95 Cal. 553 | Cal. | 1892
Lead Opinion
Th plaintiffs brought this action against the defendant to obtain a judgment declaring that the defendant is not entitled to divert from the channel of Cole Slough any greater quantity of water than forty cubic feet per second, or to divert from said channel any water whatever, except at times when there is more than five hundred cubic feet of water per second passing down the channel, and by the head of defendant’s ditch; and that the defendant be perpetually enjoined from diverting any water from said channel, except at such times and in such an amount. In their complaint, the plaintiffs allege, as grounds for such judgment, that in an action brought by them in the superior court of Tulare County, in October, 1883, against the
The complaint in the judgment roll in the former action between the parties in the superior court of Tulare County, which was offered in evidence on the part of the plaintiffs at the trial herein, set forth the rights of the plaintiffs as riparian proprietors to the waters of Cole Slough, and alleged that the defendant had, prior to February, 1883, constructed a dam in the channel of the slough, by means of which, and through a ditch leading therefrom which they had also constructed, they had
It is contended by the plaintiffs that this judgment was a conclusive determination by the court that the right of the defendant to divert waters from said slough can be exercised only to the extent of one hundred cubic
A judgment rendered in any action upon the merits is a conclusive determination respecting the plaintiff’s right of action upon the demand sued on, and operates as an estoppel in any subsequent action upon the same demand between the same parties. If the judgment be in favor of the plaintiff, it estops the defendant from afterwards setting up any other defense to the claim than was presented in that action; and if it be in favor of the defendant, it estops the plaintiff from afterwards presenting any other argument or evidence in support of that claim. It is of such a judgment that it is frequently said, that it is conclusive not only as to the matters which were therein litigated, but as to any other matter which might have been litigated therein. It has become a final determination of the rights of the parties in reference to the demand upon which it was rendered. If, however, the defendant in such action sets up a defense which is sufficient to defeat the plaintiff’s demand, although the judgment is conclusive against the plaintiff as to any ground or matter which he might have presented in support of such demand, yet in an action by him against the defendant upon another demand, it is not conclusive upon the defendant, either as to the de-' fense which was pleaded therein, or as to any other defense which he might have interposed to the action. A judgment in favor of a defendant upon an affirmative defense to the plaintiff’s demand conclusively establishes the existence of the fact which constitutes that defense, and estops the plaintiff from questioning its sufficiency to defeat his cause of action, or from maintaining another action upon the same demand. It does not, however, estop the defendant, in an action upon another demand' from showing that the evidence by which that fact was
In Cromwell v. Sac Co., 94 U. S. 351, the plaintiff had brought an action against the defendant upon certain coupons, in which judgment was rendered in favor of the county, upon the ground of fraud and illegality in the original issuance of the bonds. Subsequently, the plaintiff in this action, who was the real party in interest in the former action, brought another suit upon other coupons on the same bonds, and although it was contended that the former judgment was an estoppel against the recovery, yet it was held otherwise, and that the plaintiff was not estopped from proving that he had paid value, and was a bona fide purchaser, since the former judgment was not a conclusive determination that the bo ids were invalid, but was conclusive only upon the fact that they were invalid in the hands of one who had not paid value for them. In Campbell v. Consalus, 25 1ST. Y. 613, an action had been brought to declare a mortgage satisfied, on the ground that it had been paid, and an accounting between the parties was had therein, from which it was ascertained that there was $2,788 unpaid thereon, and thereupon judgment was rendered dismissing the action. Afterwards an action was brought to foreclose the mortgage, and it was contended that the former judgment was conclusive as to the amount unpaid thereon, but it was held otherwise, upon the ground that the amount due on the mortgage was not put in issue in. the former action, but only the fact whether the mortgage had been fully paid, and that the amount that was unpaid was only incidental and collateral to this main issue. (See also Lewis and Nelson’s Appeal, 67 Pa. St. 153; King v. Chase, 15 N. H. 9; Moulton v. Libbey, 15 N. H. 480; Stannard v. Hubbell, 123 N. Y. 520. In Sweet v. Tuttle, 14 N. Y. 465, it was held that where the defendant, together with five others as plaintiffs, had brought
When, therefore, in the second action the former judgment is offered in evidence, it is necessary to ascertain, in the first instance, whether the cause of action upon which it was rendered is the same as that under prosecution, and if so, it becomes, as a matter of law, conclusive upon the rights of the parties in the second action. If, however, the cause of action or demand upon which the former judgment was rendered is different from the one prosecuted in the second action, it is then necessary to ascertain, as a question of fact, what issues or matters were determined in the former action, and then to determine, as a matter of law, whether those issues and their determination were essential to the former judgment; for it is only issues upon which that judgment depends that the parties are estopped from litigating in any other action. (1 Greenl. Ev., sec. 528.) Matters which were merely collateral or incidental to the former determination do not constitute an estoppel, even though they were litigated and decided therein; and the evidence which was introduced in support of such issues may always be introduced in support of a defense in any other action. The judgment in such a case does not become an estoppel as to all matters which might have been litigated therein, but only as to such as were actually litigated, and which were necessary to be determined by the court before rendering its judgment upon the demand or the defense. For example, if, in a suit in ejectment, the defendant alleges and proves a right to the possession of the land by virtue of having acquired an estate therein for years, he will not.be precluded, in a subsequent action against him by the same plaintiff to quiet title to the same land, from showing that he was, at the time of the former
The former action between the parties hereto was brought by the plaintiffs for the purpose of recovering damages resulting from the diversion of the water, and to prevent the defendant from making any further diversion. The issue presented by the plaintiffs for determination by the court was the right of the defendant to make any diversion of the water, and for the purpose of meeting that issue it was incumbent upon the defendant to establish a right of diversion to such an extent as would preclude the plaintiffs from a recovery; but the limit of the extent to which that right had been acquired was immaterial, except as a matter of evidence upon the controverted fact in issüe. If it had such right, the plaintiffs, had no right to recover damages therefor, however much loss they might have suffered. The first question, then, to be determined, and the real issue before the court, was the right of the defendant to do the act which the plaintiffs charged as an invasion of their rights. If that right existed, the plaintiffs’ cause of action fell, and for the purpose of showing that such right did exist, the defendant pleaded and the court found that all the water which the plaintiffs showed to have been diverted by the defendant was taken under a right acquired by it by prescription. The amount of the diversion to which that prescriptive right extended was not an issue in the case. The court was not called upon to determine the extent of the prescriptive right, but only whether the diversion shown by the plaintiffs was within the limits of that right. The defendant did not seek any affirmative relief by reason of this prescriptive right thus set up, but had merely pleaded it as a defense to the plaintiff’s demand. It was incumbent upon the plaintiffs, in order-to maintain their demand,
Upon the allegations and the evidence before it, the court found in the present case that in the month of December, 1875, the defendant, under a claim of right, appropriated and diverted a portion of the waters flowing in said Cole Slough, sufficient to fill a ditch twenty feet wide on the bottom and forty feet wide on the top, leading out from Cole Slough, and had, each and every year since said month, continuously, and by means of of the same ditch and the same dam, under the same claim of right, taken and diverted sufficient water to fill said ditch for the purposes of irrigation, adversely to the plaintiff and the whole world, and that said ditch is of sufficient capacity to carry about 190 cubic feet of
The failure of the court to find upon the claim of the plaintiffs, that the defendant had no right to divert any of the waters of the slough, except at times when there is more than five hundred cubic feet of water in the channel, flowing past the head of the defendant’s ditch, cannot be regarded as error. The plaintiffs were not entitled to a finding upon this issue, unless there was evidence before the court in support of their claim, nor unless a finding thereon would counteract the other findings to such an extent as to invalidate the judgment. The only evidence in support of the averment is the
The plaintiff Lillis was asked whether, prior to the twelfth day of October, 1883, the water that was diverted at the head of defendant’s ditch was carried down to a point between two and three miles below the headgate of the defendant’s ditch, and then a portion of it at that point turned back into a waste-way, through which it returned to the slough. This question was objected to, and the answer excluded by the court. In this ruling the court did not err.
The plaintiffs had alleged in their complaint, that in the action brought' by them against the defendant, October 12,1883, it had been decided by the court that the defendant had, prior thereto, acquired the right to divert, by means of its ditch and dam, from the waters flowing in the slough, a sufficient amount thereof to fill a ditch twenty feet wide at the bottom and forty feet wude at the top, and had, since the month of December, 1875, continuously, by means of that ditch, and under its said claim of right, taken and diverted sufficient water to fill said ditch. This averment of such decision by the court carried with it the admission that the decision was sustained by sufficient evidence, and was in accordance with the fact, and was itself an admission of record, which was inconsistent with the evidence thus offered, and which the plaintiffs could not be permitted to contradict. The effect of the admission was not qualified by a previous averment in the complaint, that the defendant had not, in fact, at any time prior to October 12, 1883, permanently diverted more than forty cubic feet of water per second from the
The judgment and order are affirmed.
Garoutte, J., concurred.
Concurrence Opinion
I concur. I do not think it was essential in the former action for the court to determine the quantity of water flowing through the ditch, but if it was material, such quantity was not fixed. The court, by its decree in this action, has made certain that which was left uncertain in that respect in the former case, wdiere the findings described the quantity as being “ sufficient to fill a ditch twenty feet wide at the bottom and forty feet wide at the top.” Neither the findings nor the judgment in that case attempt to fix the number of cubic feet of water, and as neither the depth of the ditch nor its grade is given, it is impossible to tell what the capacity of the ditch was. It is true, the defendants, in their answer in that action, claimed that they had acquired by appropriation “ the right to divert from said Cole Slough, and to use for the purposes of irrigation and other purposes, as aforesaid, about one hum dred cubic feet of water flowing per second, measured under a four-inch pressure, of the waters thereof”; but as counsel for appellants himself states, the addition of the words “measured under a four-inch pressure” makes the whole
