Trinity & Sacramento S. M. Co. ads. Heintzelman Tritle ads. Whitman G. &. S. M. Co....... Van Vleet v. Olin ... Virginia City ads. Feusier.. PAGE 342 917 534 592 545 51 DECISIONS OF THE SUPREME COURT OF THE STATE OF NEVADA. APRIL TERM, 1867. CHARLES L. SHERMAN, RESPONDENT, v. JAMES S. DILLEY, APPELLANT. [3 NEVADA, 21.] JUDGMENT WHEN A BAR TO ANOTHER ACTION.-A judgment of a court of competent jurisdiction directly upon a certain point, is as a plea a bar, or as evidence conclusive, between the same parties or privies upon the same matter in any other action. IDEM. To make a former judgment, between the same parties, evidence in a subsequent suit, it must appear that the facts constituting the estoppel were actually passed on by the jury in the former case. IDEM-PAROL EVIDENCE ADMISSIBLE TO EXPLAIN RECORD.-If the pleadings do not show it, parol testimony may be introduced to explain the record, and show that the identical point arising in the second suit was tried in the former. If no parol evidence be introduced, the record is only evidence of what is necessarily put in issue by the pleadings. IDEM-PLEADINGS IN EJECTMENT.-When the pleadings in ejectment put the title or ownership in issue, prima facie, the verdict and judgment would constitute an estoppel to the assertion of any title which existed in the party at the time of the former action. 1*INSTRUCTIONS NOT APPLICABLE TO THE CASE.-It is proper for a [*22] court to refuse instructions containing correct principles of law, if (1) 1 Nev. 544; 2 Nev. 227; 5 Nev. 99; 6 Nev. 245; 8 Nev. 292. NEV. DEC.-2 Opinion of the Court-Lewis, J. there is no evidence before the jury making them applicable to the case on trial. 1 A JUDGEENT CANNOT BE PLEADED IN BAL, OL PROVED AS AN ESTOPPEL, WHILST IT IS PENDING ON APPEAL. APPEAL from the District Court of the Third Judicial District, Lyon County, Hon. WM. HAYDON, presiding. The facts are stated in the opinion. F. II. & J. M. Kennedy and R. M. Clarke, for Appellant. II. M. Stede, for Respondent, cited Reynolds v. Harris (14 Cal. 678); Gray v. Dougherty (25 Cal. 266), and Carpenter v. Schmidt (26 Cal. 479), as to the force and effect of the former judgment. By the Court, Lewis, J.: By the former opinion of a majority of the court in this case, the judgment of the lower court was reversed, and a new trial ordered. Upon further examination of the authorities, however, I am satisfied that we were incorrect in our conclusions, and that the judgment of the lower court must be affirmed." The action was brought to obtain an injunction restraining the defendant from diverting a certain stream of water from premises claimed by the plaintiff; and also to recover the sum of one thousand dollars as damages for the diversion complained of. The rights of both parties apparently rest upon the ownership of the premises from which the water is diverted. Upon the trial, the plaintiff introduced in evidence the judgment-roll in an action of ejectment brought by Dilley against Sherman to recover pos[*23] session of the *premises from which it is claimed the water is diverted, and upon the ownership of which the right to the water seems to depend. The judg ment in that action being in favor of Sherman, it was used by him on the trial of this cause as an estoppel to any claim of title which existed at the time of its rendition, (1) In Rogers v. Hatch, 8 Nev. 35, this expression is criticised and held to be dictum rather than decision. (2) The former opinion herein alluded to does not appear in the published reports. |