Makela v. State
| Decision Date | 17 December 1964 |
| Docket Number | No. 1231,1231 |
| Citation | 205 A.2d 813,124 Vt. 407 |
| Parties | Edward MAKELA and Lillian Makela v. STATE of Vermont. |
| Court | Vermont Supreme Court |
Parker & Ainsworth, Springfield, for plaintiffs.
Keith E. King, Montpelier, for the State.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
Acting under 12 V.S.A. § 2386 the defendant seeks the answer to two questions of law certified by the Windsor County Court. The questions arise from the court's denial of the defendant's motion to dismiss the plaintiffs' action. The motion to dismiss is based on two grounds. (1) The issues raised in the plaintiffs' complaint are res judicata. (2) Defendant, being the sovereign State of Vermont, is immune from suit.
The motion presented is equivalent to a demurrer. Only the facts alleged in the complaint are before us. For the purpose of the motion, those allegations must be accepted as true. Price v. Rowell, 121 Vt. 393, 395, 159 A.2d 622; Kaeser v. Town of Starksboro, 116 Vt. 389, 391, 77 A.2d 831.
The motion was denied and the cause passed to this court for review. The first question presented below was whether the facts alleged were sufficient to support the application of the doctrine of res judicata and estop the plaintiffs from maintaining the present suit. 30A Am.Jur., Judgments, § 448, p. 496.
The complaint tells us that the defendant, State of Vermont, acquired by condemnation proceedings some 2.3 acres of land from the plaintiffs' homestead property in connection with a highway construction project. In that proceeding a trial was had by jury before the Windsor County Court and the plaintiffs sought to introduce evidence bearing upon damages to the anticipated loss of their source of domestic water supply. The water supply came from a well located between the dwelling house on their premises and the proposed highway. The complaint further alleges: 'The Court excluded all evidence bearing upon the matter of loss of domestic water supply as being speculative in character and submitted the case to the jury only on other items of damages.'
The plaintiff further alleges that in the course of the necessary construction which followed, earth was removed which released the water from plaintiffs' well. This resulted in the taking of the plaintiffs' water supply for a public use, and for such taking they have not received an equivalent in money.
The complaint does not identify nor mention the judgment order in the condemnation proceedings. Despite this, the first question certified is, 'Whether the judgment order in the case of Makela v. State Highway Board, Windsor County Court Docket No. 2942, is determinative of the subject matter of the case at bar, rendering the present cause res judicata.' Without having that judgment order before us, we cannot answer the first question certified.
The general rule is that a party defending on the doctrine of res judicata, as to a particular issue in the litigation involved, bears the burden of demonstrating, by evidence if necessary, that such issue was involved and actually determined in the prior action. Spaulding, Adm'r, et al. v. Mutual Life Insurance Company of New York, 96 Vt. 67, 72, 117 A. 376; 30A Am.Jur., Judgments, § 466, pages 506-507.
A motion to dismiss the action on the basis of res judicata is appropriate only when the record in the prior proceedings appears in sufficient detail to clearly establish that the issue in the present case was settled in the judgment rendered in the first case. Ragali v. Holmes, 111 Conn. 663, 151 A. 190; Keown v. Hughes, Cir., 265 F. 572, 574; 30A Am.Jur., Judgments, § 448; 120 A.L.R. 131.
The defendant attempts to establish res judicata from the plaintiffs' complaint, without assistance from the judgment order or any records of the prior proceedings. The reference to the former litigation as set forth in the complaint does not prove what issues were, or might have been determined, by the judgment in the condemnation proceedings. Without the necessary facts appearing in the complaint, the burden remains on the defendant to demonstrate by the record of the first proceedings, or evidence, that the award was conclusive on the question of the damage to the plaintiffs' water supply. Tudor v. Kennett & Mudgett, 87 Vt. 99, 101, 88 A. 520; Chapman v. Chapman, 118 Vt. 166, 169, 102 A.2d 849; Trapeni v. Walker, 120 Vt. 510, 513, 144 A.2d 831.
Since this matter is before us entirely on the pleadings, which do not support the claim of res judicata, we must affirm the ruling below on this issue. This does not foreclose the establishing of this...
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