffice it to say, however, that it is not for the court to find reasons to justify the acts of officers in other branches of the government, but to assume, at least in the absence of clear showing to the contrary, the righteousness of their motives and the sufficiency of their reasons. We do not think it within the province of the court to say that this single tract of land, surrounded as it is by an unbroken boundary line, capable of being traversed from one extremity to the other without leaving its territory, is necessarily beyond the discretionary power of the county board to designate as a town; and, as a result, we hold that the objection to the jurisdiction of the taxing officers of the town of Marinette is not well taken. Chicago & N. W. R. Co. v. Langlade Co. 56 Wis. 614; Schriber v. Langlade, 66 Wis. 616; Land, L. & L. Co. v. Brown, 73 Wis. 303.

This conclusion disposes, adversely to the appellants, of the only question presented with reference to the third and fourth causes of action, and sustains the judgment rendered for the trespasses therein sued for, in the sum. of $2,500. It also necessitates consideration of other questions relating to the first and second causes of action.

2. Were the interests of Crowell and Fletcher in these lands exempt from taxation in 1876, by virtue of ch. 429, Laws of 1867 ? The considerations urged under this head are numerous, but the view we take of one of them makes discussion of the others unnecessary in disposing of this case. The exemption accorded by that act is limited to the “ time that the title to such lands shall remain in the state or in the contractor or his assigns.” The context shows clearly that the assigns referred to are assigns of the contract.

Were Eletcher and Crowell assignees of the contract with Babcock of July 20, 1867 ? It should be noted that there can be no con tention that the lands in question were earned under the Winslow-Hadley contract, so the assignment of that contract to Fletcher and Crowell is not a material circumstance. It is expressly found in the stipulated finding of facts that the work of constructing the road was done under the Babcock contract of July 20th, and it is also'found that the Winslow-Hadley contract had been declared forfeited by the commissioners.

The question is, therefore, as to the effect of the agreement of July 12th between Babcock, Crowell, and Eletcher. Bab-cock was the contractor, and by the terms of his contract he could assign only upon condition that the commissioners should consent in writing and that the assignees should give bond to the state of Wisconsin according to the terms of ch. 429, which required a bond conditioned on the full performance of the contract.

The agreement between Babcock, Crowell, and Eletcher does not, in terms, assign this contract, which, indeed, was not executed until a week later. It is, however, strenuously urged that the agreement constitutes a copartnership for the purposes of carrying out the contract with the commissioners, so as to make them co-contractors with him, or equitable assignees thereof. When reduced to its ultimate terms, that contract is simply that Crowell and Eletcher will pay to Babcock a proportionate part of $30,000 (about $273 per per mile) for so much of the road as the three decide shall be built, iu consideration whereof Babcock agrees to build' that portion of the road and that Crowell and Eletcher shall receive three quarters of the lands earned thereby. There is scarcely any element of partnership here. Crowell and Eletcher did not risk their investment upon the contingencies of the success of the work. No agency was created whereby, either as between themselves or to third persons,, they became responsible for any engagements made by Bab-cock. If he was solvent,— a fact as to which there is no information,— it would have been an absolutely safe investment, by which they were assured three quarters of a specific quantity of land at a definite price, and, if they failed to obtain it by his failure to build the road, could have held Bab-cock in damages for breach of his contract. Eurther, the amount of their payment was not to vary according to the-cost of the road. Babcock received the whole amount whatever the road cost, and received the same rate per mile-whether the portion in fact constructed was more or less expensive than the average. Whether he made profit or loss-in the enterprise, they were not to share in it. It is, as between the three, apparently a purchase of a specific interest-in an ascertained quantity of lands at a fixed price, payable-in advance, and not a partnership.

Whether or not these three were partners as betweem-themselves is, however, quite inconclusive upon the question whether they were assignees of the contract within the tax: exemption statute of 1867, when considered from the point of view of the state, which, of course, must control in construing that act. The object to be accomplished by these-various legislative enactments and the contract under them Avas to obtain a road, according to the specifications, between; certain termini. The contractor bound himself to build the-whole road; so that, if for portions of it the lands assignable-were more valuable than for other portions, or if some part& were more expensive than others to build, it made no difference. The entire quantity of lands was, under the contract with the commissioners, the consideration for the building of the entire road. It might well be that upon examination it would appear that the first thirty or forty miles of the road would earn by far the most valuable lands, or would cost much less to construct, leaving the remainder a less profitable undertaking; but this was guarded against by securing an entire contract, which was, of-course, the vital and material thing to the state. If the tax exemption statute of 1861 was contractual at all, the assumption of this obligation to complete the road constituted an essential part of the consideration therefor. It was to protect that purpose that the contract provided that no one should be recognized as an assignee unless he obligated himself to the entire contract by giving bond for its performance. This is what Eletcher and Crowell distinctly refrained from doing in their transaction with Babcock. It was between themdefinitely specified that they should contribute toward only so much of the road as the three might decide to build. Under that contract they were at liberty to stop at the end of thirty, forty, or any other number of miles, take their three fourths of the land thereby earned, and leave the road uncompleted; thus evading the very purpose of the legislation and of the commissioners’ contract with Babcock, with no possibility of redress against them. It is a fundamental rule that statutes granting exemptions or privileges shall be strictly construed against the grant. Weston v. Shawano Co. 44 Wis. 242, 256. It would, therefore, be our duty, if the-question whether Eletcher and Crowell came within the terms of the act were doubtful, to adopt a construction which would exclude them. It is, however, unnecessary to-apply that rule, as it is clear they were not assigns of the contract, either technically or in spirit.

Defendants’ counsel contend, however, that whatever might' bethought, as an original question, of the construction"of this contract between Babcock, Fletcher, and Crowell, the acts of the governor, as evidenced by the patents, are conclusive — first, as a practical construction, and, secondly, as an estoppel. The recitations in those patents are, at best, ambiguous. The strongest expression in either of them is in the patent to Fletcher, which describes him as a partner. It is not, however, important to -analyze these recitations, or to ascertain whether, if authorized, they have the effect contended for.' It is the state of Wisconsin which must have given its assent to such a construction in order that it should have force either as evidence or by way of estoppel. The state of Wisconsin is a different thing from either the governor or the government of the state of Wisconsin. The act of the governor is the act of the state only when he is empowered by law to act for the state in that particular respect. His act, when not so authorized, is no more the act of the state than if done by a private individual. In Poindexter v. Greenhow, 114 U. S. 290, the court, in discussing the force of an act of legislature not authorized by the constitution, says: “ In the discussion of such questions the distinction between the government of a state and the state itself is important, and should be observed. In common speech and common apprehension they are usually regarded as identical; and as, ordinarily, the acts of the government are the acts of the state, because within the limits of its delegation of power, the government of the state is generally confounded with the state itself, and often the former is meant when the latter is mentioned. The state itself is an ideal person, intangible, invisible, immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but, outside of that, it is a lawless usurpation.”

Nowhere do we find any authority for the governor to make an agreement, or to modify one, with reference to ithese lands or the taxation thereof.' The act of Congress Tested their disposal in the legislature of "Wisconsin. The legislature vested the power to make contracts in a commission, and not in the governor. The legislature itself exercised, and did not delegate to the governor, the power to exempt from taxation, and fixed the limits of such exemption. If this contract, specifying how assignment might he made, were not within the power of the governor to make, he, of course, had no authority to modify it, either directly or by declaring a construction. FTor could he, directly or by construction, modify the act of the legislature. The rights of the public or of the state are not to be affected or surrendered by any officer unless the authority to do so is conferred.

The result of these views is, of course, that the lands in question were not, after their conveyance to either Crowell or Fletcher, exempted from taxation by ch. 429, Laws of 1867; which disposes of the controversy as to the three-sixteenths share formerly owned by Crowell.

3.'As to the nine-sixteenths'interest derived by defendants from Fletcher, appellants claim that by virtue of the judgment in Fletcher v. Coleman et al., in Oconto circuit court, the exemption from taxation of such interest while held by him under said act of 1867 is res adjudicata as against Coleman and as against the plaintiff, his grantee of the lands and assignee of the cause of action in suit here for trespasses committed while Coleman claimed to be owner. The rules governing the efficacy of judgments in subsequent litigation between parties and privies are well established, and may be formulated thus: In a second litigation between' the same parties or privies upon the same cause of action, the judgment is absolutely final as to their rights in that cause of action as to all things, not only those which were in fact litigated and decided by the court, but also those which might have been so litigated and decided. On the other hand, in a subsequent litigation between the same parties or their privies upon, a different cause of action, the judgment is only' conclusive as to those issues which were in fact adjudicated. Van Valkenburgh v. Milwaukee, 43 Wis. 580; Wentworth v. Racine Co. 99 Wis. 26; Cromwell v. Sac Co. 94 U. S. 356; Last Chance M. Co. v. Tyler M. Co. 157 U. S. 683; Southern P. R. Co. v. U. S. 168 U. S. 1. To ascertain what those issues were, we may examine the proceedings, or extrinsic evidence may be considered. (Finding) Last Chance M. Co. v. Tyler M. Co., supra; (referee’s finding) Lumber Co. v. Buchtel, 101 U. S. 638; (opinion) Legrande v. Rixey’s Adm'r, 83 Va. 862, 867; (evidence) Washington G. L. Co. v. District of Columbia, 161 U. S. 316, 329.

The efficacy of the judgment is the same whether it he pleaded in bar or merely be offered in evidence, if it is material to the issues formed by the pleadings. If pleaded as an estoppel, it is effective as such. If offered as .evidence, it is conclusive evidence of all matters so adjudicated and decided. Mr. Greenleaf (1 Ev. § 531) well says that, “ where a former recovery is given in evidence, it is equally conclusive as if pleaded; ” and this view is sustained by the great weight of the authorities, many of which are collected in the opinion in Southern P. R. Co. v. U. S. 168 U. S. 55-60. Indeed, in a litigation upon a different cause of action the prior judgment does not serve as an estoppel, but only as evidence; and when 'so offered it is conclusive evidence of the matters settled by it between the same parties. And, if such matters go in denial of the existence of any cause of action, they are admissible in evidence under the general denial. Lombard v. McMillan, 95 Wis. 627; Carroll v. Fethers, 102 Wis. 436. In the present case we have no extrinsic evidence as to the issues actually decided in Fletcher v. Coleman, but merely the complaint, the finding, and the judgment. The complaint asserts one ground of exemption from taxation, strictly so called, namely, that by virtue of ch. 429, P. ¡fe L. Laws of 1867, the lands in question were •exempt from taxation in the hands of Eletoher as a contractor, or at least as an assignee of the contract, within the meaning of that act. It also asserts the invalidity of the tax certificates on the ground that the land was not within the power of assessment or levy by the officers of the town -of Marinette; also for failure of-assessors to view the lands, -and failure of certain taxing officers to take statutory oaths. ’The finding is that all of the allegations of the complaint -are true as alleged. While the case apparently was in default, it is also apparent from the finding that evidence was offered and considered by the court. Of course, upon such complaint and finding a mere judgment canceling the certificates would be inconclusive. It might rest upon any of the grounds above mentioned, and therefore would not necessarily rest upon any one of them. But the judgment decides, not alone that the certificates were void, but decrees “ that all the land described in the patents issued by the ■state of Wisconsin to the above-named plaintiff [Fletcher] was exempt from taxation of all and every kind to the date ■of filing the complaint herein, viz. up to March, 1877.” So far as the judgment extends beyond the date of the levy of the tax for the year 1875, it probably exceeds the relief ■prayed by the complaint, and therefore is ineffective; but it seems to be plain beyond dispute that'the first point of defense to the taxes, raised by Fletcher’s complaint in that .action, was considered and adjudicated by the court. While matters are not to be presumed to have been adjudicated on mere conjecture or possibility, unless the fact clearly appears, yet writings in judicial proceedings must have rea.sonable construction, and their language be taken as signifi•cant. New Orleans v. Citizens’ Bank, 167 U. S. 371, 390.

The plaintiff, however, urges that, even if this construction be placed upon the judgment, and it be held that by virtue of oh. 429, Laws of 1867, the lands were exempt from taxes in 1875 in the hands of Fletcher, other considerations are now presented, which justify a different conclusion, which do not affirmatively appear to have been presented to or considered by the court in Fletcher v. Coleman. Those are stated to be: First. The amending act (ch. 219, P. & L. Laws of 1868), which, if effective, terminated the exemption on March 3, 1869, and which not being pleaded, the same may not have been before the court. Second. The facts with reference to the Hadley interest under a prior contract, and that the construction of ch. 429 was affected by the fact that certain acts in Hadley’s behalf accompanied it through the legislature, indicating that all of the acts were introduced and carried-through in the interests of Jackson Hadley as assignee of the Winslow road contract. Third. That it is not certain that the terms of the Babcock contract, containing the prohibition against assignment, were presented to or considered by the court in that case. Fourth. That it does not appear that the court had presented to it the fact, now found, that Fletcher acquired his interest in the lands for the timber thereon and for speculative purposes; nor that an undivided quarter of all the lands earned under the Babcock contract had been conveyed to-Smith long prior to the levy of the taxes adjudged void.

No doubt the conclusiveness of a judgment is limited in subsequent litigation on a different cause of action to the: issue actually decided, and a new or independent issue raised in second litigation is not concluded; but that does not. mean that such conclusiveness is destroyed by the fact that, a new and cogent argument is presented, which does- not; appear to have been urged or considered on the first hearing. If that were so, the employment of new counsel would almost’invariably nullify the effect of res adjudícala. Nor can such conclusiveness be avoided by the presence of new or different evidence upon the same question. Thus, in Van Valkenburgh v. Milwaukee, 43 Wis. 580, the plaintiff’s title to land was admitted in the first suit, and adjudged upon such admission. In the second defendant offered evidence to deny that title, which this court held could not be re-ceivéd to defeat the conclusiveness of the former judgment, although it had not been considered, in reaching that decision, the issue, viz. plaintiff’s ownership, being the same in, both actions. As said in Last Chance M. Co. v. Tyler M. Co. 157 U. S. 683: “ The question always is, Has there been such determination? and not upon-what evidence or by what means it has been reached.” The most extreme case which has been brought to our notice is that of Boyd v. Alabama, 94 U. S. 645, wherein an act of legislature, having' once been sustained as a legal justification in a prosecution against defendant, was permitted in. a second prosecution to be assailed as unconstitutional,- it appearing that no such argument had been advanced in first case to defeat it. That case was one which appealed most strongly to one’s regard for morality and public welfare. It has seldom been cited since, amid all the multitude of cases in the same court where the doctrine of res adjudicata has been considered and applied, and in which Cromwell v. Sac Co., reported in the same volume, with opinion by the same justice, has been relied on. The reasons given, namely, .that courts do not usually consider doubts of the power of the legislature unless pressed on their notice, and that numerous instances, have occurred where an act has ultimately, been declared unconstitutional, although the same court had repeatedly enforced it as valid, are very cogent considerations against-applying the rule of stare decisis, but not for denying conclusiveness to a judgment between the same parties which could have been rendered only by holding or assuming the act to be valid. We are not inclined to so limit the conclusiveness of the thing adjudged as to permit its defeat by the presentation of a mere new argument necessarily, in effect, overruled by the previous decision, although not in fact urged thereon. The issue disposed of in Fletcher v. Coler man was whether the lands in question were exempt from taxation, as late as 1815, in the hands of Fletcher. That issue involved, necessarily, the validity and continued force of ch. 429, P. & L. Laws of 1867, the construction of that act, the force and effect of the transactions and conveyances whereby Fletcher acquired his title, and the character of that title. All of the considerations urged by the respondent as novel in this case, which are material at all, are so only as argument or as evidence bearing upon the issue so previously determined. The only new issue presented is whether any material change of conditions occurred between the time of. assessment and levy for 1875 and those of 1876, the negative of which is fully established. ¥e see no escape from the conclusion, therefore, that the absolute exemption from taxation in 1876 of these lands is res adjudicata between Fletcher and Coleman and those in privity with them. New Orleans v. Citizens’ Bank, 167 U. S. 371, 395.

The next question is whether the plaintiff is in privity with any of the parties- to the action of Fletcher v. Coleman et al. as to the rights of property presented in this action. It should be remembered that this action is to recover damages for a trespass committed upon certain lands while the same were claimed to be owned by Coleman, who was a party defendant to that action. The general rule governing privity is reiterated in nearly all of the authorities as “ mutual or successive relationship to the same rights of property.” Those “ who claim under or in the right of a party ” are privies. The respondent urges as the essentials of privity, first, successive relationship to the same rights of- property, and that a relation of privity is a relation of dependence, not independence or superiority; and applies these tests to a discussion of the fact that the plaintiff is not claiming under the same tax certificates as were adjudged void in the former action. This argument is a confusion of ideas. Strictly speaking, the right of property claimed by the plaintiff in this action is the right of recovery accruing to Coleman by reason of the trespasses alleged. It is not even so far back as the right of property which Coleman at that time had in the lands themselves, but as to either of these rights of property there is obviously succession from Coleman to the plaintiff, and the relation of the plaintiff thereto is that of dependence upon the right which Coleman had. He has no other right whatever save that which Coleman has conveyed to him.

The following are some illustrative cases of privity, one or two of them taken from respondent’s brief: Finney v. Boyd, 26 Wis. 366; Warner v. Trow, 36 Wis. 195; Lawrence v. Milwaukee, 45 Wis. 306; Masten v. Olcott, 101 N. Y. 152; Lipscomb v. Postell, 38 Miss. 476; Porter v. Bagby, 50 Kan. 412; Lea v. Deakin, 11 Biss. 23. The true question is whether, by virtue of the judgment above mentioned, facts establishing invalidity of Coleman’s title as against the defendants were res adjudicaia at the time of the alleged trespass, so that, if he had brought suit therefor, that judgment would have been admissible against him; and, if so, whether plaintiff is so in privity with him as to the right of action for that trespass that he is affected by the same facts, and, if so, bound by the adjudication thereof. The statement of the question seems to answer it. True, the source of Coleman’s title was not the identical certificates adjudged void in Fletcher v. Coleman. If it were, we should be trying practically the same cause of action as in that former case. But as between him and Eletcher, or Fletcher’s privies; the same facts and rules of law which rendered void the certificates involved in the former suit rendered invalid his title at the time of the trespass in 1894 and 1895. Had he brought suit for the trespass, he would at once have been met with an adjudication, in a suit to which he was a party, that the lands which he claimed to own were exempt from taxation, just as much in 1876 as in 1875 and earlier years; from which must have resulted a judgment that he had no right of action against the parties committing the trespass. The plaintiff stands here claiming to maintain this suit, not by virtue of his subsequent acquisition of the lands, whatever his title thereto may be, but because Coleman has assigned to him his right of aotion for the trespass, which he might just as well have done without transferring the lands to him at all. It is difficult to imagine a more complete instance of identity and succession of rights than that arising from the mere transfer of a cause of action in tort. The 'assignee thereof must stand exactly in the shoes of his assignor, and no enlargement of the rights of the latter can be successfully claimed by the assignee.

To test the mutuality of this estoppel, suppose that the judgment in Fletcher v. Coleman had gone the other way, and these lands had been adjudged to be subject to assessment, and, the certificates involved in that suit having been redeemed, Coleman had thereupon obtained title, as now, upon the certificates for the tax of 1876, can there be any doubt that the judgment would have been res adjudicata, in favor of Coleman or of this plaintiff, had the same grantees of Fletcher committed this trespass, and plaintiff had sued thereon, and been met with the former claim of exemption from taxation in 1876? If such an adjudication could have been invoked by the plaintiff in such case as against these defendants, the adjudication, having gone the other way, is equally available to the defendants against the plaintiff.

The argument of counsel that privity is predicated upon rights of property, and not upon persons, is a partial statement of the rule as applied to the case presented here. The conclusive effect of a judgment is against the parties thereto personally whenever the matter adjudicated again becomes material between them, and that personal effect attaches itself to any property or rights of such individuals when brought into litigation, and follows such property or rights into the bands of a grantee or transferee thereof. It is not essential to the conclusiveness of the issues decided in Fletcher v. Coleman that we should find united the person Coleman and the particular tax certificates there adjudicated upon. New Orleans v. Citizens’ Bank, 167 U. S. 371, 395; Southern P. R. Co. v. U. S. 168 U. S. 54. It is sufficient that we find Coleman claiming any rights which are dependent upon facts or law so adjudicated. And that condition of things did exist at the time the alleged, trespasses were committed, and such conclusiveness is transmitted from him to his successor, or dependent, or grantee, the plaintiff, claiming the same right of action by virtue of Coleman’s transfer. Porter v. Bagby, 50 Kan. 412.

To summarize our conclusions, therefore, we hold: First. That the town of Marinette, in 1876, was not illegal for want of contiguity; that the lands in question were within the taxing jurisdiction of its town officers; and that the assessments on none of the lands were void for that reason. Second. That Crowell was not a contractor, nor assignee of the contractor, within the meaning of ch. 429, Laws of 1867; and that the share of the lands owned by him was not exempt from taxation in 1876. Third-. That by the judgment in the suit of Fletcher v. Colemam, the exemption of the portion of the lands owned by Fletcher' from taxation in 1876 is res adjudicata as against this plaintiff and in favor of these defendants in this action. And, as a general conclusion, that plaintiff is entitled to recover for- the trespasses upon the lands involved in the third and fourth causes of action and for one fourth (Crowell’s share) of the damages for the trespass upon the lands described in the first and second causes of action, but is not entitled to recover the remaining three fourths (Fletcher’s interest) of the stipulated damages for the trespass on said last-mentioned lands. The plaintiff should have recovered, therefore, $5,000 damages, while $7,500 of the damages which he did recover were improper. The judgment of tbe circuit court should be reduced from $12,500 to $5,000. Appellants should recover costs in this action.

For the appellants there was a brief by Hooper <& Hooper. For the respondent there was a brief by Greene, Vroman & Fairchild.

By the Court.— The judgment of the circuit court is modified by reducing the recovery of damages therein to $5,000, and, as so modified, is affirmed.

Cassoday, O. J., took no part.

---

Rehearing

Both parties moved for a, rehearing.

The motion was granted June 2, 1899, and the cause was reargued September 11, 12, 1899.

For the appellants there were briefs by Hooper & Hooper, and oral argument by Moses Hooper and E. C. Eastman.

H. O. Fairchild, of counsel, for the respondent.

The following opinion was filed October 20,-1899:

WiNslow, J.

Motions for rehearing were made in the present case by both parties, and upon consideration a rehearing was ordered upon the single question of the effect of the judgment in the case of Fletcher v. Coleman. It was, in effect, assumed in the former opinion that it appeared in the case of Fletcher v. Coleman that Coleman held or claimed to hold tax certificates upon the lands included in the first and second causes of action in this case, and hence that it appeared affirmatively from the record that the judgment in that case necessarily decided, as between Fletcher and Coleman, that Coleman’s certificates thereon were void, because the lands were exempt from taxation in the year 1875. In justice to ourselves, it ought to be said that this assumption was entirely justified by the original briefs furnished us and the oral arguments made upon the first hearing. Upon the respondent’s motion for rehearing, however, it was urged (as the fact is) that two classes of lands were involved in the prior action, which were described in two exhibits attached to the complaint: Exhibit A covering lands-earned in 1867, upon which Eletcher already held patents (which include the lands now under consideration); and Exhibit 33 covering lands which had not yet been patented, but which were alleged to have been earned in 1868, and of which the state was alleged to hold title in trust for •Eletcher, and which are not involved in the present litigation. In connection with this fact, our attention was called to the further fact that the complaint in the prior action did not specifically charge that Coleman possessed any certificates upon the lands now involved, or upon cmy definite parcels of land, but simply charged that there had been tax sales of all' the lands of both classes, and certificates issued thereon, “ which certificates now belong to said county, or to some of the defendants, and some of which certificates belong to each of the defendants in this action; but which of such certificates belong to said county and which to the other defendants this plaintiff cannot state.” No evidence having been preserved in the record of that case, and the finding being simply a general one to the effect that all the allegations of the complaint were true, and that the lands described in two certain patents, executed by the state to Eletcher were exempt from taxation, the argument of the respondent was that it does not appear that the question whether the lands described in the first and second causes of action in the present action were exempt was ever in fact litigated or decided as between Eletcher and Coleman. It was admitted by respondent that the lands in question here were included in the first patent named in that judgment, and were the lands described in Exhibit A in that case; but, it appearing by the findings that the second patent was issued after the commencement of that action, and covered lands patented in. lieu of the lands alleged to have been earned in 1868, and described in Exhibit B, tbe argument was also made that, the patents not being before the court, the judgment did not in fact adjudicate as to the lands described in Exhibit B at all, and that the certificates held by Coleman might well have covered only lands named in Exhibit B, as to which lands there never had been any judgment of exemption. The considerations thus urged seemed so important, and their bearing upon the case so obvious, that it was deemed best to order a reargument of the question as to the conclusiveness of the prior judgment, in order that the questions now suggested might receive full argument and consideration. Such reargument has now been had, and, as a result, it seems necessary to reverse our former judgment.

The general principles governing the efficacy of judgments between parties and their privies were well stated in the former opinion, and we do not find it necessary to rediscuss or criticise them. Those principles are there stated as follows: “In a second litigation between the same parties or privies upon the same cause of action the judgment is absolutely final as to their rights in that cause of action as to all things, not only those which were in fact litigated and decided by the court, but also those which might have been so litigated and decided. On the other hand, in a subsequent litigation between the same parties or their privies upon a different cause of action the judgment is only conclusive as to those issues which were in fact adjudicated. ... To ascertain what those issues were, we may examine the proceedings, or extrinsic evidence may be considered.” In discussing the question of privity, however, the following language was used: “ The conclusive effect of a judgment is against the parties thereto personally whenever the matter adjudicated again becomes material between them, and'that personal effect attaches itself to cmy property or rights of such individuals when brought into litigation, and follows such » jproperty or rights into the hands of a grantee or transferee thereof.” We are all agreed, that so much of the above paragraph as states that the effect of a personal estoppel follows any property or rights into the hands of a grantee or transferee of such property is incorrect, and must be withdrawn. It is only when the particular' property or right which has been transferred is affirmatively shown to have been the subject matter of the former litigation, and its status settled thereby, that the effect of that litigation is conclusive upon a grantee or transferee of property. A mere personal es-toppel does not travel with all property which the person estopped may afterwards transfer, but only with the property shown to have been in litigation, and afterwards transferred. Hart v. Moulton, post, p. 349. In the case just cited it is said: “The mere personal effect of the judgment is absolutely confined to the parties to the litigation. It does not attach to or become a rule of property as to any other thing than the particular subject of the controversy which was closed by the judgment.” Granting, for the purpose of the argument, that the plaintiff here is in privity with .Coleman, it seems very apparent, under the foregoing rules, that the evidence does not go far enough to show that the judgment in the case of Fletcher v. Coleman concludes the plaintiff, or in any way affects his title to the lands included in the first and second causes of action here. The present cause of action being an entirely different one from that involved in Fletcher v. Coleman, the judgment is only conclusive as to those issues which affirmatively appear to have been in fact adjudicated in that case. It nowhere appears, either by the record of that case or by extrinsic evidence, that it was there decided (as between Eletcher and Coleman) that the lands here involved were exempt from taxation, because it does not appear that Coleman then had, or claimed to have, any tax certificates upon these lands. His certificates, if he held any, may just as well have been upon the lands described in Exhibit B, which are not involved in this action, and which, appear to have never been adjudicated on at all. Perhaps, as to Coleman himself, the question was decided that the lands in Exhibit A were exempt from taxation, so that he would be personally estopped from 'contending to the contrary in subsequent litigation with Eletcher; but it does not appear that either the land in controversy here or any tax certificates on that land were the subject of controversy between Eletcher and Coleman in that case, and hence that judgment did not attach to any land so as to conclude one who subsequently purchased from Coleman. This consideration makes the estoppel raised by the former adjudication, if any there was, a mere personal estoppel as to Coleman, and one which is not attached to-any property; and hence, when Coleman afterwards conveyed the Webster title to the plaintiff, it passed unaffected by the prior judgment. This conclusion is decisive of this branch of the case, because the parties in the present case.by stipulation (now for the first time called specifically to our attention) have stipulated that, “ if the plaintiff’s title to the lands described in the first and second causes of action is found to be valid, he is entitled to recover for damages under gaid first and second causes of 'action the sum of ten thousand dollars.” The parties having chosen to rest the right of recovery upon the question of title to the land on which the trespass was committed, we are relieved from considering the question whether Coleman, if personally estopped, could, by assignment, transfer a cause of action for trespass thereon which could be recovered upon in the hands of his assignee.

Another position was taken by the plaintiff, and argued, namely, that, even conceding that the judgment in the prior action estopped Coleman and his grantees, who claimed under a title founded on the certificates attacked in that action, still such estoppel could have no effect upon the Webster title, which simply passed through Coleman to the plaintiff, and which is conceded to have been a good title, and one which is founded upon certificates of a subsequent year. .In the view we have taken of the case, we have found it unnecessary to discuss this question.

By the Oourt.— Judgment affirmed.

Cassoday, 0. J., took no part.