Kramer v. Deer Lodge Farms Co. , 116 Mont. 152 ( 1944 )

I concur in the result but not in the volume of extraneous matter that goes to make up the major portion of the opinion.

By express admission the parties to the action, through their respective counsel at the hearing before this court, reduced all controversies to one question, namely: Is Quinlan Slough a tributary of Dempsey Creek? When William Walker's notice of appropriation, made in 1874 and plaintiff's Exhibit 1, the map showing where Quinlan Slough empties into Dempsey Creek, were introduced in evidence without objection, the fact that the slough is a tributary of the creek was established beyond a reasonable doubt; nothing more was necessary except citation of authorities.

I do not agree with the assertion made relative to the scope of the rule of res adjudicata wherein this language is employed: "A decree of court is res adjudicata as to all matters adjudicated therein, and as to all issues which couldhave been properly raised irrespective of whether the particularmatter was in fact litigated." The portion in italics goes beyond the better reasoned rule and the one generally accepted. (See Cromwell v. Sac County, 94 U.S. 351, 24 L. Ed. 195;Davis v. Brown, 94 U.S. 423, 24 L. Ed. 204; Charles E.Harding Co. v. Harding, 352 Ill. 417, 186 N.E. 152, 88 A.L.R. 563; Foye v. Patch, 132 Mass. 105; Swank v. St. Paul CityRy. Co., 61 Minn. 423, 63 N.W. 1088; 15 R.C.L., Judgments, sec. 469; United States F. G. Co. v. McCarthy, 8 Cir.,33 Fed. 2d 7, 70 A.L.R. 1447, certiorari denied 280 U.S. 590,50 S. Ct. 38, 74 L. Ed. 639.) It is only issues properly brought within the pleadings in the particular case and determined by the decree that are res adjudicata in a subsequent action between the same parties. The question is fairly covered in this jurisdiction by the case of State ex rel. Sullivan v. School District,100 Mont. 468, 50 P.2d 252.