Wichita & Western Railroad v. Beebe

Opinion by Holt, C.: This action was brought by defendants in error in the Sedgwick district court, to recover damages to lands they had rented, by an overflow of water. In their petition they averred that in the spring of 1885 they were cultivating a tract of forty acres off the south side of the southeast quarter of section 26, township 27 south, of range 1 west, Sedgwick county, and had fully prepared to plant corn upon it; that the defendant railroad company had then recently diverted the water of a stream from its natural water-course, in the construction of its road-bed, and dis [469] charged it through an artificial channel; that on or about the 15th of May of said year, on account of heavy rains, a great quantity of water was discharged through this newly-made channel upon the land in question, and the water, overflowing and remaining upon the same for about six weeks, prevented the plaintiffs from planting, cultivating and growing corn and other crops thereon, and by reason thereof they have been damaged in the sum of $500. It appears further, that on the 17th of August following, said plaintiffs commenced an action against this defendant to recover damages caused by the water flowing through the same channel at the same time, aud overflowing sixty acres of corn already planted; this action was tried, and judgment rendered for plaintiffs for $75. The defense urged, and properly raised and supported by the evidence, was, that the judgment in the former action was a bar to this one. Defendant brings the case here for review. It appears that the plaintiffs had rented 320 acres, half of said section 26, and that the forty acres unplanted, for which damages are claimed in this action, were a part of this same tract with the sixty acres which had been planted, and for which damages had been claimed and recovered heretofore. The defendant claims that the judgment obtained in the former action precluded the plaintiffs from setting up any other and different damages than those claimed in that action, occasioned at the same time. We believe the law to be well settled, that no party is permitted to split his causes of action into different suits; if he does, and obtains judgment upon any part, such judgment is a complete bar to a recovery upon any remaining portion thereof. The splitting-up of claims is not permitted in the case of contracts, and the same rule which prevents a party from doing so applies with equal force actions to arising in tort, and the same act cannot be the foundation for another suit, although the items of damages may be different. In this action the act complained of was the discharge of the water upon the 15th day of May, and this claim for dam [470] ages might have been litigated in the first action, and should have been set forth in the petition therein; if plaintiffs neglected to do so, they should be barred from further relief. It was the same storm, and the water was discharged through the same culvert upon land which was a part of the same tract that plaintiffs had rented. “The principle is settled beyond dispute, that a judgment concludes the right of parties in respect to the cause of action, stated in the pleadings in which it is rendered, whether the suit embraces the whole or only a part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim, ensuing either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and if several suits be brought for the different parts of the same claim, . . . judgment upon the merits in either will be available as a bar in the other suits. ... In case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be.” (Herman, Est., § 77.) If the rule were otherwise, the tract might have been divided up into five, ten or fifteen-acre tracts, and there might have been a series of vexatious law suits. “ It is for the public good that there be an end to litigation.” This view is well supported by authority: Whitaker v. Hawley, 30 Kas. 317; Comm’rs of Barton Co. v. Plumb, 20 id. 147; Comm’rs of Saline Co. v. Bondi, 23 id. 119; Madden v. Smith, 28 id. 798; Brannenburg v. I. P. & G. Rld. Co., 13 Ind. 103; Folsom v. Clemence, 119 Mass. 473; Hemstead v. Res Moines, 63 Iowa, 36; Baird v. United States, 96 U. S. 430; Herriter v. Porter, 23 Cal. 385; Morey v. King, 51 Vt. 383; Milroy v. Iron Co., 43 Mich. 231; Memmer v. Carey, 30 Minn. 458; Railroad, Co. v. Henlein, 56 Ala. 368; Herman, Estoppel and Res Adjudicata, pp. 247, 248, 251. We recommend that the judgment be reversed, and the cause remanded. By the Court: It is so ordered. All the Justices concurring.