Marshall v. Underwood

• Decision Date: 31 December 1923
• Citation: 221 P. 1105,38 Idaho 464
• Parties: ALEXANDER MARSHALL, Appellant, v. WILLIAM G. UNDERWOOD, Respondent
• Court: Idaho Supreme Court

221 P. 1105

38 Idaho 464

ALEXANDER MARSHALL, Appellant, v. WILLIAM G. UNDERWOOD, Respondent

Supreme Court of Idaho

December 31, 1923

RES JUDICATA - INCLUDES ALL FACTS LITIGATED OR UNDISPUTED - MATTER INCLUDED IN FORMER JUDGMENT-IDENTITY OF ISSUES-PROOF.

1. Estoppel by judgment includes all facts actually litigated whether or not technically in issue on the face of the pleadings.

2. The matter concluded by a former judgment is the ultimate fact or facts on which such judgment was based, the true test being identity of issues.

3. It must appear from the record itself, or by resort to extrinsic evidence, that the precise issue in the second action was involved and decided in the first.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robt. M. Terrell, Judge.

Action by Alexander Marshall against Wm. G. Underwood. From a judgment for defendant, plaintiff appeals. Affirmed.

Judgment of the district court affirmed. Costs awarded to respondent.

Peterson & Coffin, for Appellant, cite no authorities.

Budge &amp Merrill, for Respondent.

Evidence in a former suit is properly resorted to to show what was litigated in that action. (23 Cyc. 1292; Newton Mfg. Co v. Wilgus, 90 F. 483; Graves v. Hebbron, 125 Cal. 400, 58 P. 12; Roseberry v. Clark, 23 Cal.App. 549, 138 P. 993.)

A former judgment is not only conclusive as to matters which were actually tried and determined but also as to other matters which might have been litigated and determined. (Ivancovich v. Weilenman, 144 Cal. 757, 78 P. 268; Wheeler v. Eldred, 137 Cal. 37, 69 P. 619.)

The estoppel of the judgment covers all points actually litigated whether or not they were technically in issue on the face of the pleadings. (23 Cyc. 1304; Weidner v. Lund, 105 Ill.App. 454; Redden v. Metzger, 46 Kan. 285, 26 Am. St. 97, 26 P. 689.)

ADAIR, District Judge. McCarthy, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

ADAIR, District Judge.

--The plaintiff instituted this action to quiet title to certain springs which he designated in his complaint as the "Lower Hot Springs," situate on lands owned by him near Downey, Idaho, in Section 12, Twp. 12 S. of Range 37 E., B. M., and claimed said waters, as against the respondent, for irrigation and commercial bathing purposes. The defendant, besides filing a cross-complaint under which he claimed a prior right to said waters, by his answer alleged that the entire matter is res judicata, having been completely and finally adjudicated between the same parties in a former suit involving the same water rights and property. On the issue of res judicata alone the defendant submitted testimony, and rested, and thereupon the trial court found in his favor.

The doctrine of res judicata, or estoppel by judgment, as it is sometimes termed, is a rule of law founded on the soundest consideration of public policy. If an action is brought and the merits of the question are discussed between the parties in open court and considered by the trial court, and a final judgment is obtained by either, the parties are then concluded and cannot again canvass the same question in another suit. The great preponderance of authority sustains the rule that the estoppel of a judgment covers all points which were actually litigated and which actually determined the judgment or finding, whether or not they were technically in issue on the face of the pleadings.

Another statement of the same rule found in some of the cases is that the matter in issue or point in controversy which is concluded by a former judgment is that ultimate fact or state of facts on which the judgment was based. (Oglesby v. Attrill, 20 F. 570; Smith v. Ontario, 4 F. 386, 18 Blatchf. 454.)

The true test is identity of issues. If a particular point or question is in issue in the second action, and the judgment will depend upon its determination, a former judgment between the same parties will be final and conclusive in the second action if that same point or question was in issue and adjudicated in the first suit, otherwise not. And in order that this rule should apply, it must clearly and positively appear, either from the record itself or by the aid of competent extrinsic evidence, that the precise point or question in issue in the second suit was involved and decided in the first. (Jensen v. Berry & Ball Co., 37 Idaho 394, 216 P. 1033; 23 Cyc. 1300.)

It appears from the evidence that these lands above described slope downward in a northerly direction; that there are a considerable number of springs situate thereon, and lying in close proximity; that many years ago the predecessors of Underwood cleaned out said springs, constructed a dam on the lower side and an irrigation ditch leading from the pool or reservoir thus formed, and used the waters arising there, for irrigation purposes, upon lands lying to the northwest; that later the appellant, Marshall, constructed a bathing pool below the dam and north therefrom, down the hill about ten feet, by excavating and cleaning out the marsh which had previously existed north of said dam; that said bathing pool is approximately ninety feet long and twenty-four feet wide that said bathing pool and said original reservoir are separated by an artificial embankment or dike; that Marshall also erected some bath-houses or dressing-rooms, and a smaller pool; that the bath-houses stand between the original reservoir and the bathing pool and are built upon the dike or embankment, into which piles and lumber have been driven by the appellant. It also appears that there...