Fritsche v. Fritsche

LyoN, J. This is an action of ejectment brought to recover a private right of way claimed by tbe plaintiff on certain lands of tbe defendant. Tbe right thus claimed was established by tbe judgment of this court affirming tbe judgment of tbe circuit court in an action at law brought by tbe plaintiff against defendant for obstructing such right of way. Tbe opinion in that action is filed herewith. See Fritsche v. Fritsche, ante, p. 266. After tbe judgment of tbe circuit court for tbe plaintiff was entered in that action, affirming tbe existence of such [271] right of way, the defendant again obstructed the same at the same point, and thereupon this action of ejectment was brought to recover such right or easement. The circuit court held that the judgment in the former action is res adjudicates of plaintiff’s right, and thereupon gave judgment herein in his favor, from which the defendant appeals. The ruling, was doubtless correct, and the judgment would also be correct if ejectment- could be maintained to recover a mere easement. But it is well settled, both on principle and by authority, that the action cannot be maintained for such purpose. It was so held in Racine v. Crotsenberg, 61 Wis. 481. The subject is there quite fully considered, and it is unnecessary to repeat the discussion here. The remedy of the plaintiff is by action at law for damages, or, if ■the wrong be persisted in, by a suit in equity for an injunction. By the Court.— The judgment is reversed, and the cause will be remanded with directions to the circuit court to dismiss the complaint.