55 F. 690 | 8th Cir. | 1893
after stating the facts as above, delivered the opinion of the court.
It is urged that the plea of a former adjudication is not supported by the record of the suit formerly pending in the district court of Nobles county, Minn., for the reason that the record does not show what lands the appellant then sought to recover, or at least that it does not show that the lands then sued for are a portion of those now claimed. We think that this contention is untenable. The bill of complaint filed in the district court of Nobles ■county, contained among others, the following allegations, in substance: That, upon the filing of its map of definite location, and upon the completion of its road, the appellant became entitled, under the act of congress of July 4, 1866, and the act of the Minnesota legislature of February 25, 1867, to every alternate section of land designated by odd numbers, for 10 miles in width, on each side of its road, situated in ranges 32 to 15, Vdh inclusive, and in townships 101 to 107’, both inclusive, these being lands within its place limits; that it also became entitled to -select, if necessary, all of the alternate sections designated by odd numbers within the ranges and townships aforesaid, which were more than 10 and less than 20 miles from its road, to make up for any deficiency within its granted or place limits; that it, in fact, required all of the lands within its deficiency limits to make up for losses within its granted limits; that it had applied to the secretary of the interior to certify to it all of the alternate sections of land aforesaid that were within its place limits and its indemnity limits, and that he had declined to so certify any of said lands because they had already been certified to the state of Minnesota as lands which of right belonged to the appellees; and that the appellees had wrongfully obtained patents for said lands from the state. Annexed to the bill of complaint in (he Nobles county suit was a diagram, which was alleged to be a correct map of appellant’s road through the aforesaid townships, from the east line of range 32 to the western boundary of the state of Minnesota; and the bill prayed that the appellees might be adjudged to convey to the appellant said lands so conveyed to them in fraud of the appellant’s rights.
It is also suggested that the plea of a former adjudication is not tenable, for the reason that the right to relief in the former action was predicated on the alleged fraud of the appellees, in constructing their road for some distance through the territory where the land grants interfere, on a route somewhat different from that indicated by their original map of definite location. In other Avords, it is urged, in substance, that the respective suits proceed upon a different- theory, and state different grounds of recovery, and that the plea is bad for that reason. This contention would be immaterial, so far as the lands now and formerly sued for are concerned, even if it was true, as supposed, that the right of recovery in the former action was predicated solely on the ground of fraud. The appellant might have pleaded in the former action the same grounds of recovery which it now relies upon, and if it did not do so it cannot take advantage of such neglect. It will not be alloAved in this suit to avoid the conclusive effect of the former decree, by averring that it did not plead a particular ground of recovery which it obviously might have pleaded. The parties to the two suits being the same, the judgment in the former case operates as an estoppel, both as to those grounds of recovery Avhich were pleaded, and as to those that might have been pleaded, so far as the lands now sued for are concerned, which were also claimed in the previous action. Cromwell v. Sac Co., 94 U. S. 351-353. But it is a mistake, we think, to suppose that the alleged fraud of the appellees in departing somewhat from their line of definite location was the sole basis for the relief sought in the suit instituted in the district court of Nobles county. In the complaint filed in that case, the appellant pleaded the same equitable title to the lands lying within its place
The next question to be considered is whether the appellant is estopped by the record in the former suit from asserting title to the lands lying east of range 32, which were not sued for in the former action. It is insisted by the appellee companies, that even as to such lands, the former judgment and findings (particularly the findings) operate as an estoppel. The doctrine is well established, that when an issue of fact, or a mixed question of law and fact, on which the decision of a case depends, has) been' tried and determined, the parties to such trial will be estopped, even in a second suit on a different cause of action, where the same issue or question arises, from contending to the contrary of what was thus found and determined. In Cromwell v. Sac Co., 94 U. S. 351-353, Mr. Justice Field says:
“Where tie second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered.”
And in Outram v. Morewood, 3 East, 346, the rule is thus stated:
‘•It is not the recovery, but the matter alleged by the party and upon which the recovery proceeds, which creates the estoppel. * * * The es toppel precludes parties and privies from contending to the contrary of that point or matter of fact which, having been once distinctly put in issue by them, * * * has been, on such issue joined, solemnly found against them.”
There are many cases in which the foregoing doctrine has been either stated or applied. Campbell v. Rankin, 99 U. S. 261-263; Nesbit v. Independent Dist., 144 U. S. 610-618, 12 Sup. Ct. Rep. 746; Franklin Co. v. German. Sav. Bank, 142 U. S. 93-100, 12 Sup. Ct. Rep. 147; Laird v. De Soto, 32 Fed. Rep. 652; Corrothers v. Sargent, 20 W. Va. 351-356; Gardner v. Buckbee, 3 Cow. 120.
The authorities furthermore show, that the estoppel arising
In the light of these principles the record in the Nobles county suit must be examined, with a view of ascertaining whether any finding therein made upon a question or issue common to both suits is an effectual bar to a recovery of the lands in controversy which lie east of range 32. The suit in the state court was tried before a referee, who returned into court his findings of fact and conclusions of law, in obedience to which a final decree was entered in favor of the appellee companies. There can be no doubt, we think, of our right to consider the entire report of the referee, as well as the pleadings in the case, for the purpose of ascertaining what issues were in fact raised and decided, and upon what theory the former judgment proceeded. In the former case two findings of fact were made and reported by the referee, upon which the decree in that case undoubtedly depended. The first of these findings was, in substance, as follows: That prior to any location of the appellant’s road, and prior to the grant of July 4, 1866,' the United States, through the proper action of the department of the interior, had accepted the location of the appellees’ road from its eastern terminus as far west as the west line of range 39, and had fixed the limits of their grant under the acts of March 3, 1857, and May 12, 1864; and in the month of July, 1864, had withdrawn from settlement, entry, and location all of the lands in odd-numbered sections within a distance of 20 miles on each side of the appellees’ road, from the eastern terminus thereof to the west line of range 39, and had thereby reserved said lands to be applied in aid of the construction of said road. In view of the foregoing finding the referee concluded, as a matter of law, that the withdrawal from entry and sale so found to have been ordered by the department of the interior, and to have been made pursuant to such order in July, 1864, operated in itself to exclude all of the odd-numbered sections lying within the appellees’ indemnity limits, and as far west as the west line of range 39, from the operation of the granting act of July 4, 1866, under which the appellant claims; and upon that ground the referee recom
There can he no doubt that the referee properly concluded that a prior withdrawal of the lands by the United States for the benefit oí the appellee companies, was a reservation of the same, within the meaning of the act of congress of July 4, 1866, such as would feave the effect of excluding them from the operation of that act We do not find it necessary to decide, and we do not decide, whether the further ruling of the referee Is also tenable, — -that the title to the lands became vested in the state, without any prior selection, by virtue of the deficiency found to exist within the appellees’ place limits. 3t is obvious, we think, that the right to recover the lands lying east of range 32 is effectually set at rest by the record in the former case, if the finding in that case is accepted as conclusive, — that all of the lands within the appellees’ indemnity limits, and east oí range 40, were in fact withdrawn for the benefit of the appellee companies in July, 1864, by the proper action of the department of the interior. That finding comprehends all of the lands now sued for which were not formerly in controversy, and it goes without saying that, if the matters covered by the finding are not open to dispute, the estoppel raised by the former decree extends to the whole subject-matter of the present controversy.
We are unable to say that any sufficient reason exists which would warrant us in holding that the finding in question is not conclusive in the present suit. It was made a distinct issue in the former case, as it is in this, that the appellees’ line was definitely located 'as far west as range 40 as early as 1859; that such location, was duly accepted by the United States; and that all of the odd-numbered sections for a, distance of 20 miles on either side of the located line, as far west as range 40, were actually withdrawn from entry, location, and salo for the benefit of the appellee companies in July, 1864, and were therefore unaffected, by the grant of July 4 1866. Upon that issue of law and fact, there was a finding in
It is further to be observed, that the case at bar presents other features which bring it fully within the rulings recently made by this court in Railroad Co. v. Sage, (8th Circuit,) 4 U. S. App. 160-191, 1 C. C. A. 256, 49 Fed. Rep. 315. The same considerations which induced us to hold in the case last referred to, that the right to relief in that action was barred on the ground of laches are equally applicable to the facts disclosed by the present record, and we might well rest our decision upon that ground alone. But