Hearst v. Putnam Mining Co. 7 Gray 393, 66 Am. Dec. 490; Central Transp. Co. v. Pullman's Car Co., 139 U. S. 24, 50, 11 Sпр. Ct. 478, 35 L. Ed. 55; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328. But suppose this suit were regarded and treated as brought, not in the right of the plaintiffs nor for their own benefit, but in right of all the stockholders, and hence for the corporation, and for its benefit; then 3 could the plaintiffs recover? We think not, be cause, viewing this suit in that light, they are met at the very threshold with the judgment in the case of Rogers v. Ferry et al., where the Putnam Mining Company was a defendant, and which forms the special plea in the answer herein. The plaintiffs, by their demurrer to that plea, have admitted, for the purposes of this case, all the averments properly pleaded therein to be true. Among such averments, it appears that that suit was brought and tried in a district court of this Statea court of competent jurisdiction; that the plaintiffs therein sued in right of the corporation, the Putnam Mining Company; that the Putnam Mining Company and the Quincy Mining Company were there, same as here, parties defendant; that the identical cause of action and the identical matters which are herein charged as fraudulent were therein pleaded and tried; that the court adjudged and determined that all the transactions and dealings complained of were lawful and made in good faith, and were without any fraud done or intended; and that neither the Putnam Mining Company, nor the plaintiff therein, was entitled to any accounting in respect of the matters charged in that complaint; and that such judgment is of record, and is still in full force and effect. Thus it clearly appears that the Rogers suit was brought and intended for the purpose of undoing the very transactions complained of in this action as being a fraud on the Putnam Mining Company and its stockholders, and the judgment was that neither the plaintiff nor the corporation was entitled to an accounting. As that suit was brought in the Hearst v. Putnam Mining Co. right of the corporation, that judgment is binding upon the corporation, and, by the rule of representation, all the stockholders are equally bound by it. It follows that, since the transactions and dealings complained of in that suit are exactly the same transactions and dealings complained of in this action, that judgment, being in full force and effect, is conclusive against the right of the plaintiffs to recover herein; they being stockholders in the corporation. The court having decided that there was no fraud in the transactions in controversy, and that the corporation has no right of recovery, no stockholder can make the same transactions the basis for complaint. In Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739, 33 L. Ed. 184, where the plaintiff in error, who was a stockholder, claimed that a certain order or decree which was binding upon the corporation was void, as against him, because he was not a party to the suit in which the order was made, the Supreme Court of the United States held that, "in the absence of fraud, stockholders are bound by a decree against the corporation in respect to corporate matters, and such a decree is not open to collateral attack." Mr. Chief Justice Fuller, delivering the opinion of the court said: "Sued after such an order of court, the defendant does not deny the existence of any one of the facts upon which the order was made, but contends that there has been no call, as to him, because he was not a party to the cause between creditor and corporation. We understand the rule to be otherwise, and that the stockholder is bound by a decree of a court of equity against the corporation in enforcement of a corporate duty, although not a party as an individual, but only through representation by the company. A stockholder is so far an integral part of the corporation that, in the view of the law, he is privy to the proceedings touching the body of which he is a member." Freeman on Judgments, sections 176, 178; Glenn v. Williams, 60 Md. 93; Kessler v. Ensley Co. (C. C.), 123 Fed. 546. 3 Hearst v. Putnam Mining Co. The fact that this suit was brought by different parties plaintiff is immaterial, since these plaintiffs, as stockholders, were privy to the proceedings in the former suit, and since both suits were identical as to cause of action, subject-matter, purpose, and object, quality of persons for or against whom claim is made, and as to the thing adjudged. These legal identities existing, and the same questions involved herein having been judicially settled and determined in the Rogers suit, the judgment in that case is an effectual bar to this action. Freeman on Judgments, sections 252, 253, et seq.; New Orleans v. Citizens' Bank, 167 U. S. 371, 17 Sup. Ct. 905, 42 L. Ed. 202; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 681; Lyon v. Perin & Goff Manufacturing Co., 125 U. S. 698, 8 Sup. Ct. 1024, 31 L. Ed. 839. From the foregoing considerations, and from the authorities, the conclusion is inevitable that the court did not err in overruling the demurrer or denying the motion directed at the special plea, nor in rendering judgment in favor of the defendants on the merits. We find no reversible error in the record. The judgment is affirmed, with costs. BASKIN, C. J., and MCCARTY, J., concur. Stockdale v. Railroad. AMELIA STOCKDALE, WILLIAM H. STOCKDALE and ANNIE ELIZABETH STOCKDALE -MIDDLEMISS, Respondents, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, and THE ANHEUSER-BUSCH BREWING ASSOCIATION, a Corporation, Appellants.1 No. 1558. (77 Pac. 849.) 1. Municipal Corporations: Powers: Streets: Use by Railroads. A city council may grant franchises to railroad companies, authorizing them to make a reasonable use of the public streets of the municipality for the purpose of constructing and operating thereon railroads designed for the use of the public for transportation of passengers and freight. 2. Same: Public Utility: Nuisance. A switch track, which is part of a general railway system, and which may be used by any or all who have occasion to ship freight over it, and which is not designed for the exclusive use or convenience of any particular person or corporation, is-although, from its location and surroundings, only a limited number of persons will have occasion to use it—a public utility, and does not constitute, when laid in the public street, a public nuisance. 3. Eminent Domain: "Taken." Any substantial interference with private property which destroys or materially lessens its value, or by which the owner's right to its use and enjoyment is in any substantial degree abridged or destroyed, is a taking, within Const. art. 1, sec. 22, providing that private property shall not be taken or damaged for public use without just compensation, to the extent of the damage suffered, even though the titleand possession of the owner remain undisturbed. 1Cereghino v. O. S. L. R. R. Co., 26 Utah 467, distinguished. Stockdale v. Railroad. 4. Same: Right of Railroad in Operating. A franchise giving a railroad company the right to occupy a street and sidewalk with its spur track does not give it power by which it can rightfully extend its track over the property of a shipper, and there maintain and operate it, to the irreparable damage of the property of an adjoining owner. 5. Same: Nuisance: Remedy. The operation of a railroad switch track over property in a city, which results in the shaking of ground by the passage of engines and cars, and causes smoke and noise in close proximity to the premises of a property owner, is a nuisance within Rev. St. 1898, sec. 3506, providing that anything obstructing the free use of property, so as to interfere with its comfortable enjoyment, is a nuisance, entitling any person whose property is injuriously affected thereby to an injunction, as well as to damages. 6. Same. Under Const. art. 1, sec. 22, providing that private property shall not be taken or damaged for public use without just compensation, a party whose property is about to be specially damaged in any substantial degree for public use has the same rights and is given the same remedies for the protection of his property from the threatened injury as would be accorded him if his property was actually taken and appropriated for public use. 7. Same: Rights of Property Owner. Losses and inconveniences suffered in common with the general public by reason of the operation of a public utility, such as a railroad in the vicinity of one's premises, do not entitle the property owner to damages or injunctive relief. 8. Same: Taking or Damaging Property: Condemnation Proceedings Necessary. A railroad cannot subject private property in a city to the burdends to which it will be subjected by the running of cars and engines over a switch laid over adjoining property, without proceeding under the law of eminent domain, as contemplated by Const., art. 1, sec. 32, prohibiting the taking or damaging of private property for public use without just compensation, and the statutes of the state. BARTCH, J., dissenting in part. (Decided August 11, 1904.) |