89 P. 958 | Or. | 1907
Opinion by
The lease recites that the road is a great public burden, requiring large expenditures of money to maintain it, as an inducing cause on the part of the county to make the lease. It contemplates that the county is still the owner of the road and liable for its condition, and we conclude that the contract is a lease, and therefore must be construed and enforced under the provisions of Sections 4937-4950, B. & C. Comp., inclusive.
The term “action,” used in Section 4946, B. & C. Comp., is not necessarily equivalent to “action at law.” In Ex parte Milligan, 7 U. S. (4 Wall.) 2,112 (18 L. Ed. 281), it is said: “In any legal sense, ‘action/ ‘suit’ and ‘cause’ are convertible terms.” Anderson’s Dictionary adopts this language, and Bouvier’s definition in its broader meaning includes suits. Our own statute maintains a distinction between “action at' law”- and “suit in equity,” indicating that the distinction is not based upon the word “action” alone; and in Fenstermacher v. State, 19 Or. 504, 506 (25 Pae. 142), it is held that the term “civil actions” includes actions at law and suits in equity. The provisions of this section determine that the remedy is in equity; and whether there is some relief that might be obtained at law is immaterial. It would not be adequate nor would it exclude equitable jurisdiction under this statute, and the court committed error in sustaining the demurrer.
Cause reversed and remanded for such further proceedings as may be deemed proper and not inconsistent with this opinion.
Reversed.