
    Francina Prather v. Robert Owens.
    
      “ Unto and into a certain highway which runs near where the said plaintiff resides,” is a sufficient description of the terminus ad quern in a declaration in case for obstruction of a private way; at any rate it is good after verdict.
    In an action on the case for obstruction of a private way, a verdict of damages for the plaintiff, determines the right of way as against the defendant, and is conclusive evidence of it in a subsequent action between the same parties.
    
      Before Earle, J.,'at Laurens, Spring Term, 1840.
    Action on the case for obstructing a private way. Plea, not guilty.
    The plaintiff had had a verdict against the defendant in a previous action, for the same obstruction, with five dollars damages; and, in a second action, had taken a similar verdict by consent. The obstruction not being yet removed, this third suit was brought; the witnesses to establish the right and the infringement of it being the same. as in the former cases.
    The Court held that the former verdict was conclusive of the right, and the only questions were the continuance of the obstruction and the amount of damage. The jury, so instructed, found for the plaintiff one hundred and fifty dollars.
    The defendant moved the Court of Appeals for a new trial, for error in the charge of the circuit judge; and in arrest of judgment, because the verdict did not specify the way to which the defendant was entitled, and because it was not set out with sufficient certainty in the declaration.
   Curia, per Earle, J.

The plaintiff declares upon her possession, and claims a right of way from her plantation “into, through and over the plantation and close adjoining thereto, now in the possession of the defendant, unto and into a certain highway, which runs near where the said plaintiff resides.” It is suggested, in arrest of judgment, that the way is not set out with sufficient certainty. It is true that the termini of a way should be set out with reasonable certainty ; and a majority of the Court are of opinion that “ unto and into a certain highway which runs near the residence of the plaintiff,” is a sufficient description of the terminus ad quem. The precedent is taken from 2 Chitty Plead., 351, (p. 809 of Ed. 1837,) where the description is, “unto and into a certain common and public highway in the county aforesaid,” and refers to Blockley v. Slater, (1 Lutw., 119;) and it is added, in note t, the terminus ad quern may be laid to be a public highway, and will be proved by evidence of a public footway.” In Allen v. Ormond, (8 East. R., 4,) the way claimed was from the plaintiff’s gardens “unto, into, over and across the close called Channels, unto and into a certain public King’s highway, in the parish aforesaid;” and it was objected, that the terminus ad quern being a public highway, must be taken to be a highway for all purposes, and was not proved by evidence of a common footway. But the objection was overruled, and the plaintiff had a verdict, which was sustained, because it was a public highway for foot passengers ; though the Court expressed á doubt, whether the description might not have been bad on special demurrer, as not pointing out with sufficient certainty what sort of highway was meant; that is, whether for carriages, for persons on horseback, or for foot passengers. It was not' made a question whether the termioii of the highway should be described, (as into a certain highway leading from such a place to such a place,) as it is argued here. We have, strictly speaking, but one kind of public highway, which is a highway for all purposes, and, in pleading, must be so intended. The doubt expressed by the Court, in Allen v. Ormond, would not apply to cases arising here.

We are all of opinion that any error in omitting the termini of the way claimed, is cured by verdict. It was so held in Clarke v. Cheney, (1 Ventr. 13.)

It is objected that the verdict does not specify the way to which the plaintiff is entitled. The verdict is in the only form in which a verdict can be rendered, a verdict for damages, which establishes the plaintiff’s right to the way described in the declaration. The jury could not render a verdict which should have the effect of putting the plaintiff in possession of the way, as in ejectment, or trespass to try title; for it is an incorporeal right, an easement over the land of another, and the plaintiff could only recover damages for the obstruction, which he may continue to recover as long as the obstruction remains.

On the grounds taken for a new trial, the Court are of opinion, that there was no error in the instruction to the jury. There is certainly a difference made, in some leading cases, between the effect of a former recovery when pleaded, and when given in evidence. But all these cases have arisen upon the effect of a former recovery when offered by the defendant ; and it is said that the plaintiff shall not be estopped, unless the former recovery be specially pleaded. If the defendant, on the general issue, put the plaintiff upon proof of his case, and use the record of former recovery only as evidence, the jury shall not be precluded from saying that the plaintiff had a cause of action, notwithstanding. (Outram v. Morewood, 3 East. R. 345; Vooght v. Winch, 2 B. & A. 662.) In the Duchess of Kingston's case, Ch. J. De Grey, in delivering his judgment, holds the following language: “ From a variety of cases, relative to judgments being given in evidence in civil suits, it seems to follow, as generally true, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea in bar, or as evidencé, conclusive between the same parties, upon the same matter directly in question in another Court.” If this be true, it is impossible to imagine a reason why a judgment rendered in the same Court should not be equally conclusive. In assump-sit, a former recovery may be either pleaded in bar, or given in evidence ; and there' seems to be no good reason why, in one case, it should be absolutely conclusive, as a bar, or an estoppel, and, in the other, should only be persuading evidence, as it is called. A record of conviction against a parish, for not repairing, is conclusive evidence, on a subsequent indictment against the same parish, of the liability of the parish to repair. (Peake’s Cases, 219.) In an action for mesne profits, the judgment in ejectment is conclusive against the defendant, on the right of possession at the time of the demise. (6 Bac. Ah. 666.) From these cases, it would seem to be entirely in conformity with the principle on which they have been decided, that the former verdicts for the plaintiff against the defendant, for an obstruction to the same way, should be regarded as conclusive evidence of the right of the plaintiff to the way in question. In this action, it was impossible for him to plead the former recovery as an estoppel; he could only set out the way and the obstruction. The recovery was not conclusive on all the points made on the new issue; for the continuance of the obstruction was a fact to be made out by additional proof, and he used the former record in the only way in which he could use it, as evidence of his right. The old maxim, that no man shall be twice vexed by the agitation of the same question, would seem to be of very little authority, if, after two verdicts on the same right, in dispute with the same adversary, supported by the same proof, out of the mouths of the same witnesses, the plaintiff should be told that the verdicts have concluded nothing, and that the right is still an open question. The case of Street v. Bovingdon, et al., (5 Esp. 56,) is directly in point. It was twice tried before Lord Ellenborough, who decided Outram v. Morewood, and occurred immediately after that case. It was an action on the case against the defendants, for erecting weirs and other obstructions in a certain river, and thereby directing the water from the plaintiff’s mills. The plaintiff offered in evidence the record of a former action against Bovingdon alone, for similar wrongs, in which he had relied on the same rights which he claimed in the subsequent action, and had obtained a verdict. The plaintiff’s counsel contended that the verdict was conclusive of the plaintiff’s right; which was resisted by the other side. Lord Ellenborough said, “ the record of the former case could not be deemed a legal estoppel; but it was binding so far, that he should think himself hound to tell the jury to consider it conclusive of the rights of the parties.” Upon which the defendant’s counsel, Best, sergeant and Espinasse, acquiesced, consented to a verdict for the plaintiff, and agreed to remove the obstructions. The defendant, here, offered the same proof, by the same witnesses, to resist the plaintiff’s right, as on the former trial; and the jury were properly instructed that, as matter of evidence, the former verdicts ought to be considered as conclusive of the right of the plaintiff; leaving the other questions to depend on the additional proof.

See 2 N. & McC. 363, note about costs. An.

Irby, for the motion;

Young, contra.

Motions dismissed; Gantt, Bichardson, Evans and Butler, JJ., concurring.  