147 Wis. 195 | Wis. | 1911
Lead Opinion
Upon the findings of the court below, which are supported by the evidence, we see no escape from the conclusion that the judgment must be affirmed. The only question to be considered here is whether the several judgments pleaded in the answer constitute a bar. These judgments went upon the fact found that Lake street, so called, was not a public street, and that plaintiff’s connection with these ac
“Is a former adjudication against tbe mayor of a city, involving a controversy as to a public right, a bar to a subsequent action by tbe same party as an individual, seeking to enforce a private right ?”
As said by tbe learned trial judge below:
“Tbe plaintiff does not base his claim upon any right in tbe public. He does not ask relief upon tbe ground that tbe public has a right to have tbe place opened as a street, or that be, as a member of tbe public, has sustained special injury because a public easement has been interfered with to bis special injury. Tbe right wbicb be claims to enforce is a private right of property which be derives by grant, and subject to wbicb tbe defendant bolds her property.”
Tbe findings heretofore set out show tbe facts upon wbicb tbe plaintiff’s claim rests and tbe right of plaintiff to recover as distinct from tbe right of tbe public. Tbe question involved in tbe actions pleaded in bar was whether a public street existed, and such question is not controlling in tbe instant case. Tbe issue here is one of estoppel against tbe defendant from denying tbe existence of tbe street adjoining tbe lots as shown upon tbe plat. McFarland v. Lindekugel, 107 Wis. 474, 83 N. W. 757; Tilly v. Mitchell & L. Co. 121 Wis. 1, 98 N. W. 969.
' Tbe right upon wbicb plaintiff’s case rests is in tbe nature of an easement attached to tbe title of each lot and subject to wbicb successive grantees take. What are tbe necessary elements to constitute a good defense by way of former adjudication are well stated in Bigelow v. Winsor, 1 Gray, 299, 302, and Lyon v. Perin & G. Mfg. Co. 125 U. S. 698, 8 Sup. Ct.
It follows that the judgment of the court below is right and must he affirmed.
By the Court. — Judgment affirmed.
Concurrence Opinion
(concurring). It is undoubtedly true that where the fourfold identity exists between two actions, viz.: identity (1) in the thing sued for, (2) of the cause of action, (3) of the persons and parties to the action, and (4) of quality in the persons for or against whom the claim is made, the
Tbis court has very fully considered and settled tbe principles governing tbe defense of former adjudication in a series of cases, including tbe Wentworth and Rowell Gases, as well as tbe cases of Grunert v. Spalding, 104 Wis. 193, 80 N. W. 589, and Hart v. Moulton, 104 Wis. 349, 80 N. W. 599. There was no intent to depart from those cases here. Tbe principle held in those cases, and which I understand to be applied here, is that if tbe four identities exist, tbe prior judgment is conclusive not only as to every question actually presented and decided in tbe former action, but also as to every point within tbe issues which might have been presented and decided; and if tbe identity of subject of action, or cause of action, or both, be lacking, still tbe prior adjudication is binding between tbe same parties or their privies, suing or defending in tbe same right, upon questions actually litigated and decided in tbe former action, but no further. In tbe former adjudication pleaded in tbis case tbe cause of action was not tbe same, tbe plaintiff was not suing in tbe same right, and tbe question at issue here was neither within tbe issues nor actually presented and decided. Hence tbe former adjudication is not a bar. ■
Concurrence Opinion
The following opinion was filed November 14, 1911:
Concurrence Opinion
I concur in tbe opinion by Mr. Chief Justice WlNSLOW.
