52 W. Va. 1 | W. Va. | 1902
Lead Opinion
This is a suit in equity brought by R. IT. Freer and others against Thomas E. Davis and others in the circuit court of Ritchie County for the purpose of recovering the title and possession of a tract of real estate containing about fifty-eight, acres. As ground of equitable jurisdiction, it is shown that W. J. Shields, one of the plaintiffs under whom all the others claim, had been in possession of the land claiming under certain deeds, and those under whom he claimed had taken some timber off of it and he had cultivated a small portion of the land in oats one year. Plaintiffs had also sent a man on the land to get out timber for an oil derrick. While he was so engaged, some of the defendants came upon the land and notified him that they claimed it, threatened to have him arrested for trespassing, and finally told him that if he did not leave the land they would put him off by force, and then he went. Thereafter, the defendants and their agents took possession of the land and began the work of developing it for oil and gas. They erected a derrick on the land very near the line but, after notice from
It is alleged in the bill that in the year 188— the land had been reported to the commissioner of school lands as thirty acres of waste and unappropriated land, and upon survey it was found to contain fifty-eight acres. The commissioner brought a suit to sell the land and, under a electee dated October 28, 1885, it was sold on February 15, 1886, to 0. Iff. Gibboney and the sale was confirmed and a deed made to him on the 24th day of February, 1886. Gibboney conveyed a portion of it to C. L. Latoriere and Latoriero conveyed a portion to W. J. Shields. Latonero then conveyed on December 9, 1892, the balance of his interest to C. II. Gibboney. This portion seems to have been twenty-eight acres and it was sold for non-payment of taxes for the years 1893 and 1894 and Shields purchased it, and V. R. Meservie, clerk of the county court of said county, conveyed it to him -by deed dated April 6, 1898: Thus Shields became the owner of all of it and from him, directly or indirectly, the other plaintiffs derive their title and interest by conveyances and a lease for oil and gas purposes.
The defendants deduce their title as follows, as appears from the answer of Edwin Maxwell, Trustee: Isaac Cox and John Ramsey, assignees of Thomas Proctor, were the patentees of ten thousand acres of land under a patent from the Commonwealth of Virginia, dated March 20, 1786. This land was forfeited for non-payment of taxes and, under a decree of the circuit superior court of "Wood County, made at the April term, 1841, it was sold. Before sale, however, it was divided into lots and lot
From this statement it is clear that the plaintiffs on the one hand, and the defendants on the other, are claiming under adverse and hostile titles and that there is no equity or privity of any kind existing between them. In other words, the object of the bill is to recover the possession and title of the tract of land, which is admitted to be in the possession of the defendants. It is urged here that the case of Bettman v. Harness, 42 W. Va. 433, is authority for a proceeding of this kind, and it is boldly stated that there is jurisdiction in equity for this purpose. But the Bettmm-Hcvmess Case involves a far different state of facts. That was a contest primarily between • lessees, claiming under different leases made by the same lessor. It involved nothing more than the right of taking the oil. The title to no real estate was involved except in so far as the oil itself was real estate. Harness had leased to Watson who had assigned the lease to Bettmán. Afterwards, Harness leased the
There is but one general proposition laid down in the books upon which it can be contended that, In a case like this, a court of equity may try and determine the question of title. That is the familiar maxim that, when a court of equity has taken jurisdiction for one purpose, it will go on and do complete justice between the parties, even to the extent of determining legal rights. But this principle is not of universal application, even if it be conceded that jurisdiction, as here used, includes jurisdiction by injunction to restrain a trespass, which is doubtful, to say the least, inasmuch as the law writers term it mere ancillary jurisdiction. Story’s Eq. Jur., s. 862; Pomeroy’s Eq. Jur. 171. This maxim and principle seems to have grown out of the equitable jurisdiction for purposes of discovery, as will be seen from an examination of ss. 647s to 74 of Story’s Eq. Jur. In s. 647c, it is said, “In many cases it has been held, that, where a party has a just title to come into equity for a discovery, and obtains it, the court will go on, and give him the proper relief; and not turn him round to the expenses and inconveniences of a double suit at law. The jurisdiction having once rightfully attached, it shall be deemed effectual for the purposes of complete relief.” Discovery seems to 'be the basis of this whole doctrine. Where the bill is for both discovery and relief, the discovery, to give jurisdiction, must be necessary. That being true, the primary or. main purpose of the bill is the assertion of an equitable right. 'The most familiar instances of the determination by courts of equity of legal rights, .after having taken jurisdiction upon some equitable ground, are cases of fraud, accident, mistake and account, all of which, under certain circumstances, are matters of concurrent jurisdiction, and, in almost every instance of that kind, discovery is necessary to the doing of complete justice. Mr. Story concludes his discussion of the subject by sajdng, at s. 73, “In the present state of the authorities, however, little more can be absolutely affirmed, than these propositions; first, that in bills of discovery, seeking relief, if any part of the relief sought be of an
From this it is apparent that, even when equity jurisdiction attaches for the purpose of discovery, there are exceptions to the rule that the court will go on and determine all questions in the cause, without regard to whether they be legal or equitable. And the decisive test seems to bo the necessity of a trial by jury of disputed questions of fact necessary to the aseer-. tainment of the legal right involved. As discovery belongs tc the general jurisdiction of equity, and the jurisdiction by injunction is rather special in its nature and scope, it would be unreasonable to say that, while the presentation of the necessity of a trial by jury will stop the progress of the cause when jurisdiction rests upon discovery, but will not do so when jurisdiction attaches because of the necessity of interference by injunction to prevent irreparable injury, pending a determination of the primary right involved. There are cases ,in which
Turning now to another line of investigation, it is found that, until recent years, courts of equity would not restrain a trespass of any kind upon real estate in any case wherein it appeared from the pleadings that there was controversy about the title to the land. Such controversy immediately put the case out of the court, for the reason that it belonged to the jurisdiction of the law courts. In Erhardt v. Boaro, 113 U. S. 537, Mr. Justice Field says that Lord Eldon is reported in Pillsworth v. Hofton, 6 Ves. 51, to have said in 1801 that he remembered being told in early life from the bench, “that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he stated himself out of the court as to the injunction.” Waste is in the nature of a. trespass, it being an injury to real estate, but it is always committed by a tenant or some person whose estate or interest in the land is in privity with that of the complaining party, and courts of equity have always interposed by injunction to prevent it. In such case, there is no dispute about the title. The jurisdiction to prevent trespass to real estate by a stranger or person claiming to hold an adverse title finally grew out of the jurisdiction to prevent
The ancient rule of non-interference by courts of equity with trespass to real estate, the title to which is in dispute, has been relaxed, but to what extent? Only to the extent that courts of equity, when the injury is such as tends to the destruction of the property and is, therefore, irreparable, and justice requires that the act of trespass be prevented until the title can be determined in a court of law, will so prevent it by injunction. That is the limit set by the authorities.
In Erhardt v. Boaro, cited, Mr. Justice Field, speaking of the old rule, says: “This doctrine has been greatly modified in modern times and it is now of common practice in cases where irremediable mischief is being clone or threatened, going to the destruction of the substance of the estate, such as the extracting of 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 from destruction pending legal proceedings for the determination of the title.” High on Inj., s. 732, says, “The jurisdiction in restraint of trespass to mines is not an original jurisdiction of equity, under which the court would be justified in trying the title to the mines themselves, and the party aggrieved must, therefore, first establish his title at law, or show satisfactory reason for not doing so.” 10 Am. & Eng. Enc. Law, 880, says: “If the title of the plaintiff is in dispute, an injunction will not be granted previous to the determination of the legal rights of the parties unless the act about to be committed by the defendant is of such a nature that, should the right to commit it be decided against, him, the consequences of its commission would be irreparable.” Spelling on Inj. etc., s. 20, says: “To justify granting a preliminary injunction, the plaintiff’s right must be certain as to the law and the facts.” In s. 21, the same book says: “It follows as corallary to the leading proposition of the preceding section that where plaintiff seeks equitable relief by way of injunction in aid of the legal right, the court will not, unless such right is clear,
The rule, as laid down by this Court in numerous cases, is, that, to warrant the interference of a court of equity to restrain a trespass on land, two conditions must co-exist: First, the plaintiff’s title must be undisputed, or established by legal adjudication; and, secondly, the injury complained of must be irreparable in its nature, unless there exist other grounds of equity. Cox v. Douglass, 20 W. Va. 175; Schoonover v. Bright, 24 W. Va. 698; Watson v. Ferrell, 34 W. Va. 406; Becker v. McGraw, 48 W. Va. 539. This Court has also held in
While this Court has not thus far recognized the modem practice of preventing irreparable injury by trespass, pending settlement of title to the land in a court of law, the great weight of authority, both English and American, is in favor of that jurisdiction. No reason is perceived why it should not be exercised in this State as well as elsewhere. It is 'both just and reasonable. Great injury may result, and in most cases would necessarily result, from turning the plaintiff away and refusing him any aid. This is especially true where the trespass consists of taking timber or minerals. Actions of ejectment, as a rule, proceed slowly and the subject matter of the litigation would be, in many cases, virtually destroyed before a decision could be had, if the trespass were not restrained and the property thereby preserved during the pendency of the suit. Most of the cases in which the subject matter has been thus impounded and protected during tiie litigation show that actions of ejectment had been brought and were pending. But the reason underlying the proceeding does not require the pen-dency of such suit. Every good purpose is subserved, if the plaintiff shows his claim of title, the imminency of irreparable injury and his intention to immediately put the question of title into a course of legal investigation and determination by an action of ejectment. Some of the cases so hold. Gause v. Perkins, 56 N. C. 177, (69 Am. Dec. 728); Harmon v. Jones, 1 Craig & Ph. 301. Other cases bearing on the question are Griffith v. Hilliard, 64 Vt. 643; Shubrick v. Guerard, 2 Dusuass Eq. 616; Green v. Keen, 4 Md. 98; Fulton v. Harmon, 44 Md. 251; Kinder v. Jones, 17 Ves. Jr. 109; Piper v. Piper, 38 N. J. Eq. 81; Duval v. Waters, 1 Bland Ch. (Md.) 569; Johnson v. Hall, 83 Ga. —.
The conclusion resulting from these authorities is, that the court had no jurisdiction to pronounce the decree of the 18th day of May, 1901, dismissing the bill and thereby adjudicating the question of title. The court should have sustained the
Our consultation over this case, however, has introduced am other serious question. While the court had no jurisdiction to pass upon the question of title, the '.error in doing so was induced by the plaintiffs themselves. They brought their suit in the wrong court. Can they now complain of the action of the court in adjudicating the cause, they having requested it? To permit them to do so has the semblance of allowing them to take advantage of their own wrong. In 3 Cyc. 243, it is said that, in general, “The appellant or plaintiff in error will not be permitted to take advantage of errors which he, himself, committed, or invoked or induced the trial court to commit, or which were the natural consequences of his own neglect or misconduct.” But, in respect to jurisdiction, the same book says, at the same page, “While the authorities are. in conflict, the better rule would seem to be that, as consent cannot confer jurisdiction, a plaintiff against whom judgment is rendered is not estopped to assert, upon appeal or error, that the court to which he resorted had no jurisdiction of the subject matter of the suit, or of the person of the defendant.” There are a few cases which seem to oppose this latter view. Shellenbarger v. Biser, 5 Neb. 195; Lownsbury v. Catron, 8 Neb. —; Ballong v. Bank, (Neb.) 3 L. R. A. 142. But it is undoubtedly supported by the better and more numerous authorities. • See Welden v. Riley, 23 Conn. 172, where it is held to be immaterial how the want of jurisdiction is brought to the notice of the court. Western Union Telegraph Co. v. Taylor, 4 Ga. 408; Bell v. Fladd, 28 S. C. 313; Capron v. Van Noorden, 2 Cranch 126; United States v. Huckabee, 16 Wall. 414. In Railroad Company v. Swan, 111 U. S. 462, it is held: “This court will, where no motion is made by either party, on its own motion, reverse a judgment for want of jurisdiction, not only in any case where it is shown negatively that jurisdiction does not exist, but even when it does not appear affirmatively that it does exist.” Mr. Justice Matthews delivered the opinion of the
Nor will the authorities bear out the suggestion that, as the question is one of procedure, whether the remedy is at law or in equity, and both law and equity jurisdiction are exercised by the same court, a different rule must be applied. In Thompson v. Railroad Companies, 6 Wall. 134, the sole ground of want of jurisdiction was, that the plaintiffs had brought their suit in equity upon a legal demand, and the court reversed the decree and remanded the cause with directions to dismiss the bill without prejudice. Point 1 of the syllabus reads as follows: “Though usually where a case is not cognizable in a court of equity the objection must be interposed in the first instance, yet if a plain defect of jurisdiction apears at the hearing or on appeal, the court will not make, a decree.” See also Barney v. Baltimore City, 6 Wall. 280, a very similar case. These cases do not bear directly upon the question now under discussion, but they show that the question is one of jurisdiction and not one of mere procedure. While law and equity are administered by the same judge, he presides over two different forums and his court of equity is as powerless to take cognizance of an action at law as if the two courts were presided over by two different judges.
If the distinction between the functions and powers of courts of equity and courts of law is to be preserved, the sanie reasoning and the same principle must be applied here, or parties litigant, upon one pretext or another, are to be permitted to determine for themselves, by consent, conduct, or otherwise, the extent of the jurisdiction of courts of equity, and break down and destroy the barriers which have been set up for the,purpose of separating the jurisdiction of courts of equity from the jurisdiction of courts of law. No man can tell either the extent tc
From these authorities it is clear that' the decree of May 18, 1901, must be reversed, although the plaintiffs do not urge reversal on the ground of want of jurisdiction. They insist that the court had jurisdiction but decided erroneously against them. They complain of the decree. But it is the duty of this Court, on its own motion, to correct excess of jurisdiction on the part of the lower court. Hence, the decree of dismissal must be reversed, the demurrer to the bill sustained, leave granted to the plaintiffs to amend their bill, and the cause remanded. The discharge of the receiver and dissolution of the injunction by the final decree were proper and in'these respects
While the plaintiffs obtain the advantage of a reversal of the decree of May 18, 1901, they are not the parties substantially prevailing within the meaning of the statute giving cost to the party so prevailing. In Railroad v. Swan, cited, which was almost exactly like this one, Mr. Justice Matthews said: “In the present case, the writ of error is not dismissed for want of jurisdiction in this Court; on the contrary, the jurisdiction of the Court is exercised in reversing the judgment for want of jurisdiction in the circuit court; and although, in a formal and nominal, sense, the plaintiffs in error prevail in obtaining a reversal of a judgment against them, the cause of that reversal is their own fault in invoking a jurisdiction to which they had no right to resort, and its effect is, to defeat the entire proceeding which they originated and have prosecuted. In a true and proper sense, the plaintiffs in error are the losing and not tha prevailing party and, this Court having jurisdiction upon their writ of error so to determine, and in that determination being compelled to reverse the judgment, of which, on other grounds, they complain, although denying their right to be heard for that purpose, has jurisdiction, also, in order to give effect to its judgment upon the whole case against them, to do what justice and right seem to require, by awarding judgment againsi them for the costs that have accrued in .this Court.” See also Assessor v. Osborn, 9 Wall. 567; Montalet v. Murray, 4 Cranch 46; Burham v. Rangeley, 2 Wood & M. 417.
Hence, although the decree is reversed at the instance of the plaintiffs, the costs in this Court must be decreed against them.
Reversed and Remanded.
Dissenting Opinion
(dissenting) :
The question of jurisdiction in equity in this case is difficult. There can be no question but that at least for a temporary injunction there was jurisdiction to restrain irreparable injury; but the court went on to decree fully on the merits of two con
But, we do not find it indispensable to decide this question of the right of equity to retain jurisdiction for full relief as to cases generally, because in this particular case we may say that the circuit court did not err, as against the plaintiffs, in decreeing against them on the whole of the case, and for the following reasons: The plaintiffs chose the equity court for full relief, not merely for injunction until title could be tried at law. They set up their title in the bill and say that the defend
Would it not prejudice the defendants to make them fight over again, the same thing on the same facts in another suit. In Town v. Ralston, on page 186 of 48 W. Va., will be found authorities pertinent to the subject of taking inconsistent positions in judicial proceeding. Also 11 Am. & Eng. Ency. L. 2d Ed. 446. In Biglow on Estoppel, 687, is found tire broad proposition that “one who without mistake induced by the op
Therefore the principle of the law above stated, applies. It will be said that consent cannot give jurisdiction. I do not think that rule applies in this instance. The circuit court had jurisdiction on its law side to 'try title. The plaintiffs simply chose the wrong side of the court to try title. And equity has often jurisdiction to try land titles, as incidental to relief, and shall we go so far as to say that the parties could not waive this objection of jurisdiction? They did’waive it by bringing their suit in equity. The books say that if the title is not doubtful, equity has power to decree without a trial at law, and only where title is in doubt, is such law trial proper. A fine-spun distinction; but it shows that equity has jurisdiction in cases of like general nature (ejusdem generis), and decreeing in full at most mere error of procedure, not nullity, as the case of a court not having jurisdiction under any circumstances. The court has jurisdiction of 'cases of that general nature, but not of the particular case under the facts. This shows that a party may be bound by his choice of the equity court. If parties are in an equity court upon what is a law demand, can they not agree that the court go on and hear the case? Parties can waive a jury trial in a law court. If they consent to waive a jury trial by bringing their suit in a court of equity and submit their case to it, do they not effectually waive, a jury right? Conflicting land title gives a jury right, I concede; but parties can waive it in that case, as well as in others. In St. Lawrence Co. v. Holt, 41 S. E. 351, we held that when a court of equity decreed in a case proper for a suit at law, the decree is not a nullity.
This shows that if the court .erred in this case, in decreeing in full, it was mere error, and that a party may waive mere