Webber v. Axtell

Brown, J. This action was before us on a former appeal, and is reported in 94 Minn. 375, 102 N. W. 915, 6 L. R. A. (N. S.) 194, where the facts are fully stated. After the cause was remanded, defendant applied for and obtained a second trial. The former trial was had before the court without a jury, and came here for review upon the findings of fact and conclusions of law. The second trial was before a jury, and at the conclusion of the trial a verdict was directed for plaintiff. Judgment was subsequently entered, and defendant appealed. The questions raised on this appeal, with the exception of the one presently to be mentioned, are identical with those presented on the former appeal, where they were fully considered and disposed of adversely to defendant’s contention. The only difference between the present and the former record is that in the one now before us there appears no controversy in the evidence that from 1865 down to the commencement of the act ion plaintiff’s land has at all times at the ordinary stage of water in Fox Lake been connected by a bar of dry land with the island in question. On the former trial the evidence on this subject was conflicting, whereas on the second trial defendant offered no evidence upon the subject, contenting himself with the objection that the evidence tending to show the fact was incompetent, for the reason that the plat of the government survey and the patent subsequently issued to defendant’s predecessor in title were conclusive that the island did not form a part of the mainland, and did not, [54] therefore, pass to plaintiff upon the issuance of his patent. That same objection was raised on the former appeal, and was not sustained. There is additional evidence in the present record on the subject of estoppel, but to the extent only of further corroborating defendant’s contention in that respect. Taken as a whole, the record presents substantially the same questions ; and the former decision becomes the law of the case. We adhere to it, and find it is unnecessary to enter into further discussion of the subject. Upon the undisputed facts now before the court, there can be no serious question of the correctness of the former conclusion. The only new question presented on this appeal is whether the trial court should have submitted the case to the jury. A verdict was directed for plaintiff. A careful consideration of the evidence leads to the conclusion that the trial court did not err in so directing the jury. There is no conflict in the evidence, either upon the question of the existence of the bar connecting the island with plaintiff’s land, or in respect to the alleged estoppel, and the trial court properly treated it as presenting questions of law only. Had the cause.been submitted to the jury, and a verdict been returned for defendant, the trial court would have been required, under the former decision, to set it aside or direct a judgment notwithstanding the same. Such being the case, a verdict was properly directed. Dunnell, Pr. 855. Judgment affirmed.