Turner v. City of Mobile

135 Ala. 73 | Ala. | 1902

McCLELLAN, C. J.

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 actions are tlie same as or similar to the rights of these complainants in the statutory real action brought by the city against them for the recovery of a certain lot, being a part- of said shore. Upon these facts, with a further averment of a general state of anxiety and perturbation on the part of all these defendants in the divers actions at law, the bill, as we have seen, is exhibited by Mistresses Turner and Morris, “in their own behalf as well as on behalf of all others similarly situated * * * in respect of the subject-matter of the controversy relating to the lands lying below ordinary high tide water mark of the Mobile river” in the city of Mobile. But these other defendants at law are not made parties to this bill, nor is any relief prayed in their behalf, the prayer for relief being specially that the action of ejectment against these complainants be perpetually enjoined, and - generally for such other, further and different relief as these complainants may be entitled to in equity.

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 to some relief, either equitable or legal; The very object of preventing a mnlticiplicity of suits assumes that there are relations between the parties out' of which other litigation of some form might arise.”—1 Pom. Eq. Jur., § 250. If a party — to give an illustration — be brought to the bar of a law court in forty separate actions of ejectment for as many distinct parcels of land, by the same plaintiff upon identical facts in each case, he could not invoke the jurisdiction of equity to a prevention of a multiplicity of suits if he Avere a mere naked trespasser and wrongdoer in respect to the land severally sued for, had no title legal or equitable, no right to the possession, no defense to any of the actions: He cannot invoke equity merely to have his wrongdoing adjudged in one suit instead of forty. The statute would give him relief in such circumstances (Code, § 3318) and for that reason, too, he could not come into chancery; but with or Avithout the statute, he woud have no standing in equity. So here — assuming for the moment that the case ot-henvise Avould be one of equitable cognizance under the head of equity jurisprudence being considered — if this bill shoAved no right in the complainants, no title legal or equitable to the land, and no defense to the actions of ejectment, it could not be maintained merely to the end of having the unquestioned right of the plaintiff in each of the thirty or more, real actions declared by one decree in the court of chancery and thereby preventing its declaration in each of the actions at laAV.

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 multiplicity of suits, maintain a bill for tlie purpose of drawing into one litigation all these separate and distinct actions' of ejectment with none of which except that one which is pending against them have they the least concern, and this, too, without making any of such other ejectment defendant parties complainant or defendant to the bill, and also without praying any relief for such other defendants. The question in another form is this: Can A, upon being sued in ejectment for a parcel of land to which he claims to have the legal title, or which he claims the legal right to hold against the plaintiff, maintain a bill to enjoin the action at law and have his legal title or defense adjudged and his possession conserved thereunder solely upon the ground that B, C, D, E and F arc also being sued by the same plaintiff for other and distinct parcels of land which the plaintiff claims under the same chain' of title that he relies on against A? The adjudged cases and law texts are quite inharmonious and conflicting as to the extent of and limitations upon the jurisdiction of the chancery court to entertain and grant relief upon bills for the prevention of a multiplicity of suits. This will appear from the discussion of the subject by Mr. Pomeroy. (1 Eq. Jur., §§ 243-275.) The point of chief divergence in cases of bills filed by or in behalf of or against numerous parties, is in respect of the necessity vel non of privity among such parties or community of interest on their part in the subject matter of each of the suits to be prevented. That author takes the position that such privity or community of interest is not essential to be alleged and proved in such cases, but that it will suffice if there be a community of interest in the question involved in all the cases. He divides the cases of possible jurisdiction for the prevention of a multiplicity of suits into four clases. There is no pretense that this case falls within the first, second or fourth classes. The third he defines thus: “3. When a number of persons have separate and individual claims and rights of action against the same party, A, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs, Or one of the persons suing on behalf of the others, or eren by one person suing for himself alone. The case of several owners of distinct parcels of land upon which the same illegal assessment or tax has been laid, is an example of lilis class."—1 Eq. Jur., § 245. In subsequent sections the author undertakes to “enumerate the various kinds of cases in which the jurisdiction to prevent a multiplicity of suits has been exercised, and over which it has been settled by a preponderance of judicial authority,’7 and of the third class lie. has this to say: “The cases constituting this class must, he divided into several different groups, all depending, however, u,.on the same principle. [1] The jurisdiction is exercised in suits brought by numerous persons to establish their separate claims against a single party, where these claims, although separate, all arise from a common title, and there is a common right, or a common interest in the subject matter; [2] in suits by numerous individual proprietors of separate tracts of land to restrain and abate a. private nuisance or continuous trespass which injuriously affects each proprietor; [3] in suits by numerous judgment creditors to reach the property and enforce their judgments against the same fraudulent debtor; [4] in suits by numerous owners to set aside or restrain the collection of an illegal assessment for local improvements laid by a town, city, county, or other municipal corporation, and made a lien on their respective lots; [5] and in suits by numerous taxpayers of a town, city, county, or other district to restrain or set aside an illegal general tax, whether personal, or made a lien upon their respective property, or an illegal proceeding of local officials whereby a public debt would be created and taxation would he increased.”—1 Eq. Jur., § 273. Now these thirty or more defendants in the actions of ejectment instituted against them severally and respectively by the city of Mobile do not claim a common title to the parcels of land for which each of them is sued. The bill makas no such pretense, but for aught that appears, and it may well be the fact, the claim of each one of them arises from a title entirely distinct and dissociated from every other one. And it is equally clear that no one of them has any interest in the lots of land for which the other twenty-nine or more are sued. These lots severally, of course, are the subject-matters of the several suits; and there is no room to say from the averments of the bill that the party claiming any one of the lots has a common-right or common interest in the subject-matter, the lot, involved in any of the other suits. So it is palpable that the bill in the aspect under consideration cannot be' maintained under the first group of the section last above, quoted. That it does not fall within the terms of either of the other clauses, requires no discussion to demonstrate. That it is not supported by the principie underlying the propositions of the other clauses seems also clear. The community idea, so to speak, in each of them lies in two facts which are absent in the case be-' fore us. In the first place the wrong done to the “numerous persons” of the text is one and the same wrong against them all, affecting each precisely alike. Here,, assuming that the institution of an action of ejectment to which a defense is developed is a wrong, and that it is wrong to bring thirty or more such actions, there can be no pretense that the institution of thirty or more separate suits, against thirty or more separate parties for thirty or more distinct lots of land is one wrong, or that the institution of the one suit sought here to be enjoined was a wrong against and common to each and all the defendants in the twenty-nine or more other separate and distinct actions. In the next place in each of the cases put in the last four clauses of the section, a decree in favor of one or more of the parties against all whom the one wrong was committed and all whom it injures in the same way would necessarily am,cl directly enure to the benefit of all said persons. Thus a decree at the suit of A cancelling a conveyance as a fraud an creditors, as effectually removes and destroys the conveyance as an impediment in the way of creditors B, C, and D as if they had been parties complainant with A in the bill. So if an illegal assessment levied upon the property of numerous persons is declared void, and vacated and annulled at the suit of one of them, all are equally relieved thereby. And so also of illegal taxation, and of illegal official action the result of which is to increase taxation or the liabilities of taxpayers: If the illegal levy or unauthorized official imposition is expunged at the suit of one taxpayer, all equally share in the relief. Of course, in such cases all may join in a bill, or one may exhibit it on behalf of himself and the others or on his own behalf alone, for that in either case the result to them all is- the same — relief to all of them from the consequences of the wrong that was done to all of them. But not so in the case here. To enjoin the city of Mobile to prosecute its action against A would not be to enjoin it to prosecute its other and distinct several actions against twenty-nine or more other persons who are not parties to this suit, and might never he even if the suit is allowed to continue, and in whose favor no relief whatever has been or could be prayed by A. The present bill is not, we conclude, within the terms or the principles underlying any of the statements made by Mr. Pomeroy in section 273 of the cases in which a bill may be maintained by one or more numerous persons similarly situated, etc., under the jurisdiction of equity for the prevention of a .multiplicity of suits. Nor does this case fall Avithin the general definition of class 3, quoted above from section 245. These thirty or more ejectment suits cannot be settled and determined upon a bill filed by the defendants in one of them on behalf of themselves and the others avIio are not made, parties, or on behalf of themselves" alone. A decree for these complainants would not bind either the plaintiff or the defendant in any of the other suits, it Avould not put an end to any one of them nor prevent the city of Mobile instituting any number of like suits, and having a separate trial in each: the decree, in short, Avould not prevent the multiplicity of suits alleged to he pending or imminent. Not only is this case not within the rule formulated by Mr. Pomeroy and not in any of the categories of cases stated by him, but no case cited by him in his elaborate and exhaustive consideration of this question on authority come to the point of authorizing such a bill under the doctrine of preventing a multiplicity of suits. His argument, as we liave indicated, goes further, but no case to which he referred sustains him beyond the formulated rules he has laid down. The editors of the second edition of his work cite as an illustration of the text the case of Osborn v. Wisconsin Central Railroad Co., 43 Fed. Rep. 824. That decision was rendered nisi prim. The bill by several owners of distinct parcels of land to enjoin a multiplicity of actions of ejectment prosecuted against them by one and the same plaintiff was sustained. The case differs materially from this one, however, in that all the ejectment defendants in whose behalf relief was sought were actual complainants in the bill, and in this that the legal title of each of the complainants had in effect been adjudged and settled at law; and the case is not an authority for the maintenance of the present bill in reality filed by the defendants in one of the actions at law on their behalf alone for the prevention of a multiplicity of suits.

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 coiimmnity of interest between them. The granting and maintaining the injunction are fully sustained by Pomeroy’s Equity Jurisprudence, vol. 1, § 255 et seq., and it is probable that any judge authorized would have granted the injunction upon the text cited. But we affirm, after careful examination and full consideration, that Pom-eroy is not sustained in his ‘conclusions,’ stated in § 269 of his most valuable treatise, and the cases he cited do not maintain the proposition that mere community of interest ‘in the questions of law and fact involved in the general controversy, or in the kind and form of relief demanded and obtained by or against each individual member of the numerous body,’ is ground for the interposition of chancery to settle, in one suit, the several controversies. There is no such doctrine in the books, and the zeal of the. learned and unusually accurate writer mentioned, to maintain a theory, has betrayed him into error on this subject. It has so blinded him as to cause the confounding of distinct things in his view of this subject, to-wit: joinder of parties, and avoidance of multiplicity of suits. It lias been found that many of the cases he pressed into service to support his assertion are on the subject of joinder, where confessedly there could be no doubt that the matter was of equity cognizance. Every case he cited to support his text will be found to be either where each party might have resorted to chancery or been proceeded against in that forum, or to rest on some recognized ground of equitable interference other than to avoid multiplicity of suits. The cases establish this proposition, viz.: Where each of'several may proceed or be proceeded against in equity, their joinder as plaintiffs or defendants in one suit- is not objectionable; but this is a very different, question from that, Avhether, merely because many actions at law arise out of the. same transaction or occurrence, and depend on the same matters of fact and law, all may proceed or be proceeded against jointly in one. suit in chancery; and it is believed that it has never been so held, and never will be, in cases like those here involved. Where each of several parties may proceed in equity separately, they are permitted to unite, and make common cause against a common adversary, and one may plead in one suit in equity many who are bis' adversaries, in a matter common to all in many cases, but never when the only ground of relief sought is that the adversaries are numerous, and the suits are for that not in itself a matter for equity cognizance. Attention to the distinction mentioned will resolve all difficulties in considering- the many cases on this subject. There must be some recognized ground of equitable interference, or some community of interest in the subject-matter of controversy, or a common right of title involved, to warrant the joinder of all in one suit; or there must be some common purpose in pursuit of a common adversary, where each may resort to equity, in order to be joined in one suit; and it is not enough that ‘there is a community of interest merely in the question of law or of fact involved/ etc., as stated by Pomeroy in § 268. Although he asserts that this early theory lias long been abandoned, he fails utterly to prove it. * * * If it is true, as stated by Pomeroy, and some quoting him, that mere community of interest in matters of law and fact makes it admissible to bring all into one suit in chancery, in order to avoid multiplicity of suits, all sorts of cases must be subject to the principle. Any limitation would be purely arbitrary. It must be of universal application, and strange results might flow from its adoption. The wrecking of a railroad train might give rise to a hundred actions for damages., instituted in a dozen different counties, under our law as to the venue of suits against railroad companies, in some of which executors or administrators, or parents and children might sue for the death of a passenger, and, in others, claims would be for divers injuries. If Pomeroy’s test be maintained, all of these numerous plaintiffs, having a community of interest in the questions of fact and law, claiming because of the same occurrence, depending on the very same evidence, and seeking the same kind of relief (damages), could be brought before a chancery court in one suit to avoid multiplicity of suits! But we forbear. Rurelv the learned author would shirk from the contemplation of such a spectacle; but his doctrine leads to it, and makes it possible. * * * The cases repudiating the doctrine contended for are numerous. We do not cite them, for it 'is unnecessary, in view of the fact that not a case has been found in England or America to sustain this bill.” The same doctrine in substance lias been declared in New Jersey, where it is held: “The court will not permit several plaintiffs to demand by one bill, several matters perfectly distinct and unconnected, against one. defendant. * * * A bill filed by several complainants on behalf of themselves and all others, over whose land the Morris Canal and Banking Company have made their canal, who shall come in and contribute; charging that the defendants had entered on complainants’ land, without permission or having purchased, or agreed for the same, and excavated their canal and done the complainants great damage, and that the company is insolvent and unable to pay, and praying that an account may be taken and damages awarded to the complainant for injuries already sustained, and compensation for the lands taken by the company decreed to them, and'that an injunction may issue restraining the company from using or occupying the land, is multifarious, and on that account the injunction is refused. Where the. demands of several complainants united in the same bill, are entirely distinct and independent; where there is no privity between them; no common interest in all the complainants, centering in the point in issue in the. cause; no general right claimed by the bill and covering the whole case; no rights established in favor of complainants; and no demand made that the funds of the defendants shall be applied to the payment- of complainants’ claims after their adjustment; and where claims are not in rein, but in personam • — the bill cannot be sustained.” In the course of the opinion Chancellor Yroom said : “There is no kind of privity between these complainants. There is no general right to be established as against this defendant, except the general right, that a wrongdoer is liable to answer for his misdeeds to the injured party: which surely does not require to be established by such a proceeding as this. The utmost that can be said is that the defendant stands in the same, relative position to all these, complainants. There is no common interest in them centering in the point in issue in the case; which is the rule in 2 Anst. 469a. Nor is there any general right claimed by tire bill covering (lie whole case; which is the principle adopted by Lord Redesdale. Chancellor Kent’s rule is quite as broad as any authority will warrant; but it is not broad enough for the ease now before the court. It requires that a bill against [or by] several persons must relate to matters of the same nature, and having a connection with each other, and in which all the defendants [or complainants] are more or less concerned.”—Marseils et al. v. Morris Canal and Banking Co., 1 N .J. Eq. 31. In Adams Equity it is laid down that “in order to originate this jurisdiction [to prevent a multiplicity of suits] it is essential that there be a single claim of right in all arising out of some privity or relationship with the plaintiff.” p. 200. “No bill of peace will lie where the rights and responsibilities of the defendants neither arise from, nor depend upon, nor are in any way connected with each other.”—Randolph v. Kinney, 3 Rand. 394. Mr. Beach, in his work on Modern Equity Jurisprudence, lays it down that jurisdiction to the prevention of a multiplicity of suits does not obtain when there is no danger of numerous suits between the parties to the bill, “but only a possibility or probability that other persons not parties might bring other suits [or be sued] for the enforcement, of rights asserted by [or against]' them upon substantially the same basis.”—§ 22; Dyer v. School District, 61 Vt. 96. This doctrine finds support in many well considered cases. In Connecticut, it is held that although numerous actions, each brought by or against a different party may be necessary under given circumstances, chancery will not interfere for the purpose of consolidating such actions and thereby preventing a multiplicity of suits, when no property right or franchise is held by such numerous parties in common and when no one of them could be injured by the multiplication of actions in which other persons only would be parties, though the right or defense relied upon by each, viz., to set aside or prevent the enforcement of an illegal assessment against each personally, is the same.—Dodd et al. v. Hartford, 25 Conn. 232. So it is held in Thomas v. Council Bluff's Canning Co. et al., 92 Fed. Rep. 422, that “the fact that the defendant might be subjected to a number of legal actions, affords no ground for a resort to equity by a complainant where but a single action would be required to which he would be a party or in which he Avould have any interest;” and in the course of the opinion delivered by Sanborn, J., for the court of appeals, it is said: “The multiplicity of suits which confers jurisdiction in equity is a multiplicity of suits to which the complainant will be a party.” To the same effect is Lumber Company et al. v. Town of Hayward et al., 20 Fed. Rep. 422, where it is said: “Courts of equity cannot wrest jurisdiction from courts of law because there is more than one plaintiff severally interested in the controversy; and many actions by different plaintiffs where one action at law will settle the controversy as to each, is not what is intended by a multiplicity of suits. Here no one of the plaintiffs would have, any interest in any suit brought by another, and no one can complain because others are compelled to sue [or are subject to suits, we interpolate] inasmuch as he could not be called upon to share in the vexation or expense. No one of the complainants stands in any danger of a multiplicity of suits affecting himself, and he cannot complain that some other person must have a suit in order to obtain that other person’s legal rights. These cases come within the principle of Cutting v. Gilbert, decided by Judge Nelson in 5 Blatch. 259; Dodd v. Hartford, 25 Conn. 232; Youngblood v. Sexton, 32 Mich. 406, and Barnes v. City of Beloit, 19 Wis. 93.” In Insurance Co. et al. v. Mholman Co., 73 Fed. Rep. 66, it was ruled that, “several actions commenced or threatened by the same plaintiff against different insurance companies which had issued policies on the plaintiff’s property, and refused to pay losses thereunder, do not constitute a multiplicity of suits within the meaning of the law, authorizing the interference of equity, although the same defense is set up by each of the defendants; and an injunction will not be granted to restrain the commencement and prosecution of such actions, upon a bill in the nature of a bill of peace, filed by all the insurance companies against the plaintiff in such actions.” That case seems in principle to be on all fours with the case at bar, and one or two observations of Judge Lacombk are extremely apposite here: “It is contended that the numerous-authorities cited in the brief warrant the granting of such relief. In the opinion of this court, however, none of them go to that length; and if the drift of some be in that direction, it would seem to be a good time to call a halt. * * The fundamental difficulty with complainants’ position is that although there may he a multiplicity of actions from’ the point of view of the assured, who may have to sue each company, there is no multiplicity of actions from the point of view of the insurer, for no insurer is threatened with more than a single action.” In a Michigan ease the bill Avas filed to enjoin the collection from the several complainants of a personal tax assessed against them separately in respect to the business in Avhich each Avas engaged, and upon the question whether the bill’had equity, Judge 'Cooley, delivering the, opinion of the court, said: “If complainants rely upon the jurisdiction •of equity to take cognizance of a controversy Avhere thereby a multiplicity of suits may be prevented the reliance fails, because the -principles that govern that jurisdiction lum no application to this case. It is sometimes admissible when many parties are alike affected or threatened by one illegal act, that they shall unite in a suit to restrain it; and this has been done in this stale in the case of an illegal assessment of lands.—Schofield v. Lansing, 17 Mich. 437. But the cases are. very few and very peculiar where this- can be. permitted, unless each of the complainants has an equitable action on its OAvn behalf. Noav, the nature of this case is such that each of these complainants, if the tax is invalid, has a remedy at 1-aw which is as complete and ample as the, laAY gives in other cases. He may resist the sheriff’s process as he might any other trespass, or he may pay the money under pro-test, and at once sue for and recover it back.' But no other complainant has any joint interest Avith him in resisting this tax. The sum demanded of each is distinct and separate, and it does not concern one of the complainants whether another pays or uot. All the joint interest tiro parties have is a joint interest in a question of law.; just such an interest as might exist in any case where separate demands are made of several persons. Jnst a common interest there might be if several persons should give several promissory notes on distinct purchases of a worthless article; and such there might have been under the former prohibitory liquor law had demands been made against several persons for liquors illegally sold to them. We venture to say that it would not be seriously suggested that a common interest in any such question of law, where the legal interests of the parties were wholly distinct, could constitute any ground of equitable jurisdiction when the several controversies affected by the question were purely legal controversies. Suits do not become of equitable cognizance because of their number merely.”—Youngblood v. Sexton, 32 Mich. 406, 410. In Barnes v. Beloit et al., the effort was to enjoin an assessment which imported a lien on lots abutting a street, and the several lot owners united in the bill which was sought to be sustained under the equity of preventing or avoiding a multiplicity of suits. But the Supreme Court of Wisconsin denied this equity: “If the proceedings set out in the complaint are valid, then there is a lien on each lot separately, * * * ; if they are not legal then there may be an apparent cloud to the amount so assessed on each lot. Each plaintiff is interested only in removing this cloud from his own bds, not from the lots belonging respectively to his co-plaintiffs. Each and ail may be interested in the question, for if one has a right to the. aid of a court of equity to remove the cloud or enjoin the assessment as illegal, for the same reason and on the same evidence, .each of the others might obtain the relief. But there is no such common pecuniary interest as authorizes them to unite in one suit as plaintiffs to obtain the relief asked. Each can sue alone and the others ai*e not necessary parties. This is not an action respecting a common fund, nor to assert a common right, nor to restrain acts injurious to property in which all the plaintiffs have a common interest or a common right.” 19 Wis. 93. In Cutting et al. v. Gilbert, 6 Fed. Cases, 1070, a bill was filed by several brokers on behalf of themselves and of all other brokers similarly situated who should come in and make themselves parties, etc., to enjoin the collection of a license tax imposed on brokers; and its equity was sought to be maintained on the theory of preventing a multiplicity of suits. The court ruled against them. Judge Nelson, in the course of his opinion, said: “This is a bill of peace to quiet the rights of parties, and to put an end to further litigation. The bill is founded on the idea that all persons in business as brokers, charged with the tax in question, have such a unity or joinder of interest in contesting it, that all may join in the bill for that purpase; and that as the parties are so numerous as to make it inconvenient to join all of them a determinate number may appear in the name of themselves and for the rest. I have not been able to concur in this view. The interest that will allow parties to join in a bill of complaint, or that will enable the courts to dispense with all the parties, when numerous, except a determinate number, is not only an interest in the question, but one in common in the subject-matter of the suit; such as the case of disputes between the lord of a manor and his tenants, etc., etc. * * * In the case before me the only matter common among the plaintiffs, or between them and the defendants-, is an interest in the question involved, which alone cannot lay a foundation for the joinder of parties. There is scarcely a suit at law, or in equity, which settles a principle, or applies a principle to a given state of facts, or in which a general statute is interpreted, that does not involve a question in which other parties are interested, as, for instance, the doctrine of trusts, and the statutes of descents, of frauds, of mils, and the like; yet no lawyer would contend that such an interest would justify the joinder of parties as plaintiffs, in cases arising under the law of trusts, or under any of the statutes mentioned. The same may be said of questions arising under the revenue laws, such as the tariff aucl the excise laws, which are the subject of litigation in the courts almost daily. Large classes of persons other than parties to the suit are interested in the questions involved and determined. To allow them to be made parties to the suit would confound the established order of judicial proceeding, and lead to endless perplexity and confusion.” The doctrine of this case has not only been approved by the Supreme Court of the United States, but that part of the opinion of Judge Nelson -which we have quoted has been adopted by that tribunal as its own opinion in the case of Scott v. Donald, 165 U. S. 107, 115-16. With reference to a case in Avhich the bill was sought to be maintained in avoidance of a multiplicity of suits, Judge Ingraham, in the Supreme Court of New York, said: “Here the multiplicity of actions is against a multitude of people, rather than against one person which equity in some cases Avill prevent. A man having 100 promissory notes, made by different individuals, might as well ask to sue all of them in one action, because, if he had to bring 100 actions against the 100 indi Ad duals, he would be required to bring and maintain a multiplicity of suits.” O’Brien v. Fitzpatrick et al., 39 N. Y. Sup. 707, 709. Strictly analogous to the case at bar is that stated by Kenyon, M. R., in Rayner v. Julian, 2 Dick. 667, of the sale of an estate in lots to different persons, in respect of Avhich it Avas declared that the vendor could not include. all the purchasers in a bill for specific performance, as each party’s case Avould be distinct and depend on its own circumstances; and in Brooks v. Lord Whitworth, 1 Madd. 85, a demurrer for multifariousness on that precise ground, was allowed. So it is well settled that the several purchasers of distinct parcels of a landed estate cannot unite in a bill against the common vendor for specific performance of the contract of sale; and for the same reason they cannot when they are sued separately for deferred payments, join in a bill, on the theory of preAention, or avoidance, or staying the further prosecution of a multiplicity of suits, to enjoin the actions at Iuav and haAw their separate legal defenses thereto, albeit such defenses all rest upon the same facts and legal prin-cipJ.es, as for instance a failure of consideration, decreed and effectuated in the one suit in equity. And the reason is that they have no common interest in the lands sold to them separately, nor in the prices they hare severally agreed to pay — no common interest in the subject matter.

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 fundamental proposition that a party who seeks to come into equity must himself have an equity. His equity may 'be derivative: It may rest in him because of privity between him and others by force of contract or in estate. But however it comes to him it must exist in him, or he cannot maintain a bill. Where' his title is legal, where his defense is at law, where all his rights, remedies and defenses are cognizable in a legal forum, and he, therefore, has in his own capacity and right no standing in a court of chancery, it is altogether plain and clear to us, Mr. Pomeroy and some courts to the contrary notwithstanding, that the wholly fortuitous, accidental and collateral fact that numerous other persons have like, but entirely independent and disconnected, legal rights, estates, or defenses, cannot upon any conceivable principle invest him with any right, legal or equitable, and that his rights whatever they may be are precisely the same as if no other person had similiar rights. It is palpably illogical to say that one man may acquire rights of any sort from others with whom he has absolutely no connection or relation by blood, in estate or by convention. It is a palpable von sequitai• to say that when numerous persons have like but independent legal estates or legal rights in respect of which severally they have no right to invoke the jurisdiction of chancery, yet because they are numerous the separate legal right of each is metamorphosed into an equity right in all, or in one for all. Jurisdiction in equity is not entertained on any notion that the court- luis an equity — that it will take jurisdiction to prevent- a multiplicity of suits in order to lessen its own labors or those of other courts: The equity upon which the invocation is made must reside in the party making it. When numerous parties have each the same equity they may in a proper case unite in one bill for its declaration and effectuation. Each having the separate right to come into equity upon an identical ground, they will be allowed to come in together on the theory of preventing a multiplicity of suits. So, Avhere one party is subjected to or threatened with numerous and vexatious actions at law, or is the victim of numerous, repeated and continuing wrongs so that a multitude of suits would be necessary for bis redress at law, he-may come into chancery because the necessity for numerous suits or defenses to numerous suits at law is in itself such a wrong and vexation to him as vests him with an equity. But in the case we have on the aspect under consideration, there is confessedly no separate equity in the several defendants to the actions of ejectment; but the proposition is that while separately they are without equity yet their mere combination gives equity to the claim of each — that the mere existence in many persons of like legal rights create an equity in all. Here there is no vexation, imminent or threatened, against any one of these persons. There are no repeated and continuing wrongs being committed against any one of them. There is only one suit against any one of them, and no other than this one is threatened. There is no multiplicity of suits against these complainants, or against any one of the numerous parties in whose behalf the bill is filed to be prevented, stayed or avoided. If these complainants were allowed to proceed with this bill — if we were to accord them that equity by the sheer force of judicial powej against all sound principle — it would not follow that any suit except that against them would be avoided or stayed. They have, we unhesitatingly conclude, no such equity. The bill could not be maintained for the prevention of a multiplicity of suits even if all the ejectment defendants were complainants in it; and a fortiori it cannot be maintained by the defendants in one of those actions in behalf of themselves and the others: It is without equity for the prevention of a multiplicity of suits.

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 complainants a standing in equity, demonstrate the adequacy of their legal remedy and the consequent absence of any occasion to invoice the powers of the chancery court. On the other hand, assuming that ilie bill shows the legal title to be in the city, the complainants have no footing-in equity unless they have made a case of estoppel against the city to assert its legal title; and whether the bill shows such equitable estoppel is now become the main question for decision.

.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 mere permission to occupy the shore with their structures, they had neither legal nor equitable .claim thereto, even though and after they had actually taken possession of the shore lot and erected their marine structures upon it under such parol • permission: Such license is always revocable at the pleasure of the licensor, and it neither imports title of any sort in them, nor, even when acted upon, involves any matter of estoppel in pais against him.—Hicks et al. v. Swift Creek Mill Co., 133 Ala. 411.

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 Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N. J. Eq., 398, 401; Stevens v. Patterson & Newark R. Co., 34 N. J. L. 532; Gough v. Bell, 2 Zab. (N. J.) 441; Austin v. Rutland Railroad Co., 45 Vt. 215; Hamlin v. Fairpoint Manufacturing Co., 141 Mass. 51, 57; Norfolk City v. Cooke, 27 Gratt. 430; A. & F. R’y. Co. v. Faunce, 31 Gratt. 761. Tlie right in the shore which they had as ap>-pnrtenant to their title to the upland under the conditions named was to extend their occupation over the shore lot, and if they have exercised this right and thus extended their occupation through the erection and user of wharves and other like structures, they have a pos-sessory, right which they can maintain at law.—Miller v. Mendenhall, 19 Am. St. Rep. 219, and notes, 231-2. Complainants’ status in respect of the shore lot in controversy as owners of the abutting uplands necessarily comes within one or the other of the two categories we have stated. If it falls within the first, they have no rights at law or in equity which could subsist after a revocation of the license to them. If within the second, they have a defense at law against the city’s action of ejectment. And the conclusion in this connection is that the invocation of chancery jurisdiction, so far as it is based upon their littoral rights, must be unavailing.

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 the wharves are maintained and used by the complainants, they are as beneficial to them as if they owned in fee the land which supports them. Taxation is not imposed upon them as a price for their location and maintenance, hut for the support of the government which protects the complainants in their possession and user for the time being; and the fact that the levy is specifically upon wharves, structures placed on the land, and not upon the land itself, evidences a legislative contemplation that the underlying* land was held separately from the structures upon it, for otherwise there would have been no occasion for a specific levy on the structures. At most these statutes levying taxes on wharves is a legislative recognition that the structures taxed are rightfully located, but they in themselves involve no commitment of government to the continued maintenance and user of them.

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.

Case Details

Case Name: Turner v. City of Mobile

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1902

Citation: 135 Ala. 73

Court Abbreviation: Ala.