Eagle & Phenix Manufacturing Co. v. Van Leonard

Jackson, Chief Justice.

This court granted a new trial to the defendant in error in this case when here before, on the ground that the court erred in ruling that the title of the Eagle and Phenix Manufacturing Company, based upon the deeds through which it claimed this property, extended as a fee to the western shore of the Chattahoochee river; this court at the same time holding that the Eagle and Phenix Company possessed a dominant easement of the water power of the river, subject only to the servient fee in the Water Lot Company to the bed of the river, from the line described in the deeds near the Georgia side up to high water mark on the Alabama side of the river. Now the then defendant in error is plaintiff in error here, and complains that the court below committed error against it, the Eagle and Phenix Company, on the trial before the jury this time on three-assignments : — First, in ruling out, a former levy, claim, verdict and judgment offered in connection with and to sustain a plea of res adjudicata ; secondly, in charging the jury that, “ under the pleadings in this case, the only question here is whether these lots levied upon are subject to this ft. fa., and if they are, the question as to what has been or what has not been sold heretofore in reference to these lots, whether water privileges have been sold heretofore, does not arise. That the sheriff would only sell the title of defendant in execution, and the rights of the claimant would not be affected thereby;” and, thirdly, in rendering the judgment set out in the record.

1. In the plea of res adjudicata it is alleged, substantially, that the water power connected with the lots, portions of which are now levied on and claimed, including the dam extending over them, was in issue before, and then adjudicated in favor of the Eagle and Phenix Company and against the claimant, and ’the levy,- claim, verdict, and judgment thereon, were tendered in evidence. to show that fact. The description of the dam in the levy, it is insisted, does not show that it is the dam and water power alluded to in the claimant’s plea; that another dam was then levied on and in issue on that trial, but that was an issue of fact, we think, if not plain in the record, for the jury to settle by aliunde parol proof. In such a case that sort of proof is admissible. 61 Ga., 62.

But the entire interest of the Water Lot Company in these parts of lots now levied on, was not adjudicated and could not have been then adjudicated, because that entire interest was not then levied on and claimed and put in issue, but the only thing in these lots then in issue was the water power and the dam essential to its use. In support of a plea in bar of the plaintiff’s right to proceed against the fee in these parts of lots, it is clear that this-former judgment was not good, for the reason that the fee was not then in issue; and, in this light, it is equally clear, therefore, that there was no error.in ruling out the evidence offered as not in point to bar the plaintiff’s right to proceed against the servient fee, however small its money value. Only the dominant easement was then in issue and only that could have been then adjudicated.

2. So in regard to the second assignment of error, which attacks the charge of the court to the effect that under the pleadings in the present case, the water power easement, with all its appurtenances, did not arise and should not be considered.

The claimant in no plea takes issue that the entire property is not subject, and only a servient fee is, but it claims all itself; and issue was joined on the right and title of defendant in execution to these parts of lots, claimant asserting title to the whole fee. If, therefore, the plaintiff in execution had the right to proceed against the servient fee, as held by this court before, reported in 62 Ga., 455, it did not matter how much that estate was servient to a dominant easement. Whoever bought that fee would buy it as encumbered with the easement. The sheriff would sell only the interest which the defendant in execution had in the parts of lots levied on, and the purchaser would only take by his bid and deed that interest. No effort was made by the claimant to file an equitable plea to define in this case the respective rights and quantum of interest in this property of the defendant in ji. fa. and the claimant, so as to avoid future trouble and contests with purchasers of the different parts of the several lots levied on, if, indeed, such an equitable plea could have been maintained if it had been attempted and insisted on ; but both sides joined issue on the levy and claim — subject or not subject; and the only plea in the record, outside of this issue of title and in bar of the plaintiff’s right to proceed with the levy, is the claimant’s plea of res adfudicata, which we have seen did not bar that right to proceed and sell whatever title the defendant had.

3. The third - assignment of error is on the judgment* That simply follows the verdict, and adjudges that the plaintiff proceed and sell the lots, or parts of lots, rather, levied on — of course thereby only contemplating, what every judgment to sell a defendant’s property means, that estate which the defendant has in the property — no more, no less. So construing and understanding it, we approve it, and cannot see how, under the pleadings and following the verdict, any other judgment could have been rendered.

Judgment affirmed.