71 So. 167 | Miss. | 1916
delivered the opinion of the court.
In April, 1912, the appellee,, who was plaintiff in the trial court, filed his declaration against the appellant, defendant there, charging that prior to September 30i, 1909,. the appellant had built, or caused to be built and constructed, a certain railroad embankment, upon which it. laid its tracks, and over which it operated a part of its line of railway, and that said embankment was built through certain land described in the declaration as belonging to the plaintiff. The. land in question was two hundred and twenty acres, and situated on the west or northwest side of the railroad embankment. ( The declaration further alleged that because of the method of construction' of the railroad embankment, a certain natural water course was dammed, and the flow of the water thereby impeded and obstructed in such way as to occasion the overflowing of certain parts of the two hundred and twenty acre tract of land, and the declaration alleges that the natural slope of the land iii question was toward said railroad embankment, and that the natural and usu
The appellee thereupon introduced in testimony the entire record in the former trial of the previous litigation in question. An instruction, that was in effect a peremptory instruction to find for plaintiff, was granted by the trial court, directing the jury to return a verdict for the plaintiff upon the theory that the question of the liability of the railroad company, for damages resulting from the flooding of the lands belonging to the plaintiff by reason of surface water or the waters of the natural water course, was judicially determined by the court at the trial of cause'Ño. 1694, and for this reason the sole and only question of fact to be determined by the jury was, First, did the railroad company’s embankment occasion the flooding of the lands during the years 1910 and 1911? and, second, what was the amount of damage thus done?
The evidence showed without dispute that the lands were overflowed, and that the plaintiff suffered a substantial injury, and the jury determined the amount of damages. It is complained; however, that no plea of res ■adjudicata was pleaded, nor was any notice that such was relied upon given appellant. But appellant’s written confession that the conditions prevailing “with reference to the construction and maintenance of the railroad on April 6, 1912, were the same as they existed at the time testified to in the first examination on the--day of April, 1910, ” is of record, and the record in the previous case shows "that both the subject-matter and the parties to the previous litigation were the same as the subject-
“A fact or question, which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by domestic court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action and persons in privity with them, and cannot be again litigated in any future action between such parties or privies in the same court, or in any other court of concurrent jurisdiction, upon the same or a different cause of action.” 23 Cyc. 1215.
It is not necessary to determine whether or not it is necessary to specially plead a defense of res adjudicaba when raised in an action similar to this.. There is conflict upon this point, some cases holding that issue res adjudicaba may be proven under the general issue, but in this case the written agreement of the appellant itself' shows conclusively that liability for the damage in question is established.
Affirmed.