Bridges v. McAlister

• Decision Date: 09 June 1899
• Citation: 51 S.W. 603,106 Ky. 791
• Parties: BRIDGES et al. v. McALISTER. [1]
• Court: Kentucky Court of Appeals

51 S.W. 603

106 Ky. 791

BRIDGES et al. v. McALISTER. ^[1]

Court of Appeals of Kentucky.

June 9, 1899

Appeal from circuit court, Daviess county.

"To be officially reported."

Action by W. M. McAlister against Martin Bridges and others to recover damages to his land from the closing of a ditch. Judgment for plaintiff, and defendants appeal. Reversed.

G. W Jolly, Horace Jolly, and R. G. Hill, for appellants.

Sweeney Ellis & Sweeney and Walker & Slack, for appellee.

HOBSON J.

Appellants and appellee own neighboring farms. Between their lands there was a ridge, which prevented the water falling on appellee's land from flowing down naturally over appellants' land. Both farms lie in a very level section, where there is difficulty about drainage. Some years ago the owners of the land above the ridge, and some of those below, united in an undertaking to cut a ditch in a southerly direction, through the ridge, to Panther creek, for the purpose of draining all their land. The ditch was cut through the ridge, but, for want of means to complete it, there stopped. The result of this was that the lands above the ridge were drained and the lands below were flooded by water that did not by nature flow upon them. The work upon the ditch was abandoned. It caved in. Trees and other things fell in it, until in many places it was nearly filled up. The owners of the land above the ridge after some years employed William Miller to clean it out, and, he having begun to do so, appellants and others, owning land below the ridge, filed suit against him for the purpose of enjoining him from cleaning out the ditch. On the hearing of this case the circuit court entered a mandatory order requiring the ditch to be filled up so that no water could pass over the ridge that did not flow over it naturally. On appeal from this judgment to this court it was held that the injunction should have prohibited the appellants from cleaning out the ditch or from reconstructing it in any way so as to increase the flow of water on the land below it, and that it was error to require the ditch to be filled up. See Miller v. Hayden, 91 Ky. 215, 15 S.W. 243. On the return of the cause a judgment was entered in that action pursuant to the mandate of this court. This was something over two years after the entry of the original judgment requiring the ditch to be filled up. There had been no supersedeas of that judgment, and, in obedience to it, the ditch had been filled up as therein required. By reason of the filling up of the ditch under the judgment, the water which had passed through it from appellee's land could no longer escape in this way, and was thrown back on it. After the ditch had been opened to the extent indicated by the judgment entered in obedience of the opinion of this court, appellee brought this suit for damages to his land from the closing of the ditch for the two years it had remained stopped up under the judgment. Appellants pleaded, in defense of the action, that the ditch had been stopped up in obedience to the order of the court, and relied upon that judgment as a protection to them for damages sustained by reason of what was done in obedience to it, there being no supersedeas. They did not allege, however, that appellee was party or privy to the case in which the judgment was rendered, and the court sustained a demurrer to this plea. There was then a trial, and verdict for defendants, which, on appeal to this court, was set aside. The opinion of this court pointing out that the judgment pleaded was no bar, because it was not averred that appellee was party or privy to that action. McCallister v. Bridges (Ky.) 40 S.W. 70. There was no cross appeal in that case, and from the nature of the case there could be none; so the only question before the court was whether there had been a fair trial before the jury. Nothing more was considered or decided. On the return of the case the defendant tendered an amended answer, in which he set out that Miller, while cleaning out the ditch, was acting as the agent and servant of appellee, McAlister; that appellee, with others, employed him to dig the ditch, and knew of the suit, testified in it as a witness, and that Miller was only their agent in the transaction. The court below refused to allow the amended answer to be filed, holding, in effect, that the judgment was no protection as to acts done under it, though not superseded. There was then another trial, resulting in a verdict for $1,000 in favor of appellee.

The main question arising on this appeal is as to the effect of the reversed judgment on acts done under it and in obedience to it before its reversal, when it was not superseded. In Freem. Judgm. § 482, it is said: "But a subsisting judgment, though afterwards reversed, is a sufficient justification for all acts done by plaintiff in enforcing it prior to the reversal. Thus, if the defendant be taken in execution, the subsequent reversal of the judgment will not render the plaintiff liable to an action for false imprisonment; for the act of imprisonment, when directed by the plaintiff, was sanctioned by a then valid judgment." And in section 104b the same author says: "The case of a judgment set aside for irregularity differs materially from that of one reversed upon appeal. In the latter case the error for which the judgment is ultimately avoided is imputed to the court, and the parties are not left without protection for the acts which they have done, based upon the judgment and upon their confidence in the correctness of the decisions of the court." The same principles are laid down in Black, Judgm. §§ 170, 355. In Kaye v. Kean, 18 B. Mon. 847, Kean obtained a mandamus against Kaye, which he refused to obey, and, being imprisoned for disobedience, brought suit against Kean, upon a reversal of the judgment awarding the mandamus, for damages for his imprisonment. His petition was dismissed. The court said: "The judgment of the circuit court is not void, but merely erroneous. *** So long, therefore, as the judgment remained in force unsuspended and unreversed, it was the duty of the appellant to have rendered obedience to it. His contumacy subjected him to be proceeded against for a contempt, and as, therefore, there was sufficient cause for his imprisonment, he cannot maintain an action therefor against the appellee." In Clark v. Rodes, 12 Bush, 16, again this court said: "A judgment is a final and conclusive determination of the rights of the parties to the litigation, and until it shall be reversed, vacated, or modified in some one of the modes provided by law the parties cannot refuse to obey it; nor can they, by subsequent litigation, indemnify themselves against its legal consequences." In Fraser's Ex'r v. Page, 82 Ky. 73, an executor who had paid out a fund under a judgment which was not superseded, and afterwards reversed, was held protected by it for acts done in obedience to it while in force. The same ruling was made in McKee v. Smith's Adm'r, 5 Ky. Law Rep. 224; Shultz v. Beatty, 6 Ky. Law Rep. 662; Showalter v. Simmons, 5 Ky. Law Rep. 423; Dudley v. Beatty, Id. 773. These cases proceed upon the principle that what was lawful when done does not become unlawful by reason of subsequent acts. The chancellor, in entering the judgment in the case referred to, did not act as the agent of either of the parties. The judgment was the act of the law. Neither party could control the court, and neither was responsible for his actions. The law constituted a tribunal to determine the rights of the parties. That determination, proceeding from a power above them, was in no sense their act. A litigant in this court does not procure the judgment entered in any such sense as to render him responsible for the consequence of the judgment, or its reversal by the United States supreme court. We have been referred to no case, and can find none, where an action for damages has been sustained upon the reversal of a judgment for acts done pursuant to it, as for tort. The fact that there are no precedents for such recovery seems at this day conclusive that it has not been recognized as admissible by either the bench or the bar. When a judgment is reversed, restitution must be made of all that has been received under it, but no further liability should in any case be imposed. The case of Hays v. Griffith, 85 Ky. 375, 3 S.W. 431, and 11 S.W. 306, is not supported by the weight of authority, and cannot, in our judgment, be maintained on principle, so far as it lays down a greater liability. The quotation made...