Van Valkenburgh vs. The City of Milwaukee land, but subject to an easement as to Lake street, and assessed his damages at $419; while on the second trial they increased his damages to $4,000, showing clearly that they found that there was no street there. 5. That the remonstrance addressed by plaintiff to the defendant city was admissible as a part of the res gesta, to show the extent to which plaintiff claimed title to the property in question. Roebke v. Andrews, 26 Wis., 311; Duffy v. Pres. Cong., 48 Pa. St., 51. LYON, J. I. We do not think the judgment recovered by the plaintiff in the circuit court on the second trial of his appeal from the appraisement of the board of public works, stands in the way of a recovery by him in this action. The effect of the abandonment by the common council of the condemnation proceedings was, necessarily, to render that judgment inoperative. It is the plain purpose of the statute under which the council acted, that such should be the effect of the abandonment; and we see no reason to doubt the validity of the statute. P. & L. Laws of 1872, ch. 50. Should the plaintiff attempt to enforce collection of that judgment, the proper court would, on application, stay his proceedings and enjoin the collection thereof. Such abandonment also operated to restore to the plaintiff all the interest in the lots sought to be condemned, which he had when the condemnation proceedings were instituted; and, had he suffered no damage by reason of the proceedings or the acts of the city under them, he would have no just cause for complaint. But, having sustained damages thereby, it is very manifest that the city ought to compensate him therefor; and the statute does not assume to deprive him of the right of action to recover them. Hence, we think this action may be maintained to recover such damages to him as were the direct and proximate result of the condemnation proceedings and the acts of the city under them. And this is all we deem it necessary to say concern Van Valkenburgh vs. The City of Milwaukee. ing the plaintiff's right to maintain this action and the rule of damages therein. II. The most important question in the case is, whether the city is estopped by the judgment on the second trial of his appeal from the award of the board of public works, to deny the plaintiff's title to any portion of the lots affected by that appeal, or to claim that the portion of such lots designated as Lake street is a public street or highway. It is freely conceded by the learned counsel for the city, that a question of fact once litigated, and determined by the verdict of a jury and judgment thereon, is at rest between the same parties, and that neither party can thereafter be heard to deny the correctness of the adjudication in a collateral action or proceeding. The question of the plaintiff's title to the lots affected by the appeal was necessarily involved in the condemnation proceedings. He could not have recovered on his appeal without first establishing his title, and a verdict in his favor was, in effect, that he was the owner of the lots for the taking of which damages were assessed to him by way of compensation. The stipulation conceded the title to the lots to be in the plaintiff, and no special finding that he was the owner was necessary. Hutchinson v. C. & N. W. R'y Co., 41 Wis., 541; McNarra v. C. & N. W. R'y Co., id., 69. And it is quite immaterial that the city, by admitting the title, relieved the plaintiff from the obligation of proving it. Bigelow on Estoppels, 17, and cases cited. In Chamberlain v. Preble, 11 Allen, 370, discussing the subject of estoppel by judgment, the court says: "The judgments of courts must be based on the facts as they are presented. No doubt, if the truth could always be fully and accurately known, many decisions would appear erroneous; but it is for the public interest that there should be an end of litigation, and parties and privies who have once had day in court cannot, by mere proof or offer of proof that the judg ment was founded on error in fact, renew the controversy. Van Valkenburgh vs. The City of Milwaukee. Nor can it make any difference that the facts, or some of them, in a proper case, were agreed by the parties, instead of being passed upon by the jury. Few trials before a jury are had without the agreement of parties or counsel to many matters thought not to be in controversy. The execution of written instruments, the testimony of absent witnesses, and the date of the happening of a particular event, are of this class. A mistake in the admission of any one such fact, if material, would be quite as fatal in its effect upon the conclusiveness of the judgment, as an error in an agreed statement of facts. Indeed, if the effect of the judgment is to be avoided in such cases, it is difficult to say that the existence of material evidence which the defendant failed to produce, would not have the same effect." We conclude, therefore, that the defendant is estopped by the former verdict and judgment to deny in this action that the plaintiff was the owner in fee of the lots in question when the condemnation proceedings were instituted; and that the testimony which was offered for the purpose of showing that he was not then the owner thereof, was properly rejected. But whether such verdict and judgment estop the city from asserting that the public have a right of way over a portion of the lots, is a very different question. On the trial of the appeal in the condemnation proceedings which resulted in such verdict and judgment, the question of the existence of such public easement was litigated, and was submitted to the jury, but the record fails to show that the jury determined it. The judgment does not depend upon its determination, for it is as consistent with the hypothesis that the jury found the existence of the easement, as it is with the hypothesis that they negatived its existence. The authorities cited by counsel for the city abundantly show the rule to be, that in such a case there is no estoppel. Hence, we think the testimony offered on behalf of the city to show the existence of the public easement should have been received. Had the easement Van Valkenburgh vs. The City of Milwaukee. been proved, it would necessarily have reduced the plaintiff's damages. Because this is so, and because the court rejected the offered testimony, the judgment cannot be upheld. III. Counsel for the city criticised the decisions of this court in Van Valkenburgh v. Milwaukee, 30 Wis., 338; and in Emmons v. Milwaukee, 32 id., 434, which are to the effect that certain plats therein mentioned do not operate as dedications or grants of any portion of these lots, and certain other lands, to the public use. On this subject we have only to remark, that those decisions establish a rule of property which has remained undisturbed for several years, and that other parties may and probably have invested their money on the faith of those decisions, and hence, the maxim stare decisis is peculiarly applicable to them. We must not disturb them. IV. The court below admitted in evidence on behalf of the plaintiff, a remonstrance addressed by him to the common council, against the abandonment of the condemnation proceedings, in which he itemized and estimated the damages which he had sustained by reason of such proceedings. We are aware of no rule of evidence which justifies the admission of that document. By the Court. The judgment of the county court is reversed, and the cause will be remanded for a new trial. RYAN, C. J., took no part. A motion by the respondent for a rehearing was denied. Hunter vs. Bosworth and others, imp. HUNTER VS. BOSWORTH and others, imp. APPEAL TO SUPREME COURT. (1) Rights of a defendant on appeal of his codefendant. CHATTEL MORTGAGE. (2) Mortgage of after-acquired goods creates no lien. (3, 4) Mortgage with covenant for further assurance: When such assurance given one party or privy enures to benefit of all. (5) Who bound by contents of mortgage. 1. In the appeal of one of several defendants, with adverse interests, the plaintiff, prima facie at least, is the "adverse party" of the statute, respondent here (N. W. Ins. Co. v. Park H. Co., 37 Wis., 125); but the other defendants, though not parties, are privies to the appeal, and, upon proper application here, would be admitted to all the rights of practice of respondents. 2. The rule (established in Comstock v. Scales, 7 Wis., 159, and subsequent cases in this court) that a chattel mortgage of after-acquired goods creates no lien, legal or equitable, by force of the mortgage, upon such after-acquired goods, adhered to. 3. Where a chattel mortgage contains a covenant for further assurance, to extend the lien to after-acquired goods, a subsequent mortgage on afteracquired goods, executed to one of the mortgagors for a separate debt, will enure to the benefit of them all as additional security to the original mortgage. 4. Under this rule, where notes secured by a chattel mortgage with such covenant for further assurance, are held in severalty by different owners, a mortgage of the after-acquired goods, executed to one of such owners for a separate debt, enures to the benefit of all. 5. One who, not being a party to a mortgage, claims under it, is bound by everything it contains, as a privy to it. APPEAL from the Circuit Court for Milwaukee County. In April, 1874, plaintiff sold a stock of goods in Ripon, Wis., to the defendant Frederick P. Hanchett; and the latter, to secure payment of part of the purchase price, gave plaintiff his three promissory notes of the same date: the first for $1,200, payable in one year; the second for $1,000, payable in two years; the third for $1,000, payable in three years; all with interest at ten per cent., payable annually. To secure these notes, he gave plaintiff a mortgage of said stock, with |