27 Ill. App. 320 | Ill. App. Ct. | 1888
The substance of appellant’s complaint is the depreciation in value of his land. For that injury he once before sought redress in a similar action. By the showing made in his declaration now before the court, he claimed damages for this identical cause of action in the former suit, and the jury awarded him the sum of one cent. The declaration does not even aver that the question of depreciation was not submitted to the jury in the first case. The allegation, if it were material, can not be supplied by presumption. The failure of the jury to award substantial damages in the first trial, does not warrant us in holding that they did not consider the alleged permanent injury to the land. They may have thought nominal damages full compensation for all the injury, present or prospective. A former judgment is conclusive as to all .questions within the issue whether formally litigated or not. The doctrine of res judicata “extends not only to the questions of fact and of law which were decided in the former suit but also to the grounds of recovery or defense, which might have been but were not presented.” Beloit v. Morgan, 7 Wall. 619; Harmon et al. v. Auditor, etc., 123 Ill. 133; Bennitt et al. v. Star Mining Co. et al., 119 Ill. 14.
From that well settled rule we have no desire to deviate. Applying it to this case, it can not be denied that appellant might have presented for adjudication in the first case all the matters complained of in this, and if he failed to do so, there is now no relief for him.
Whether an erection of a permanent character by an individual for his own convenience, profit or pleasure, having no connection with a public use, but which causes a depreciation in the value of adjoining land, gives a right of action which is entire and can only be sued on by the party owning the land at the time of the injury, we need not here determine. See C. & E. I. R. R. Co. v. Loeb, 118 Ill. 211, 212.
This case is of that class where the plaintiff has elected to treat the injury as embracing prospective as well as present damages, and has recovered a judgment therefor. The decision of the Superior Court was not in conflict with C., B. & Q. R. R. Co. v. Shaffer, 124 Ill. 112, or O. & M. Ry. Co. v. Wachter, 123 Ill. 440.
A distinction upon which this judgment may safely, rest, is stated in the opinion in the latter case to be the treatment of the injury by the plaintiff, as embracing prospective as well as present damages. The court then says, that the decisions in such cases rest upon the principle of estoppel, and áre consequently sound.
The judgment of the Superior Court is affirmed.
Judgment affirmed.
