Douglas Land Co. v. T. W. Thayer Co.

By the Court: The appellee brought an action of trespass quare clausum fregit against the appellant, and pending that action, the defendant continuing its alleged trespasses by cutting timber from the land in dispute, the plaintiff sued out an injunction. In the action of trespass the defendant pleaded the general issue; but it affirmatively appears that the titles of both parties were distinctly put in issue, and that the only litigated question in the case was the title to the land upon which the alleged trespass was committed. There was a verdict and judgment for the plaintiff for the value of the timber cut before action at law was brought. Nothing was done in the chancery cause pending the trial of the action at law, except the filing of the answer of the defendant. The pleadings in that cause again put in issue the respective titles of the parties. After verdict and judgment in the action at law, an amended and supplemental bill was filed in the chancery cause, in which the record in the action at law, including the judgment, was exhibited, and relied on by the plaintiff as matter of estoppel. The chancery court held that the title to the land having been put in issue and decided against the defendant, it was estopped by the judgment in the action of trespass from further asserting title to the land in dispute, and a commissioner in chancery was directed to inquire and report the value of the timber cut from the land pending the action of trespass. From that decree this appeal was taken. The court is of opinion that the proceeding in chancery, invoked [241] originally for injunctive relief to prevent the further cutting of timber pending the action of trespass, was a substituted remedy for a second action of trespass for the recovery of the value of the timber thus cut. The court is further of opinion that it clearly appearing from the record in the action at law that the only question litigated in that action was the title to the land upon which the timber was cut, and that at the time of the second cutting the rights of the parties were identical with their rights at the time of the first cutting—no new title having been acquired by the defendant between the first and second cuttings of timber—the judgment in the action of trespass was conclusive of the question of the title to the land, so far as the plaintiff’s right was concerned to recover the value of or damages for the timber cut pending the action at law and claimed in the chancery cause! And this is true although no plea of liberum tenementum, and only the plea of not guilty, was filed in the cause. For, as said by Mr. Minor, “The general issue of ‘not guilty' in trespass amounts plainly, in its terms, to a denial of the trespasses alleged, and no more. But it will be observed that such denial, in case of trespass on land or on chattels, may logically involve as well the title, or at least the right of the plaintiff to the possession of the property, as the fact of defendant’s committing the acts complained of.” 4 Minor’s Inst. (3d Ed.), p. 776. Andrews’ Stephens’ PI. 281-2; Stephens’ PI. (Tyler’s Ed.), 174; 1 Chit. PI. (5th Am. Ed.) 437; 2 Tucker’s Com. 193. In such an action, under the general issue, evidence of the title of the parties was plainly admissible. Callison v. Heddrick, 15 Gratt. (56 Va.) 244, 248, and cases cited. In accordance with this principle, Judge Freeman, in 1 Freeman on Judgments, sec. 311, pp. 561-62, says: “The title cannot in some States be regarded as in issue except upon a special plea of soil or freehold, or some other equivalent pleading, but when such plea is interposed, or when, without special plea, the rules of practice in the State permit the title to be received in evidence, and to be considered by the court or jury,” (as is the case in this State) “and it is in fact received, considered, and made the basis of a verdict and judgment, then that is as conclusively [242] settled as if it had been drawn in question and decided in some other action.” (See also authorities cited.) And in section 310 the same author says: “It seems to be generally, if not universally, conceded that where one has maintained trespass quare clausum fregit against another, and afterward sues for a subsequent trespass, the former recovery is conclusive ■with reference to the title set up to the premises at the time of such recovery, and the defendant can offer in evidence no title not acquired by him since the previous suit.” Mr. Black, in his work on Judgments, section 657, says: “The trial of an action of trespass may turn upon the question of title, and if either of the parties puts his title in issue, and it is tried and passed upon, the verdict and judgment in that suit will be conclusive evidence in favor of (or against) such title, at least in a subsequent action of trespass.” Whether or not, if this were an action of ejectment for the recovery of the land upon which the timber was cut, the judgment in the action of trespass would be conclusive of the title between the parties, it is unnecessary to consider in this case, as we view it, and we, therefore, express no opinion upon that question. But to hold, upon the facts disclosed by this record, that the appellee, before it can recover the value of or damages for the timber cut pending the action of trespass in the chancery cause, must go through another trial and litigate again the title to the land, because the plea in the action at law was “not guilty,” instead of “liberum tenementumwould be clearly sacrificing, as it seems to us, substance to form, since everything that could be proved under the latter plea could be proved, and was in fact proved, under the former, and the question of title as fully and fairly investigated, and the minds of the court and jury brought to bear upon it as completely, as if the plea of liberum tenementum had been filed. It follows from what has been said that the court is of opinion that the decree appealed from is without error, in so far as it holds that the judgment in the action of trespass is conclusive of the title to the lands, so far as the recovery of the value of or damages for the timber cut pending that action is concerned; but that the court erred in going further and holding that the judgment [243] at law was conclusive of the title to the land for purposes other than those involved in this (the injunction) case. To that extent the decree appealed from must be reversed, and in other respects affirmed, with costs to the appellant, as the party substantially prevailing, since its appeal was necessary to obtain relief from that error in the decree.