80 Kan. 161 | Kan. | 1909
Lead Opinion
The opinion of the court was delivered by
The plaintiff freely admits that the defendants own the land in controversy, subject only to its rights as lessee to mine and remove coal and mineral therefrom. It merely claims an easement in the surface, such as will enable it to exercise fully its rights as-lessee, and does not wish to disturb the defendants in the enjoyment of the possession and use of the surface further than is reasonably necessary to the enjoyment of its own rights under its lease. It therefore insists that ejectment is neither an adequate nor an appropriate remedy under the facts of this case, and that injunction is both appropriate and adequate, and the only proper remedy.
The defendants urge that the coal which the plaintiff claims to own is a part of the land which they occupy and of which they have exclusive, actual, peaceable possession — peaceable even against the plaintiff; that they claim, to be the owners of the entire estate ■in the land, including the coal and mineral, and the only contention between them .and the plaintiff is as to the owhership of the coal; that an injunction would deprive them of their title to, and possession of, the coal' as completely and effectually as could be done by an action of ejectment, and therefore they are entitled to-have the issue tried by a jury as matter of right.
Attention has been called to section 5 of the bill', of rights, which reads: “The right of trial by jury shall be inviolate.” Attention has also been called to-
“Issues of fact arising in actions for the recovery of money, or specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as hereinafter provided.”
It is everywhere held that this constitutional provision preserves whatever rights of trial by jury existed at common law when the provision was adopted. We are inclined to agree with the view of the defendants. It is apparent that the real contention of the parties involves the ownership of the coal in question. If the plaintiff has an easement in the surface of the land, it is because of, and incident to, its ownership of the coal. Before a court can enjoin the defendants from interfering with the plaintiff in the use of the surface of the land for the purpose of mining coal it must determine that the plaintiff is the owner of the coal. The defendants being in the actual possession of the coal as nearly as such possession is possible, the granting of such an injunction would be the same in effect as a judgment in ejectment, as it would determine both the title and possession of the real estate in controversy. The plaintiff has never been in the possession and enjoyment of the so-called easement, and its right thereto is now being asserted for the first time. It may be conceded that injunction is a proper and ordinary remedy for the protection of owners in the enjoyment of their rights in real estate, but here this remedy is invoked for a very different purpose; its object is not to protect a right which the plaintiff has in real estate, but its purpose is to obtain thereby a title to real estate from others who are already in possession and claiming to be the owners thereof. It is true, as has been suggested, that courts of equity often examine into questions of title, not for the mere purpose of determining the question of ownership between the parties, but for the purpose of administering equitable relief concerning the use or
“This court may, perhaps, try title to land when it arises incidentally; but it is understood not to be within its province, when the case depends on a single legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated cases, affording peculiar ground for equitable interference.” (Page 524.)
In volume 24 of the Cyclopedia of Law and Procedure, at page 109, it is said:
“While courts of equity have jurisdiction to protect and enforce equitable titles, and may in certain cases try suits to quiet title or remove cloud without the intervention of a jury, questions as to the legal title to land are of right triable by jury, and this right can not be abrogated by statute-or avoided by bringing an action which is in effect an action of ejectment in the form of a suit in equity.”
The rule that actions for the trial of title to real estate shall be tried to a. jury has always been favored and with practical unanimity has been upheld by the courts.. The difficulty encountered in the enforcement of this rule consists chiefly in determining whether or not the action under consideration comes within the rule. The test upon this question which has been generally followed is that, where the real object of the action, whatever its form, appears to be to settle a disputed question of title, then either party may demand a jury as matter of right; if, on the other hand, the purpose is to obtain proper equitable relief, then the chancellor may administer it, even though it involves-an examination of title. In the case of Martin v. Martin et al., 118 Ind. 227, it was said:
“It is not every cause of action which the pleader styles an action of ejectment or to quiet title that entitles the parties to a trial by jury; nor will the prayer for relief have any controlling influence in determining whether or not a jury may be called. The court will*166 look to the substantial averments of the.complaint or cross-complaint, as the case may be, and from the facts so averred determine whether the action is one of equitable or common-law jurisdiction, and, if the former, refuse a trial by jury.” (Page 236.)
In the case of Spencer et al. v. Robbins et al., 106 Ind. 580, it was said:
“Where the purpose of the action is primarily to establish an equitable right to land and acquire a legal title through such right by the decree of a court, as by the specific enforcement of an agreement, the reformation of a deed, or the establishment of a trust, etc., the case is of equitable cognizance.” (Page 588.)
In the case of Angus v. Craven, 132 Cal. 691, it was said:
“Courts, however, in guarding the constitutional rights to a jury trial, have repeatedly held that where the suit should have been, and in substance is, an action for the recovery of the possession of land, the right of a defendant to a jury can not be defeated by the mere device of bringing the action in an equitable form. And so it has been held that the right to a jury is not defeated where, at the commencement of the action, the defendant, and hot the plaintiff, was in the actual possession of the premises involved; and it has also been held that where the defendant had been for a long time in the actual possession, and the plaintiff had ousted him, the plaintiff, by first bringing his action to quiet title, could not, by such inversion of parties, avoid the defendant’s right to a jury, but that the action should be treated as substantially an action to recover possession.” (Page 696.)
(See, also, Newman v. Duane, 89 Cal. 597. For other cases on this subject generally, see 3 A. & E. Ann. Cas. 248, where they are collected' in .a note.)
The petition in this case is full and complete in its statement of facts. It is not difficult to ascertain from it what the plaintiff wants. It wants the coal. Its right to take the coal depends upon ownership: The ownership is strenuously denied; indeed the denial is asserted by force and arms. The defendants are in the actual
The judgment of the district court is reversed, with direction to proceed in accordance with the views herein expressed.
Rehearing
OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
A petition for rehearing has been filed in this case, wherein it is urged that the opinion herein does not contain an order dissolving the temporary injunction granted by the probate judge when the action was commenced. It is also suggested that because of this omission the plaintiff is continuing to operate the coal-mines upon' the premises in controversy, to the great loss and injury of the.defendants. It is further stated that the plaintiff is acting in this, respect under the assumption that the temporary order furnishes complete protection for such conduct.
It was the view of the court when the opinion was
With this explanation the petition is denied.