The action in the Hancock Court of Appeals was one by Rose Rosenthal against Frank Cherry to quiet title to a strip of land 24 inches -wide by 200 feet in length. Cherry is an adjoining proprietor on the east and has a deed from Henry Flater for lot 661.
The strip in dispute is claimed by Cherry because the original plat of said lot -661, includes by a late survey, 18 inches of land in dispute and the remaining 6 inches is claimed because said survey shows square in, which lots are located overruns two feet which should be apportioned among the four lots included in the square.
Rosenstihl derives title by devise and through agreement between the then owners fixing the line where it is claimed by them to be and also by adverse possession of 24 years since the line was established. The decree in the lower court gave Rosenstihl six of the 24 inches.
It is claimed that the Court of Appeals erred in allowing Rosenstihl only 6 inches and the remaining 18 inches to Cherry basing its decree upon a former order under the doctrine of res adjudicata. In the Supreme Court it is contended that the former suit was instituted b'y Henry Flater for the purpose of curing a number of defects in title against numerous defendants among whom were one of the Ro-senstihls and her predecessor in title. It is urged therefore that the parties in that suit were not identical with the parties in the present suit.
Suit by Flater was not brought to establish a line between the then adjoining owners; and to give it that effect is to find that something was litigated in that case which the record aryi finding shows was not intended to be and was not in fact litigated and thus by construction to deprive Rosenstihls of their property without a hearing. It is claimed if it had been intended to establish a new line so as to include lands not in possession, the action should have been one in ejectment and not a suit to quiet title.
Had the plaintiff in the Flater case attempted to quiet his title to the lands in dispute, his action would have been dismissed because he was not in possession. 57 OS. 471. The questions of title to lands out of possession and which are now in dispute was not therefore adjudicated in the Flater case and hence that case could not bar the present action.
It is contended that the parties themselves never construed the decree as changing the established line as fixed by the partition fence: not only showing that the fence was accepted as the line, but also that it was not the purpose of that suit to change the line so established, and this intention, if there is any ambiguity, should be given effect.