Callsen v. Hope

• Decision Date: 03 April 1896
• Docket Number: 433.
• Citation: 75 F. 758
• Parties: CALLSEN et al. v. HOPE et al.
• Court: U.S. District Court — District of Alaska

75 F. 758

CALLSEN et al. v. HOPE et al.

No. 433.

United States District Court, District of Alaska.

April 3, 1896

J F. Maloney (substituted for Lytton Taylor), for plaintiffs.

Burton E. Bennett, for defendants.

DELANEY District Judge.

The grounds of this demurrer are (1) that the plaintiffs have not legal capacity to sue; (2) that several causes of suit have been improperly united; (3) that the bill does not state facts sufficient to constitute a cause of suit.

Upon the first cause of demurrer it is contended that, inasmuch as the Congregation of the Lutheran Church is nonincorporated as disclosed by the bill, it can obtain no standing as a party in court, and that its trustees have not capacity to bring this suit. I do not think this contention can be sustained. Stripped of its surplusage, it appears by the bill that there is a voluntary religious association at Sitka known as the Congregation of the Lutheran Church; that such congregation has been in existence for a long term of years before and since the transfer of Alaska from Russia to the United States; that the parties bringing this suit are members and trustees of said congregation; that prior to the treaty of cession and the transfer of the territory the said congregation became the owner in fee by grant from Russia of lot No. 33 of the town of Sitka, as marked in the inventories and designated on the map attached to and made a part of the protocol of transfer; that upon the transfer of the territory from Russia to the United States the commissioners of the two governments appointed to effect the transfer issued to the said congregation a certificate of title in fee simple to said lot, a copy of which certificate is set out in the bill; that the church building located on said lot, and for a long term of years occupied by said congregation as a place of worship, has fallen into decay, and some years since was removed from said lot; that no new structure has been erected in its place; that there is at present no pastor of said congregation; that there are members thereof still residing in Sitka, and that the congregation has never disbanded; that the defendants have entered upon said lot, and commenced the erection of a structure thereon, adversely to said congregation. The bill prays relief by way of perpetual injunction. The question of legal capacity of the plaintiffs to sue has been settled by the supreme court of the United States in Beatty v. Kurtz, 2 Pet. 566, wherein the facts presented are very similar to those of the case at bar. Indeed, with the single exception that in the case cited the lot in controversy had been set apart for the benefit of the Lutheran Church of the city of Georgetown, Md., by the original owner of the fee, who had platted an addition to said city, and had marked on the plat the lot of ground in controversy 'For the Lutheran Church,' but had made no conveyance, the facts in the case now here and in the one above cited are substantially the same. Mr. Justice Story, delivering the opinion of the court in the case cited, said that, while it was not necessary to decide the point as to whether trustees of a voluntary religious association have legal capacity to sue as such, as persons belonging to such a society, and having a common interest, they may sue in behalf of themselves and others having the like interest, as part of the same society, for purposes common to all and beneficial to all. The doctrine here laid down has been adopted by the supreme court of the state of Oregon in the case of Trustees v. Adams, 4 Or. 77. These cases sufficiently determine the law, and our equity jurisprudence would be faulty, indeed, if its doors were closed against parties seeking to reach the forum of the court with a case like that presented by this bill.

Upon the second proposition-- that two causes of action have been improperly united-- counsel for defendants makes no serious contention, and there is nothing in the bill to warrant it.

Upon the third cause of demurrer defendants' contention is that equity cannot be invoked, for the reason that the plaintiffs have a plain, adequate, and complete remedy at law; and it is further urged that the lot of ground in question passed to the United States under the treaty, and that, if it did not, inasmuch as it is no longer occupied for church purposes, or as a place of worship, any title thereto derived from Russia is forfeited, and the lot has become part of the public lands of the United States, and subject to occupation and possession by citizens of the United States as such. I do not think these positions can be maintained. Granted that ejectment will lie upon the facts as stated in the bill, would that action afford the plaintiffs a plain, adequate, and complete remedy? I think not. Equity will not sit by and permit an intruder upon lands belonging to another to use, occupy, and enjoy the same, and possibly divert them from the purposes of the real owner, or perhaps impair and destroy them for the uses designed by him, while he is seeking to establish and enforce his rights in a court of law. Defendants, at the time this bill was filed, and the temporary restraining order issued, were erecting a structure on this lot adversely to the plaintiffs. Unless restrained by equity, they could proceed with the completion of this structure, use it, rent it, occupy it, or put it to such purposes as they might see fit, while the action at law was being carried forward...