The complaint doubtless states a good cause of action in equity, unless the allegations concerning the previous encroachment action and the judgment rendered therein make it demurrable. Uren v. Walsh, 57 Wis. 98, 14 N. W. 902. The appellants claim that the judgment in the encroachment action is res ad judicata upon all questions which might have been litigated in that case. This claim cannot be sustained. In order to have such an effect, the second litigation must be between the same parties or their privies, and upon the same canie of action. Grunert v. Spalding, 104 Wis. 193, 80 N. W. 589. If it be conceded that the present action is substantially between the same parties as the encroachment action, it manifestly is not upon the same cause of action. The encroachment action was an action under sec. 1331, Stats. 1898, to recover a penalty for the maintenance of an existing fence which encroached upon the highway. The present action is an action in equity to enjoin the super*71visors from removing a contemplated fence upon substantially the same line. While, under proper pleadings, the same legal principle might doubtless be decisive in both cases, it would be a misnomer to say that they are both founded upon the same cause of action. So the judgment in the encroachment action is only res adjudicata in this action upon questions which were actually litigated and decided in the former action.

Undoubtedly the defense of no highway, or, in other words, of title to the strip, might have been pleaded in that action; but the complaint alleges that only the question of encroachment was there pleaded and litigated, and this allegation is, of course, conclusive on demurrer. The two questions are separate and distinguishable. Soule v. State, 19 Wis. 593. Thus it clearly appears that the judgment in the encroachment action is not res adjudicata in this action upon the question of title, because that question was not litigated, and the present action is not upon the same, cause of action.

Appellants, however, invoke another legal principle which is fatal to the complaint. The defense of title was entirely available to the plaintiff in the encroachment action. He should have pleaded it in justice’s court, and the case .would have been certified to the circuit court on the plea of title. He was not prevented from doing so by fraud, accident, or mistake. In this situation, equity will not afford him relief. He should have made his defense when he had a clear opportunity at law in an action where a jury could have been had. Having failed to do so, it has become what is called a “pre-termitted defense,” to which equity will not listen as a ground for affirmative relief. Stein v. Benedict, 83 Wis. 603, 53 N. W. 891.

By the Gourt. — Order reversed and action remanded, with directions to sustain the demurrer, and for further proceedings according to law.