Turner v. Bragg

• Decision Date: 06 October 1953
• Docket Number: No. 1105,1105
• Citation: 118 Vt. 43,100 A.2d 431
• Parties: TURNER et al. v. BRAGG et al.
• Court: Vermont Supreme Court

Page 431

100 A.2d 431

118 Vt. 43

TURNER et al. v. BRAGG et al.

No. 1105.

Supreme Court of Vermont.

Oct. 6, 1953.

Irwin S. Kendall, Brattleboro, Herbert S. Avery, Boston, Mass., for plaintiffs.

Barber & Barber, Brattleboro, for defendants.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

JEFFORDS, Justice.

This is the fifth time that some phase of this litigation between these parties has been brought before us. The present case is an action at law for trespass for the alleged cutting and removing of timber by the defendants on land claimed to be owned by the plaintiffs. The cause came on for hearing on the defendants' answer which set forth a plea in bar of Res Adjudicata and one of estoppel by findings. Findings of fact were made and judgment was entered for the defendants. The case is here on exceptions of the plaintiffs.

Findings by the Windham County Court, Blackmer, J, presiding, on a hearing on a plea of res adjudicata were adopted as a part of the findings made after the hearing above referred to. The important findings in substance, are as follows: The plaintiffs or their privies in title and the defendants are identical with the parties in chancery case No. 833. The plaintiffs seek to recover for alleged trespass to the White and Wilbur lot. This lot is described in the plaintiffs' declaration in the same manner as it is in their bill of complaint in the chancery case. No claim for trespass is made relating to any other lots claimed to be owned by the plaintiffs and involved in the cases of Turner v. Bragg, 117 Vt. 9, 83 A.2d 511 and 115 Vt. 196, 55 A.2d 268. The trespasses claimed in the present case at least from the date of the bill of complaint in the chancery case to that of the writ in this case are different from those considered in the chancery case. Various findings of the chancellor in the chancery case, hereinafter referred to, are incorporated in the findings. It is found 'that the plaintiffs assert no claim for trespass on the part of the defendants northerly of the line E. F. as described by the chancellor in Findings in Chancery case No. 833, the northerly boundary of land of the defendants during the period June 5, 1941 to January 9, 1946, that all cuttings by the defendants which have occurred since the Chancery proceedings, No. 833, have occurred south of the line E. F. as described above.'

The only available exception is to the judgment which raises only the question of whether the judgment is supported by the facts found. Little v. Loud, 112 Vt. 299, 304, 23 A.2d 628.

The appeal in the chancery case No. 833 was decided by us and is reported in 113 Vt. 393, 35 A.2d 356. The bill of complaint alleged that the defendants have trespassed and cut timber upon lands of the plaintiffs known as the 45 acre lot of the White and Wilbur lots. Findings of fact were made by the chancellor and a decree was entered for the defendants which was affirmed by this Court. Reference should be had to the opinion in that case for a complete factual background of the two cases.

The findings in the present case show that the parties, the subject-matter, and the causes of action are identical, or substantially so, in the chancery case as in the case at hand. This being so, the decree in the chancery case is an absolute bar to a recovery in the present action for the trespasses claimed from May 1, 1941 to June 4, 1941, the date of the bill of complaint in the chancery case. Fletcher v. Perry, 104 Vt. 229, 231, 158 A. 679.

Since it is found that the claimed trespasses in the present case from the date of the bill in the chancery case to that of the writ in this case are different from those considered in the former case the causes of action in the two cases are not the same and consequently res adjudicata by judgment alone does not apply as to these claimed trespasses. It remains to be seen whether recovery for such is barred by estoppel by findings in the chancery case.

The test to be applied was stated in Turner v. Bragg, 117 Vt. 9, at page 11, 83 A.2d 511, at page 512, as follows: "When some controlling fact or question material to the determination of both suits has been adjudicated by a court of competent jurisdiction and is again at issue between the same parties, or some of them, the former adjudication will, if properly presented, be conclusive of the same fact or question in the second suit, although the two suits are not for the same cause of action.' * * * The point decided must have been essential to the former judgment, one which must necessarily have been decided in order to support the judgment.' See cases cited.

The important findings in the chancery case which are incorporated in the findings in the present case are (1) That the plaintiffs do not own any property southerly of a line marked E. F. on defendants' exhibit G and that the defendants' property does not extend northerly of this line at that location and (2) that the defendants have not and are not trespassing by cutting timber or otherwise upon land owned by the plaintiffs or claimed to be owned by them as set forth in their bill of complaint known as the White and Wilbur property.

The final question to be decided in both cases was whether the defendants were trespassing on lands of the plaintiffs. The controlling fact in determining this issue was and would be that of title to the lands in question. In the chancery case it was found that the plaintiffs did not own any property southerly of the line E. F. In the present case it is found that the plaintiffs assert no claim for trespass northerly of this line from the date of the bill of complaint to that of the writ in this case and that all cuttings by the defendants which have occurred since the chancery proceedings have been...