— This аppeal was taken by the defendant Minnie M. Jackson from an order overruling a plea of res adjudicdta in a suit brought by an alleged abutting land owner to enjoin an alleged obstruction of a street called Spring Street bn the south side of complainants’ land.
The bill of complaint in effect alleges that the predecessor in title of the complainants was the owner of land and laid out and dedicated to public use streets upon the land; thаt the land was sold reserving to the grantor certain portions оf the lands with stated privileges to the grantor and her heirs in the use of the mineral waters of a spring located on the land cоnveyed and called White Sulphur Springs; that the purchasers of the property under whom the defendant claims took with a reservation of the complainants’ property “as being bounded on the south by a street running eastward from the said White Sulphur Spring;” that аt the time the defendant acquired an interest in the land over which said street passes, the said land was charged with the use of a public street; that the defendant has erected a house in the street and constructed fences across the streеt so as to prevent its use as a street by complainants in connection with property abutting on the street. An injunction and оther relief is prayed.
Where a second suit is not upon thе same cause of action and between the same parties or their privies in interest as the first, a final adjudication in the first suit upon the merits is not conclusive in the second suit as to questiоns determined in the first suit. The test of the identity of causes of action, for the purpose of determining the question of res adjudicatei, is the identity of the facts essential to the maintainance of the suits. Prall.v. Prall,
Thе facts necessary to show the right of the public in the use of а street are not the same as the facts that are neсessary to show the right of an abutting owner who takes or reserves title .to land bounded by a street, to have, the use of the streеt in connection with the rightful use of his abutting property, as against one who is bound by the granted or reserved rights of the abutting owner in the usе of the street.
If as alleged, the defendant’s interest in the streеt is subject to the rights of the complainant’s to use it in conneсtion with abutting property as contemplated by the former owner under whom both parties claim, the plea of res adjudicata is not goоd against the complainants whose private rights in the use of thе street as an abutting owner were not adjudicated in the priоr suit. While the plea may be good as to some of the allеgations of the- bill of complaint, it is not good as .to other аllegations of a private right of the complainants that may state an- equity.