Correa v. Barbour

• Decision Date: 18 May 1934
• Docket Number: No. 2842.,2842.
• Citation: 71 F.2d 9
• Parties: CORREA et al. v. BARBOUR, Forest Sup'r.
• Court: U.S. Court of Appeals — First Circuit

71 F.2d 9 (1934)

CORREA et al. v. BARBOUR, Forest Sup'r.

No. 2842.

Circuit Court of Appeals, First Circuit.

May 18, 1934.

Hugh R. Francis, of San Juan, P. R. (Virgilio Brunet, and Rafael Soltero Peralta, both of San Juan, P. R., on the brief), for appellants.

Harry W. Blair, Asst. Atty. Gen. (Aubrey Lawrence and Edward T. Burke, Sp. Assts. to Atty. Gen., and A. Cecil Snyder, U. S. Atty., of San Juan, P. R., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an appeal from a judgment of the District Court of Puerto Rico sustaining a demurrer to the complaint and dismissing the suit.

In the amended complaint it was alleged:

"Firstly. That the said plaintiffs are all of them citizens of Puerto Rico, residing: Gerado Baldrich Correa in the Municipality of San Juan, Benigno Baldrich Correa in the Municipality of Rio Grande, and Evaristo and Juan Correa Lopez de Victoria in the Municipality of Rio Piedras; and that the defendant, William R. Barbour, is a citizen of the United States, now sojourning in the Island of Puerto Rico, in the Municipality of Rio Piedras, who was appointed on June 1, 1931, Forest Supervisor of the Luquillo National Forest attached to this Island from the United States Forest Service by authority of the Federal Department of Agriculture.

"Secondly. That said plaintiffs are the owners in fee simple of the following described land, to wit: (specifically describing the land by metes and bounds, and stating the municipal districts in which it is situated).

"Thirdly. Plaintiffs further allege that on or about the year 1913, the said plaintiffs being the owners of said described land in fee simple by virtue of a grant from the Crown of Spain to Francisco Correa, of whom the plaintiffs are heirs, and having the right of possession thereof under the guarantees of the Treaty of Paris between the United States and Spain, signed on December 10, 1898 (proclaimed April 11, 1899), the defendant entered into possession of said land and has exercised dominion over said land and is now in possession thereof; all against the will of plaintiffs.

"Fourthly. That plaintiffs have repeatedly applied to the defendant for the return to them of such land and the defendant has refused to do so.

"Fifthly. That said land, which is of the approximate value of two hundred thousand dollars, is at present the ownership of the plaintiffs.

"Sixthly. That said plaintiffs had at all times before 1913, or thereabouts, exercised dominion over said land but that the defendant claims that he has the right and authority to exercise dominion and control over same, by virtue of his appointment as Forest Supervisor of the Luquillo National Forest, United States Forest Service at Rio Piedras, Puerto Rico, and he does so exercise such dominion and control over said property and is in possession thereof and maintains plaintiffs excluded therefrom.

"Seventhly. That as a result of the plaintiffs having been deprived of the use of their above described premises, they have thus been deprived, during the whole length of the dispossession, of the produce and rent thereof; and the plaintiffs have estimated this loss at about one hundred thousand dollars.

"Wherefore, plaintiffs, as owners in fee simple of the above described premises, pray the judgment of this court for the recovery and of possession of said land, and the produce or rent thereof, as described herein.

"That the boundary of the land of plaintiffs be settled and determined by this court."

The defendant in his demurrer to the complaint assigns four distinct grounds, the fourth of which, however, the court was not requested to pass upon as counsel for the defendant regarded the matter to which it related as having been cured by the amendment to the complaint. The remaining grounds of demurrer were as follows:

"1. That this court has no jurisdiction of the person of the defendant or the subject of the action:

"From the first paragraph of the complaint it appears that William R. Barbour, the defendant, is sued, not in his personal capacity, but as Forest Supervisor of the Luquillo National Forest attached from the United States Forest Service by authority of the United States Department of Agriculture, and, therefore, the real defendant in this case is the United States of America. Such being the case, nowhere in the complaint does it appear that permission has been requested from the United States of America to be sued as a sovereign government nor does it appear from the complaint that the United States of America as a sovereign government has ever given permission or authorized such suit to be brought against it.

"2. That there is a defect or misjoinder of parties defendant:

"From the mere reading of the complaint it is apparent that the ejectment sought is not of William R. Barbour in his private and individual capacity but that really and actually the ejectment is directed against the United States of America, which, according to allegations third and sixth of the complaint, has entered into possession, exercised dominion, does exercise dominion and control and possession over a certain tract of land fully described in the complaint since the year 1913. Therefore, the United States of America, being the real party in interest and which is really exercising dominion and control is in possession of the aforesaid tract of land, should be a party defendant, and nowhere in the complaint is the United States of America made a party defendant.

"3. That the complaint does not state sufficient facts to constitute a cause of action:

"According to paragraph third of the complaint it is alleged that `the said plaintiffs being owners of the said described land in fee simple by virtue of a grant from the Crown of Spain to Francisco Correa of whom plaintiffs are heirs. * * *' No facts are alleged as to when and how the said plaintiffs became and are the heirs nor that they are the only heirs of said Francisco Correa.

"A further reason under this ground of demurrer is that plaintiffs do not allege to whom or when the said plaintiffs have made demand for the return of said property, the only facts alleged in this respect being those which appear in paragraph four, to the effect that `plaintiffs have repeatedly applied to the defendant for the return to them of such land and defendant has refused to do so.'"

In their assignments of error the plaintiffs-appellants complain that the court erred in ruling: (1) That it had no jurisdiction of the subject of the action; (2) that there is a defect or misjoinder of the parties defendant; (3) that the complaint does not state sufficient facts to constitute a cause of action; (4) in dismissing their motion for reconsideration; and (5) in dismissing the complaint.

With reference to the first and second grounds of demurrer the contention of the plaintiffs is that this action draws in question simply the plaintiffs' right against the defendant as an individual to be put in possession of the property described in the complaint; that it is not an action to determine the title of the United States to the land in question; and that the United States is not in fact a party to the suit and is not an indispensable or even a necessary party to the determination of the plaintiffs' right of possession or to a judgment asserting they have such right.

The situation existing in this case does not differ in any material respect from that before the court in United States v. Lee, 106 U. S. 196, 1 S. Ct. 240, 247, 27 L. Ed. 171. There the action was brought against Kaufman, Strong, and several others to recover possession of a parcel of land known as the Arlington estate. At the trial the plaintiff dismissed the suit as to all the defendants except Kaufman and Strong, against whom judgment was rendered as to distinct parcels of the land in question. The United States was not a party to the suit and declined to submit itself as a defendant to the jurisdiction of the court. In the Circuit Court of the United States the Attorney General filed a motion or suggestion to the effect that "the property in controversy has been for more than ten years and now is held, occupied, and possessed by the United States through its officers and agents as public property of the United States," namely, as a military station and as a national cemetery, and that the United States claimed title thereto under a certificate of tax sale, a copy of which it filed with its motion. The prayer of the motion was that the suit be dismissed and for such other order as might be proper. The plaintiff demurred to the motion or suggestion and the demurrer was sustained. Kaufman and Strong then pleaded the general issue, upon which trial was had. During the course of the...