Norback v. Board of Directors of Church Extension Soc

• Decision Date: 22 October 1934
• Docket Number: 5178
• Citation: 84 Utah 506,37 P.2d 339
• Court: Utah Supreme Court
• Parties: NORBACK v. BOARD OF DIRECTORS OF CHURCH EXTENSION SOC

37 P.2d 339

84 Utah 506

NORBACK v. BOARD OF DIRECTORS OF CHURCH EXTENSION SOC

No. 5178

Supreme Court of Utah

October 22, 1934

Appeal from District Court, Second District, Weber County; E. E Pratt, Judge.

Action by A. M. Norback against the Board of Directors of the Church Extension Society, etc., who filed a counterclaim. From a judgment for defendants, plaintiff appeals.

REVERSED AND REMANDED.

H. A Belnap, of Ogden, for appellant.

DeVine Howell & Stine, of Ogden, for respondent.

MOFFAT, Justice. ELIAS HANSEN and FOLLAND, JJ., concur. EPHRAIM HANSON, J., STRAUP, Chief Justice, dissenting.

OPINION

MOFFAT, Justice.

This is an action by plaintiff to establish a claimed easement, for an order enjoining defendant from asserting a claim as against plaintiff thereto and for damages. In order to show the nature of the action, it is necessary to set out more or less completely the substance of the pleadings. Plaintiff alleges (aside from corporate existence, etc.) that he is, and since February 14, 1910, has been, the owner of a tract of land described as follows:

"A part of Lot 10, in Block 30, in Plat 'A' of Ogden City Survey: Beginning at a point 7 rods south from the northeast corner of said Lot, and running thence west 8 rods; thence south 18 feet; thence east 8 rods; thence north 18 feet to the place of beginning, situated in Weber County, Utah"; that plaintiff and his grantors, for more than twenty years prior to January 27, 1930, have used a private driveway or roadway over and across the land of the defendants described as follows:

"A part of Lot in 10, in Block 30, in Plat 'A' of Ogden City Survey, in Weber County, Utah: Beginning at the northwest corner of said Lot 10, in Block 30, Plat 'A' Ogden City Survey, and running thence south 7 rods; thence east 1 rod; thence north 7 rods; thence west 1 rod to the place of beginning";

and that such use has been "continuous, adverse, uninterrupted, open, peaceable, exclusive, under a claim of

[SEE PLAN IN ORIGINAL]

right, and with the knowledge and acquiescence of the owner or owners thereof, and without objection on the part of the defendants, or either of them"; that defendants have obstructed said road so that the plaintiff cannot use the same "by building a fence across it on February 25, 1930." The following is a sketch showing the relation of the respective properties and claimed easement:

For a second cause of action, plaintiff "refers to the paragraphs numbered one to seven inclusive of his first cause of action" (being all the paragraphs thereof), and then alleges that by the building by defendants of the fence across said road plaintiff has been damaged in the sum of $ 200; "that defendants by their said acts have created and are maintaining a nuisance, and intend and threaten to continue to maintain the same." Plaintiff prays judgment:

"1. That defendants be required to set forth the nature of their claim, and that all adverse claims of the defendants be determined by a decree of this court; that by said decree it be determined and adjudged that plaintiff is the owner of and entitled to the right of way hereinabove described; that defendants be forever debarred and enjoined from asserting any claim whatever in or to said right of way as against this plaintiff, and for such other and further relief as to this court may seem meet and just in the premises, and for costs of suit.

"2. On the second cause of action that plaintiff recover judgment of and from the defendants in the sum of $ 200.00, with legal interest from February 25, 1930, until paid, and costs; and that the defendants and each of them be enjoined and forever debarred from asserting any claim whatever in or to said right of way as against this plaintiff, and for such other relief as to the court may seem just."

The defendants in their answer admitted the corporate existence of one of the defendants, the ownership by the corporate defendant of the land alleged by plaintiff to be owned by it; admitted that plaintiff had used a driveway across land owned by the corporate defendant for a period of five years prior to February, 1930, with the consent and acquiescence of said corporate defendant, and without objection on its part, but alleged that such use of said driveway was permissive on the part of the said corporate defendant, and solely as a matter of convenience to plaintiff, with the understanding and agreement that he would acquire no rights thereby; and denied all the other allegations of both causes of action set forth in plaintiff's complaint.

By way of counterclaim the corporate defendant alleges that it is now, and for many years has been, the owner of the tract of land described in the complaint as owned by it; alleges that plaintiff wrongfully makes the claim set forth in his complaint to the right of way described across the land as therein described; that plaintiff has no right title, or interest in or to said tract of land, or any part thereof, and said claim set forth in said complaint, or any claim on his part in and to said tract of land, or any part thereof, or to any right, title, or interest therein, is wrongful and without any right whatsoever.

Defendants prayed a dismissal of the action, and the corporate defendant, in addition to a dismissal, that it be adjudged that plaintiff has no estate, right, title, or interest therein; that he and all persons claiming under or through him be perpetually enjoined from claiming any estate, or right, title, or interest in and to said tract of land, or any part thereof. Plaintiff replied denying all the new matter contained in the answer and counterclaim.

Upon the issues made by these pleadings, plaintiff demanded a jury trial which was refused by the court, and this is the first error relied upon by plaintiff for the reversal of the judgment of the trial court. In the view we take of the case, the assignment of error based upon the refusal of the trial court to grant a jury trial after a timely demand was made and the fee paid is the only assignment of error we need to discuss.

" The right of trial by jury is a constitutional right, and every litigant, in an action of legal cognizance, has an absolute right to that method of trial, a right which the court may not disregard." Eyak River Packing Co. v. Huglen et al., 143 Wash. 229, 255 P. 123, 129, 257 P. 638.

The Constitution of the state of Utah provides (article 1, § 10) that "a jury in civil cases shall be waived unless demanded." No question is raised upon this appeal as to the demand for a trial by jury having been timely made, the fee paid, or failure to take other action necessary to entitle the plaintiff to a trial by jury, other than that the action is one in equity. The ground upon which the trial court rested its denial of plaintiff's demand is that the issues were equitable. The trial court indicated that there was some conflict and uncertainty in the decisions upon the matter. As to the law relating to the right of trial by jury, there is and may be no uncertainty. If the trial of the cause calls for the application of equitable principles rather than legal principles as ordinarily accepted, the case is one for a court of equity rather than a court of law. Under the Code, or, as sometimes designated, the reformed procedure, the question is not one of jurisdiction as both law and equity may be administered in the same action. Constitution of Utah, art. 8, § 19; Comp. Laws Utah 1917, §§ 5838, 5839.

The distinction sought to be here drawn is so clearly and definitely stated by Pomeroy in his Equity Jurisprudence (4th Ed.) vol. 1, that a quotation, though somewhat lengthy, is pertinent and helpful:

Section 129: "It is important to obtain at the outset a clear and accurate notion of what is meant by the term 'Equity Jurisdiction.' It is used in contradistinction to 'jurisdiction' in general, and to 'Common-law jurisdiction' in particular. In its most general sense the term 'jurisdiction,' when applied to a court, is the power residing in such court to determine judicially a given action, controversy, or question presented to it for decision. If this power does not exist with reference to any particular case its determination by the court is an absolute nullity; if it does exist, the determination, however erroneous in fact or in law, is binding upon the parties until reversed or set aside in some proceeding authorized by the practice, and brought for that express purpose. It is plain that the term used in this strict sense may be applied to courts of equity as well as to any other tribunals. With this signification of the word, it would be said that an equity court has no jurisdiction to try the issues arising upon an indictment, and to render judgment in a criminal prosecution; the entire proceeding would be null and void. On the other hand, it is equally plain that this strict meaning is not always given to the term 'equity jurisdiction,' as it is ordinarily used. The proceedings and judgment of a court of chancery or of a court clothed with equity powers are not necessarily null and void because the action is not one which comes within the scope of the 'equity jurisdiction' in the common acceptation of that phrase, or in other words, because the claim is one for which there is a full, adequate, and complete remedy at law. This well-settled rule furnishes a decisive test, and shows that when ordinarily speaking of the 'equity jurisdiction' we do not thereby refer to the general power inherent in a court to decide a controversy at all,--a power so essential that its absence renders the decision a mere nullity, but we intend by the phrase to describe some more special and limited judicial authority."

Section 130: "'Equity jurisdiction,'...