The record-union., 1891-03-01
SUPREME COURT DECISIONS.
Filled February 25, 1891.

Filled February 25, 1891.
Appeal from Superior Court4of Neyad.
County, j. NJ. Walling, Judge.
For appellant, Thomas S. Ford.
For respondent, John Caldwell.
IN BANK.
:. : D'sAauH' Respondent, \ ). ..
FRITZ MEIsTER,
Appellant.
This is, in form, an action under Sec
ton 73S of the Code of Civil Procedure, tC
quiet title to a certain quartz mining
claim and land called by plaintiff the
"Uncle Samr claim. The complaint is in
the usual form and contains an averment
that plaintiff is i'll possession of the prem
ises in contest. In the answer all the
avermentS of the complaint are denied
except that of possession. 1t is further
averred in the answer that the south halt
of said Uncle Sam claimed by plaintiff, is
identical with the north half of n quartz
mining claim called the "Waldeck," !" be-
longing to defendant; that defendant is
entitled to the possession of said south
half of said Uncle Sam, and twas law
fully possessed thereof" for several years
next preceding April 6. 1889; that on said
April 9th ''the plaintiff wrongfully and
unlawfully entered thereon" and ousted
wrongfully withholds the same from de-
fendant. In the prayer of the answer the
defendant asked, in addition to general
relief, that he ''be restored to the posses
sion of that part of the Waldeck ledge de-
scribed as being in controversy" At the
proper time defendant demanded a jury
''on the issue raised by his said aver
ments of prior possession and ouster;''
the plaintiff opposed the demand because
the case was a proceeding in equity; and
on that ground the court refused a jury.
The court then proceeded to try the case;
ana. after making certain findings, rem
dered judgment against defendant, from
which he appeals. And the first point
made by appellant is that the court erred
in denying his demand for jury. We
think that in this contention appellant is
right.
1t is quite clear that the Legislature, by
the mere device of adding new cases to
those of class to which former equita-
BILE remedies were applicable, cannot en-
croach upon that provision Of the State
Constitution which says that .'the right
to trial by jury shall be secured to all,
and remain inviolate.' And Section 73s
of the code must not be construed as in
tending to violate that provision of the
Constitution unless such construction be
unavoidable. Issues about titles to land
such as those presented by the answer in
the case at bar, were triable at law at the
time the Constitution was adopted, and
therefore either party has the right to
have such issues tried by a jury. (Taber
VS.. Cook, 10 Mich. 322.) And Section 73S
need not be construed as attempting to
take away that right. The main effect OF
said section is to give parties the right to
compel others, by suit, to litigate and de-
termine controversies in cases where such
right did not before exist; but if in such
suit issues arise which are clearly legal
and cognizable in a court of law, the code
does not take away the right to have such
issues tried by jury. Formerly an ac-
ton like the one at bar could not have
been maintained at all; plaintiff would
have been compelled to wait until the
defendant chose to disturb his posses
sion by an action. The code enabled one
i'll his position to commence the legal
contest; but when he thus brings de-
fendant into court he must be prepared
to meet any pertinent issues which the
latter may tender and to try them in the
way in which the defendant has the right
under the Constitution to have them
tried.
The nature OF the action to quiet title
before, and after, the code provision, is
clearly stated by Field, c. j., in Curtis
VS.. Sutter, 15 Cal. 262. At that time the
provision of the statute was substan-
tally rs it is now, except that the plaintiff
was required to be in possession. The
learned Judge says: '"rhis statute en-
larges the class of cases in which equitable
relief could formerly be sought in the
quieting of title. 1t authorizes the inter-
position of equity in cases where pre-
viously bills of peace would not lie. Such
bills We're of two classes. Those of one
class lay where the right which the
plaintiff asserted was controverted by
numerous persons, holding distinct and
separate interests depending upon a
common source. A right of fishery as
serted by one party, and controverted by
numerous riparian proprietors on the
river, and the right to tithes claimed by a
person and controverted by his parishon-
ers, are instances cited by Story where a
bill of this nature would lie. Bills Of the
other class lay where the plaintiff was in
possession Of real property, and his pos
session had been disturbed by legal pro-
ceedings, in which his title had been
successfully maintained. To the prose-
cution of bills of this latter class
the concurrence of three particulars
was essential-the possession in the
plaintiff, the disturbance of that possess
sion by legal proceeding on the part of
the defendant, and the establishment of
the right of the plaintiff by Judgment in
his favor in such proceedings. (Shepley
VS.. Rangely, Davis, 2l9.) The necessity
of bills of this class naturally arose from
the nature of the action OF ejectment,
which being founded on a fictitious demise
between fictitious parties, recovery
therein constituted no bar to another
action Thus the successful party might
by repeated actions, be subjected to vexa-
tious and harassing litigation, and to pro-
cure repoSe, courts OF equity interpose
and finally determine the controversy.
1t was in this way, only, that ADEQUATE
reliefcould be administered. DeYoasher
VS.. Newenhenl. Sch. Il l.. 20S: Welby VS..
The Duke OF Rutland, Bro. Parl. Cas-.
5l5.) Under the statute of this State it is
unnecessary tor the plaintiff to DELAY
seeking the equitable interposition of the
court, until he has been disturbed in his
possession by the institution of a suit
against him, and until Judgment in such
suit has passed in his favor. 1t is sufficient
ii, whilstin the possession of the property.
party out of possession claim an estate
or interest adverse TO him. He can imlne-
diately, upon knowledge of the assertion
ofsuch claim, require the nature and char
acter OF the adverse estate or interest to be
produced, exposed and judically deter
mined, and the question of title be thus
forever quieted. 1t does not follow from
the fact that the suit is brought in equity,
that the determination of fquestions purely
of q legal character in relation to the title
will necessarily be Withdrawn from the
ordinary cogniZance of court of law.
The court sitting in equity may direct,
"hehcNei III itS Jiugllle III may become
proper, an Issue to be framed upon the
pleadings and submitted to the Jury. Upon
the verdict of the jury, if new trial be
not granted, the court will then act. by
either dismissing the bill or by adjudging
the adverse estate or interest claimed to
be invalid and of no effect, and awarding
a perpetual injunction against its asscr-
ton to the property III question. There
is no dlinculty in so conducting suit
under the statute, rs TO fully protect the
legal rights of the parties, and at the same
time to secure the beneficial result af-
forded by court of equity in bills of
peace-which is, repose from furthor litf-