Waterloo Min. Co. v. Doe

• Decision Date: 07 June 1897
• Docket Number: 145.
• Citation: 82 F. 45
• Parties: WATERLOO MIN. CO. v. DOE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

82 F. 45

WATERLOO MIN. CO. v. DOE et al.

No. 145.

United States Court of Appeals, Ninth Circuit.

June 7, 1897

A. H Rickets and Geo. H. Noyes, for appellant.

John Garber, for appellees.

Before GILBERT, Circuit Judge, and KNOWLES and BELLINGER, District judges.

KNOWLES District Judge.

This is an action brought by John S. Doe to restrain and enjoin the appellant from committing a continuing trespass upon two mining claims, known as the 'Oriental No. 2' and the 'Red Cloud,' situate in Calico mining district, San Bernardino county, Cal. John S. Doe died, and the appellees Bartlett Doe and Charles F. Doe, were appointed executors of his last will and testament, and were substituted as parties plaintiff in the place of the said John S. Doe. The appellant, the Waterloo Mining Company, owns the Silver King mining claim. This lies north of and adjoining the Oriental No. 2 and Red Cloud claims. The appellant sunk a shaft or incline upon its own surface ground within the lines of its claim, and from thence drifted into the ground claimed by appellees, and which ground is beneath the surface of that which is within the line of appellees' claims. This the appellant claims the right to do, and threatens and undoubtedly intends to continue to do, and to extract the ore therein and appropriate the same to its own use. There is a vein of spar, carrying silver and other minerals, in the Silver King lode claim, called the 'north vein,' and another sometimes called a 'divergent vein,' and at other times the 'middle vein.' There is a vein of spar, also carrying silver, which crops out on a Red Cloud and Oriental No. 2, and which in the evidence is termed the 'south vein.' Appellant claims that all these veins belong to a mineralized zone whose apex is in the Silver King ground. The Silver King is higher up the mountain than the Red Cloud and Oriental No. 2 claims, and hence upon a higher elevation than the other two. If the ground embracing these three veins is one mineral zone, then the part thereof within the Silver King premises would have the higher elevation. This zone would, however, be cut by the south side line of the Silver King and the north side lines of the Red Cloud and Oriental No. 2. Appellant received pending this suit a patent from the United States to the Silver King lode. The appellees have certificates of sale from the United States for their two claims.

Before proceeding to discuss the questions involving more or less the merits of this controversy, one of a preliminary nature is presented for determination, and one involving the jurisdiction of the lower court to hear and enter a decree in the same. It is urged that the circuit court and that this court, in accordance with the established rules in equitable proceedings, had no right or jurisdiction to enter any decree in this case. The ground upon which this claim is based is that the bill of complaint does not present an equitable cause, for the reason that it does not appear that the title of the complainants to the premises described in their bill and upon which it is alleged appellant has trespassed, has ever been established by any action at law, and that the title complainants alleged to be in them was controverted and denied in the answer of appellant. Hence one of the issues in the case involved the determination as to the legal title to complainants' alleged mining claims; that under such issues the action was more in the nature of an action of ejectment to try a legal title than one to determine equitable rights. It does not appear to be controverted but that appellant by its answer put in issue the legal title complainants allege in the bill to be in them. There is no doubt but this is an action asking for equitable relief. Enough is stated in the bill to have warranted the issuing of an injunction pendente lite, had an action at law existed to recover possession of said premises within the boundaries of appellees' mining claims, or in an action in trespass. The prayer in the bill is for an injunction pending this action, and also that at the determination of this action said injunction be made perpetual. There is no dispute in the case upon the point that appellant has entered upon premises beneath the surface of the two claims set forth in the bill as the property of appellees. While the answer to the bill presents an issue as to the title of appellees to their two claims, there was no controversy in the evidence upon this point. The point presented in this case upon this matter in this court was not presented or considered in the court below. In the case of Erhardt v. Boaro, 113 U.S. 537, 538, 5 S.Ct. 565, 566, the supreme court, having stated that the former doctrine was that when there was a dispute as to title no injunction would be granted restraining a trespass, said:

'This doctrine has been greatly modified in modern times, and it is now a common practice, in causes where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as extracting ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property pending legal proceedings for the determination of the title.'

Where there is no dispute as to title, there would seem to be no necessity of resorting to an action at law for the purpose of determining the same. But, when there is a dispute as to the legal title, it would seem that the best rule was to require an action at law to settle the legal title. This was so stated in the case of St. Louis Mining & Milling Co. v. Montana Mining Co., 58 F. 129. Pending this action, however, an injunction pendente lite would be proper. When the legal title is settled, if the equitable rights such as would warrant a perpetual injunction should be found for complainants, then such an injunction should be awarded. The allegations in the bill were sufficient to warrant the court in issuing, not only a temporary injunction in this case, pending an action at law to determine the legal title, but also were sufficient to warrant a perpetual injunction upon the determination of the legal title in favor of the complainants. The question is then presented as to whether or not the appellant could waive this right to have the legal title established at law before there was any consideration of the issues that presented the question as to whether a permanent injunction should issue. If the fact that the legal title has not been determined is one of such vital importance to the jurisdiction of the court that when it exists no jurisdiction to hear and determine such a case as this can be properly exercised, then, upon the motion of appellant, or perhaps upon the court's own motion, the cause should be dismissed. In the discussion of this question, Mr. Pomeroy, in his work on Equity Jurisprudence, says:

'Where, however, the plaintiff's title is disputed, the rule is settled that he must, in general, procure his title to be satisfactorily determined, by at least one verdict in his own favor, by at least one successful trial at law, before a court of equity will interfere; but the rule no longer requires any particular number of actions or trials. The reason for this requisite is that courts of equity will not in general try disputed legal titles to land. But the rule is one of expediency and policy, rather than an essential condition and basis of the equitable jurisdiction.'

Here, it is to be observed, the view set forth, that the doctrine that a court of equity will not, in such a case as this, proceed to determine the issues presented until the legal title, if controverted, is established in an action at law, is one having its foundation in expediency and policy, and not because a court of equity, as a matter of fact, has no jurisdiction to determine a cause where a legal title is disputed and is one of the issues presented for determination. The same author, in volume l, p. 130, of said work, says, in speaking of the jurisdiction of a court of equity:

'On the contrary, as will be more fully stated hereafter, the objection that the case does not come within this so-called equity jurisdiction must ordinarily be definitely raised by the defendant at the commencement of the action or else it will be regarded as waived, and the judgment will not even be erroneous.'

In Modern Equity Practice, by Beach, sections 13 and 14 are as follows:

'Sec. 13. The objection that plaintiff has an adequate remedy at law should be raised by demurrer or by plea, or should be distinctly stated in the answer of the defendant. It comes too late at a hearing on the merits, when the court has jurisdiction of the parties and the subject-matter.

'Sec. 14. But when the case is one in which it is not competent for the court to grant the only relief asked, the remedy being at law, or it appears that chancery has not, under any circumstances, jurisdiction of the subject of the bill, the court will entertain the objection at any stage of the case, or sua sponte, and dismiss the bill.'

I am of the opinion that these two sections state the correct position. As has been stated before, the relief asked in this case was equitable, and such as a court of law could not afford. An action of trespass, in which damages only could be recovered, cannot be considered as a substitute for an action which asks that a continuing trespass be prevented, and which trespass goes to the destruction of the estate of the plaintiff. In that case where equitable relief is demanded, the fact that there is a plain, speedy, and adequate remedy at law should be raised in...