The only question necessary to be considered in the present case is as to the conclusiveness of the former judgments. It is admitted that the lands involved in the present action are covered by the descriptions of lands involved in the previous action, save as to one parcel, which will be separately considered. But it is said that in the first of the previous actions the descriptions did not except the strips occupied by the railroad tracks which crossed the various parcels, while in the second action the descriptions were *105the same, with the words “except right of way” added, and that in both actions the taxes were set aside on the ground of ■defective description, and not upon the ground that the lands •were exempt.

Examination of the findings in the former cases shows that the contention cannot be sustained. In the first case, after -describing the various parcels of land, the court finds as matter of fact that said lands “constitute portions of the right of way, depot grounds, railroad and terminal yards belonging to the plaintiff corporation at the city of Bacine and adjoining its tracks in said city,” and “that the lands so described as aforesaid, with the tracks, depots, and terminal yards thereon, constitute an entirety essential to the prosecution by the plaintiff of its business at the city of Bacine, and that said lands and property cannot be divided and sold in parcels without working irreparable injury to the plaintiffs,” and concludes as matter of law that each of said tracts as assessed is “exempt from taxation by the statutes of the state of Wisconsin.” In the second case the court, after finding that the lands involved are the same lands involved in the former litigation, recites that the question in issue in said former case was whether said lands were exempt under the terms of subd. 14, sec. 1038, Stats. 1898, and that it was determined in said action that each and all of said tracts were exempt from taxation under said statute. There is no mention in either finding of any errors in description, nor is it even hinted that the taxes were held void on that ground.

These former judgments being so clearly based upon the finding that the lands were exempt from taxation on account of their use, it is very apparent that the question was actually litigated and decided in those cases, and that so long as the facts as to the use of the parcels remain the same the question is settled between the parties and cannot be reopened. The defendants expressly stated, in reply to the court’s question, that they had “no proof to offer as to a changed condi*106tion or difference of use of any parcel of land included in the-complaint,” and upon this statement the court held the previous judgments conclusive, and sustained the plaintiff’s objection to the introduction of any evidence by the defendants. This rule was evidently right. Unless there was a change of condition or use, the question of exemption was not open between the parties.

One additional parcel of land was included in the present action which had not been included in the previous action, and the court found upon sufficient evidence that it was “part of the same general tract of land, and was and is occupied and' used in the same manner and for the same purposes as were the lands described in and referred to in” the previous actions, and hence was exempt. This finding was based upon, sufficient evidence; but it said that, by ruling out all evidence-except as to change of conditions, the defendants were wrongfully deprived of an opportunity to contest the question of the taxability of this parcel. Reference to the bill of exceptions shows that there was quite a colloquy between court and counsel when the motion to exclude all evidence under the answer was made, and no mention was made by counsel of any desire to submit proof as to this one parcel, nor was there any suggestion that it was in a different situation from the balance of the land. In fact, counsel’s final statement was that he had no proof to offer as to changed condition or difference-of use of any parcel of land included in this complaint. Had counsel offered proofs as to the use of this particular parcel, the court would doubtless have heard them; but we think the-court was entirely justified in assuming from this remark, that he had none to offer.

By the Court. — Judgment affirmed.