Wood v. Phillips, No. 3099.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PARKER and NORTHCOTT, Circuit , and GLENN
• Citation: 50 F.2d 714
• Parties: WOOD, Forest Supervisor, v. PHILLIPS et al.
• Docket Number: No. 3099.
• Decision Date: 17 June 1931

50 F.2d 714 (1931)

WOOD, Forest Supervisor,
v.
PHILLIPS et al.

No. 3099.

Circuit Court of Appeals, Fourth Circuit.

June 17, 1931.

Thomas J. Harkins, U. S. Atty., of Asheville, N. C. (Elton L. Marshall, Sol., U. S. Department of Agriculture, J. B. Horigan,

50 F.2d 715

and H. H. Clarke, Assts. to the Sol., U. S. Department of Agriculture, all of Washington, D. C., on the brief), for appellant

Zebulon Weaver, of Asheville, N. C. (T. M. Jenkins, of Robbinsville, N. C., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judge.

PARKER, Circuit Judge.

This is an appeal from a decree in a suit instituted in the court below by one R. L. Phillips, as plaintiff, against Arthur A. Wood, a forest supervisor of the United States, as defendant. The bill of complaint alleges that plaintiff is the owner and entitled to the free and uninterrupted use of a certain tract of land; that defendant is exercising dominion and control over same, is claiming title thereto to be in the Department of Agriculture of the United States and, under threats of prosecution, is preventing plaintiff from removing timber therefrom or exercising other rights of ownership with respect thereto; that defendant and those under whom he claims have no title to the land and their alleged title and claim of ownership constitute a cloud upon plaintiff's title and prevent him from placing the land upon the market or from cutting and removing timber therefrom; that the land is principally valuable for the timber and unless plaintiff is allowed to sell same while timber is being cut on an adjoining tract he will be irreparably damaged; and that plaintiff is unable to sue the United States or to induce the United States to sue him for the purpose of settling the title. It concludes with a prayer that plaintiff be declared the owner of the land and that defendant be enjoined from claiming or exercising dominion over same, or from interfering with the free and uninterrupted use thereof by plaintiff.

Defendant filed to the bill of complaint a pleading entitled "Answer and motion to dismiss or transfer to the law side of the docket." In this he denied plaintiff's title, averred title to be in the government of the United States under whom he claimed, and moved that the suit be dismissed or transferred to the law side of the court under Equity Rule 22 (28 USCA § 723). This motion was denied, exception to its denial was duly taken, and trial was had before the court sitting in equity. Decree was entered adjudging plaintiff to be the owner of the land in controversy and enjoining defendant from claiming or exercising dominion over same; and from this decree defendant has appealed, assigning as error, among other rulings of the court, the refusal to dismiss the suit or transfer it to the law side of the docket for trial.

An analysis of the bill of complaint will show that the plaintiff has not only not alleged that he is in possession of the lands in controversy, but has alleged that defendant is in possession thereof, the allegation with regard to defendant's possession being that defendant is exercising dominion and control over these lands, claiming title thereto to be in the government of the United States. As defendant is sued as forest supervisor of the United States, the fair inference from the pleadings is that he is exercising such dominion and control as forest supervisor. Without entering into an analysis of the many decisions as to what constitutes possession of real estate which will subject the possessor to an action of ejectment, there can be no doubt, we think, that the dominion and control exercised by a forest supervisor over government forest lands constitutes such possession. Tindal v. Wesley, 167 U. S. 204, 211, 17 S. Ct. 770, 42 L. Ed. 137. As said by Judge Gaston in Williams v. Buchanan, 23 N. C. (1 Iredell's Law) 535, 35 Am. Dec. 760: "Possession of land is denoted by the exercise of acts of dominion over it, in making the ordinary use and taking the ordinary profits, of which it is susceptible in its present state — such acts to be so repeated as to show that they are done in the character of owner, and not of an occasional trespasser." And the rule as to what constitutes possession in a case such as this is thus stated in 1 R. C. L. 695:

"As a general rule it will be sufficient if the land is so used by the adverse claimant as to apprise the community in its locality that it is in his exclusive use and enjoyment, and to put the owner on inquiry as to the nature and extent of the invasion of his rights; and this is especially true where the property is so situated as not to admit of permanent improvement. In such cases if the possession comports with the usual management of similar lands by their owners it will be sufficient. Neither actual occupation, cultivation, nor residence is necessary where neither the situation of the property, nor the use to which it is adapted or applied, admits of or requires such evidences of ownership."

The bill was evidently drawn in accordance with the North Carolina practice, under which the distinctions between actions at law

50 F.2d 716

and suits in equity have been abolished, and pursuant to the provisions of section 1743 of the Consolidated Statutes, which allows an action to 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." This section authorizes suit in the courts of North Carolina wherever another sets up an adverse claim to land of plaintiff, whether plaintiff be in possession thereof or not (Satterwhite v. Gallagher, 173 N. C. 525, 92 S. E. 369), the suit being treated by the North Carolina courts as an action of ejectment, where ownership is alleged to be in plaintiff and possession in defendant. Hines v. Moye, 125 N. C. 8, 34 S. E. 103. This statute, however, does not enlarge the jurisdiction of federal courts of equity, as it merely regulates procedure and does not create any substantive right. And, even if it could be considered as creating an equitable right, it would not authorize the trial by a federal court of equity of what is in essence an action of ejectment, for the reason that in such action the defendant is entitled under the federal constitution to a trial by jury. As said by Chief Justice Hughes in the recent case of Henrietta Mills v. Rutherford County, 281 U. S. 121, 127, 50 S. Ct. 270, 272, 74 L. Ed. 737

"It is true that where a state statute creates a new equitable right of a substantive character, which can be enforced by proceedings in conformity with the pleadings and practice appropriate to a court of equity, such enforcement may be had in a federal court provided a ground exists for invoking the federal jurisdiction. Clark v. Smith, 13 Pet. 195, 203, 10 L. Ed. 123; In re Broderick's Will, 21 Wall. 503, 520, 22 L. Ed. 599; Holland v. Challen, 110 U. S. 15, 24, 25, 3 S. Ct. 495, 28 L. Ed. 52; Frost v. Spitley, 121 U. S. 552, 557, 7 S. Ct. 1129, 30 L. Ed. 1010; Gormley v. Clark, 134 U. S. 338, 348, 10 S. Ct. 554, 33 L. Ed. 909; Lawson v. United States Mining Company, 207 U. S. 1, 9, 28 S. Ct. 15, 52 L. Ed. 65; Pusey & Jones Company v. Hanssen, 261 U. S. 491, 498, 43 S. Ct. 454, 67 L. Ed. 763. But the enforcement in the federal courts of new equitable rights created by states is subject to the qualification that such enforcement must not impair any right conferred, or conflict with any inhibition imposed, by the constitution or laws of the United States. This court said in Scott v. Neely, 140 U. S. 106, 110, 11 S. Ct. 712, 714, 35 L. Ed. 358, that `whenever, respecting any right violated, a court of law is competent to render a judgment affording a plain, adequate, and complete remedy, the party aggrieved must seek his remedy in such court, not only because the defendant has a constitutional right to a trial by jury, but because of the prohibition of the act of congress to pursue his remedy in such cases in a court...