Chicago, Burlington & Quincy Railroad Company v. Cass County

• Decision Date: 20 October 1904
• Docket Number: 13,292
• Citation: 101 N.W. 11,72 Neb. 489
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., APPELLEES, v. CASS COUNTY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

101 N.W. 11

72 Neb. 489

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., APPELLEES, v. CASS COUNTY ET AL., APPELLANTS

No. 13,292

Supreme Court of Nebraska

October 20, 1904

APPEAL from the district court for Cass county: PAUL JESSEN, JUDGE. Affirmed.

AFFIRMED.

Jesse L. Root, for appellants.

J. W Deweese, Byron Clark and F. E. Bishop, contra.

C. C Wright and W. H. Herdman, amici curiae.

OPINION

SEDGWICK, J.

The principal questions involved in this case are identical with those stated and discussed in Chicago, B. & Q. R. Co. v. Richardson County, ante, p. 482, which follows and approves Chicago, B. & Q. R. Co. v. Richardson County, 61 Neb. 519, 85 N.W. 532, and also in State v. Back, ante, p. 402.

There is another question presented in this case which has been thoroughly discussed in the briefs and in the oral argument upon the rehearing. The bridge in question in this case was assessed by the local officers for taxation for the years 1881 to 1885, inclusive, and in the year 1886 the railroad company, having paid those taxes under protest, brought an action in the district court for Cass county to recover the amounts so paid. Afterwards that action was brought to this court, and was determined against the company. Cass County v. Chicago, B. & Q. R. Co., 25 Neb. 348, 41 N.W. 246. It is contended that by the judgment in that case the questions involved in the case at bar are res judicata. The local authorities assessed this bridge for taxation for the year 1901, and the company brought this action to restrain the collection of the taxes. The district court enjoined the collection of the taxes as prayed, and the case was brought to this court by appeal. The subject matter of the former litigation was the taxes assessed against this property for the respective years therein named, and the subject matter here is the taxes assessed for the year 1901, so that it cannot be said that the two cases involved the same subject matter, and, strictly speaking, the judgment in the one case could not have been res judicata of the subject matter involved in the other. State v. Savage, 64 Neb. 684, 703, 90 N.W. 898; State v. Broatch, 68 Neb. 687, 94 N.W. 1016.

The real question in dispute between the parties is whether in the former action the rights of the parties and questions of fact, then in dispute between them, have, by that case, been adjudicated so as to estop the parties to that litigation from now questioning the facts so determined. It was said by this court in State v. Broatch, 68 Neb. 687, 94 N.W. 1016:

"A judgment, rendered by a court of competent jurisdiction, determining the rights of the litigants on a cause of action or defense, is an effectual bar against future litigation over the same right determined by such judgment, and is for all time, unless reversed or modified, binding on the parties and their privies in estate or in law. A 'right, question or fact' distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies, and this even though the second suit is for a different cause of action."

Of course, the propositions of law that were advanced by the court as requiring the disposition made of the issues in the former case, if afterwards found to be erroneous, would not be binding upon the court in subsequent litigation between the parties involving a different cause of action. State v. Savage, supra; State v. Broatch, supra.

Many authorities are cited and ably discussed in the respective briefs of counsel. Our labors have been much lightened by those discussions and by the oral arguments at the bar. There is substantially no difference of opinion upon the controlling legal principle involved. Specific facts that are so involved in a litigation that the result of the litigation depends upon the determination of these facts are necessarily settled by that litigation, and the authorities substantially agree that such facts so determined cannot afterwards be controverted by the parties to the former litigation. To determine, then, the question before us, it is necessary to ascertain what facts controlling the rights of the parties in the former case were adjudicated, and how far those facts so ascertained are involved in and necessarily control the decision in this case. The petition in that action alleged that the plaintiff "owns the line of railroad extending from Pacific Junction, in Mills county, Iowa, westwardly across the Missouri river, and through the counties of Cass, Lancaster and other counties farther west in the state of Nebraska; and that it has owned and operated said line of railroad since the 1st day of January, 1880; and that said line of road and property thus owned by the plaintiff is situated in more than one county in the state of Nebraska." The answer alleged "that the said railroad bridge, which spans the Missouri river at Plattsmouth, Nebraska, is a separate and independent structure from the 'roadbed and right of way' of said railroad company," and further alleged "that said railroad bridge has never been operated and controlled by said plaintiff, either in the states of Iowa or Nebraska, as a continuous part of its roadbed and main track; on the contrary, defendant avers and charges that said bridge has been maintained and operated by said corporation plaintiffs always since its construction as a separate and independent structure from its main line."

In the brief for the county in the case at bar it is said: "The real controversy between the railway company and the county of Cass is the right of the local officers to assess and tax the west half of the bridge across the Missouri river near Plattsmouth, in said county," and again, "We now ask this court to say whether in the district court in said cause the issue of fact as well as of law was not raised, litigated and determined."

It is insisted that after the former case had been brought to this court, and the judgment of the lower court therein reversed and the cause remanded, the case was dismissed and no final judgment entered in the lower court and that therefore the issues therein presented were not finally adjudicated. If our attention had been called to a showing in this record that the plaintiffs had been allowed by the court to dismiss their former proceedings without prejudice to a future action, we would feel it incumbent upon us to discuss the effect of such dismissal. As it is, we think the question before us is fairly stated by counsel for the county in the foregoing quotation from the brief. It was said in the opinion of the court in the former case that it was alleged in the petition that the taxes "were unlawfully levied and collected, for the reason that the bridge was, at all times, a part of the line of railroad of defendant in error, and legally taxable only as the other portions of the road were taxable; and that the same was for each year reported to the state board of equalization as a part of the railroad, and taxed accordingly, all of which taxes had been paid," and that the answer consisted mainly of...