# Ely v. New Mexico & A. Railroad Company/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
129 U.S. 291
Ely v. New Mexico & A. Railroad Company
The judgment of the supreme court of the territory of Arizona in favor of the defendants, upon their demurrer to the complaint, proceeded upon the ground that the action must be treated as a suit in equity only, and that the complaint made out no case for equitable relief, and therefore could not be maintained under the opinions of this court in Holland v. Challen, 110 U.S. 15, 25, 3 Sup. Ct. Rep. 495, and Frost v. Spitley, 121 U.S. 552, 557, 7 Sup. Ct. Rep. 1129. See, also, More v. Steinbach, 127 U.S. 70, 8 Sup. Ct. Rep. 1067 But each of those cases came from a circuit court of the United States, in which the distinction between actions at law and suits in equity is preserved. The present action, arising under territorial statutes, is governed by different considerations.
The statutes of Arizona provide that 'there shall be in this territory but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs,' to be commenced by complaint, containing 'a statement of the facts constituting the cause of action, in ordinary and concise language,' and 'a demand of the relief which the plaintiff claims.' Comp. Laws 1877, c. 48, §§ 1, 22, 39. Under precisely similar statutes of the territory of Montana, it has been adjudged by this court that both legal and equitable relief may be granted in the same action, and may be administered through the intervention of a jury, or by the court itself, according to the nature of the remedy sought. Hornbuckle v. Toombs, 18 Wall. 648; Hershfield v. Griffith, Id. 657; Davis v. Bilsland, Id. 659; Basey v. Gallagher, 20 Wall. 670. By the Compiled Laws of Arizona, (chapter 48, § 256,) 'an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest.' By the act of the territory of 1881, No. 59, that statute is amended by striking out the requirement of the plaintiff's possession, so as to read as follows: 'An action may be brought by any person against another who claims an estate or interest in said real property adverse to him, for the purpose of determining such adverse claim.'
The manifest intent of the statute, as thus amended, is, that any person owning real property, whether in possession or not, in which any other person claims an adverse title or interest, may bring an action against him to determine the adverse claim, and to quiet the plaintiff's title. It extends to cases in which the plaintiff is out of possession, and the defendant is in possession, and in which, at common law, the plaintiff might have maintained ejectment. An allegation, in ordinary and concise terms, of the ultimate fact that the plaintiff is the owner in fee, is sufficient, without setting out matters of evidence, or what have been sometimes called 'probative facts,' which go to establish that ultimate fact; and an allegation that the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer, or to allegation and proof of the estate or interest which he claims, the nature of which must be known to him, and may not be known to the plaintiff. These conclusions accord with the decisions of the courts of California and Indiana under similar statutes, from one of which the present statute of Arizona would seem to have been taken. Payne v. Treadwell, 16 Cal. 220, 242-247; Statham v. Dusy, 11 Pac. Rep. 606; Heeser v. Miller, 19 Pac. Rep. 375; Railroad v. Oyler, 60 Ind. 383, 392; Trittipo v. Morgan, 99 Ind. 269.
The result is that the complaint in this case is sufficient to authorize the court to determine the claim of the defendants and the title of the plaintiff, and also, if the facts proved at the hearing shall justify it, to grant an injunction or other equitable relief. Judgment reversed, and case remanded to the supreme court of Arizona, with directions to overrule the demurrer to the complaint, and to take such further proceedings as may be consistent with this opinion.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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