
    JOHN BARKER v. JEFFERSON STANDARD LIFE INSURANCE COMPANY and THE COUNTY OF GUILFORD.
    (Filed 27 April, 1921.)
    1. Judgments — Estoppel—Matters Concluded.
    A judgment estops between tbe same parties, concerning tbe same lands in controversy, when tbe nature of tbe claims is tbe same as to title, involving tbe equity of removing a cloud therefrom as to all claims of easements, not only as to all questions actually litigated, but as to all that were determined or necessarily involved in tbe decision of tbe former action.
    2. Counties — Title — Public Squares — Abutting Owners — Prescriptive Rights.
    Where a county continues in possession of its open public square continuously to tbe time of its recent deed to a purchaser, an adjoining owner cannot acquire a prescriptive right of easement therein.
    3. Judgments — Counties—Title—Public Squares — Easements—Estoppel.
    Where a county has brought suit to remove tbe cloud from tbe title to its public square, including all claim of easement therein by abutting owners, one of such owners, tbe plaintiff in tbe present action and a party in tlie former one, is estopped by tbe judgment rendered in tbe county’s favor in tbe former suit from setting up a counterclaim for damages arising from tbe taking of sucb easement by tbe subsequent grantee of tbe county, wbicb bas acquired title to tbe entire square by tbe deed of tbe county.
    Appeal by plaintiff from Finley, J., at February Term, 1921, of Guileoed.
    This action is against tbe defendant insurance company and tbe county of Guilford, alleging tbat tbe plaintiff is owner of an easement 10 feet in width over land purchased by tbe insurance conjpany from its eodefendant, tbe county of Guilford, and tbat tbe insurance company bas obstructed said alleyway by placing a large brick building thereon, and asking for $10,000 damages. Tbe defendant insurance company answered and pleaded by way of counterclaim tbat it was tbe owner in fee of tbe tract of land known as tbe “Court House Square” (this being tbe tract over wbicb tbe plaintiff claims an easement); tbat tbe insurance company acquired title to said land from tbe county of Guilford by deed, 2 May, 1917, and tbat at tbe time tbe plaintiff acquired title to tbe tract of land, wbicb be claims is a dominant tenement, tbe county of Guilford was tbe owner of tbe land wbicb be now claims is servient thereto; tbat tbe said land remained in tbe possession of tbe county until conveyed by it to tbe insurance company; and tbat, further, tbe plaintiff was estopped to maintain this action on account of tbe judgment which was affirmed on appeal in Guilford v. Porter, 170 N. C., 310, and reaffirmed in S. c., 171 N. C., 356. No reply was filed. Tbe court, upon tbe pleadings, entered judgment of nonsuit, and tbe plaintiff appealed.
    
      B. G. Strudwich, Wm. P. Bynum, Manly, Hendren & Womble for plaintiff.
    
    
      Wilson & Frazier, Broohs, Hines & Kelly for defendants.
    
   Clabk, C. J.

Tbe defendants contend tbat tbe matter pleaded was a counterclaim, McLean v. McDonald, 173 N. C., 429; and tbat tbe plaintiff having filed no reply, tbe counterclaim was admitted to be true. But, passing tbat by, it appears tbat tbe plaintiff acquired bis alleged easement, if at all, by prescription. Tbe deed under wbicb be claims is set out in tbe record, and it appears therefrom tbat tbe county of Guilford at the time of bis purchase owned tbe tract adjoining him, styled “Tbe bitching lot,” and tbe said land continued in tbe possession of tbe county of Guilford until it was conveyed to tbe defendant insurance company in 1917. Tbe plaintiff could not have acquired a prescription against tbe county. Gates v. Hill, 158 N. C., 584; C. S., 435.

It appears also tbat tbe alleyway in question was created by deed executed by tbe county to tbe Raleigb Real Estate and Trust Company, 20 May, 1904, and said deed contains tbe following provisions: “It being understood tbat tbe said alleyway shall not become a public thoroughfare, but shall be used only by tbe parties of tbe first and second parts and those bolding through, by, or under them.” Tbe plaintiff by mesne conveyance acquired a title to a portion of tbe land conveyed by this deed to tbe Raleigb Real Estate and Trust Company, and tbe defendant insurance company has since acquired title to said land by a conveyance from tbe county.

Tbe plaintiff is estopped by tbe judgment which was affirmed on appeal in Guilford v. Porter, 170 N. C., 310; S. c., 171 N. C., 356, from claiming this easement. Tbat action was brought to remove, as a cloud upon tbe title of tbe county, any and all claims of easement asserted by tbe plaintiff and all othqr a'djoining landowners. In tbe complaint in tbat action tbe tract, over which tbe plaintiff is now claiming an easement, was described specifically by metes and bounds fully set out, which included this alleged alleyway, and tbe entire tract was alleged to be owned by tbe county of Guilford in fee simple, free and clear from all claims and easements of this'plaintiff and all others. Final judgment was delivered in tbat action, and affirmed on appeal, bolding tbat tbe county of Guilford bad a right to convey tbe said premises to tbe insurance company in fee simple, free and clear from any claim or easement of tbe plaintiff and all others, and after said final judgment bad been entered, tbe insurance company became tbe purchaser of said lands at a public sale.

Tbe parties to tbat suit and this are tbe same. Tbe subject-matter is tbe same — tbe same tract of land being in controversy; tbe nature of tbe two suits is tbe same, both being to decide tbe title to said tract of land and remove as a cloud from title all claims of easement. Tbe prayer for relief is tbe same in both suits. A judgment is an estoppel ,not only as to all questions actually litigated, but as to all tbat were determined or necessarily involved in tbe decision of such litigation. Coltrane v. Laughlin, 157 N. C., 282; Clothing Co. v. Hay, 163 N. C., 495.

Substantially tbe same question here presented has been decided at this term in two other cases involving tbe same plea of estoppel by judgment and as to an easement in tbe same tract of land: Barker and Sockwell v. Ins. Co., ante, 267, and Guilford v. Bynum, post, 288. Tbe judgment of nonsuit is

Affirmed.  