Town of Fulton v. Pomeroy

• Decision Date: 05 November 1901
• Citation: 111 Wis. 663,87 N.W. 831
• Parties: TOWN OF FULTON v. POMEROY.
• Court: Wisconsin Supreme Court

111 Wis. 663

87 N.W. 831

TOWN OF FULTON

v.POMEROY.

Supreme Court of Wisconsin.

Nov. 5, 1901.

Appeal from circuit court, Rock county; B. F. Dunwiddie, Judge.

Action by the town of Fulton against H. S. Pomeroy. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Marshall and Dodge, JJ., dissenting.

This is a proceeding brought by the supervisors of the town of Fulton to secure the removal of an alleged encroachment upon a highway in said town, under the provisions of sections 1330-1337, Rev. St. 1898. The notice required by section 1330 was duly served upon the defendant, who thereupon served on the supervisors a notice denying the encroachment, and application was then made to a justice of the peace for the appointment of a jury to try the question of encroachment, which jury, after trial of the question, found that an encroachment had been made. Judgment upon such finding was entered by the justice, as provided by section 1335, Rev. St. 1898, and the defendant appealed to the circuit court, where he was permitted to file an amended answer, in which he set forth as an additional defense the record and judgment in the case of State v. Pomeroy, which was appealed to this court, and which appears in 73 Wis. 664, 41 N. W. 726, and claimed that the judgment in that case was res adjudicata of the issues in the present case. Upon the trial it was stipulated by the parties that the trial, so far as the appeal of the former adjudication was concerned, should be by the court without a jury, and that, in case that the court should hold that said appeal was good, and the facts constituted a bar to this action, the defendant might have judgment against the plaintiff upon the merits. It was conceded upon the trial that the action of State v. Pomeroy, 73 Wis. 664, 41 N. W. 726, was commenced at the request of the then supervisors of the town of Fulton, acting as the town board, and was prosecuted by such board, and that the attorney's fees for the plaintiff's attorney in that action were paid by the town of Fulton. The record of that action in the circuit court of Rock county, as well as the opinion and decision of this court, were offered in evidence and received. Some oral evidence was given as to the issues that were in fact tried in that action, and at the close of the evidence the court found that the premises described in the order of removal in this action as being part of the highway are the same premises described in the previous action above named, and that the fence described in that action is the same fence alleged to be an encroachment in the present action, and that the highway claimed to have been described in that action is the same highway claimed to have been encroached upon in this action, and that the previous action was prosecuted by the said town board, and the fees of the plaintiff's attorneys paid by them. As conclusions of law the court found that the plaintiff in this action is bound by the judgment in the previous action, and that said judgment is a bar to the maintenance of this action, because the same is res adjudicata of the issues in the present action. Upon these findings judgment was entered reversing the judgment in the justice court and dismissing the action, with costs, and from that judgment the plaintiff appeals.Feathers, Jeffries & Mouat, for appellant.

Sutherland & Nolan and Charles E. Pierce, for respondent.

WINSLOW, J. (after stating the facts).

This is a statutory proceeding by the town of Fulton to compel the removal of defendant's fence on the ground that it is an encroachment upon a highway, and it is claimed on the part of the defendant that in a previous action brought in the name of the state to recover a penalty for obstructing the highway, it was finally determined that there was no highway where the fence stands, and that this determination is res adjudicata in the present case. The question of the effect of the previous judgment after its affirmance by this court (State v. Pomeroy, 73 Wis. 664, 41 N. W. 726) is really the only serious question in the case. Although that action was brought in the name of the state, and the present action is prosecuted by the town, there can be no doubt that the general public is the real party plaintiff in both cases, and hence that the judgment in the former action is conclusive upon the plaintiff in the present case upon any question arising in the present case which was litigated and finally decided in that action. The questions in both cases being public questions, the town was in fact a party to the former action. It procured the bringing of that action, employed the attorneys, and paid the expenses; and it is unquestionably bound by the result to the same extent as though it had been named as a party. 2 Van Fleet, Former Adj. p. 1151. It seems equally clear that the opinion of this court upon the appeal in the former case is a part of the record, and is to be considered and examined in determining the question as to what was finally decided in that case. The statute provides in express terms (Rev. St. 1898, § 2410) that the “opinion or decision of the supreme court * * * shall constitute and be held a part of the record in the action.” The reason of the rule is manifest. The opinion of this court is not a mere statement of reasons, like an opinion of the trial court, but constitutes the findings of fact and conclusions of law upon which this court bases its judgment. It is a decision as well as an opinion, and is the only paper from which it can be ascertained what are the conclusions of this court either upon the facts or upon the law.

These preliminary...