43 Wis. 574 | Wis. | 1878
I. We do not think the judgment recovered by the plaintiff in the circuit court on the second trial of his appeal from the appraisement of the board of public works, stands in the way of a recovery by him in this action. The effect of the abandonment by the common council of the condemnation proceedings was, necessarily, to render that judgment inoperative. It is the plain purpose of the statute under which the council acted, that such should be the effect of the abandonment; and we see no reason to doubt the validity of the statute. P. &L. Laws of 1872, ch. 50. Should the plaintiff attempt to enforce collection of that judgment, the proper court would, on application, stay his proceedings and enjoin the collection thereof. Such abandonment also operated to restore to the plaintiff all the interest in the lots sought- to be condemned, which he had when the condemnation proceedings were instituted; and, had he suffered no damage by reason of the proceedings or the acts of the city under them, he would have no just cause for complaint. But, having sustained damages thereby, it is very manifest that the city ought to compensate him therefor; and the statute does not assume to deprive him of the right of action to recover them. Hence, we think this action may be maintained to recover such damages to him as were the direct and proximate result of the, condemnation proceedings and the acts of the city under them. And this is all we deem it necessary to say concern
II. The most important question in the case is, whether the city is estopped by the judgment on the second trial of his appeal from the award of the board of public works, to deny the plaintiff’s title to any portion of the lots affected by that appeal, or to claim that the portion of such lots designated as Lake street is a public street or highway.
It is freely conceded by the learned counsel for the city, that a question of fact once litigated, and determined by the verdict of a jury and judgment thereon, is at rest between the same parties, and that neither party can thereafter be heard to deny the correctness of the adjudication in a collateral action or proceeding.
The question of the plaintiff’s title to the lots affected by the appeal was necessarily involved in the condemnation proceedings. He could not have recovered on his appeal without first establishing his title, and a verdict in his favor was, in effect, that he was the owner of the lots for the taking of which damages were assessed to him by way of compensation. The stipulation conceded the title to the lots to be in the plaintiff, and no special finding that he was the owner was necessary. Hutchinson v. C. & N. W. R’y Co., 41 Wis., 541; McNarra v. C. & N. W. R’y Co., id., 69. And it is quite immaterial that the city, by admitting the title, relieved the plaintiff from the obligation of proving it. Bigelow on Estoppels, 17, and cases cited. In Chamberlain v. Preble, 11 Allen, 370, discussing the subject of estoppel by judgment, the court says: “The judgments of courts must be based on the facts as they are presented. Ho doubt, if the truth could always be fully and accurately known, many decisions would appear erroneous; but it is for the public interest that there should be an end of litigation, and parties and privies who have once had day in court cannot, by mere proof or offer of proof that the judgment was founded on error in fact, renew the controversy.
We conclude, therefore, that the defendant is estopped by the former verdict and judgment to deny in this action that the plaintiff was the owner in fee of the lots in question when the condemnation proceedings were instituted; and that the testimony which was offered for the purpose of showing that he "was not then the owner thereof, was properly rejected.
But whether such verdict and judgment estop the city from asserting that’ the public have a right of way over a portion of the lots, is a very different question. On the trial of the appeal in the condemnation proceedings which resulted in such verdict and judgment, the question of the existence of such public easement was litigated, and was submitted to the jury, but the record fails to show that the jury determined it. The judgment does not depend upon its determination, for it is as consistent with the hypothesis that the jury found the existence of the easement, as it is with the hypothesis that they negatived its existence. The authorities cited by counsel for the city abundantly show the rule to be, that in such a case there is no estoppel lienee, we think the testimony offered on behalf of the city to show the existence of the public easement should have been received. Had the easement
III. Counsel for the city criticised the decisions of this court in Van Valkenburgh v. Milwaukee, 30 Wis., 338; and in Emmons v. Milwaukee, 32 id., 434, which are to the effect that certain plats therein mentioned do not operate as dedications or grants of any portion of these lots, and certain other lands, to the public use. On this subject we have only to remark, that those decisions establish a rule of property which has remained undisturbed for several years, and that other parties may and probably have invested their money on the faith of those decisions, and hence, the maxim stare decisis is peculiarly applicable to them. We must not disturb them.
IV. The court below admitted in evidence on behalf of the plaintiff, a remonstrance addressed by him to the common council, against the abandonment of the condemnation proceedings, in which he itemized and estimated the damages which he had sustained by reason of such proceedings. We are aware of no rule of evidence which justifies the admission of that document.
By the Court. — The judgment of the county court is reversed, and the cause will be remanded for a new trial.
A motion by the respondent for a rehearing was denied.