Steele v. Walker

• Citation: 115 Ala. 485,21 So. 942
• Parties: STEELE v. WALKER.
• Decision Date: 09 April 1897
• Court: Supreme Court of Alabama

21 So. 942

115 Ala. 485

STEELE v. WALKER.

Supreme Court of Alabama

April 9, 1897

Appeal from circuit court, Macon county; N. D. Denson, Judge.

Action of trespass by W. B. Steele against B. W. Walker. Judgment for defendant, and plaintiff appeals. Affirmed.

This was an action of trespass, brought by the appellant, W. B Steele, against the appellee, B. W. Walker, to recover damages for the taking of a quantity of logs. The only rulings presented for review on the present appeal are the rulings of the court in overruling demurrers to the third fifth, and seventh pleas filed by the defendant. The substance of these pleas, as presented, is sufficiently stated in the opinion. The demurrers thereto were as follows To the third plea the plaintiff demurrered upon the following grounds: "(1) It is not shown that the plaintiff in this case was one of the defendants to the cause of U.S. vs. M. &amp G. R. R. Co. et al., or was an agent, attorney, servant, or employé of any of said defendants. (2) It is not shown that the said court had any jurisdiction of the plaintiff or of his property. (3) It is not shown that any right, authority, or jurisdiction existed in the said judge to make the said order, so far as plaintiff in this case is concerned. (4) It is not shown that said plaintiff in this case had any notice of said proceedings. (5) The said order was void on its face for want of jurisdiction. (6) The said order was void on its face for want of jurisdiction of plaintiff or his property. (7) The said order was void on its face for indefiniteness. (8) The plea and exhibits show no right in defendant to seize said logs. (9) The said plea and exhibits show no defense to this suit." To the fifth plea the plaintiff demurred upon the following grounds: "(1) The plea and exhibits do not show any ratification or affirmance by plaintiff in this suit of said trespass. (2) The matters shown by said plea show no defense to this suit." To the seventh plea the grounds of demurrer were as follows: "(1) He adopts the causes of demurrer from one to two, inclusive, set forth to the second plea. (2) The plea and exhibits do not show any justification for taking the logs of plaintiff. (3) The plea and exhibits do not shown any defense to this action." There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the rulings of the court upon the pleadings.

Thos. H. Watts, for appellant.

Roquemore & White, for appellee.

BRICKELL C.J.

This was an action of trespass for the taking of a quantity of logs, in which the appellant was plaintiff, and the appellee was defendant. The defendant pleaded the general issue, with three special pleas. To the latter the plaintiff filed demurrers, which were overruled, and the overruling of them is the matter of the assignments of error. The pleas were taken "in short by consent." They do not state, or profess to state, the facts relied on as constituting the defense. They are, in fact, mere skeletons, or outlines, referring to exhibits attached to and forming parts of them, from which the facts relied on in bar of the action are to be deduced. A plaintiff consenting to this mode of pleading must be deemed to consent that the pleas shall be interpreted as if the outlines were filled,-as if they were drawn in extenso, averring the particular facts, so far as these facts may be deduced from the exhibits, essential to constitute the defense they indicate; otherwise, the consent would be unmeaning. This is the interpretation of the pleas on which the demurrer seems to proceed, and it is this interpretation we will adopt in considering their sufficiency.

The plea numbered 3, the first to which the assignments of error refer, sets up in bar of the suit a decretal order of the circuit court of the United States for the Middle district of Alabama, rendered on the 8th day of November, 1890, in a cause therein pending wherein the United States was the complainant and the Mobile & Girard Railroad Company, a corporation organized and existing under the laws of this state, and a large number of natural persons, were defendants. The plea annexes as exhibits a copy of the original bill filed in the cause and of the decretal order to which reference is made. The objects and purposes of the original bill were the vacation of a certification of the public lands to the Mobile & Girard Railroad Company, which had been made to the secretary of the interior under the act of congress of June 3, 1856, granting lands to the state of Alabama to aid in the construction of railroads; to reclaim and restore to the public domain such parts of the lands as were forfeited by the failure of the railroad company to perform the conditions upon which the grant was dependent; to restrain trespasses on the lands; to recover timber which had been severed from the freehold; to obtain the appointment of a receiver pendente lite to take possession and control of the lands, and of all timber, logs, lumber, and structures thereon. The decretal order appoints the defendant receiver with direction and authority, to use the language of the order, "to take possession, charge, and control of the lands described in the bill, and of all the timber, trees, and lumber, logs, and buildings and structures thereon," excepting from its operation lands which, as described, were not subject to forfeiture and reclamation by the United States. Construing the plea, as we have expressed the opinion it must be construed, it must be accepted as averring that the logs, the taking of which constitutes the gravamen of the action, were found upon the lands not excepted from the operation of the decretal order, that they had been severed from the freehold, and that it was in the right and capacity of receiver they were taken possession of by the defendant. The plaintiff assigned a number of causes of demurrer to the plea, all of which, except two, in language not materially variant, assert the proposition that, as the plaintiff was not a party to the suit, the circuit court was without jurisdiction to authorize the defendant, as receiver, to take possession of logs claimed by him. The remaining causes of demurrer in general terms assail the order of appointment as void for indefiniteness. It has not been and cannot be doubted that the circuit court of the United States, sitting as a court of equity, had jurisdiction of the subject-matter of the suit pending before it, nor, if that were now a pertinent inquiry, that a case was presented in which rightfully it could exercise the power of appointing a receiver. The United States can and are accustomed to pursue, for the protection or for the reclamation of the public lands, the equitable remedies an individual under like circumstances may pursue in reference to his own lands, and are entitled to the same measure of relief which would be extended to him. U.S. v. Minor, 114 U.S. 233, 5 S.Ct. 836; U.S. v. Missouri, K. & T. Ry. Co., 141 U.S. 358, 12 S.Ct. 13; San Pedro & Cañon del Agua Co. v. U. S., 146 U.S. 120, 13 S.Ct. 94. The grant of lands to the state under the act of congress of June 3, 1856, was a grant in præsenti, subject to defeasance by reason of the nonperformance of the conditions upon which it depended. The breach of the conditions did not, ipso facto, work a forfeiture of the grant, nor cause a reversion of the lands. The title remained in the state, or in the railroad company succeeding to the title of the state, until the United States asserted the forfeiture, either through judicial proceedings or by legislative action manifesting an intention by congress to reassert title and resume possession. Schulenberg v. Harriman, 21 Wall. 44; Van Wyck v. Knevals, 106 U.S. 360, 1 S.Ct. 336; Railroad Co. v. McGee, 115 U.S. 469, 6 S.Ct. 123; U.S. v. Southern Pac. R. Co., 146 U.S. 570, 13 S.Ct. 152. The circuit court, having plenary jurisdiction of the subject-matter of the suit, and in the exercise of the jurisdiction having appointed the defendant receiver, authorizing him to take possession of the logs, which, if severed from the lands subject to forfeiture, like the lands were the property of the United States, the jurisdiction was not limited to the parties to the suit. It had jurisdiction of the res, and through the receiver could take custody of it, without regard to whether all claimants were or were not before it as parties. If the bill had shown that the logs were in the possession of the plaintiff or of any other stranger to the suit, the court would doubtless have ordered an amendment of the bill making the person having the possession a party, or have instructed the receiver to institute the proper action for the recovery of the possession. Davis v. Gray, 16 Wall. 203-218; Parker v. Browning, 8 Paige, 388; 2 Story, Eq. Jur. § 833. But it was not shown by the bill that the logs were not in possession of parties to the suit, or that there were strangers claiming any right to or interest in them; and, the receiver having passed into possession of them, his possession was the custody and possession of the court, not to be interfered with or disturbed by suit against him. Beach, Rec. §§ 213, 214; High, Rec. § 139; ...