Ellis v. Northern Pacific Railroad

WiNslow, J. This action, brought- to quiet title, has been once before this court upon demurrer to the complaint. 77 Wis. 114. As will be seen by consulting the opinion upon that appeal, the complaint charged that the title claimed by appellant railroad company was derived by virtue of an attempted donation by Douglas county in consideration of the building and equipment of a certain line of railroad. This court then held, following Whiting v. S. & F. du L. R. Co. 25 Wis. 167, that the county had no authority to make such a donation, and consequently that the title thereby acquired [464] was void. It seems that a large number of parcels of land not in controversy in this action were conveyed by the county to the railroad company at the same time and by virtue of the same agreement of donation, and that, subsequently to the commencement of this action, the appellant commenced an action in the United States circuit court against the respondent here for the purpose of quieting its title to said other parcels of land. In the last-named action the adjudication of this court upon the demurrer on this action was not pleaded, and the cause proceeded to trial upon bill and answer, and resulted in a judgment, March Y, 1891, adjudging that the railroad company had good title as against the respondent to the lands involved in said action. Immediately after the trial of said action in the United States circuit court the appellant made application to file an amended answer in this action, setting up as a defense the judgment so rendered as a bar by way of estoppel to this action, upon the ground that the question of the validity of the agreement and conveyance of donation had been adjudged in favor of the railroad company by a competent court in an action between the same parties. This application was refused by the circuit court, and the cause proceeded to trial April 1, 1891, upon the complaint and answer of the appellant claiming title. Upon this trial the appellant renewed its application to plead the former adjudication, and offered in evidence the record of the. action in the United States court, both of which offers were rejected and overruled by the court; and, it appearing that appellant’s only title was under the agreement of donation, the circuit court found and adjudged that respondent was the owner of the lands here in controversy, and that appellant’s alleged title was void. The circuit court held, in its rulings upon the proposed answer and in its judgment, in effect, that the decision of [465] this court upon the former appeal was res adjudicata- in this action. If this view was correct, then the judgment below must be sustained, because upon that appeal the question was fairly raised whether the county could lawfully donate the land in question to the railroad company, and it was decided by this court that it could not. It is vigorously contended by appellant’s counsel that the rule of law is that a decision can only become res adjudicata when it is contained in a final judgment in the cause, and that, the decision upon the demurrer being confessedly not a final judgment, but granting leave to plead over, it cannot be considered as res adjudicata', and authorities are cited which undoubtedly tend to support that contention. We shall not attempt to review the authorities nor reconcile conflicting decisions. It is sufficient to say that by repeated decisions it has become the settled law in this state that the decision of this court upon a demurrer is conclusive upon the questions legitimately involved, and is res adjudicata in that case. Noonan v. Orton, 27 Wis. 300; Lathrop v. Knapp, 37 Wis. 307; Fire Dep't v. Tuttle, 50 Wis. 552. It is true that this court has decided that an order of the circuit court upon a demurrer is not res adjudicata. This doctrine, however, is based upon the ground that such an order is reviewable by statute upon appeal from the judgment. Hackett v. Carter, 38 Wis. 394. But the decision of this court upon a demurrer upon the questions properly involved cannot be reviewed by the circuit court, nor, indeed, by this court, save upon motion for rehearing. Such questions are finally decided and settled for that case, and, as between the parties to that litigation, for all time. This- view of the law decides this case. The complaint charged the appellant’s alleged title to- be just what the proofs now before us show it to be, and this court, prior to the judgment in the United States court, finally decided that such alleged title was worthless. The question was no [466] longer an open one, and the circuit court was right in ruling out the record of the action in the United States court, and rendering judgment for the plaintiff. The conflict between the opinions of this court and the United States courts upon the question of. donations by municipal corporations to railway companies is to be regretted, but we cannot change what we believe to be a salutary and wholesome rule of law, which has become settled by frequent decisions of this court, on that account. These views render unnecessary any discussion of other questions argued by counsel. By the Oourt.— The judgment of the circuit court is affirmed.