90 P. 1009 | Or. | 1907
The only material question in this suit is the location of the southeasterly line of plaintiff’s premises. Plaintiff owns a narrow strip of rocky and sandy beach land along and in front of the Town of' Ellensburg, and extending to the Rogue River on the north. It is uninelosed and unimproved, and valued chiefly because it affords access to the waters of the river. In 1903, the defendant, who was engaged in taking salmon in the river for commercial purposes, used this land as a landing for boats and nets in -connection with his business; but such use did not-substantially injure plaintiff’s estate. Before the commencement of this suit, he purchased or leased a tract of land south of and adjoining plaintiff’s land, and in February, 1903, began to assemble material for the purpose of erecting a salt-house. Plaintiff, claiming and alleging that defendant proposed to construct such salthouse on his land, commenced • this suit to enjoin him from so doing. Upon the filing of the complaint, a temporary injunction was issued and served upon defendant, whereupon he changed the location of his proposed building to a place outside of the boundary line of plaintiff’s premises, as, he claims, the same was pointed out to him by plaintiff’s attorney, and - thereafter completed such building. It is now asserted by the plaintiff that the building is either wholly or partly on his premises, while the defendant’s position is that it is outside of such boundary and on land bordering plaintiff’s premises. This is the only question sought to have determined in this suit. The other acts of trespass charged in the complaint have either.not been proved, or, as we must assume, are not considered by plaintiff sufficient to entitle him to injunctive relief, since no mention is made of them in the briefs, and no particular prominence given them in the argument. The only question then, as we take it, to be determined in this case, is the title to land upon which defendant’s building is situated, and this depends upon the location of the boundary thereof.
1. Now, the .law is that a suit to enjoin a trespass cannot
,2. It is alleged in the complaint that defendant is insolvent, and unable to respond in damages; but this, of itself, is no ground for relief in equity in a suit of this character: Parker
3. It is- also claimed that the defendant waived the question of jurisdiction by answering to the merits. Where a defendant in a suit in equity answers to the merits, and asks equitable -relief, he cannot thereafter question the jurisdiction on the ground that the plaintiff has an adequate and complete remedy at law (Municipal Security Co. v. Baker County, 33 Or. 338: 54 Pac. 174; Kitcherside v. Myers, 10 Or. 21; Larch Mountain Invest. Co. v. Garbade, 41 Or. 123: 68 Pac. 6); but where, as here, facts necessary to give a court of equity jurisdiction are stated in the complaint, and denied by the answer, the question becomes one of fact, and is not waived by answering to the merits, and, if the want of jurisdiction appears during the trial, the suit should be dismissed: Love v. Morrill, 19 Or. 545 (24 Pac. 916); Union Power Co. v. Lichty, 42 Or. 563 (71 Pac. 1044).
4. It is also contended that the defendant is estopped to deny plaintiff’s title to the land upon which the salthouse is located, because of the judgment in the action of trespass brought against him by plaintiff. But the judgment in that action is only evidence that the title to some part of the premises described in the complaint was in the plaintiff, and before he can avail himself of such judgment as an estoppel in another action, he must show by evidence on what part of the premises the trespass was committed, and then apply the issue and judgment to the premises now in controversy: Abraham v. Owens, 20 Or. 511 (26 Pac. 1112).
For these reasons, the court below, in our opinion, was right in dismissing the suit, and its decree is affirmed.
Arrirmed.