Rahr v. Wittmann

132 N.W. 1107, 147 Wis. 195, 1911 Wisc. LEXIS 219

• Court: Wisconsin Supreme Court
• Decided: October 24, 1911
• Status: Published

Opinions

KjüRWIIt, J.

Upon the findings of the court below, which are supported by the evidence, we see no escape from the conclusion that the judgment must be affirmed. The only question to be considered here is whether the several judgments pleaded in the answer constitute a bar. These judgments went upon the fact found that Lake street, so called, was not a public street, and that plaintiff’s connection with these actions was in bis official capacity as mayox of tbe city of Mani-towoc. Tbe private or individual interest wbicb plaintiff asserts is tbe basis of tbe present action was not in issue or át all involved in tbe former actions and judgments set up in tbe answer. Tbe contention is fairly stated by respondent’s counsel thus:

“Is a former adjudication against tbe mayor of a city, involving a controversy as to a public right, a bar to a subsequent action by tbe same party as an individual, seeking to enforce a private right ?”

As said by tbe learned trial judge below:

“Tbe plaintiff does not base his claim upon any right in tbe public. He does not ask relief upon tbe ground that tbe public has a right to have tbe place opened as a street, or that be, as a member of tbe public, has sustained special injury because a public easement has been interfered with to bis special injury. Tbe right wbicb be claims to enforce is a private right of property which be derives by grant, and subject to wbicb tbe defendant bolds her property.”

Tbe findings heretofore set out show tbe facts upon wbicb tbe plaintiff’s claim rests and tbe right of plaintiff to recover as distinct from tbe right of tbe public. Tbe question involved in tbe actions pleaded in bar was whether a public street existed, and such question is not controlling in tbe instant case. Tbe issue here is one of estoppel against tbe defendant from denying tbe existence of tbe street adjoining tbe lots as shown upon tbe plat. McFarland v. Lindekugel, 107 Wis. 474, 83 N. W. 757; Tilly v. Mitchell & L. Co. 121 Wis. 1, 98 N. W. 969.

' Tbe right upon wbicb plaintiff’s case rests is in tbe nature of an easement attached to tbe title of each lot and subject to wbicb successive grantees take. What are tbe necessary elements to constitute a good defense by way of former adjudication are well stated in Bigelow v. Winsor, 1 Gray, 299, 302, and Lyon v. Perin & G. Mfg. Co. 125 U. S. 698, 8 Sup. Ct. 1024. They are stated thus: (1) Identity in the thing sued for; (2) Identity of the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality in the persons for or against whom the claim is made. It is clear that the plaintiff is not hound by the former actions pleaded. Howitt v. Blodgett, 61 Wis. 316, 21 N. W. 292; Goodwin v. Snyder, 75 Wis. 450, 44 N. W. 746; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Wentworth v. Racine Co. 99 Wis. 26, 74 N. W. 551. The appellant seems to be laboring under the impression that the plaintiff is hound as a ■privy, or as a member of the public, where the former suit was brought on behalf of the public and the issues involved were of general interest to all the people. The doctrine has ■no application to the present action. The rights litigated in the present suit are not the rights of the public in a public street, hut the right of the plaintiff in his private capacity. Shores v. Doherty, 75 Wis. 616, 44 N. W. 747; Hughes v. U. S. 71 U. S. 232; McFarland v. Lindekugel, 107 Wis. 474, 83 N. W. 757; Donahoo v. Murray, 62 Wis. 100, 22 N. W. 167; Long v. Wilson, 119 Iowa, 267, 93 N. W. 282; Loftis v. Marshall, 134 Cal. 394, 396, 66 Pac. 571; State ex rel. Hashes v. Branch, 134 Mo. 592, 36 S. W. 226; Fuller v. Metropolitan L. Ins. Co. 68 Conn. 55, 35 Atl. 766; First Nat. Bank v. Shuler, 153 N. Y. 163, 47 N. E. 262.

It follows that the judgment of the court below is right and must he affirmed.

By the Court. — Judgment affirmed.