Veale v. Piercy

• Decision Date: 06 August 1962
• Citation: 24 Cal.Rptr. 91,206 Cal.App.2d 557
• Court: California Court of Appeals Court of Appeals
• Parties: Wilbur VEALE et al., Plaintiffs and Appellants, v. E. A. PIERCY et al., Defendants and Respondents. Civ. 6805.

Page 91

24 Cal.Rptr. 91

206 Cal.App.2d 557

Wilbur VEALE et al., Plaintiffs and Appellants, v. E. A. PIERCY et al., Defendants and Respondents.

Civ. 6805.

District Court of Appeal, Fourth District, California.

Aug. 6, 1962.

As Modified on Denial of Rehearing Sept. 5, 1962.

Hearing Denied Oct. 8, 1962.

Milton Wichner, Los Angeles, for plaintiffs and appellants.

Lonergan & Jordan and John B. Lonergan, San Bernardino, for defendants and respondents.

STONE, Justice pro tem.

The mining claims involved in this action for declaratory relief are located upon government land in a rugged area of the San Bernardino Mountains in San Bernardino County. In 1955 plaintiffs-appellants bought 'Sentinel,' a lode mining claim, and in the same year filed several adjoining lode claims. In 1956 defendants-respondents filed a number of placer claims in the same general vicinity, several of which overlapped plaintiffs' prior lode claims. Plaintiffs filed an action for declaratory relief to determine title in the area of conflict. They alleged title and possession in themselves and, further, that defendants were trespassing on their claims. By way of answer, defendants denied plaintiffs' title, and alleged title and possession to be in themselves wherever the claims overlapped. Plaintiffs' title to the Sentinel claim is not challenged.

Defendants also filed a cross-complaint, seeking a declaration that they hold title to a road in section 7 leading to the claims which are located in section 18, which is contiguous to section 7. Plaintiffs answered the cross-complaint, alleging that the road is the only roadway to Sentinel; that the road had been used by the public continuously, openly and notoriously for more than five years prior to commencement of the action.

On the complaint, the court declared that plaintiffs had filed only one valid claim, and that otherwise defendants had paramount title where the two sets of claims conflicted. On the cross-complaint, the court declared the road leading to the claims to be a public roadway in both sections 7 and 18. Additional facts will be related as each of plaintiffs' contentions on appeal is discussed.

Plaintiffs confront us at the outset of this appeal with the contention that the trial court erred in denying their request for trial by jury. The California Constitution guarantees litigants the right to trial by jury as it existed at common law in 1850. (California Const. Art. 1, § 7; Calif.Const. of 1849, Art. 1, § 3; People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 286, 231 P.2d 832; Ripling v. Superior Court, 112 Cal.App.2d 399, 402, 247 P.2d 117.) Whether the particular case meets the historical test must be determined from the issues raised by the pleadings and by the pretrial order.

Plaintiffs point out, correctly, that they may not be denied a jury trial simply because their action is one for declaratory relief. The Supreme Court so stated in State Farm etc. Insurance Co. v. Superior Court, 47 Cal.2d 428, at page 432, 304 P.2d 13, at page 15, wherein the following language appears:

'In short, the 'courts will not permit the declaratory action to be used as a device to circumvent the right to a jury trial in cases where such right would be guaranteed if the proceeding were coercive rather than declaratory in nature.' (Citations.)'

Insofar as the right to a jury trial is concerned, it has been said erroneously that declaratory actions are equitable in nature. They are, in fact, sui generis and may raise either legal or equitable issues. (Dills v. Delira Corp., 145 Cal.App.2d 124, 129, 302 P.2d 397.) The court in Dills made the following observation, at page 130, 302 P.2d at page 400, which in the light of the facts of this case we consider an understatement:

'Determining whether an action is legal or equitable may be a fair-sized task under ordinary circumstances, as in Ripling v. Superior Court, supra, 112 Cal.App.2d 399, 247 P.2d 117, but the problem is multiplied when the relief sought is a 'sui generis' declaration in which event the court is even deprived of the advantage of considering the prayer as an indication of whether or not the claim is addressed to equity.'

Turning now to the pleadings in the action before us, plaintiffs' complaint alleges as ultimate facts: that plaintiffs filed lode mining claims which antedated the filing of defendants' placer claims; that defendants' placer mining claims overlapped plaintiffs' prior lode claims; that plaintiffs are in possession of their lode claims; that defendants are trespassing upon plaintiffs' property by entering, excavating, blasting and working defendants' alleged placer mining claims. Plaintiffs prayed for relief as follows: 'that the court resolve the foregoing controversy by adjudging and declaring that the defendants, or any of them, have no right to enter upon, over, excavate, blast, occupy or work their said alleged minings where the same conflict with the mining claims of plaintiffs.'

Since plaintiffs pleaded possession in themselves at the time of filing the complaint, the action cannot be construed as one in ejectment. Further, plaintiffs pleaded none of the legal aspects of an action in trespass. Thus we have a simple quiet title action by plaintiffs in possession.

By way of answer, defendants denied plaintiffs' allegations and affirmatively pleaded a quiet title action; i. e., defendants' title to the placer claims which overlap plaintiffs' lode claims; possession of the property by defendants; that they worked the overlapping claims as a matter of right and were not trespassers; and that plaintiffs take nothing by reason of their complaint.

In substance, we have counter quiet-title actions: a complaint by plaintiffs in possession asking for a declaratory judgment of title; and defendants' answer alleging possession and title and asking declaratory relief that plaintiffs take nothing. Standing alone, these two counter-pleadings in quiet title are equitable in nature; and as equitable proceedings they are triable by the court without a jury. (Thomson v. Thomson, 7 Cal.2d 671, 681, 62 P.2d 358, 117 A.L.R. 1.) However, defendants, in addition to their quiet title allegations, placed in issue the question of right to possession of the overlapping claims. This they did by the following allegation in their answer:

'Admit that there exists an actual controversy between the plaintiffs on the one hand and the defendants on the other hand; allege that the controversy involves the ownership and the right of possession under the mining laws of the United States of America and of the State of California of the lode mining claims asserted by the plaintiffs.' (Emphasis added.)

In Thomson v. Thomson, supra, 7 Cal.2d at page 681, 62 P.2d at page 362, the Supreme Court held that:

'If plaintiff is in possession, and the defendant by answer or cross-complaint seeks to eject the plaintiff and recover possession, the action involves both equitable and legal issues. The issues arising out of plaintiff's cause of action are equitable, and those resulting from defendant's answer and cross-complaint are legal. In such an action the plaintiff is entitled to have the equitable issues tried by the court without a jury, and the defendant is entitled to have the legal issues submitted to a jury.'

The question of possession of the mining claims presented by the pleadings before us is not exactly analogous to the hypothetical situation discussed in the foregoing excerpt from Thomson. The issues are comparable, however, in that defendants' answer sets up their claim to possession, while admitting plaintiffs' prior filing. Defendants, in effect, ask the court to declare that they are in possession, thus controverting plaintiffs' allegations of present possession and defendants' trespass. It appears to us that the case comes within the rationale of Thomson and that the complaint and answer, when construed together, present two separate issues; namely, the equitable issue of title and the legal issue of possession.

It was held in Thomson v. Thomson, supra, 7 Cal.2d at page 682, 62 P.2d 358, and in Connell v. Bowes, 19 Cal.2d 870, 123 P.2d 456, that where the pleadings frame two separate issues, one equitable (here title to the property) and the other legal (here right to possession), either litigant has the right to have the legal issues tried by a jury. However, when faced with a similar question, the court in Richard v. Degen & Brody, Inc., 181 Cal.App.2d 289, held at page 295, 5 Cal.Rptr. 263 at page 267, that:

"When an action involves both legal and equitable issues, the equitable issues, ordinarily, are tried first, for this may obviate the necessity for a subsequent trial of the legal issues.' (29 Cal.Jur.2d, § 9, p. 496.) To the same effect, see Swasey v. Adair, 88 Cal. 179, 180, 25 P. 1119; Connell v. Bowes, 19 Cal.2d 870, 872, 123 P.2d 456; Alton v. Rogers, 127 Cal.App.2d 667, 676, 274 P.2d 487; Dills v. Delira Corp., 145 Cal.App.2d 124, 129, 302 P.2d 397.'

In the action before us the court first tried the equitable issue, that is, title to the property. This followed the procedure approved by Richard v. Degen & Brody, Inc., supra, and Dills v. Delira Corp., supra. Once the court decreed that defendants' placer mining claims prevailed over plaintiffs' lode mining claims, plaintiffs' demand for a jury trial of the legal issues became moot. This is so since the right to possession necessarily is dependent upon the paramount title, which was found to be in defendants.

Plaintiffs' contention that reversible error was committed in denying them the right to jury trial as to the additional issue of waiver raised by defendants' supplemental answer, is of no moment: the court decided this issue in favor of plaintiffs.

Looking now to the merits of the case, the court found that plaintiffs made no discovery of a mineral lode or vein containing the presence of valuable minerals; which finding plaintiffs allege was...