Ellis v. N. Pac. R. Co.

• Decision Date: 17 November 1891
• Citation: 50 N.W. 397,80 Wis. 459
• Parties: ELLIS v. NORTHERN PAC. R. CO.
• Court: Wisconsin Supreme Court

80 Wis. 459

50 N.W. 397

ELLIS

v.NORTHERN PAC. R. CO.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Action by J. F. Ellis against the Northern Pacific Railroad Company to quiet title. Judgment for plaintiff. Defendant appeals. Affirmed.Catlin & Butler, ( James McNaught and Pinney & Sanborn, of counsel,) for appellant.

D. E. Roberts, W. F. Bailey, and B. W. Jones, for respondent.

WINSLOW, J.

This action, brought to quiet title, has been once before this court upon demurrer to the complaint. 77 Wis. 114, 45 N. W. Rep. 811. As will be seen by consulting the opinion upon that appeal, the complaint charged that the title claimed by appellant railroad company was derived by virtue of an attempted donation by Douglas county in consideration of the building and equipment of a certain line of railroad. This court then held, following Whiting v. Railroad Co., 25 Wis. 167, that the county had no authority to make such a donation, and consequently that the title thereby acquired was void. It seems that a large number of parcels of land not in controversy in this action were conveyed by the county to the railroad company at the same time, and by virtue of the same agreement of donation, and that, subsequently to the commencement of this action, the appellant commenced an action in the United States circuit court against the respondent here for the purpose of quieting its title to said other parcels of land. In the last-named action the adjudication of this court upon the demurrer on this action was not pleaded, and the cause proceeded to trial upon the bill and answer, and resulted in a judgment, March 7, 1891, adjudging that the railroad company had good title as against the respondent to the lands involved in said action. Immediately after the trial of said action in the United States circuit court the appellant made application to file an amended answer in this action, setting up as a defense the judgment so rendered as a bar by way of estoppel to this action, upon the ground that the question of the validity of the agreement and conveyance of donation had been adjudged in favor of the railroad company by a competent court in an action between the same parties. This application was refused by the circuit court, and the cause proceeded to trial April 1, 1891, upon the complaint and answerof the appellant claiming title. Upon this trial the appellant renewed its application to plead the former adjudication, and offered in evidence the record of the action in the United States court, both of which offers were rejected and overruled by the court; and, it appearing that appellant's only title was under the agreement of donation, the circuit court found and adjudged that respondent was the owner of the lands here in controversy, and that appellant's alleged title was void. The circuit court held, in its rulings upon the proposed answer and in its judgment, in effect, that the decision of this court upon the former appeal was res adjudicata in...