Brook v. Justice Mining Co.

• Decision Date: 27 November 1893
• Citation: 58 F. 827
• Parties: BOOK et al. v. JUSTICE MIN. CO.
• Court: U.S. District Court — District of Nevada

58 F. 827

BOOK et al. v. JUSTICE MIN. CO.

United States Circuit Court, D. Nevada.

November 27, 1893

Robert M. Clarke, for complainants.

W. E F. Deal, for defendant.

HAWLEY District Judge, (orally.)

Complainants move the court for a new trial; among other things, upon the ground that the case was an action at law, and not a suit in equity, and should have been tried by a jury. Complainants' position relative to the character of this suit is, to say the least, very inconsistent. It seems to be (1) That, if they had won, it would have been an equity suit and they would have been entitled to a decree; but, having lost the case upon its merits, it is an action at law, and they are entitled to a trial by jury. (2) The court had jurisdiction to enter a decree in their favor, but it had no jurisdiction to enter a decree in favor of the defendant. (3) If they had won, they would have won everything; but, having lost, they have lost nothing. It is admitted that the bill was filed under the belief that equity was the proper remedy but counsel for complainants claims that he was mistaken as to the proper form of the action. The bill prayed for equitable relief as follows:

'That said defendant be required to appear and answer this complaint, and show to the court its pretended title, interest, and estate, and that upon the final hearing your orators be adjudged and decreed to be the owners of said Peerless mining claim and location, and that defendant's claim thereto be adjudged and decreed to be invalid, and that defendant be perpetually enjoined from claiming or asserting any title, interest, or estate in and to said Peerless mining claim and location.'

The defendant answered, asserting title to the property, fully setting up its adverse claim, and prayed for affirmative relief, as follows:

'This defendant further humbly prays that this defendant be adjudged and decreed to be the owner of said West Justice mining claim, and of said James G. Blaine mining claim, as hereinbefore described, and that complainants' claim to said portions thereof hereinbefore described be adjudged and decreed to be invalid, and that said complainants be perpetually enjoined from claiming or asserting any title, interest, or estate in or to said West Justice mining claim and location, or in or to said James G. Blaine mining claim and location, or any part thereof, and that an injunction be issued from this honorable court, enjoining and restraining said complainants, or either of them, their, or either of their, agents, attorneys, or employes, from working or digging in or upon either of said mining claims and premises, and from extracting and digging or carrying away any of the rock, earth, or ore in either of said mining claims, or from interfering in any manner therewith, and, upon the final hearing, that said injunctions be made perpetual.'

When issue was joined, complainants moved for the appointment of an examiner to take testimony in the case, and an examiner was so appointed by consent of the parties to this suit. The testimony was taken before the examiner, and submitted to the court. The case was tried before the court, and decided, as an equity suit, without objection being made by either party as to the form of the action.

The parties having joined issue, each asking for equitable relief, and having voluntarily asked for the appointment of an examiner, and taken testimony before him, and submitted the same to the court, and argued the case upon the theory that it was an equity suit, have waived their right, if any they ever had, to have a jury, and it is now too late to object to the form of the action. Kelly v. Smith, 1 Blatchf. 290; Magee v. Magee, 51 Ill. 503; Railway Co. v. Ward, (Ill. Sup.) 18 N.E. 828; Crump v. Ingersoll, 47 Minn. 182, 49 N.W. 739; Freeland v. Wright, 154 Mass. 493, 28 N.E. 678; Landregan v. Peppin, 94 Cal. 467, 29 P. 771; Evans v. Goodwin, 132 Pa. St. 136, 19 A. 49; Levi v. Evans, 57 F. 681; Reynes v. Dumont, 130 U.S. 395, 9 S.Ct. 486; 1 Daniell, Ch. Pr. 555. In Landregan v. Peppin, which was an action brought under the provisions of section 738 of the Code of Civil Procedure of California for the purpose of quieting title to certain quartz mines, the complaint was in the usual form, and the answer denied the allegations thereof, except as to the adverse claim, and alleged that at, and for a long time prior to, the commencement of the action, the defendant was the owner of, in the possession of, and entitled to the possession of, all of said real estate. The court found all the allegations of the complaint to be true, and a decree was entered, quieting plaintiff's title. After the entry of the decree, plaintiff moved the court for an order to the sheriff that he be placed in possession of the property. The defendant opposed the motion. The court, in discussing the question, said:

'It will be noticed that section 738 of the Code of Civil Procedure, which provides for the determination of adverse claims to realty, is very broad in its terms, and includes all adverse interests, from a claim of a title in fee to the smallest leasehold; and, unquestionably, it is the duty of the defendant to set out his interest, whatever it may be, when called upon, under this section of the Code. If he has an adverse claim which will support an issue at law, upon which he desires a jury trial, it is his duty to set out that claim, make that issue, and demand a jury trial. In this action it is not necessary to determine whether or not the pleadings were sufficient to entitle either party to a jury as to any of the issues created. If not sufficient, the defendant should have made them so, if his adverse claims of interest justified such a course; and, not having done so, he cannot now be heard to complain that he was deprived of his right to a jury trial.'

In Levi v. Evans, where the suit was first brought as an action at law, upon common counts for money had and received, additional pleadings were filed in the state court, without objection, stating the grounds for equitable relief. The cause was thereafter removed to the United States circuit court, and was tried as an equity suit, without objection. The circuit court of appeals said:

'If additional and amended pleadings, exhibiting causes of action of an equitable nature, could not properly be filed in an action at law, all objection to such course of procedure was expressly waived by the appellant, and he voluntarily appeared to these equitable suits, pursuant to a stipulation entered into by him with the appellees for a valuable consideration. Good faith and fair dealing would now preclude the appellant from profiting by his objection. But, if there had been no waiver, the objection came too late. If a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law.' In Freeland v. Wright, which was a bill in equity brought to redeem a mortgage of real estate, the court said:

'If an application to frame issues for a jury would have been granted, if seasonably made, the plaintiff waived her right by allowing a reference to a master, and a hearing before him, before asking for a jury trial. Parker v. Nickerson, 137 Mass. 487. It would be unreasonable to permit a party to go to trial before a master, and take his chances of a favorable report, and then, if dissatisfied with the result, have another trial before a jury, and thereby put the other party to unnecessary expense and trouble.'

This view of the case is absolutely conclusive of the question. But, owing to the positions assumed by complainants, it is deemed proper to add that, in my opinion, counsel for complainants was not mistaken as to the proper form of the action. It is an equity suit. The statutes of Nevada provide that:

'An action may be brought by any person in possession, by himself, or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest.' Gen. St. Nev. § 3278.

An action brought under this statute, by a party in possession, to quiet the title to a mining claim, is an equity suit, and may be tried and disposed of as such. Low v. Staples, 2 Nev. 209; Mining Co. v. Marsano, 10 Nev. 370; Landregan v. Peppin, supra; Balmear v. Otis, 4 Dill. 558; Clark v. Smith, 13 Pet. 195; Wickliffe v. Owings, 17 How, 48; Holland v. Challen, 110 U.S. 24, 3 S.Ct. 495; 1 Fost. Fed. Pr. § 7; 3 Pom. Eq. Jur. § 1396. Foster, in enumerating the state laws creating new rights which can be enforced by federal courts of equity, specifies one authorizing a person in possession of land to sustain a bill to determine and quiet the title to the same. In Balmear v. Otis, which was an action brought under the Iowa statute to quiet title, the court said:

'A proceeding under the Iowa statute to quiet title, is, in its essence, an equity suit. In the federal courts, whether a particular case is one at law or equity depends upon the case stated in the petition. If the case there made shows a mere contest of legal titles, and the defendant is in possession, the remedy is at law. If the plaintiff is in possession, or if neither party is in possession, and the petition or bill shows that equitable relief is necessary or proper, the jurisdiction is in equity.'

But complainants claim that defendant, not having filed a cross bill, is not entitled to any affirmative relief. If this position was conceded to be correct, and applicable to the facts of this case, it would only result in a modification of the decree so as simply to dismiss the complainants' bill, and enter judgment for defendant for its costs. The contention of counsel...