Plaintiff brought ejectment against defendant for property described in plaintiff's declaration. Defendant pleaded the general issue, and claimed the premises in question were a portion of Spencer Creek highway; that in laying out the highway it had condemned the right of way,. and therefore the matters involved were not triable in ejectment. There were no requests for specific findings of fact, nor exceptions filed to the findings of fact and law as made. The case is here on error. It is claimed the court erred in not finding the facts as requested by defendant. These requests are not in the record and cannot be considered. The only question to be considered is whether the findings of fact support the conclusions of law. It appears that after the alleged condemnation proceedings by the defendant, plaintiff instituted a suit in chancery attacking the condemnation proceedings, that findings of fact were made in the chancery case and a decree entered. No appeal was taken. In the chancery case it appeared that at the time the condemnation proceedings were taken and carried through by the highway commissioner, the plaintiff owned and possessed rights of flowage over, across, and upon the lands and premises involved in this case; that no attempt was made in the condemnation proceedings to condemn those rights nor to compensate the plaintiff for the injury thereto; that the laying out of the highway would seriously interfere with the flowage rights of plaintiff; that the highway was a highway by user only and should be limited to the lands and premises actually occupied; and that the plaintiff had two separate and distinct property interests, *Page 694 namely, the title to the land and the flowage rights; that the condemnation proceedings did not take the flowage rights; that the flowage rights were a right of property, independent of the ownership of the fee of the lands, and could not be taken by the proceedings to condemn the land alone. The court found the question sought to be raised by the pleadings in this case had been adjudicated in the chancery case, and that the plaintiff was entitled to the lands and premises covered by the declarations. Judgment was entered for the plaintiff, and defendant brings error.
Briefly, the plaintiff claims the chancery case adjudicated its rights. The defendant claims the chancery case was without jurisdiction because the condemnation proceeding had adjudicated its rights. If, as here claimed, the condemnation proceedings adjudicated plaintiff's rights, they should have been pleaded as former adjudication in bar to the chancery proceedings. If they were so pleaded, the chancery court overruled the plea. It entered a decree for plaintiff. It had jurisdiction of the subject-matter and of the parties. That decree is in full force and effect and is conclusive on this record of the rights of the parties.
Judgment affirmed, with costs to plaintiff.
FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred. *Page 695