Westfeldt v. North Carolina Min. Co.

• Decision Date: 12 January 1909
• Docket Number: 745.
• Parties: WESTFELDT et al. v. NORTH CAROLINA MINING CO.
• Court: U.S. Court of Appeals — Fourth Circuit

166 F. 706

WESTFELDT et al. v. NORTH CAROLINA MINING CO.

No. 745.

United States Court of Appeals, Fourth Circuit.

January 12, 1909

In 1869 George Westfeldt bought at the bankruptcy sale of B. H Cunningham several tracts of land lying in the county of Macon and state of North Carolina, which had been granted in 1860 by that state to Cunningham. These lands lay near the Smoky Mountains, and were wild and inaccessible. In 1877 Westfeldt undertook to locate them, without success at first but subsequently, through the services of one McDowell, who lived near Franklin, in Macon county, and who had been the county surveyor who made the surveys upon which the grants to Cunningham issued, the lands were located, and openly claimed by Westfeldt until his death, and thereafter by his wife, and grantee and devisee, until her death, and then by her heirs and devisees, who, with the exception of Dodette Ottonnie Grinnell and Charles Fleetwood Hunt Westfeldt, are appellants in this appeal.

In 1889-90 somebody discovered copper upon one of the Westfeldt tracts, and considerable excitement arose in the neighborhood, and efforts were made to acquire the copper deposit by a location other than Westfeldt's title. This was attempted through a man named Everett, who had some old grants for lands in the Smoky Mountains which he had unsuccessfully endeavored to locate, but which, according to his claim, lay some miles from the Westfeldt lands.

In 1899 one W. S. Adams, after buying up Everett's claim, went into possession of the land where the copper deposit was claiming to own it, and began mining for the mineral. The Westfeldts warned the Adams party to desist from their attempts to get their land and to cease their trespasses, but in vain.

March 20, 1901, the Westfeldts sued Adams in the superior court of Swain county, in the state of North Carolina, for the recovery of the lands in an action which put the title thereto in issue. The action was in ejectment, but under the decisions of North Carolina judgment therein is not simply decisive of the right to possession, but is conclusive of the ownership of the land and determinative of the title thereto, and binding upon the parties on the question of title by way of estoppel. The action was tried in that court, and resulted in a verdict in favor of the Westfeldts, followed by a judgment declaring that they were the owners of the land and that Adams was in unlawful possession of it. Adams appealed to the state Supreme Court, where the judgment was reversed, and a new trial ordered because of the admission of incompetent evidence. Westfeldt v. Adams, 131 N.C. 379, 42 S.E. 823.

On the return of the case to the superior court of Swain county it was removed by consent to the superior court of Haywood county, and the north Carolina Mining Company was made an additional defendant, whereupon plaintiffs filed an amended complaint, and defendants Adams and the mining company, on October 12, 1903, filed an amended answer and counterclaim, which, after denying the allegations of the amended complaint, proceeded thus:

'And for a further defense, and by way of counterclaim, the defendants allege and say: (1) That they are the owners in fee simple and seised and possessed of two tracts of land described as follows: (Here follows description.) (2) That the plaintiffs unlawfully and wrongfully claim an interest in said lands, and to be the owners of the same, pretending that they are embraced within the boundaries of the tract of land described in the complaint herein, which said pretended claim the defendants say has no foundation in fact. Wherefore the defendants demand judgment: First. That the plaintiffs take nothing by their complaint, and that the defendants go without day. Second. That the defendants are the owners in fee simple of the said two tracts of land described in their counterclaim herein, and that all persons in privity with the plaintiffs be perpetually enjoined from making claim to said lands. Third. And for any other and further relief to which the defendants may be entitled, and for the costs of this action.'

The record from the state court does not seem to show the filing of a reply until November 3, 1906, and this denied the first and second paragraphs of the counterclaim.

The case was tried again in the Haywood superior court, and resulted in a verdict in favor of the Westfeldts, and it was thereupon adjudged that the Westfeldts were the owners of the land in fee simple, and that Adams and his codefendants were in unlawful possession thereof, and it was adjudged 'that a writ of possession and execution be issued from this court, and duly executed according to law. ' Again there was an appeal by Adams and his codefendants to the Supreme Court of North Carolina, and again that court ordered a new trial, expressing regret that it felt compelled to do so, on the ground that the trial court had failed in its charge to call the attention of the jury sufficiently, as it was stated, to the difference between substantive evidence and evidence which went merely to the credibility of a witness. Westfeldt v. Adams, 135 N.C. 591, 47 S.E. 816. The cause was accordingly returned to Hayward county for a new trial, and a special term of court was called for the first Monday of December for that purpose, that being December 3, 1906.

July 27, 1905, the North Carolina Mining Company filed in the Circuit Court of the United States for the Western District of North Carolina the bill of complaint which constitutes the present case. This suit was brought under an act of North Carolina of January 31, 1893 (Pub. Laws N.C.p. 37, c. 6), entitled 'An act to determine conflicting claims to real property,' the first section of which read as follows: 'That an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claims. ' (See Revisal of North Carolina 1905, Sec. 1589.)

The prayer of this complaint was:

'That the defendants claim an adverse estate or interest in the premises, which said claim so affects the plaintiff's title as to render a sale or other disposition of the property impossible, and disturbs the plaintiff in its right of possession. Wherefore, and forasmuch as your orator is remediless in the premises under and by the strict rules of common law, and can only have relief in a court of equity, where matters of this nature are properly recognizable and reviewable, it files this, its bill of complaint, and prays, the premises considered, that it be adjudged and decreed by this honorable court: That all claims of the defendants and each of them are invalid and void; that the defendants have not, nor has either of them, any estate or interest in said property or any part thereof; that your orator is the owner in fee of said property; and that the defendants, and each and every of them, be forever barred from asserting or claiming any estate or interest therein; and that they and each of them be perpetually enjoined from in any manner injuring or hindering the plaintiff in its title or possession.'

It will be perceived that the counterclaim in the action in the state court was based on the same statute.

Under the laws and practice of North Carolina a court may administer any relief consistent with the facts and pleadings, and by its answer and counterclaim the mining company had asked that an injunction issue against the plaintiffs in that action, enjoining them from claiming the lands in question, and its title had been passed upon as a matter determined by the judgment in that case, from which an appeal had been taken to the state Supreme Court, as heretofore stated. When the present suit was commenced in the Circuit Court of the United States the pendency of the action in Haywood county was set up among the defenses. Upon it the Westfeldts insisted before the Circuit Judge that the Circuit Court could not, in the circumstances, entertain jurisdiction of the case and should dismiss it, but the Circuit Court denied the motion to that effect, and thereupon defendants moved that the Circuit Court should stay all proceedings in the suit until the decision of the state court, which was also denied.

Appellants further contended that two of the defendants, Henry Grinnell and his wife, Dodette Ottonnie Grinnell, were indispensable parties to the suit, and that the court had no jurisdiction of the case because of the fact that they were citizens, as alleged in the bill and admitted in the answer, of the District of Columbia, and moved the court to dismiss the cause for want of jurisdiction on this ground. This motion the Circuit Judge also denied in order to give time to complainants to make out if they could, as it was stated that they could, that Mr. and Mrs. Grinnell were not citizens of the District of Columbia and were citizens of North Carolina. When the case came on for hearing the North Carolina Mining Company, finding it could not sustain its contention that the court had jurisdiction over these defendants, asked then to be allowed to discontinue the suit as to them, and leave to do so was granted by the Circuit Judge and the cause discontinued. The Westfeldts then again insisted that the cause could not proceed in the absence of the Grinnells, and moved that the action be dismissed for want of indispensable parties, but the court denied their motion.

On the hearing the court certified, 'It is admitted by the complainant that the same lands are in controversy here as in the state court of Haywood county. ' The hearing having been concluded, the Circuit Judge, who was then in Richmond Va., transmitted to the clerk at Asheville a decree dated November 28th, which was filed and entered...