The record-union., 1891-03-01

suit in equity or an action at law. 1t is
really statutory action. The code con-
fers equitable rights so far as it grants
the power to maintain the action at all,
and the decree is in form equitable, but
if it has to dealwith ordinary common
law rights clearly cognizable in courts
of law it is to that extent an action at
law. And the proper course to be pur-
sued in such q case is clearly pointed
out by Judge Field in Curtis VS.. Sutter.
supra.
The point here involved has been more
thoroughly considered by the Supreme
Court of Pennsylvania than in any other
tribunal to which our attention has been
called. In that State the Legislature at
tempted in several different acts to avoid
the right of trial by jury by providing
new proceedings in equity for the de-
termination of issues which parties
clearly had the right to have determined
by courts of law and juries; and in every
instance the court held either that the act
was unconstitutional, or that it should be
SO construed as not to cut off the right of
trial by jury. In one of those cases the
court, in commenting on the attempt
above stated, say: ''If this could be done
there is not an ejectment in the common
law courts which, by the inversion of
parties, could not be brought into a court
of equity" (73 Penn. st. 172.) In an
other case the court, speaking of the pro-
visions of the Constitution, say: sit cam
not mean that the Legislature may confer
upon the Supreme Court and the Courts
OF Common Pleas the power of trying ac-
cordlng to the course of chancery any
question which has always been triable
according to the course of law by jury"
(o4 Penn. st. ISL In another case the
court say: San Act of the Assembly
a ut Of t,ai l,,f.
OF the common-law courts to court of
chancery would be unconstitutional"
(67 Penn, st. 50S.) The limits of this
opinion viii not allow more extended
quotations from other cases; but the
point will be found to he fully discussed
ana pointedly decided in Penn. Coal Co.
VS.. Snowden, az Penn. st. 4SS); Norris
appeal, GA III. 275); Haines' appeal, as
ID. 1867. and Tillmes VS.. Marsh (67 Id.
500.
In the case at bar, according to the veri-
fed answer, defendant was entitled to
possession, and was in the possession, of
the disputed premises a short time be-
fore the commencemento of the action, and
was ousted by plaintiff. II, under these
circumstances, defendant had COM
menced an action against plaintiff to re-
cover possession, it would have been con-
ceded by all that either party would have
been entitled to a jury trial. But it is
equally clear that plaintiff. by first bring
ing suit and thus inverting the parties,
could not deprive defendant Of his right
to jury. iii were not for the provision
of the code plaintiff would have been
compelled to wait until defendant COM
menced his action, and then there would
have been no question about the right to
jury: but While the Legislature had the
power to grant the plaintiff the privilege
OF, himself, commencing the suit, it had
not the power to give him, and we think
did not intend to give him, the privilege
of thus depriving defendant of his con-
stitutional right.
We have discussed this point some
what at length because there is growing
tendency to resort to the statutory action
to quiet title when other actions would be
more appropriate; and it is well to- con-
slider the general nature of the proceed
ing. But as other difficult questions NAV
hereafter arise where this form OF action
is used, it is proper to say that the de-
ctS1on IN the case at bar rests upon the
facts of the case. 1t is decided here only
that where the answer shows that the de-
fendant was rightfully in possession and
was ousted by plaintiff and wrongfully
Kept out OF possession, upon the trial of
those issues the defendant is entitled to
jury trial.
For the reason above given the judg-
ment must be reversed; but as there may
be another trial of the case it is necessary
to notice another point made by appel
lant
2. AS we understand from the findings
the court rendered Judgment against de-
fendant solely upon the ground that the
original notice of location which defend
ants put on the Waldeck claim on Oc-
tober Z, lSS6-nearly three years before
plaintiffs S location-was entirely invalid,
and all acts done afterwards worthless,
because 1t was not posted in a proper
manner. The court found that there was
q local mining custom in the district that
all notices OF location Of quartz claims
should be in writing, and ''posted con-
splcuously III conspicuous place upon
The claim located, at or near the lode line
OF said claim, and recorded in the Office
OF the County Recorder Of said Nevada
County" We gather from the findings
that defendants notice was in due form.
and was put upon the lode line, and was
duly recorded; that they properly marked
their boundaries; that they performed
annually upon the claim the amount of
labor required by law, and on that part
OF the claim which is in dispute; that
their location was made in good faith;
and, that from October Z, 1886. to April,
lSS9-the time when plaintiffs To-
cation was made-they Sin all
other respects complied with law and
custom except as to the manner OF post
ing the notice. The notice was placed
on the claim in this way: It was written
on one side of a sheet of paper which
was folded with the writing inside, and
placed upon mound OF rocks three feet
high, and upon the notice were placed
two flat rocks, so that about three-fourths
OF an inch of the margin of the paper
was exposed to view-the rest of the
paper being obscured by the two stones
which covered it. For this reason the
court held that the notice was not conspic-
uously posted and that therefore, the en-
tire location was void. In so holding the
court, we think, erred. 1t was not found
that the notice was so placed for the pur-
pose OF conceallng it; but it was found
that the location was made in good faith.
and that sin posting said notice defendant
Meister (who posted the same) intended
protecting it from the weather, and had
made prior locations the same way.n 1t
is further found that ''otner devices, were
resorted to by miners to protect the no.
tees from the weather, such as covering
the notice with glass, or folding it in a
box and placing the box in conspicuous
place.
If the plaintiff had attempted to relocate
the claim Immediately after defendants
notice had been placed there, and before
defendants had done further acts of pos
session, and before there had been any
legislation by Congress upon the subject,
and the only question had been as to the
of the posting, still, we think,
that the posting, as shown by the findings,
would have been sufficient. A substan-
tial compliance with mining customs,
whore good faith is shown, is certainly
sufficient. 1t appears that various devices
Were resorted to by miners in the district
TO protect their notices from the weather.
The method which defendants adopted is
certainly not more Objectionable than
folding it in box" An artificial mound
OF rocks on the line of lode is con-
spicuous object, which would naturally