Jennings v. Shipp
| Decision Date | 10 November 1966 |
| Docket Number | No. 8224,8224 |
| Citation | 148 N.W.2d 330 |
| Parties | Thomas M. JENNINGS, Plaintiff and Respondent, v. George E. SHIPP, Pearl Shipp, and all other persons unknown claiming anyestate or interest in, or lien or encumbrance upon the property described inthe Complaint, Defendants and Appellants. . Filed |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The record is examined and it is found upon trial De novo on appeal from the Judgment on Remittitur that the trial court apportioned the accreted property claimed by the respective parties conformable to the directive of this court granting a new trial on the single issue of such apportionment. Jennings v. Shipp (N.D.) 115 N.W.2d 12.
2. Issues resolved by this court on the first appeal or which would have been resolved had they been presented are Res judicata, precluding the consideration of those issues on appeal from the Judgment on Remittitur.
Fleck, Smith, Mather, Strutz & Mayer, Bismarck, for defendants and appellants.
Thompson, Lundberg & Nodland, Bismarck, for plaintiff and respondent.
This action to quiet title was remanded by this court to the trial court for a new trial on the single question of the apportionment of accreted property claimed by the respective parties. Jennings v. Shipp (N.D.), 115 N.W.2d 12. We directed the trial court 'to apportion the new shore line between the parties in parts corresponding to the ownership of the old shore line, and determine the boundary line between the two tracts by drawing a straight line between a point on one shore line where the segments owned by the respective parties join to a similar point on the other shore line and modify or amend the judgment accordingly.'
Upon Remittitur the trial court, conformable to our directive, received in evidence by stipulation of the parties Exhibit 'X', an engineering survey, establishing the points of departure of the present shore line from the line of the old shore and determining the lengths of both shore lines with respect to the entire body of accreted land. No additional evidence was offered by either party. Thereupon, the trial court apportioned the accreted lands in accordance with our directive. The Defendant has perfected the instant appeal from the Judgment on Remittitur and has demanded a trial De novo.
We have carefully examined the record and the findings of fact made by the trial court in its Findings of Fact, Conclusions of Law and Order for Judgment on Remittitur and find that these findings with respect to the apportionment of the accreted lands conform to our directive.
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