16 F.2d 395 (8th Cir. 1926), 7274, F.C. Ayres Mercantile Co. v. Union Pac. R. Co.

Docket Nº:7274.
Citation:16 F.2d 395
Party Name:F. C. AYRES MERCANTILE CO. v. UNION PAC, R. CO. et al.
Case Date:November 22, 1926
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 395

16 F.2d 395 (8th Cir. 1926)

F. C. AYRES MERCANTILE CO.

v.

UNION PAC, R. CO. et al.

No. 7274.

United States Court of Appeals, Eighth Circuit

November 22, 1926

Page 396

James Grafton Rogers, of Denver, Colo. (William V. Hodges, D. Edgar Wilson, and James L. Goree, all of Denver, Colo., on the brief), for plaintiff in error.

C. C. Dorsey, of Denver, Colo. (Edward G. Knowles, of Denver, Colo., on the brief), for defendant in error Union Pac. R. Co.

Frank E. Gove, of Denver, Colo. (Kenaz Huffman, of Denver, Colo., on the brief), for defendant in error Armour & Co.

Lawrence Lewis, of Denver, Colo. (Donald C. McCreery, of Greeley, Colo., and Bryan G. Johnson, of Denver, Colo., on the brief), for defendants in error Jamison and others.

Before KENYON, Circuit Judge, and SCOTT and SANBORN, District Judges.

KENYON, Circuit Judge.

This suit is one in ejectment brought originally by plaintiff in error (hereinafter designed as plaintiff) against the Union Pacific Railroad Company, one of the defendants in error, to recover possession of a certain strip of land across a part of the northwesterly one-half of lots 1 to 6, inclusive, block 23, East Denver, Colo., occupied by two spur tracks of said railroad company serving certain industries in said block 23 and other adjacent blocks. Upon motion of defendants, plaintiff was required by the court to make parties Armour & Co. and the other defendants in error (hereinafter referred to as the Arbuckle heirs), on the theory that they had some right in the property. All defendants in error here will be designated as defendants. The defendants answering plaintiff's complaint asserted that the Union Pacific Railroad Company had the right to maintain its tracks upon plaintiff's property; that the action is barred by the statute of limitations; that an easement by prescription exists as to all defendants to have the use of the strip of land occupied by the railroad tracks. All defendants claim certain estoppels.

Defendant Union Pacific Railroad Company asserts that the tracks on the strip of land in question had been, and were at the time the action was brought, used for public purposes. The trial court instructed a verdict for all of the defendants, and plaintiff brings the case here.

Defendants filed cross-petitions raising equitable issues. Plaintiff continued to assert throughout the trial that the case was one at law. Whether or not defendants so considered it up to the time of filing motion to instruct the jury to return a verdict in their favor is not clear from the record, but in any event they treated it as a case at law at the time of filing such motions. The action as originally brought was one based on plaintiff's title to recover possession of specific real

Page 397

property. It was clearly an action at law. Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873; Denison v. Keck et al. (C.C.A.) 13 F.(2d) 384.

Defendants had the right under section 274b of the Judicial Code (Comp. St. Sec. 1251b), to file cross-complaints seeking equitable relief against the plaintiff. In this situation the equitable issues should have been first disposed of. The Supreme Court of the United States has pointed out the proper procedure in Liberty Oil Company v. Condon National Bank et al., 260 U.S. 235, 242, 43 S.Ct. 118, 121 (67 L.Ed. 232), saying: 'Where an equitable defense is interposed to a suit at law, the equitable issue raised should first be disposed of as in a court of equity, and then, if an issue at law remains, it is triable to a jury. ' See, also, Union Pac. R. Co. v. Syas, 246 F. 561, 158 C.C.A. 531; Houston v. Trower (C.C.A.) 297 F. 558; Horback v. Coyle et al. (C.C.A.) 2 F.(2d) 702, 707.

It appears from the record that, because the jury was about to be discharged for the term, it would expedite business to have the legal questions first determined. Defendants waived the right to have the equitable issues first disposed of. Plaintiff does not seem to have objected to this procedure, and a jury was impaneled. During the trial the court submitted one question of fact to the jury evidently for an advisory opinion. After that the court filed an opinion holding for defendants, and indicating there was no further need for a jury and stated it was the court's impression that it 'should make specific findings of fact and conclusions of law agreeable to the views herein expressed and enter a decree thereon. ' Apparently at this time the court regarded the case as in equity. After the court had indicated its views, defendants moved for an instructed verdict, and subsequently the jury, which had been excused for a while, was recalled, and the court directed a verdict for defendants. After this defendants dismissed their equitable cross-petitions and counterclaims.

It is evident the procedure was irregular, and resulted in a legal farrago. Procedure within the rules of law must rest somewhat in the discretion of a trial judge, and if the procedure here, while not meeting with our approval, did in fact work no prejudice to plaintiff, it is not ground for reversal. The court came to the conclusion that the evidence was not sufficient to warrant submitting the questions of fact to a jury for determination, and upon motion of defendants directed a verdict for all defendants. The guaranty of the Seventh Amendment to the Constitution as to the right of a trial by jury applies to cases in which there are issues of fact to be determined. The court's decision was based on a legal proposition, and, if such action was correct, plaintiff has no ground for complaint. Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135. We turn, therefore, to the question of whether the court erred in instructing a verdict for defendants.

The court indicated that it instructed the verdict on the ground that the use of the tracks by the Union Pacific Railroad Company was a public use. The court expressly said it did not find that defendants, Armour & Co. and the Arbuckle heirs, were entitled to a judgment establishing their claimed easements, stating: 'All a...

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