After the chancery cause of Johnson v. Gould, decided by this Court, February 20, 1906, and reported in
The mandate required such decree or decrees of the lower court as should, among other things, “ be necessary to carry intо effect the principles stated and directions given in the written opinion” filed. In the conclusion of the opinion, it is said: “She (Mrs. Johnson) is entitled to an injunction against the maintenanсe by Mrs. Gould of the new spring, the tunnel or ditch, and all other constructions made by her, in so far only as the same materially interfere with, impair or destroy the easement to which Mrs. Johnson is entitled for her land. Mrs. Johnson under the circumstances of this case is also entitled to hаve the land of Mrs. Gould restored to the condition in which it was at the time of the partition, if thаt can be done, (except where such condition has
The decree as prepared and tendered by сounsel for Mrs. Johnson seems to conform in all respects to the terms and import of the quoted portion of the opinion and that portion harmonizes with the stated principles and conclusions preceding it. The modification complained of consists оf the insertion, at several places, of the qualifying phrase, “to the extent and in the quаntity that flowed at the time of such partition” or the equivalent thereof, the effect of which is to prevent Mrs. Johnson from having restoration of the spring with the full quantity of water it will naturally flow, and limit her to so much water as did flow into the spring at the time of the partition. The two propositions are vastly different. No doubt the quantity of water afforded by the spring varies with the sеasons and the changes of the weather. This Court had before it no means of ascertaining the quantum of the flow at the date of the partition or any other time, and the case was fully made up and finally decided here, and remanded not for new pleadings and evidence on the merits, or a decree predicated upon some theory, diffеring from that stated in the opinion. Plainly the former decision required the restoration of the spring, with all its natural flow, if that be reasonably practicable, .and, if not, then as nearly as possible, and the right of Mrs. Gould to maintain the new spring on her land and give Mrs. Johnson the mere overflow was most emphatically denied. The attempt of the court below to so limit Mrs. Jоhnson’s right was the very ground of complaint on the former appeal, and the opiniоn expressly says the natural issuance and flow of water to the old spring cannot be mаterially impaired or interrupted by Mrs. Gould.
No inquiry as to the soundness of the former decision hеrein can now be prosecuted. Right or wrong, it is the law of the case. Its binding force lies not in the rule stare decisis, but in the principle res judicata. It is a decision in the same case, forever and irrevocably determining the rights оf the parties. No court now has any power or control over it other than the аscertainment of the intent and meaning of the decision, from the terms of the mandate,
For the reаsons stated, we are clearly of the opinion that the decree now comрlained of varies from the requirements of the mandate. Therefore, it will be modified by striking from the third, fourth, fifth and sixth paragraphs thereof, the parenthetical phrase “to the extеnt that said lands of Mrs. Gould did supply the old spring at the time of the partition aforesaid,” and “to the extent of permitting the original supply to the old spring as aforesaid” and all others of like and similar tenor and import; and as so modified the decree will be affirmed and thе cause remanded for such further proceedings as may be necessary to carry into effect said decree as modified and affirmed, as well as the former decision of this Court in this cause.
Modified and Affirmed.