Ely v. New Mexico & Arizona Railroad Co.

• Decision Date: 30 July 1888
• Docket Number: Civil 228
• Parties: FRANK ELY, Plaintiff and Appellant, v. THE NEW MEXICO AND ARIZONA RAILROAD COMPANY, Defendant and Appellee
• Court: Arizona Supreme Court

19 P. 6

2 Ariz. 420

FRANK ELY, Plaintiff and Appellant, v. THE NEW MEXICO AND ARIZONA RAILROAD COMPANY, Defendant and Appellee

Civil No. 228

Supreme Court of Arizona

July 30, 1888

APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Pima. Wm. H. Barnes, Judge.

Affirmed.

Jeffords and Franklin, and Rochester Ford, for Appellant.

Under Compiled Laws of Arizona, Sec. 256, pp. 449, so far modified the old equity rule, that but three things were necessary to concur in the plaintiff. First: title. Second: possession. Third: the assertion of an adverse claim on the part of the defendant. Curtis v. Sutter, 15 Cal. 259; Merced Min. Co. v. Fremont, 7 Cal. 319, 68 Am. Dec. 262.

In 1881 the statute was amended to read as follows: "An action may be brought by one against another who claims an estate or interest in said real property adverse to him, for the purpose of determining such adverse claim." Laws of Arizona, 1881, p. 116, Sec. 1. The obvious intention of this amendment was to permit any person, claiming an interest or estate in land, whether in or out of possession, to at once bring an action for the purpose of having any claim adverse to his, determined, and the title quieted. The concurrence of but two facts are necessary to warrant the action under the statute as amended; First, the claim of an estate or interest in the real property which is subject of controversy; Second that another person should make or assert some claim to said real property, adverse to him. That being so the plaintiff was bound only to allege his estate or interest in the land the adverse claim of defendants, and to pray that said adverse claim be determined. Compiled Laws of Arizona, Sec 39, pp. 414 and 415.

The authorities are uniform and conclusive that a complaint such as the one in this action, states a cause of action, and the demurrers should have been overruled. Statham v. Dusey, 11 P. 606; Stoddard v. Burge, 53 Cal. 394; Pierce v. Felter, 53 Cal. 18; Rough v. Simmons, 3 Pac. (Cal.) 91; Rough v. Booth, 3 Pac. (Cal.) 805; Garvey v. Willis, 50 Cal. 619; Goldsmith v. Gilliland, 10 Sawy. 606, 22 F. 865; Marot v. The Germania etc. Association, 54 Ind. 37; The Jeffesonville etc. R. R. Co. v. Oyler, 60 Ind. 383; Holland v. Challen, 110 U.S. 15; Reynolds v. Crawfordsville Bank, 112 U.S. 405; Clark v. Smith, 13 Pet. 195.

Haynes & Mitchell, for Respondents.

Unless the complaint alleges that the plaintiff is in possession, it must set forth the particulars of the plaintiff's title. The statute in question lays down no rule of pleading. The complaint must show that the plaintiff has no remedy other than that to be obtained from a court of equity. 3 Pom. Eq. Sec. 1399.

Wright, C. J.

OPINION

The facts are stated in the opinion.

WRIGHT, C. J.

This was a suit in equity to quiet title. The complaint alleges that the plaintiff is the owner in fee of all the land described in the complaint, but does not allege that he is in possession; nor does it aver that he is entitled to possession, or ask that possession be awarded him. The land is described as a Mexican land grant, called the "Rancho San Jose de Sonoita," and situated in the Sonoita valley, county of Pima, territory of Arizona, and that it was granted by the Mexican authorities to one Leon Herreras on the 15th day of May, 1825. The complaint further describes the land according to the calls of a survey made by the government of Spain on the 26th and 27th of June, 1821. Then after averring that the claim of the defendants, and each of them, is without any right whatsoever, the complaint closes with the following prayer for relief: "(1) That the said defendants, and each of them, be required to set forth the nature of his claim, and that all adverse claims of the defendants, and each of them, may be determined by a decree of this court; (2) that by said decree it be declared and adjudged that the defendants have no estate or interest whatever in or to said land and premises, or in or to any part thereof, and that the title of plaintiff is good and valid; (3) that the defendants, and each of them, be forever enjoined and debarred from asserting any claim whatever in or to said land and premises, or to any part thereof, adverse to plaintiff; and for such other and further relief as to this honorable court shall seem meet and agreeable to equity, and for his costs of suit." The principal defendants demurred to this complaint, alleging as grounds of demurrer "(1) that the court had no jurisdiction of the subject-matter of the action; (2) that there is a defect of parties defendant, in that it is not alleged that defendants claim a joint interest in the premises referred to in the complaint, or any part thereof; (3) that said complaint does not state facts sufficient to constitute a cause of action." On the latter cause of demurrer the court sustained the pleading; and the plaintiff electing to stand on his complaint, and refusing to amend the same, the court dismissed the action. From this order and judgment of the court the plaintiff appealed; and the principal question to be considered here is, was the action of the court below, in sustaining the demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action, erroneous? This question should be answered by the rule of chancery pleading; for, be it remembered, this was a bill in equity. We again observe, in the outset, that this bill nowhere alleges possession, or even the right of possession, in the plaintiff. The irresistible inference therefore is that he is not in possession. It goes without saying that a plaintiff in possession occupies quite a different attitude, in respect to the remedies to which he is entitled, from a plaintiff out of possession. A claimant in possession is prima facie the owner, while no such presumption attaches to a claimant out of possession. A plaintiff in possession need only state that fact in his bill, that he is the owner, etc., and that defendant is asserting some sort of adverse claim, to authorize the court of equity to grant such relief as he may be entitled to. But is that all that is necessary where the plaintiff is out of possession?

To state facts sufficient to constitute a cause of action such as will authorize the intervention of a court of chancery within the rules of chancery pleading, should not the plaintiff out of possession further state facts sufficient to show to the chancellor that the right or estate to be protected is equitable in its nature, or that the remedies at law are inadequate, where the right or estate is legal? Or at least such facts as will authorize such a deduction to be made, and thus authorize and justify chancery interposition? Is it not patent on the face of this bill that, if its allegations are true, the plaintiff has an indubitable legal estate? From aught that appears to the contrary is it not equally apparent that plaintiff has a full, adequate, and complete remedy at law by the action of ejectment? There is no question that the statute of 1881 authorized him to bring the proper suit, whether in or out of possession, though the repeal of that law went into effect about a month after this suit was filed; but, if out of possession, to obtain equitable relief, ought he not, by the averments of his complaint, to bring himself within the purview of equity jurisdiction? Mr. Pomeroy, in his Equity Jurisprudence, (section 130) says: "In order that a cause may come within the scope of the equity jurisdiction, one of two alternatives is essential; either the primary right, estate, or interest to be maintained, or the violation of which furnishes the cause of action, must be equitable rather than legal; or the remedy granted must be in its nature purely equitable, or, if it be a remedy which may be given by a court of law, it must be one which, under the facts and circumstances of the case, can only be made complete and adequate through the equitable modes of procedure." They who want equity themselves must give it to others. Ought not A. to show his own strength before asking that the weakness of B. be revealed? It will not do to say he shows his strength by asserting his title in fee; for this would indicate his right to a full, but only a legal, remedy. Ought he to be permitted to stand in the forum with closed hands, and demand that B.'s be opened? Will equity allow the aggressor to provoke the conflict, using, forsooth, concealed weapons, and then indicate his adversary's line of defense? While reason is the life of the law, conscience is the vital principle of equity. In fact, equity rules in the...