Kolpack v. Kolpack

KeRwot, J. 1. The question whether there was a public-highway was litigated and evidence produced upon that issue. The court ruled out the record of former adjudication to the effect that no highway existed, and found upon other evidence that there was no public highway. We do not deem it necessary to review the evidence upon the question of whether a public highway was laid out or acquired by user in the manner provided by law, since we are convinced that the record offered in evidence established the fact that no highway existed at the place in question at and prior to the time of the commencement of the instant suit, and that the judgment in such action is binding upon tlie defendant here. The evidence shows, and the court found, that in October, 1902,. and before the commencement of the present action, an action was commenced against the plaintiff under sec. 1326, Stats. 1898, to recover the statutory penalty-for obstructing the alleged highway in question, and that plaintiff set up the defense that the locus in quo was not a highway, but his private property. The action was commenced in justice’s court and a plea of title to land put in and the case duly transferred to the circuit court for Shawano county,'where it was tried, the only question litigated being whether a highway existed at the place in question. The court held that it did not, and judgment was entered accordingly, Avhich judgment was in force at the time of the trial of this action. It is also estab174 lisbed that tbe defendant procured tbe bringing of sncb action and prosecuted tbe same to- judgment, and employed and paid an attorney for sucb purpose, and was interested in tbe litigation in an effort to determine that a public highway existed. It appears from tbe record that tbe court below concluded that tbe judgment in tbe former action was not-binding upon bim, since be was not a party to tb© record, tbe action being prosecuted in tbe name of tbe state against tbe plaintiff. Tbe court, however, found that tbe private track in controversy was not a public highway, obviously upon tbe theory that tbe evidence did not establish that tbe highway bad been legally laid out or acquired by user. Upon tbe facts established, tbe former judgment for recovery of tbe penalty for obstructing this highway determined in favor of tbe plaintiff was binding upon tbe defendant. He bad an interest in sucb controversy in establishing that a highway existed, and took part in tbe suit, employed and paid an attorney, and managed tbe litigation because of sucb interest. While tbe district attorney acted with tbe attorney for defendant, it appears that tbe defendant’s attorney was in no way hampered in tbe conduct and management of tbe suit. It is established that the road in question bad never been used by any one except tbe defendant and bis family and those going to see them, and that defendant was the real party in interest in establishing whether or not a public highway existed, and carried on tbe litigation for that purpose. He commenced tbe action in justice’s court without tbe intervention of tbe district attorney, who was afterwards called in because counsel for plaintiff objected to tbe prosecution of tbe action without bis presence, and required tbe notice of trial to be signed by bim. But the appearance of the district attorney in tbe case, as appears from tbe record, in no manner interfered with tbe management and prosecution of tbe case by tbe defendant and bis attorney. It does not appear [175] from the record that the right of appeal was denied the defendant, and it must be presumed from the fact that the district attorney consented to the prosecution of the action and the carrying on of the litigation and co-operation with the defendant that it was not denied, hut on the contrary would he authorized hy the district attorney and prosecuted if the defendant so desired. Claim is made hy counsel for defendant here that the findings in the former action to the effect that the locus in quo was not a public highway are not sustained by the evidence, for the reason that the court applied a different rule of evidence than in civil actions, and made remarks to the effect that if he were trying the direct question'he would hold it a public highway, or he did not know what he would hold on that point. But the findings and judgment of the court in that action must control here, and cannot he set aside or modified hy remarks of the court not embodied in the findings or the judgment or intended to he. Moreover, the circuit judge below who tried this action tried the former, and in his finding in this action states that the only contested question in the former action was whether the road was a highway, and that it was found and determined in said former action that it was not a highway, and for that reason the complaint was dismissed upon the merits. So there seems to he no room for doubt from the record on the former suit in evidence, as well a's the findings and record in the present suit, that the question of highway was litigated and determined upon the merits against the defendant in the former action, and that although the defendant was not a party to the record he is, upon well-established principle, bound by the judgment. Fulton v. Pomeroy, 111 Wis. 663, 87 N. W. 831; Boyd v. Wallace (N. Dak.) 84 N. W. 760; Cramer v. Singer Mfg. Co. 93 Fed. 636, 35 C. C. A. 508; Lane v. Welds, 99 Fed. 286, 39 C. C. A. 528; Bennitt v. Wilmington S. M. Co. 18 Ill. App. [176] 17, 7 N. E. 498; Cole v. Favorite, 69 Ill. 457; 2 Black, Judgments (2d ed.) §§ 539, 540; Herman, Estoppel, § 148; 2. Van Fleet, Former Adj. § 523. 2. The court found a private way by prescription over the road in question, and adjudged that the plaintiff may erect such gates or bars across said private way as his convenience and use of the premises may require, and that the defendant, his agents and servants, shall close such gates after passing-through, and entered judgment accordingly. As appears from the statement of facts and the findings, the question of private way by prescription was raised by the pleadings and litigated upon the trial, but we are satisfied from a careful examination of the evidence that there is no evidence to support the findings that a private way by prescription in favor of the defendant was established. It is established that the-defendant commenced using the private track in question in 1878, before any attempt had been made to lay out a highway, and continued to use the same until 1885 with the permission-of the plaintiff, and that in 1885 plaintiff told defendant to procure another road. There is, therefore, no evidence of” any adverse user by the defendant sufficient to ripen into a prescriptive right for the requisite period before the commencement of this action. We therefore hold that there is. no public highway over the premises in question, nor a private-way by prescription. By the Court. — That part of the judgment appealed from by the plaintiff is reversed. The defendant will take nothing on his appeal. Plaintiff is allowed costs in this court on both appeals. The cause is remanded to the court below with directions to modify the judgment in accordance with this opinion, so as to give the plaintiff the full relief prayed for in his. complaint, including costs against the defendant. Cassodat, O. J., took no part.