Yazoo & M. V. R. R. v. Sibley
71 So. 167
Miss.
1916
Check Treatment
Potter, J.,

delivered the opinion of the court.

In Aрril, 1912, the appellee,, who was plaintiff in the trial court, filed his declaration against the appellant, defendant there, charging that prior tо 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 tо 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 furthеr alleged that because of the method of construction' of the railroad embankment, a certain natural water course was dammed, аnd 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, аnd that the natural and usu*23al flow of the surface of the water was across the land, upon which the railroad Constructed the above-mentioned, еmbankment, and that the embankment had been so negligently constructed as to occasion the damming back of' surface water, thereby causing the overflow of the lands, of the appelleethat the obstruction to the flow of the surface water was unnecessary, and might easily have bеen, prevented at little cost or expense to the railroad company; and that because of the flooding of the lands in. question in the mаnner set out in the declaration certain crops of corn, cotton, and other agricultural products, the-property of the apрellee, were from time to time, during; the years of 1910 and 1911, destroyed, and that the appellee was prevented for the same cause from сlearing; and putting into cultivation other portions of said land;, and ‍‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​‌​‌‌​‌‌‌‌​​‌​​​‌​‌​‌‌​‌​‌‌​‍alleging that the plaintiff was prevented from deriving rents and profits from portions therеof, and Consequently there was a demand- for damages. There had; been other suits against the defendant railroad company" by the plaintiff in this case, for damages done to the-same land and crops thereof in previous years on account of the construction of the railroаd bank in question,, and a recovery had. The testimony in this case shows, that the conditions prevailing with reference to the construction and maintenance of the railroad on the day the-present suit was brought were practically the same as-they existed at the time the recovery was had in the last, suit previous to the present one, which was brought at the April term, 1910, of the same court. During the progress of the trial, it was discovered that one of appellant’s, witnesses, A.. J. Rylee, was absent, and the appellee was. requested to agree that the testimony of Rylee, as given by him at the April term, 1910, of the court in the. trial of cause No. 1694, the same being the number of the last, suit previous to the present one on the docjret of the сircuit court of Coahoma county, might be read in evidence-as the testimony of the witness in the trial -of the case at, bar, and the following agreement was entered into:

*24“It is agreed that the testimony of the witness ^Eylee (A. J.), given at the former trial of this canse, is to be read in evidence in lien of the рersonal presence and examination of the witness. It is the further understanding and agreement ‍‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​‌​‌‌​‌‌‌‌​​‌​​​‌​‌​‌‌​‌​‌‌​‍that the conditions prevailing with reference to thе construction and maintenance of the railroad on April 6, 1912, were the same as then existed at the time testified to in his first examination on the-day of April, 191.0.”

The appellee thereupon introduced in testimony the entire record in the former trial of the previous litigation in question. An instruction, that wаs 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 thаt 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 surfacе 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 solе 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 notiсe 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-*25matter and the parties- to this litigation, and in addition to this, the testimony in the case shows that the facts agreed to by the apрellant are correct, and that no substantial change had been made in the 'situation since the last suit. It, therefore,' seems that the agreement of appellant’s counsel was tantamount to a confession of appellant’s liability. In the previous case the damage comрlained of was that the water course in question had been so narrowed by the construction of the railroad that the surface water would not drain off, thereby causing ‍‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌​​​​‌​‌‌​‌‌‌‌​​‌​​​‌​‌​‌‌​‌​‌‌​‍damage to the land of the appellee, and in this case it is the damming up of the same stream and the obstruction of the sаme surface water that is complained of; and, in view of the fact that the appellant has confessed that the conditions were the sаme and the record shows that the parties and the subject-matter of the suits were-the same, and in view of the fact that overflow and damage was shown beyond question, we think the only matter left for the jury to determine was the amount of damage, and that this question was properly submitted.

“A fact or questiоn, 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 litigаted in any future action between such parties or privies in the same court, or in any other court of concurrent jurisdiction, upon the same оr 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.