Morrison v. Clark

• Decision Date: 07 April 1896
• Parties: MORRISON v. CLARK.
• Court: Maine Supreme Court

35 A. 1034

89 Me. 103

MORRISON

v. CLARK.

Supreme Judicial Court of Maine.

April 7, 1896.

(Official.)

Exceptions from supreme judicial court, Knox county.

Trespass q. c. f. by Elmer E. Morrison against George E. Clark, in which there was a verdict for plaintiff. On exceptions by defendant. Sustained.

W. H. Fogler, for plaintiff.

C. E. & A. S. Littlefield and C. M. Walker, for defendant.

WHITEHOUSE, J. This is an action of trespass quare clausum.

The defendant admits that the acts complained of in the plaintiff's writ were committed by him on the easterly side of the plaintiff's lot, but claims that they were done in the, exercise of a right to pass over the lot acquired by grant to himself and wife, and by license of his wife.

The deed to the plaintiff of "lot 34," described in his writ, contains a reservation of a right of way to George E. Clark, the defendant, and Lilla B. Clark, his wife, to Rankin street.

The deed to the defendant and his wife shows title in them to an adjoining lot, and "also a right of way ten feet wide over, upon, and across lot 34, * * * on foot and with horse and carriage, to Rankin street." The defendant and his wife thus became tenants in common, not only of the lot of land conveyed to them, but of a right of way 10 feet wide across the plaintiff's lot. Stetson v. Eastman, 84 Me. 366, 24 Atl. 868; Appeal of Robinson, 88 Me. 17, 33 Atl. 652. It does not appear that, at the date of this deed to the defendant, there was any existing way in actual use across the plaintiff's lot. The deed does not specify upon which side of the plaintiff's lot the way should be located, or in what direction it should pass. The defendant and his wife were therefore entitled to have the use and enjoyment of a way as limited and described in the grant, and located upon the plaintiff's lot in such a manner that it would not be unreasonably inconvenient or Injurious to the plaintiff, and at the same time be reasonably suitable and convenient for the defendant and his wife, having reference to the purposes for which the way was granted, the situation of the lots in relation to each other and to the public street, and all the circumstances connected with the use of the lots and the way in question. Atkins v. Bordinan, 2 Mete. (Mass.) 457; Johnson v. Kinnicutt, 2 Cush. 153; Brown v. Meady, 10 Me. 391; Washb. Easem. 285.

It appears that the plaintiff had recovered judgment against this defendant for a trespass on the same lot, in a prior suit, in which the defendant justified his acts on the ground that they "were done by virtue of a right of way ten feet in width across said lot of the plaintiff, which right of way was at the time of the alleged breaking and entering owned by said defendant." In addition to the general verdict of guilty found in that case, the jury also returned a special finding that the defendant had made an agreement with the plaintiff to use a right of way on the westerly side of the Morrison lot, as claimed by the plaintiff.

The defendant's co-tenant, Lilla B. Clark, was not made a party to that suit. Her name was not mentioned in the pleadings, and this special finding was distinctly restricted to this defendant, George E. Clark. Nor did it appear that, in making that agreement to use a way on the westerly side, the defendant acted with the knowledge and consent of his co-tenant, or in any respect in her behalf.

In the case at bar it appears that "the defendant offered to prove that the acts complained of in the plaintiff's writ were done by him under license and authority from his wife, Lilla B. Clark, and that they were committed by him within a right of way, ten feet wide, on the easterly side of the lot in question, where the way would be the most convenient for the defendant and wife, and not unreasonably inconvenient or injurious to the plaintiff, instead of upon the westerly side thereof, as mentioned in the judgment aforesaid, which evidence the court excluded, upon the ground that it affords no justification for the defendant by reason of the judgment against him already shown in evidence."

Thereupon the court directed a verdict to be rendered for the plaintiff for nominal damages, assessed at one dollar.

To these rulings, excluding the evidence offered in defense, and directing a verdict for the plaintiff, the defendant excepted, and on his exceptions the case is now before the law court.

It is the opinion of the court that the judgment in the former case is not conclusive against the defendant upon the facts disclosed in this action, and that the evidence offered in defense should have been admitted.

The two leading and essential elements of the doctrine of res judicata are the identity of the parties to the suit, and the identity of the issue necessarily involved. Bigelow, Estop. 27-46. Hence, to ascertain whether a judgment is a bar in a given case, it is necessary to inquire whethtr the subject-matter in controversy was brought directly in question by the issue in the proceedings which terminated in the former judgment, and whether the former suit was between the same parties in the same right or capacity, or their privies claiming under them. Lander v. Arno, 65 Me. 26; Bigelow v. Winsor, 1 Gray, 209. And one of the most satisfactory and reliable tests of the question whether a former judgment between the same parties is a bar to the present suit is to inquire whether the same evidence will sustain both the present and former actions. The issue will be deemed the same whenever, in both actions, it is supported by substantially the same evidence. On the other hand, if different proofs are required to sustain two actions, a judgment in one of them is no bar to the other. Freem. Judgm. § 259, and cases cited.

With reference to the pending case, it is plain that the former judgment against this defendant would not be a bar if this action had been against Lilla B. Clark, the defendant's co-tenant. As already noted, she was not a party to the former proceeding, had no right to appear and take part in that trial, exercise any control over the proceedings, or take any measures to disturb the verdict rendered. The parties to the...