135 Ala. 73 | Ala. | 1902
Mamie L. Turner and Emma B. Morris are tlie complainants in this bill filed against the City of Mobile, in behalf of the complainants “as well as On behalf of all others similarly situated,” etc., etc. The bill Avill be set out in the report of the case in full excepting and omitting- the prayer for process, the foot note and the verification. The respondent entered a motion to dismiss the bill for want of equity and also demurred to it on a number of grounds challenging its sufficiency in every respect. Both the motion and the demurrer were sustained by the chancellor, and the complainants appeal.
It was intended by certain averments of the bill to present a case for the interposition of the chancery court to the prevention of a multicilicity of suits, and it is contended here that apart from all other considerations the bill has equity to that end. It appears by the bill that the respondent, the City of Mobile, has instituted thirty or more actions of ejectment, and among them one against the complainants, for the recovery from each separately of distinct lots or parts of the shore of Mobile river within the corporate limits of the city of Mobile, that the claim of title on the part of the city of Mobile is the same in each of the several suits, and that the attitudes and rights of the defendant in each of these
However uncertain and nebulous may be the scope and. lianitations of the jurisdiction of chancery to prevent multiciplicity of suits upon adjudged cases and texts in other respects, upon one proposition the authorities are agreed, and this proposition is certain and established. It is this: That the party or parties who invoke this jurisdiction must have some prior legal or equitable right in the premises. . It cannot be invoked at all for the mere prevention of a multiciplicity of suits by bringing into one litigation numerous pending or imminent actions by a party who is without cause of action or ground of defense. The proposition is stated and emphasized by Mr. Pomeroy thus: “In the first place, and as a fundamental proposition, it is plain that prevention of a multiplicity of suits is not, considered by itself alone, an independent source or occasion, of jurisdiction in such sense that it can create a cause of action where none at all otherwise existed. In -other words, a court- of equity cannot exercise its jurisdiction for the prevention of a multiplicity of suits in cases where the plaintiff invoking such jurisdiction has not any prior cause of action, either equitable or legal; has not any prior existing right
If the bill sIioavs an equitable title in the complainants, a title Avhicli in equity and good conscience should preAUiil against the dry legal title of the plaintiff, but which could not be asserted by law, it would have equity on that ground alone, and it would be immaterial and unimportant whether its invocation of equity jurisdiction for the prevention of a multiplicity of suits were rested on a proper state of facts or not. So that the only inquiry of practical importance on this part of the case is Avhether, assuming that the bill shows a legal title or defense in the complainants and in each of the defendants in the several, other actions of ejectment, the complainants can, under the doctrine of prevention of a mul
We have considered the position of Mr. Pomeroy on this question thus at length because the views of no text writer of the law are entitled to more consideration than liis, because his work is the authority mainly relied upon by the appellants in this connection, and because we are disinclined to repudiate any proposition advanced by him without a thorough examination of it. The authorities which take a different view of the doctrine under discussion hold, as we have seen, that to authorize numerous persons to imite in one bill for the prevention of a multiplicity of suits, they must have a common title to or a common interest in the subject-matter involved, and that a mere common interest in a question of lato involved in the pending or threatened suits will not suffice. This position is nowhere better or more fully stated than by Campbell, C. J., in Tribette v. Illinos Central Railroad Co., 70 Miss. 182, and as the opinion treats fully of Mr. Pomeroy’s position, and demonstrates its fallacy, we quote it in part: “The question presented is as to the rig'htfulness of the suit against the defendants, on the sob* ground that their several actions at law involve the very same matters of fact and law, without any other
This court has never undertaken to define the jurisdiction of equity to prevent a multiplicity of'suits, nor t:> lay down general principles from which the several categories of cases in which that, jurisdiction may be invoked is possible of statement. All that has been decided or said by this court bearing on the subject evidences an inclination toward the confinement of this jurisdiction to a narrow field and a purpose to conserve in its full integrity the right of trial at law and by juries of the title to land.—Hamilton v. Brent Lumber Co., 127 Ala. 78; Ashurst v. McKenzie, 92 Ala. 490; Keller v. Bullington, 101 Ala. 267; Attalla Mining & Manufacturing Co. v. Winchester et al., 102 Ala. 184; Moses v. Mayor of Mobile, 52 Ala. 198; Bowling v. Crook, 104 Ala. 130. Certain it is that nothing that has been decided or said liere affords any justification or warrant for the filing of a. bill by the defendant in one action of ejectment, either in his own behalf alone, or in behalf of himself and the defendants in other ejectment suits prosecuted by Hie same plaintiff, to enjoin all the actions of ejectment on the sole ground that each of the ejectment defendants, although impleaded in respect of separate and distinct parcels of land, has an interest in common with all the others in the questions of law and fact involved in the action against the complainant: Nothing, in short, has ever been said or decided in this court giving any countenance to the proposition that a common interest in the questions at issue only will give to numerous parties so interested a standing in equity for the prevention of a multiplicity of suits. The intolerable consequences to which the recognition of such a doctrine would logically lead are sufficiently indicated in the cases to which we have referred. But putting that consideration aside, the doctrine contended for cannot be sustained on principle. It would seem to be an elementary and fundamen
The bill having no equity for the prevention of a multiplicity of suits, it follows that all legal rights, titles, or defenses of complainants which are attempted to be asserted by it are to be laid aside and eliminated from the further consideration of the case on the motion to dismiss the bill for want of equity. Thus, the assumption that the bill shows a want of title in the city of Mobile for that the State’s title has not been vested in the city, and hence that the defendant has a legal defense to the action of ejectment, so far from giving complain
.Much has been said in argument as to complainants’ status with respect to the shore resulting from their ownership of the upland abutting upon the shore; but it is not necessary to a disposition of this appeal for us to undertake to finally determine here precisely what that status is, or what rights in respect of or estate in that part of the shore in controversy it imports. If they have no rights in the shore referable to their ownership of the upland or to the uses they may have made or may be making of the shore in connection with the upland, they, of course, have presented no case of equitable cognizance, nor would they have any standing at law against an action of ejectment prosecuted by the owner of the shore.
But assuming that complainants owned the upland abutting on the shore lot for the recovery of which the city has sued, and by reason of such littoral proprietorship they have or had the right to wharf out across the shore lot, that right must rest or must have rested upon one of two conditions: It must be or must have been either a mere parol license to them to erect their wharves on and across the shore; or it must be or,must have been something more than a mere parol license from the owner of land to another having no interest or rights in it to do something upon it, something in the nature of a right appurtenant to the upland conveying — not in itself the title to the shore lot since land itself cannot be held as appurtenant merely to land but — a qualified right under immemorial custom and usage to extend their occupation over the shore by the erection thereon and thebe across of wharves, piers and the like as means of commerce and aids to navigation.
If they had a mere parol license in the premises from the shore owner-and were without other warrant than his
If, on the other hand, there is an immemorial usage and custom in Alabama, obtaining as to the shores of Mobile river and Mobile bay, recognized in the statute and organic laws of the State (Constitution 1868, § 26, Art. I; Constitution 1875, § 25, Art. I; Constitution 1901, § 24, Art. I; Act of December 8th, 1868, “To carry into effect Paragraph 26, Art. I of Constitution of Alabama,” 1868 (Acts 1868, p. 394), now § 2514 of the Code; Act of February 18th, 1895 (Acts 1894-5, p. 992), now § 2784 of the Code; Act of 1854 and its amendment as after-wards ambodied in the charter of the city, authorizing Mobile to obtain by contract or purchase the property in or control over the wharves and wharf property in the city; Act of Assembly subjecting wharves, of littoral proprietors to taxation; Act of February 28th, 1887, creating a Harbor Line Commission, etc., for the wharves of Mobile bay and river] according to littoral proprietors the right to wharf out across the shore as a right appurtenant to the ownership1 of the abutting uplands, and if the complainants have exercised this right by entering upon the subjacent shore lot and erecting thereon their piers, wharves, bulkheads or other structures whereby to reach and avail themselves of the navigable part of the water, and have thus extended their occupation to the shore and were in such occupation of the. locus in quo at the time of suit brought by the city and have so remained, it is clear, we think, that they have an adequate and complete defense at law to the action of ejectment.—Matten v. Chapman, 40 Conn. 382, 395; s. c. 16 Am. Rep. 46 and notes; East Haven v. Hemingway, 7 Conn. 186, 202-3; New Jersey
The Harbor Line statute confers no right upon the complainants. It may have a bearing upon their ultimate rights as a legislative recognition, along with other statutes, of the right of littoral proprietors to wharf out across the shore; and assuming such right by custom, it and the fixing of a harbor line under it would operate. to determine the extent to which the wharves of complainants could be carried into the waters of the river or bay.
The fact that statutes of the State and ordinances of the city levy taxes on the complainants’ wharves involves no matter of equitable estoppel upon the State or city to assert whatever legal title either may have to the shore lot upon which such wharves are located. There is no real inconsistency betwmen governmental action of this sort and the assertion by government of the right to reoccupy the lot, if it is otherwise entitled to do so. While
One of the acknowledged heads of equity jurisdiction is trusts, it is quite true; but the mere fact that the legal title to land is in a trustee gives a disseisor no shadow of ground to come, into a court of chancery to enjoin an action at law by the trustee for the recovery of possession.
We believe we have considered every ground upon which it is sought to be maintained that the bill has equity. We have found no merit in any of them; and we concur in the conclusion of the chancellor that the bill is without equity.
The. chancellor granted the motion to dismiss for want of equity, but allowed time for opportunity to amend the bill so as to give it equity. In his opinion he said that the rule requiring the allowance of such opportunity was one which he did not “clearly understand, as all amendments are considered as made on a motion to dismiss.” This is a very just observation. This court has departed from the rule referred to by the chancellor, in recent decisions, holding that dismissals on such motions should be final and absolute.
The decree rendered below will be here modified so as to eliminate its provisions for opportunity to amend, and, as modified, it is affirmed.