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. e du/thir dc ir c uit_1997/259Filed November 12, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 7702

NEWFOUND MANAGEMENT CORPORATION, GENERAL

PARTNER OF NEWFOUND LIMITED PARTNERSHIP,

v.

CEDRICK LEWIS, individually and in his capacity as

Administrator of the Estate of Bernard Williams;

IRVIN A. SEWER; LUCINDA ANTHONY; EARLE SEWER;

VIOLET SEWER; JASMINE SEWER; LOREL SEWER;

JUDITH CALLWOOD; LEON CALLWOOD; LORNE

CALLWOOD; PERSONS UNKNOWN WHO HAVE

ATTEMPTED TO OBSTRUCT CONSTRUCTION WORK ON

PLAINTIFF' S LAND,

Cedrick Lewis, Appellant

APPEAL FROM THE

DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN

(D.C. Civ. No. 91

- cv

- 00315)

Argued April 9, 1997

Before: BECKER, ROTH and WEIS, Circuit Judges

Filed Novembe r 12, 1997

Aurelia D. Rashid, Esquire

(ARGUED)

No. 8 Crystal Gade

St. Thomas, US Virgin Islands

00804

Counsel for Appellant Cedrick Lewis

Clair A. Carlson, Jr., Esquire

(ARGUE D)

Alan Garber, Esquire

Paul D. Boynton, Esquire

Mason & Martin

600 Atlantic Avenue

Federal Reserve Plaza

Boston, MA 02210Counsel for Appellee Newfound

Management Corporation

OPINION OF THE COURT

WEIS, Circuit Judge.

In these consolidated cases of quiet title and trespass, a

crucial issue is the location of certain boundary lines.

Under the unique circumstances presented here, we

conclude that the district court properly establis hed the

property lines in a bench trial before submission of the

other issues to a jury. We also determine that the court did

not err in its evaluation of the evidence and application of

survey law. Accordingly, we will affirm the district court's

ord er as certified under Federal Rule of Civil Procedure

54(b).

This litigation arises out of a long

- standing dispute over

ownership and boundaries of property located on the

eastern end of the Island of St. John, United States Virgin

Islands. After se vering common issues from an action to

quiet title and consolidating them with a trespass action,

the district court in a bench trial resolved most of those

points against defendants (various heirs and devisees) and

entered judgment in favor of plainti ff Newfound

Management Corporation. Newfound Mgmt. Corp. v. Sewer,

885 F.Supp. 727 (D.V.I. 1995). On stipulation of the

parties, the order was certified as final within the terms of

Fed.R.Civ.P. 54(b).

The facts and disputes presented in this case a re

complex and multifarious. Indeed, the district court

remarked in a pre

- trial ruling: "As with all land disputes in

2

the Virgin Islands, this one involves a large cast of

characters, hard feelings, and an oft en incomprehensible

genealogy." To avoid complicating matters unnecessarily,

we will recite only those facts essential to deciding the

issues on appeal.

Although litigation over the realty had taken place in

earlier years, the matter before us began in 1980 as a

probate action brought by persons claiming ownership of

certain tracts of land as rightful heirs of the 19th

- century

owners. At stake were the title to and boundaries of parcels

located in the Hansen Bay and Newfound Bay Estates in

the E ast End Quarter of St. John.1 Included in the relief

requested was the appointment of Eric Christian asAdministrator of the Estate of James George Sewer, who

would then bring an action to quiet title to the parcels.

Christian filed the quiet title a ction on December 15,

1987. Defendant Cedrick Lewis, as Administrator of the

Estate of Bernard Williams, filed an answer in February

1988. Newfound intervened as a defendant in December

1988.

On the eve of trial in December 1993, the parties agreed

in general terms to a settlement. Seven months later, the

court entered a detailed consent judgment in the quiet title

action that resolved most issues, but left others for future

determination. Over the objections of Newfound, the court

directed that the adverse claims of Newfound, the Estate of

Bernard Williams as represented by Lewis, and the heirs of

Martin Sewer to parcels designated 6

- P Hansen Bay and

7

- A Hansen Bay would be severed and consolidated for trial

with the pending injunction/tresp ass action brought by

Newfound on August 16, 1991.

In that suit, Newfound had asked for an injunction,

alleging that several individuals had repeatedly blocked

_________________________________________________________________

1. The colorful names given to the land date back, in part, to Danish

Colonial times when the rural parts of the Virgin Islands were divided

into large tracts for agricultural purposes called "Estates." Each

"Estate"

was given a distinctive name. Estates in close proximity to each other

were grouped together and designated as "Quarters." Dudley v. Meyers,

422 F.2d 1389, 1390 (3d Cir. 1970).

3

access to the land under development by Newfound and

stopped construction work underway. Named as defendants

were Lewis, the Sewer heirs, and unknown persons who

had attempted to prevent development of the land. In

addition to obstruction, which apparently occurred on

parcel 6

- O

- 1, Newfound charged defendants with

vandalism, as well as th reats of violence, trespass, slander

of title, and interference with business relations.

In his answer to Newfound's trespass action, Lewis

disputed the boundary lines of parcel 6

- P and neighboring

parcels, including parcel 6

- O

- 1, as drawn by Newfoun d's

surveyor, H. Marvin Berning.2 The answer contained a jury

demand and a request for affirmative relief in the nature of

a judicial determination of the property's rightful owners. In

addition, Lewis asked for damages. Two weeks later, in

September 1991, the parties stipulated to the entry of apreliminary injunction.

On June 14, 1994 (two weeks after entry of the consent

judgment in the quiet title action), the district court

approved a final pretrial order for the two cases. Noting that

Newf ound had objected to severance of its claims to parcels

6

- P and 7

- A for consolidation with the trespass action, the

order stated that "the quiet title portion of the action will be

tried as a jury

- waived action."

The pretrial order set out the conten tions of ownership of

the various parcels. The parties stipulated that Newfound

held record title to parcels 6

- O, 6

- O

- 1, 6

- O

- 2, 6

- Y, and 6

- Z,

and that none of the defendants had record title to those

parcels. Essentially, Newfound claimed that parcels 6

- O,

6

- O

- 1, and 6

- O

- 2 were located as shown on the Berning

survey to the north of 6

- P.

The defendants' claim to parcel 6

- P was based on the

consent judgment. Lewis and the Sewer heirs asserted that

6

- P was incorrectly shown on that survey and, inste ad, was

located partially within the area that Newfound designated

as 6

- O, 6

- O

- 1, and 6

- O

- 2.

_________________________________________________________________

2. We have attached a rough sketch of the relevant parcels as drawn in

the Berning survey.

4

The pretrial order also described Newfound's claim for

damages based on the blocking of construction, and listed

as exhibits newspaper articles containing the defendants'

claims of ownership of the land. The order noted that Lewis

was standing "by his demand for a jury trial on all

questions of fact." Newfound, however, continued to assert

that "the resolution of issues relating to the title and

boundaries of the Property are questions for the trial judge

to resolve," and that after these determinations, the

plaintiffs' damages could be tried to the jury.

On August 19, 1994, two months after approving the

pretrial order, the district court struck some of the

defendants' counterclaims and affirmative defenses. In their

proposed amended answer, the Sewer heirs had asserted

that they held undivided equitable interests in parcels 6

- O,

6

- O

- 1, and 6

- O

- 2. Similarly, Lewis had claimed an

undivided interest in Longbay # 1 and sought to defend the

trespass claim on that ground.3 See Restatement (Second) of

Torts S 185 (1965) (title of defendant is a defense to

trespass).Assessing the defendants' claims, the district court

pointed out that in the Virgin Islands an action to

determine "any right or cl aim to or interest in" real property

will be time

- barred "unless it shall appear that the plaintiff,

his ancestor, predecessor, or grantor was seized or

possessed of the property in question within twenty years

before the commencement of the action." V .I. Code Ann. tit.

5, SS 32, 31(1)(A) (1967). As the court noted, "defendants

have failed to plead an essential element of their case

-- that they or their predecessors in interest possessed the

land within twenty years of their commencing this action. "

Accordingly, the affirmative defenses based on the

defendants' claims of ownership to Longbay #1 were

stricken. The order did not discuss the defendants' title to

parcel 6

- P, nor did it prevent them from arguing that the

allegedly tortious conduct o ccurred within that parcel's

boundaries.

_________________________________________________________________

3. Parcels 6

- O, 6

- O

- 1 and 6

- O

- 2 are adjacent and comprise part of a

larger parcel once known as Longbay #1.

5

The case came on for jury selection and trial on October

3, 1994. Acknowledging that the proceeding was

"essentially to determine whether or not an injunction

should be issued," counsel for the Sewer heirs argued that

there was no immediate ha rm and that Newfound had an

adequate remedy at law. In addition, counsel contended

that the jury should determine whether Newfound owned

the land and whether defendants had trespassed. The court

responded: "The jury will determine the trespass. The onl y

issue I'm determining is whether or not the plaintiff owns

the land on which the trespass allegedly occurred. .. . The

Court now only has to decide the issue of permanency and

that's what it will do."

On March 27, 1995, the court issued an exhaust ive and

comprehensive opinion reviewing the extensive

documentary evidence and testimony presented at the two

day trial. 885 F.Supp. 727 (D.V.I. 1995). The court

determined title to all disputed properties except parcel 10

and expressly located the b oundaries of most of the other

parcels.

Rather than proceeding to the jury trial as originally

planned, on October 3, 1996 the parties stipulated to the

entry of a partial final judgment under Rule 54(b). The

following paraphrased provisions, inter alia, appeared in the

Order Certifying Final Judgment:- Defendants have title to parcel 6

- P;

- By locating parcels 6

- O, 6

- O

- 1, 6

- O

- 2, 6

- F, 6

- Y, and

6

- Z, the court implicitly held that 6

- P was not

lo cated on any of those parcels;

- Defendants assert that the alleged trespass occurred

on parcel 6

- P, which should have been plotted

where the court plotted 6

- O, 6

- O

- 1, 6

- O

- 2, 6

- F, 6

- Y,

and 6

- Z;

- If the Court of Appeals affirmed the judgment,

"plaintiff would withdraw its tort claims against the

defendants and the defendants would relinquish to

the plaintiff their ownership interest in parcels 6

- f

and 6

- p."

6

The court thereupon certified the March 27, 1995 order

as a final judgment under Rule 54(b). Lewis filed a timely

notice of appeal, but the Sewer heirs did not.4 Lewis raises

a number of issues in his brief that require us to examine

the proper scope of our jurisdiction and the adequacy of the

Rule 54(b) certification.

I.

We first consider whether we have appellate jurisdiction.

Rule 54(b) provides in pertinent part:

When more than one claim for relief is presented in an

action, . . . the court may direct the entry of afinal

judgment as to one or more but fewer than all of the

claims . . . only upon an express determination that

there is no just reason for delay and upon an express

direction for the entry of judgment.

We explained the requirements for a proper Rule 54(b)

certification in Sussex Drug Products v. Kanasco, Ltd., 920

F.2d 1150 (3d Cir. 1990). To qualify, the rele vant order

must first be a final judgment in the sense that it

ultimately disposes of an individual claim brought as part

of a multiple claim action. Id. at 1153. Second, an

immediate appeal must foster efficiency and equitable

concerns. Id. We review the former question de novo. Id. We

review the decision to certify for an abuse of discretion. Id.

Finality under Rule 54(b) is synonymous with that

required under 28 U.S.C. S 1291. Sussex Drug Prods., 920

F.2d at 1153. If the order adjudicates the claim fully so that

the court's only remaining task is to execute on thejudgment, then the order will be considered final as to that

particular claim within the multiclaim action. Id. at 1153

- 54. Partial adjudication of a single claim, however, is no t

appealable despite a Rule 54(b) certification. Id. at 1154;

_________________________________________________________________

4. The Sewer heirs filed in our Court a motion to join as appellants,

which was received by the clerk some 83 days after t he Rule 54(b) order

was entered. We denied the motion as untimely. Fed. R. App. P. 4(a)(1),

4(a)(3), 4(a)(5). We will deny their motion for resuscitation for the same

reasons.

7

see also Gerardi v. Pelullo, 16 F .3d 1363, 1368

- 70 (3d Cir.

1994).

As noted earlier, the parties have attempted to

manipulate the finality requirement. According to

paragraph 9 of the Rule 54(b) order, if, and only if, we

uphold the findings entered on March 27, 1995, then

Newfoun d will "withdraw its tort claims" in exchange for

title to parcels 6

- P and 6

- F. This agreement was modified in

a document entitled "Notice of Conditional Waiver of

Damage Claims," filed in our Court by Newfound after oral

argument. In this document, Ne wfound agreed to waive all

damage claims asserted in the trespass action and agreed

to relinquish its claim to Lewis' interest in 6

- P if we

affirmed the judgment and remanded the case for

consideration of its request for a permanent injunction.

We r eject this maneuvering as a method of

manufacturing finality because Newfound's offer to drop its

tort claim is intrinsically contingent. As one Court has aptly

held under similar circumstances:

Litigants and courts cannot, by agreement, avoid the

finality requirement of S 1291. While in this case the

parties have settled their dispute, the settlement is not

a final one, but a contingent one; if we affirm, the

parties will go their own ways, but if we reverse the

parties will continue to litigate the dispute. The fact

that the court of appeals could end the litigation does

not make a decision on a single issue final. True,

litigation will continue in cases where a court of

a ppeals reverses and remands a case, but in those

circumstances the lower court has already ruled on the

merits of the case. Here no decision on the merits has

occurred.

Union Oil Co. of California v. John Brown, Inc., 121 F.3d

3 05, 309 (7th Cir. 1997) (quotation and citation omitted);accord Dannenberg v. Software Toolworks, Inc., 16 F.3d

1073 (9th Cir. 1994) (parties cannot manufacture finality

by stipulating to dismissal of outstanding claims without

prejudice to reinstitut ing those claims if the Court of

Appeals reverses the judgment on appeal); see generally

Bethel v. McAllister Bros., Inc., 81 F.3d 376, 380

- 83 (3d Cir.

8

1996) (final judgment rule does not prevent appeal from

o therwise unappealable order if plaintiff voluntarily and

finally abandons all other live claims). Therefore, we must

review the jurisdictional issue further.

The partial consolidation of the quiet title and trespass

actions presents complications. Co nsolidation orders tend

to obscure questions of finality and practice under Rule

54(b) because a factual determination may be conclusive in

one claim but not in the other. See, e.g., Bergman v.

Atlantic City, 860 F.2d 560, 565

- 67 (3d Cir. 1988); Bogosi an

v. Gulf Oil Corp., 561 F.2d 434, 440

- 41 (3d Cir. 1977); see

also UGI Corp. v. Clark, 747 F.2d 893, 894 (3d Cir. 1984);

see generally Gaylord A. Virden, Consolidation Under Rule

42 of the Federal Rules of Civil Procedure: The U.S. Courts

of Appeals Disagree on Whether Consolidation Merges the

Separate Cases and Whether the Cases Remain Separately

Final for Purposes of Appeal, 141 F.R.D. 169 (1991)

("Virden"). We apply a case by case

- by

- case approach to

determine whether a judgment entered in one action may

be considered final and appealable while a second action

with which the first was consolidated remains pending in

the district court. Bergman, 860 F.2d at 566.

At this point, a brief review of the factual issues will be

helpful in underst anding the appealability question. The

location of parcel 6

- P is the crucial issue common to both

suits and the essential point of disagreement between the

parties. Parcel 6

- P is bounded in part by parcel 6

- O

- 1 on

the north and by the George

- Sewer line on the south. The

parties do not disagree on the place on the ground where

the obstruction incidents asserted by Newfound allegedly

occurred, but heatedly contest whether that situs was

located within parcel 6

- P or 6

- O

- 1.

From the beginning, the pa rties have disputed the

location of the George

- Sewer line, so named because in

1893 a Danish surveyor drew a line to separate the

property of William George to the north (through whom

Lewis and the Sewer heirs claim title) and Eve Marie Sewer

to the s outh. The rudimentary and unspecific nature of the

survey, coupled with the proliferation of George and Sewer

heirs, has contributed substantially to this lengthylitigation.

9

According to Lewis, the eastern po int of the relevant

segment of the George

- Sewer line is 600 feet further north

than is shown on the Berning survey. If Lewis were correct,

the northern boundary of parcel 6

- P would lie on the land

that Berning considered part of parcel 6

- O

- 1 and would

place the site where the alleged obstruction of construction

occurred within parcel 6

- P.

Lewis has title to 6

- P by virtue of the consent judgment

in the quiet title action, and contends that he could not be

a trespasser on his own land.5 Newfound cl aims that

Berning properly located the George

- Sewer line and, as a

result, the trespass occurred on parcel 6

- O

- 1.

The district court located the George

- Sewer line,

including the segment running along the southern border

of 6

- P, as shown on the Berni ng survey. Thereafter, the

court plotted the boundaries of parcel 6

- O

- 1, including its

southern boundary, which is common to the northern

boundary of 6

- P. By locating the George

- Sewer line, the

southern boundary of parcel 6

- O

- 1, and the southern

bound aries of the other parcels comprising the former

Longbay #1, the district court, by necessary implication,

located parcel 6

- P (at least the disputed northern and

southern boundaries) as shown on the Berning survey.

Because the effect of the district court's findings was to

negate his ownership defense to trespass, Lewis desired an

appeal before proceeding to a jury trial. For Newfound,

whose primary goal was to develop the land, resolution of

the boundary dispute would determine whether a basis fo r

permanent injunction existed. Therefore, in an effort to save

the time and expense of another trial, as well as to receive

prompt appellate review of the critical boundary

determination, the parties entered into the court

- approved

Rule 54(b) stipula tion. If the certification were dispositive,

we could proceed to the merits without further ado, but as

we stated in National Union Fire Ins. Co. of Pittsburgh v. City

_________________________________________________________________

5. The pre

- trial ruling, which Lewis did not challenge in his brief,

prevents him from asserting title to parcel 6

- 0

- 1 in defense of trespass,

and he may not defend on the theory that some unrelated person

actually has title. Prosser & Keeton, The Law of Torts S 13 at 77 (5th ed.

1984).

10Savings, F.S.B., 28 F.3d 376, 382 (3d Cir. 1994), "simply

because a district court certifies a matter under Rule 54(b)

does not automatically result in proper appellate

jurisdiction."

W e agree with the district court that its findings with

respect to parcel 6

- P in the quiet title case are final and

subject to appeal with a proper certification, even though

that parcel remains to be surveyed. See 885 F. Supp. at

771

- 72. For all practi cal purposes, title to 6

- P and its

boundaries have been adjudicated beyond realistic

variance. See Sekaquaptewa v. MacDonald, 575 F.2d 239,

242

- 43 (9th Cir. 1978) (partition order that contemplated

future proceedings, including a survey, was final

non etheless because it practically disposed of the parties'

interests in the land) citing Forgay v. Conrad, 47 U.S. 201,

204

- 05 (1848). But see Calistro v. Kean, 389 F.2d 619, 620

- 22 (3d Cir. 1968) (determination of one boundary line in

boundary dispute was not final because placement of other

lines could have affected the first line's location).

On the other hand, with respect to the trespass action,

the court's order was not final because it disposed only of

a boundary defense and did not adjudica te liability,

damages or injunctive relief. In these circumstances,

certification does not put the trespass case before us

because the order lacks the requisite degree offinality. See

generally Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737

(1976). N evertheless, we have jurisdiction to consider

whether the consolidation order prevented the district court

from resolving disputes over 6

- P in the quiet title suit

before a jury would have addressed the same issues in the

trespass action. That is an im portant facet of the case to

which we shall turn. A challenge to the sequence of trial is

fairly within the scope of the district court's order in the

quiet title action which is properly before us. Accordingly,

we have jurisdiction to consider Lewis' claim that a jury

should have resolved the issues as to the location of parcel

6

- P.6

_________________________________________________________________

6. We therefore need not decide whether this case is an appropriate

occasion for the discretionary application of pendent appellate

jurisdiction. See In re Tutu Wells Contamination Litig., 120 F.3d 368, 382

(3d Cir. 1997); Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 209

(3d Cir. 1990); United States v. Spears, 859 F.2d 284, 287 (3d Cir.

1988 ); Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir. 1982) (en

banc).

11II.

The parties hold widely divergent views on the role of the

jury in this case. Lewis never demanded or asserted a right

to trial by jury in the quiet title action

-- he had no such

entitlement. On the other hand, he at all times requested

that a jury determine all the issues in the trespass action,

including the boundaries of parcel 6

- P.

The Seventh Amendment provides that "[i ]n suits at

common law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shall be preserved."

Because the Virgin Islands is a territory, the provisions of

the Bill of Rights do not apply to it except as expressly

provided in the Revised Organic Act. The Revised Organic

Act does incorporate the Seventh Amendment into Virgin

Islands law. See 48 U.S.C. S 1561. We apply not only the

text of the Amendment, but also the judicial gloss as

developed over two centuries.

The word "preserved" demands a historical inquiry to

determine whether the suit, if filed in the English courts

before 1791, would have fallen within the jurisdiction of law

or equity. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446

- 47

(1830). Action s at law entitle the parties to a jury, but

equitable cases do not. Whether a suit properly comes

within the scope of equity has customarily depended on

whether the plaintiff's remedy at law is adequate. This

inquiry is the touchstone of Seventh Amendm ent

jurisprudence. Dairy Queen v. Wood, 369 U.S. 469, 478

(1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500,

506

- 07 (1959).

When confronting a statutorily

- created cause of action,

courts must draw analogies to traditional common law

suits in determining whether the case is within the

jurisdiction of law or equity. See, e.g., Tull v. United States,

481 U.S. 412, 417 (1987). This litigation, however, involves

the tort of trespass to land, a cause of action well

recognized in 18th

- century En gland. As such, we do not

resort to analogies, but look for guidance to the history of

those early suits, particularly those seeking injunctive

relief.

12

The generally accepted modern rule is that equity has

j urisdiction to grant relief against repeated trespasses on

the theory that successive legal actions for monetary

damages do not provide adequate relief. See 4 J. Pomeroy,

Equity Jurisprudence S 1357 (5th ed. 1941). According toPomeroy, "if repeated ac ts of wrong are done or threatened,

although each of these acts, taken by itself, may not be

destructive, and the legal remedy may therefore be

adequate for each single act if it stood alone, then also the

entire wrong will be prevented or stopped by i njunction, on

the ground of avoiding a repetition of similar actions . . . ."

Id. at 964

- 65 (emphasis in original); see also Archer v.

Greenville Sand & Gravel Co., 233 U.S. 60, 65

- 66 (1914);

Donovan v. Pennsylvania Co., 199 U.S. 279, 304

- 05 (1905);

P ittsburg, S. & W. R. Co. v. Fiske, 123 F. 760, 761 (3d Cir.

1903).

Some early nineteenth

- century American judges,

however, believed that equity had no jurisdiction in

trespass actions because the law provided adequate

remedies. See Jerome v. Ross, 7 Johns Ch. (N.Y.) 315, 336

-

37 (1823) (Kent, Ch.). Our research, however, does not

support that conclusion. Several English courts,

particularly those presided over by Chancellor Hardwicke

and Lord Thurlow, granted injunctions in cases of

continuing t respass. See Flamang's case, noted without

citation in Hanson v. Gardiner, 7 Ves. 306, 308 (1802) (Lord

Eldon); Hamilton v. Worsefold, Register's Book, A. 1786 folio

1 (Lord Thurlow), noted in Courthope v. Mapplesden, 10

Ves. 290 (1804) (Lord Eldon); C oulson v. White , 3 Atk. 21

(1743) (Hardwicke, Ch.); see generally Zechariah Chafee, Jr.

and Roscoe Pound, Cases On Equitable Relief Against Torts

(1933 ed.).

It is in this context that Newfound argues that its

trespass action, historically sounding in equity, does not

entitle Lewis to a jury trial on all issues. Lewis' claim for

damages does not change that result, Newfound contends,

because once the chancellor assumes jurisdiction to grant

an injunction, he has the power to award monetary relie f

against offending parties that is " `incidental to or

intertwined with injunctive relief.' " Chauffeurs, Teamsters

and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 571

13

(1990), quoting Tull v. United State s, 481 U.S. 412, 424

(1987). However, Newfound's agreement at pretrial to try

most of the trespass issues, particularly damages, to a jury

makes that theory of equity jurisdiction largely irrelevant.

Lewis contends that this so

- called "clean up" doct rine,

giving equity the right to assess damages, is totally

inapplicable. He argues that Beacon Theatres and Dairy

Queen entitle him to have a jury trial in Newfound's

trespass suit.In Beacon Theatres, plaintiff requested a declaratory

judgment an d defendant counterclaimed for antitrust

damages. The trial court ruled that certain issues common

to the plaintiff 's equitable claim and the defendant's

counterclaim for damages be tried first to the bench. The

Supreme Court reversed, reasoning that such a procedure

denied defendant a trial by jury of the issues raised in the

counterclaim in violation of the Seventh Amendment. 359

U.S. at 506

- 11.

The Court reinforced the Beacon Theatres principle in

Dairy Queen, by rejecting the notion that the "right to trial

by jury may be lost as to legal issues where those issues

are characterized as `incidental' to equitable issues." 369

U.S. at 470. The Court noted that "[i]t would make no

difference if the equitable cause clearly outweighed the legal

cause so that the basic issue of the case taken as a whole

is equitable." Id. at 473 n.8.

Finally, in Ross v. Bernhard, 396 U.S. 531 (1970), the

Court summarized the holding of Beacon Theatres and

Dairy Queen:

"where equitable and legal cl aims are joined in the

same action, there is a right to jury trial on the legal

claims which must not be infringed either by trying the

legal issues as incidental to the equitable ones or by a

court trial of a common issue e xisting between the

claims."

Id. at 537

- 38.

These cases share the common theme in the references to

procedural rules. In Beacon Theatres, Rule 13 authorized

assertion of the legal counterclaim. In Dairy Queen, Rule 18

14

permitted joinder of all claims in one complaint. Thus, if

the issues related to both the legal and equitable claims

can be resolved in one lawsuit, then the right to a jury trial

attendant to the legal claims will prevail. A cont rary rule

would eviscerate the right to a jury given the preclusive

effect that would flow from the rulings in a prior bench

trial. Avoiding such a result was the "major premise" of

Beacon Theatres. Parklane Hosiery Co. v. Shore, 439 U.S.

322, 333 (19 79); see also Amoco Oil v. Torcomian, 722 F.2d

1099, 1104 (3d Cir. 1983).

At first blush, therefore, it appears that Lewis' position is

supported by applicable precedent. But significant

distinctions exist that dictate otherwise.The Beacon Theatr es analysis applies when the legal and

equitable claims are joined either in the same complaint,

Owens

- Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185,

1190 (3d Cir. 1979), or in the same action through a

complaint and counterclaim. Torcomian, 722 F.2d at 1104.

Here, however, we are presented with consolidation of legal

and equitable claims under Rule 42(a). Reevaluating

equity's jurisdiction over legal issues in light of"the liberal

joinder provisions of the Federal Rules which allow legal

an d equitable causes to be brought and resolved in one civil

action," the Supreme Court in Beacon Theatres referred

specifically to Rules 1, 2, and 18 in a footnote. 359 U.S. at

509 n.14. Conspicuous by its absence from this list was

Rule 42 ("Consolidat ion; Separate Trials").

Although for purposes of appellate jurisdiction a

consolidation order entered under Rule 42(a) may result in

a single unit of litigation, the order entered here did not

create a "single case" for jury trial purposes. When

int erpreting the predecessor to Rule 42(a), the Supreme

Court stated that "consolidation is permitted as a matter of

convenience and economy in administration, but does not

merge the suits into a single cause, or change the rights of

the parties . . . ." Johnson v. Manhattan Ry. Co., 289 U.S.

479, 496

- 97 (1933).

In Johnson, two suits brought by two separate groups of

creditors sought a receivership of the same company. The

Court held that attacks by plaintiff in the second suit on

15

the judge and receiver in the first suit were collateral, as

opposed to direct, despite the order of consolidation. Id. at

495

- 96. Johnson remains the "authoritative" statement on

the law of consolidation. 9 Wright & Miller, Fe deral Practice

and Procedure: Civil 2d S 2382, at 430 (1995); see also

Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682,

735 (1976) (Marshall, J., dissenting); Virden, 141 F.R.D. at

178.

We followed the teachings of Johnson in Bradgate

As sociates v. Fellows, Read & Associates, 999 F.2d 745 (3d

Cir. 1993). There, the district court had consolidated two

lawsuits; one originally filed in federal court and the other

removed to that forum. Finding an absence of diversity, the

district court remanded both cases to the state court. Id. at

748

- 49. We reversed and held that treating the

consolidated cases as a single civil action would

impermissibly enlarge the rights of one of the parties by

affording it a state court trial in a case origin ally filed infederal court. As to that suit, dismissal was the proper

disposition. By treating the actions as a single unit, the

district court's order failed to respect the separate and

distinct nature of the two lawsuits. Id. at 750

- 51.

The teach ings of Johnson and Bradgate prevent Lewis'

jury demand in the trespass action from extending to the

quiet title portion of the case. To determine otherwise would

allow the consolidation order without more to "merge the

suits into a single controversy " contrary to prevailing

precedent.

We are not swayed in our conclusion by two cases

decided after Johnson. Both approved a jury trial on

common issues arising in consolidated cases when the right

was appended to only one of the actions. Neither cas e cited

Johnson. See Blake v. Farrell Lines, Inc., 417 F.2d 264 (3d

Cir. 1969); United States v. Nordbrock, 941 F.2d 947 (9th

Cir. 1991).

In Blake, the district court ordered a jury trial where two

suits had been consolidated. One case was for perso nal

injury and the other was in admiralty seeking indemnity. Of

course, the right to a jury trial did not apply to the

admiralty action. The case is easily distinguishable because

16

the personal injury suit was filed first and was a necessary

predicate to the indemnity suit. There, the factual issues

were interdependent and both suits were based on the

same incident.

Nordbrock began with an equitable action brought by the

Internal Revenue Service. After t he trial, the court imposed

a penalty assessment against defendant. He paid part and

sued for a refund, demanding a jury trial. The cases were

eventually consolidated and common issues tried to the

bench. The Court of Appeals held that once the two cas es

were consolidated defendant became entitled to a jury trial

on all issues. 941 F.2d at 949. We think Nordbrock is

distinguishable on its facts and not applicable here.7

The differences between these two cases and the case

before us are significan t. Unlike the typical Beacon Theatres

scenario where the legal and equitable claims are filed

contemporaneously (or close to it) and arise out of the same

incident, the complaint in the quiet title action had been

filed almost four years before Newfoun d's trespass action.

In fact, the equitable case had been pending for years

before the alleged obstruction incident occurred. Moreover,

most of the claims in the quiet title action had been thesubject of a consent judgment entered before the trespass

case was even reached for pretrial. The post

- consolidation

bench trial that located parcel 6

- P was simply a

continuation of the quiet title trial.

Had the quiet title action been tried to completion in the

normal course of events, it would have resu lted in a

judgment clarifying the state of the titles and the location

_________________________________________________________________

7. One commentator contends that courts should treat consolidated

cases as a single, civil action for most purpos es. Joan Steinman, The

Effects of Case Consolidation on the Procedural Rights of Litigants: What

They Are, What They Might Be; Part 1: Justiciability and Jurisdiction

(Original and Appellate), 42 UCLA L. Rev. 717 (1995); Joan Steinman,

The Effects of C ase Consolidation on the Procedural Rights of Litigants:

What They Are, What They Might Be; Part II: Non

- Jurisdictional Matters,

42 UCLA L. Rev. 967 (1995). We are impressed with her efforts,

particularly as applied to Rule 54(b), but believe that Johns on, Bradgate

and Virden undermine the argument for creation of a single litigation

unit after consolidation.

17

of parcel 6

- P even before the trespass incident took place.

Unfortunately, delays in disposition of litigation in the

Virgin Islands at that time were not unusual, caused as

they were by the lengthy period when the two resident

judgeships went unfilled.8

Furthermore, the only overlap of relevant issues between

the two suits was the location of pa rcel 6

- P. The bench trial

did not address the other elements of the alleged trespass.

This situation thus contrasts with the usual Beacon

Theatres scenario where substantial factual overlaps occur.

Given these circumstances, we do not believe that Beac on

Theatres demands that the dispute over location of parcel

6

- P be tried to a jury first.

In summary, we conclude that Beacon Theatres does not

apply in these consolidated cases where the equitable

action was filed long before the legal one, the tr ial was a

continuation of the equity matter, the overlap of factual

matters was not extensive, and inordinate delay had

prevented timely completion of the equity case. Thus, the

district court did not run afoul of the Seventh Amendment

by resolving th e factual dispute over the location of parcel

6

- P in a finding from the bench.

III.

Lewis complains that the court erred in accepting muchof Berning's testimony because Berning was not licensed in

1969 when he drafted some surveys, and because he did

not follow approved survey practices.

Berning testified that he performed survey work in the

Virgin Islands from 1958 through 1974 as a duly licensed

engineer. He then left the Islands. Upon returning some ten

years later, Berning encountered a new requirement that

forced him to take an examination to obtain a surveyor's

license. He successfully passed the test and was issued a

license. Berning had extensive experience in surveying

____________________________________________________________ _____

8. Judge Almeric Christian assumed Senior status on May 15, 1988.

Judge David O'Brien died on December 22, 1989. Thefirst vacancy was

not filled until June 30, 1992 when Judge Thomas Moore assumed

office. The second was filled by Judge Raymond Finch on May 9, 1994.

18

activity on St. John. In addition, he had prepared an aerial

survey of the East End and done personal research into

documents of title in Denmark. Understandably, the

defendants' counsel did not challenge Berning's

qualifications as an expert at trial.

Describing his surveying methods, Berning explained

that when monuments or precise definitions of metes and

bounds proved unhelpful, he would discuss boundaries

with older residents and adjacent owners, or rely on such

clues as fences or ridge lines. We are satisfied that the

district court properly evaluated this procedure in

appraising Berning's testimony. The fact that he had not

been licensed as a surveyor by the Virgin Island s in 1969

when drafting some of the surveys he referred to does not

furnish a basis for discrediting Berning's testimony on

those matters.

IV.

Lewis further contends that the district court erred in

failing to apply proper survey law in determini ng the

location of various parcels. Particularly, he finds fault with

the court's acceptance of Berning's survey as to the location

of the George

- Sewer line that borders parcel 6

- P on the

south.

As noted earlier, a Danish surveyor named Anderson

es tablished the line in 1893, using compass bearings and

stone piles as markers. There were no pretensions that this

represented a precise survey on the ground. Acreage was of

little value at the time and would not have justified theexpense of an accura te survey. The George and Sewer

families memorialized their agreement to be bound by

Anderson's survey in 1894.

In the years following, the families' interests in the land

were transferred through deed and inheritance. Still,

imprecise boundary line s coupled with the increasing

number of descendants made accurate conveyancing an

ideal rather than a reality. Another agreement, intended to

identify numbered land parcels, was reached in 1913

among the defendants' ancestors. Like that reached in

189 4, this agreement did not refer to any detailed survey.

19

Lewis raises these points in attacking the Berning survey,

which locates parcels with larger acreage than mentioned in

the 1913 agreement.

For example , Lewis contends that Newfound is not a

bona fide owner of parcel 6

- O because the deed from one of

its earlier owners recited acreage of 7.25, but the 1913

agreement apparently referred to the same tract as

containing substantially less land. This theo ry is flawed,

however, since the 1913 agreement never purported to rely

on an accurate survey. Overall, we are not persuaded that

the district judge failed to evaluate this evidence

appropriately.

Lewis also contends that the district court erred in

accepting the Berning survey of the George

- Sewer line in

preference to that of Rudolph Galiber, an expert who

testified on the defendants' behalf. For his location of the

line, Galiber relied on a stone pile marker on the east side

of the property an d on Anderson's compass bearings when

placing one end of the George

- Sewer line several hundred

feet farther north than located by Berning.

We believe that the district court was justified in

accepting Berning's location based on his greater familiari ty

with the area and more extensive work on the survey.

Although Galiber had survey experience in various parts of

the world, Berning was more familiar with the practice in

St. John. He grappled with the problem of the George

Sewer line at length, wh ile Galiber spent only eight hours

on the question when preparing for trial.

One can scarcely underestimate the difficulties involved

in determining the state of titles and boundary locations in

the absence of adequate surveys, probate proceedings, a nd

appropriate monuments. The district court's review of the

available documentary evidence and testimony was carefuland painstaking. It applied appropriate legal principles and

its findings are not clearly erroneous.

We will affirm the judgment of the district court. The case

will be remanded to the district court for further

proceedings consistent with this Opinion. The court shall

entertain Newfound's request for a permanent injunction

and direct prompt completion of the survey of parcels 6

- P

20

and 7

- A. The court shall give full effect to the parties'

waiver of claims as set out in the district court's order of

October 3, 1996 and Newfound's Notice of Conditional

Waiver of Damage Claims dated July 3, 1997.9

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

9. Although jurisdiction over cases of this nature now resides in the

territorial court, the district court retains jurisdiction here because

the

suits were filed before October 1, 1991, the effective date of V.I. Code

Ann. tit. 4, S 76(a) (Supp. 1997). See Isidor Paiewonsky Assocs. v. Sharp

Properties, 998 F.2d 145 (3d Cir. 1993).

20