Newton v. Barnes

Newton v. Barnes
1897 OK 89
49 P. 1074
5 Okla. 428
Decided: 07/30/1897
Supreme Court of Oklahoma

Supreme Court of the Territory of Oklahoma.

NEWTON
v.
BARNES.

July 30, 1897.

(For Majority Opinion See

McATEE, J. (dissenting).

¶0 It appeared from the amended petition, answer, and reply upon which this case was heard that the plaintiff had been for four years preceding the commencement of the action an actual resident upon a part of the tract of 160 acres of land here contended for as a homestead, and in actual possession of 121 acres thereof, and that the defendant was residing upon a portion of the land, and in actual possession of 39 acres of it; that the defendant would, unless restrained by the court, continue to reside upon, improve, and cultivate a portion of the tract of land; and that, as it was alleged, he was trespassing upon the right of the plaintiff to the full and exclusive possession of all of said tract of land, and that he would, "unless restrained by the court, break out and destroy all the meadow and pasture land on the said tract"; and that the continued trespass thereon constituted an irreparable injury to the plaintiff, for the reason that the plaintiff had no adequate remedy at law; and declared that he "believed the defendant to be utterly insolvent," and that the "plaintiff would have no recourse in damages." The petition prayed for a mandatory injunction restraining the defendant, and all persons acting under him, from continuing to reside upon, improve, or cultivate any portion of said tract of land, and requiring him and all persons under him to remove from said tract of land within a reasonable time, and that he should be perpetually restrained and enjoined from using or occupying any portion of the land, or interfering with the full possession by the plaintiff of the whole tract of 160 acres. A demurrer of the defendant to the amended petition that (1) it did not state facts sufficient in law to constitute a cause of action against the defendant, and to entitle the plaintiff to a mandatory or any other injunction, and (2) that the court had no jurisdiction of the subject-matter, the title to the tract of land described therein being in the United States, and no final certificate or patent having been issued to the plaintiff, was by the court overruled, and the defendant permitted to answer. The defendant, by his answer, denied that the plaintiff was the equitable owner, or had any equitable or any other interest in the premises described in the petition, and denied any right of possession on the part of the plaintiff; set up a state of facts upon which he averred that he was at law entitled to have the patent for the land under the homestead laws of the United States; averred an utter failure of evidence on the part of the plaintiff in the land contest; set forth and charged facts which, if true, would have amounted to a fraud upon the rights of the defendant; averred that the rulings of the land department against the defendant were made under a mistake and misapprehension of both the law and the facts of the case, and without any valid evidence, and upon false and fraudulent statements of the plaintiff; and set forth facts charging that the land department had never acquired any jurisdiction over the defendant, had never made him a party to the proceedings in the land department, and that all the actions under the proceedings in the land department were illegal, and absolutely void. Upon the state of facts as recited, the defendant declared the equitable title and right to the land to be in himself; that by the rulings in the land department, and upon the mistakes and frauds aforesaid, he could not be devested of his constitutional right to a hearing and determination in this court upon the questions of law affecting the same, and applicable to the facts stated in the answer. The defendant averred that the plaintiff had come upon the land and taken possession of all except the 39 acres in question in the case, and throughout the last four years had been a trespasser upon and forcibly occupying all of the land except said 39 acres. Thereupon a mandatory injunction was issued. The plaintiff filed a joint demurrer and reply, demurring to the facts contained in the second and fourth paragraphs of the answer of the defendant, which averred the acts of fraud and perjury, and that by these acts the plaintiff had procured the cancellation of the defendant's entry, upon the ground that these averments did not constitute a defense to the facts alleged in the petition of the plaintiff, and for an answer denied the facts set out in the third paragraph of the answer. The court thereupon decreed that the defendant should be "restrained and enjoined from in any way interfering with the entire possession of the plaintiff to the land described," and "from residing upon, cultivating, pasturing, improving, or occupying any portion of the land mentioned," and undertook to order that the defendant should be permitted at any time within 60 days to remove his buildings and improvements, and to provide that he "might be permitted to reside upon said land for said period of sixty days," and "should have the right to use and occupy a tract of land not exceeding ten acres immediately surrounding his house, and should only be permitted during said period of sixty days to enter upon the land of which he had been in possession for the purpose of removing in a lawful and peaceable manner his improvements thereupon." A certified copy of a motion for review in the general land office, showing said motion had been finally overruled by the secretary of the interior, was filed in the case as evidence in support of the petition, showing that the motion for review had been finally overruled, and that the entry made by the defendant had been canceled. The plaintiff does not aver a patent from the United States. He makes out and stands upon an inchoate right to the land, as based upon the final order made by the secretary of the interior.

¶1 Upon this state of facts appearing upon the pleadings, the court below, having undertaken to give to the plaintiff possession of the 39 acres shown to be in the complete possession of the defendant, was sustained by the opinion of the court here. In this conclusion I cannot concur. I understand the case to be one in which the statutes of the territory afford a plain, adequate, and sufficient relief at law, in which the defendant is entitled to a jury; and I understand that, even in the absence of a special statute, the defendant would be entitled to a jury to try his right of possession by reason of that provision of the organic act (section 9) which provides that "the district courts shall have and exercise, exclusive of any court heretofore established, the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States." And it is provided by article 7 of the constitution of the United States that in suits at common law, where the value in controversy shall exceed $20, "the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." These provisions are limitations upon, and prescribe the jurisdiction of, the district courts of this territory and the supreme court of this territory, and they prescribe the right of trial by jury in all cases which at the time of the enactment of the constitution of the United States were suits at common law. It is therefore one of the guaranties of the constitution of the United States that "the right of trial by jury is preserved,"--that is, kept just as it was at the time of the enactment of that constitution,--and it is my understanding that the right of possession of real estate is one which, at the time referred to, was never otherwise put at stake than in a court of law, in which either party was entitled to a trial by jury. Among the authorities which are cited to the converse of the proposition are High, Inj. § 360, and note, and 2 Story, Eq. Jur. § 959. These authorities do not sustain the proposition contended for by the court, for, while it is stated in High, Inj. § 358, that if there is a "neglect to execute such decrees" it "will warrant a mandatory injunction to deliver possession," yet this proceeding will, according to the authority of this text writer, only be taken after "proceedings have been instituted to establish, in a court of equity, the title to real estate," and the authority upon which the passage is based, to wit, a citation from Garrettson v. Cole, 1 Har. & J. 373, is that "it is directed in certain cases by the aforesaid act of assembly, *** after a title to land has been established by the adjudication of a court of equity." And in confirmation of the position taken by the court here a further citation is made from the note to section 358, being an extract from 2 Story. Eq. Jur. § 959, to the effect that "a judicial writ or execution for possession of the property in controversy" will issue out of courts of equity to effectuate their own decrees. So far, then, the authorities upon which the court reached its present conclusion go to the extent of declaring that "when courts of equity, in pursuance of the aforesaid act of assembly," the character of which is not indicated, and "after the title to land has been established by the adjudication of a court,"--as, for example, in foreclosure proceedings,--and having acquired jurisdiction under some other ground and for some other purpose, admitted as a necessary ground of equity jurisdiction, "it sometimes effectuates its own decrees" by writs for possession of the property in controversy. No conclusion can be drawn from these authorities that a court of equity has ever taken the initiative solely for the purpose of delivering the possession of real estate from one in whom it has been complete for years to another who has had it not. On the contrary, it is declared in High, Inj. § 360, that: "Where the object of an injunction bill is merely to obtain possession of land upon which defendant has entered and committed trespasses and removed the products of the land, the relief will be denied, the remedy at law being ample and complete for the recovery of the premises;" citing Pfeltz v. Pfeltz, 14 Md. 376; Schlecht's Appeal, 60 Pa. St. 172; Tomlinson v. Rubio, 16 Cal. 202; Tevis v. Ellis, 25 Cal. 515. In order to authenticate his position that writs of possession will sometimes be granted by courts of chancery in order to "effectuate their decrees," Judge Story has referred to Eden, Inj. c. 17, pp. 363, 364, 380, and to Kershaw v. Thompson, 4 Johns, Ch. 612-618, and confirms the position by liberal citations from the views of Chancellor Kent in the fourth volume of the Commentaries (pages 191, 192, lect. 58) that: "Upon a decree for a sale [of mortgaged property] it is usual to insert a direction that the mortgagor deliver up possession to the purchaser." And Chancellor Kent further proceeds to remark that the "power of a court of equity to require delivery of possession by injunction" is founded upon the simple elementary principle that the right "of a court to apply the remedy is co-extensive with the jurisdiction of the subject-matter." And among the few authorities relied upon by him for this declaration of the doctrine are the cases of Garrettson v. Cole and of Kershaw v. Thompson, in which Judge Story says that the "whole of the leading authorities have been historically and critically examined." The case of Kershaw v. Thompson, thus relied upon by both Chancellor Kent and Judge Story, was a case for the foreclosure of mortgage, and simply declared that upon "foreclosure of the equity of redemption and sale of the mortgaged premises" the court would order the possession to be delivered to the purchaser, and not drive him to an action of ejectment at law; and said the it "might safely be laid down as a general rule that the power to apply the remedy is co-extensive with the jurisdiction over the subject-matter," and that "a bill to foreclose the equity of redemption is a suit concerning the realty, and in rem; and the power that can dispose of the fee must control the possession. The parties to the suit are bound by the decree; their interests and rights are concluded by it; and it would be very unfit and unreasonable that the defendant, whose right and title has been passed upon and foreclosed by the decree, should be able to retain the possession in despite of the court." A brief marginal statement of the case was that it was a bill to foreclose an equity of redemption of a mortgage, and was a suit in rem, and that possession followed the decree, and would be enforced by the court. The decree in the case was that of Chancellor Kent himself, and it supported no other doctrine than that when for some purpose a court of equity had properly attained control of real estate--as, for example, in the foreclosure of a mortgage--it would give the right of possession in order to effectuate its own decrees; and neither of these authorities justifies the conclusion sought to be drawn from them that a court of equity may assume control of real estate for the purpose of delivering possession, and as a primary object of the proceedings.

¶2 It is again said, however, by the court here, upon the authority of 1 Spell. Extr. Relief, § 370, that the rule is announced by that author as follows: "But it is a general principle that the legal remedy which warrants the refusal of relief by injunction must be plain and adequate; in other words, as practical and efficient for attaining the ends of justice and its prompt administration as that of equity." And that in the same section the author says: "The test of equitable jurisdiction in the application of this principle to a particular case usually depends greatly upon the character of the case as disclosed in the proceedings." The author thereupon cites a large number of authorities. I have examined them all, and in not one of them does the court undertake to hold, as an original proposition or motive of equitable proceeding, that the judge, sitting as a chancellor and without a jury, has the right to transfer the possession of real estate. Nor do they go further, when rights in relation to real estate have been the subject of decision, than to declare that the court will not even interfere to prevent a mere trespass, unless the complainant has been in the previous undisturbed possession of the property. But the same author does, under a claim of right, in section 369 of his work, next preceding the section cited as authority by the court here, state that "a preliminary injunction should not be granted to restrain" even "a trespass which can be compensated in damages, even if it should appear that the defendants are irresponsible, unless there be some pressing injury or danger in the delay. And the complainant should show clearly the absence of an adequate remedy at law." And the author, for his authority, says in a note that: "This rule was expounded by Chancellor Kent, with his usual ability, in Stevens v. Beekman, 1 Johns. Ch. 318, where he said: 'This is a case of ordinary trespass upon land and cutting down the timber. The plaintiff is in possession, and has an adequate and complete remedy at law. This is not a case of the usual application of jurisdiction by injunction, and, if the precedent were once set, it would lead to a revolution in practice, for trespasses of this kind are daily and hourly occurring. I doubt exceedingly whether this extension of the ordinary jurisdiction of the court will be productive of public convenience."' The chancellor concluded that: "There is nothing in this case so special and peculiar as to call for this particular relief, and especially when I am not justified by any established practice and precedent." The case of Watson v. Sutherland, 5 Wall. 74, cited as authority, was a case in which the plaintiff was threatened with loss of trade, destruction of his credit, and failure of his business prospects, and the consequences of an execution, if levied upon his entire stock in trade upon a judgment against another person, and his application was based upon the imminent ruin of his business, and the destruction of his future prospects, if the immediate intervention of the court was not given, and in that case Mr. Justice Davis most properly gave the relief, and made the statement, cited by the court, that "a particular case must depend altogether upon the character of the case as disclosed by the pleadings." The case of Boyce v. Grundy, 3 Pet. 210, also relied upon by the court, was a case where a bill in chancery was filed in the circuit court of West Tennessee by Felix Grundy against the appellants, the executors of Boyce, to enjoin a judgment at law, and to rescind a contract. The case had nothing to do with the possession of real estate. The case of English v. Smock, 34 Ind. 115, cited by the court here, was an injunction to restrain the issuing of county bonds. Neither of the cases thus cited by the court as fortifying its position has any reference to the possession of real estate, and furnishes to us no guide whereby we may be directed, as Chancellor Kent made it his rule to be, "by established practice and precedent."

¶3 In support of its position the court has further cited the case of Wood v. Murray, 85 Iowa, 505, 52 N.W. 356. The case was one in which the defendant entered, as a homesteader, certain land in possession of the widow and children of the decedent, who had filed his declaratory statement under the pre-emption law, and the question of title was pending before the secretary of the interior. The plaintiff had been in quiet, peaceable, and actual possession of the land for two years. Her continuous and actual possession of the land was undisputed, and the court granted a temporary injunction "restraining the defendant from cultivating said land, or in any manner interfering with the peaceable possession of the plaintiff in the same," and said that the question was, "under the facts and circumstances, simply whether the defendant should be restrained from interfering with the plaintiff's possession pending the determination of her rights by the secretary of the interior." The injunction was granted by the court, as it was declared, "simply to maintain the parties in statu quo until their rights are determined by the proper tribunal." The order granted by the court went no further than to restrain the defendant from continuing certain acts of trespass. The case was not one asserting the original jurisdiction of a court of equity to take the possession of land from one person and give it to another. Again, the court cites Lee v. Watson (Mont.) 38 Pac. 1077. The case was one brought to restrain interference with the possession of land, in which the petition averred that the defendant had been guilty of repeated trespasses; that the plaintiff was the owner and in possession of the land in question. Those averments were not controverted, and the conclusion of the court goes no further than that, "the plaintiff, being the legal owner of the land, and in possession, either actual or constructive, this showing was sufficient as against mere trespassers; that is, as against those who do not show some right of possession,"--citing Gonzales v. Ross, 120 U.S. 605, 7 Sup. Ct. 705. In the case of Jackson v. Jackson (Or.) 19 Pac. 847, also cited in the opinion of the court as a precedent, it appeared upon petition for injunction that the plaintiff had been in quiet possession of the land in question for two years, complying with all the requirements of the laws of the United States in doing all necessary acts of residence and cultivation up to the 8th of February, 1888, at which time the defendant unlawfully and wrongfully took possession of the premises and had driven and forcibly resisted the plaintiff from taking possession thereof. The court said that the case was one which required a speedy and summary remedy, otherwise the plaintiff would necessarily lose the benefit of his pre-emption right to the premises, and that, therefore, the court held "that he is entitled to the possession of the premises for the purpose of performing those acts required to be done by the pre-emption law; and that no other person has a right to enter the land, or to interfere with his occupancy thereof, so long as his entry remains uncanceled." The ground of the injunction was that the plaintiff's right might not be jeopardized to prevent his title thereto under the laws of the United States. These cases do not support the position of this court that a plaintiff, having been for four years in the actual, peaceable, and complete possession of 120 acres of the land of a homestead, and having had the final award in the land department made to him of the whole homestead as far as the jurisdiction of the land department was concerned, and his rights not being jeopardized by having no established residence upon the land, would be granted an injunction, and a contestant deprived of his similar peaceable and complete possession of the remaining 40 acres of said tract of land, and that a court of equity has power to interfere for the purpose of transferring the possession of land at such a juncture, and under such circumstances, as a general proposition. And it certainly does not sustain the contention of this case that an order of the chancellor is an adequate and constitutional substitute for a trial by jury, that the plaintiff has obtained his award in the land department by the instrumentality of fraud, mistake, and perjury, which are specifically alleged, and admitted by the demurrer, for all the purposes of this case, and to its whole extent upon the pleadings. And the cases cited and relied upon by the court thus furnish no warrant or authority for the step which it has here concluded to take. Nor, so far as I have been able to discover, can any "established practice or precedent" for this course be found. On the contrary, I believe the rule to have been universally held. not only prior to the 4th day of July, 1776; and prior to the time of the enactment of the constitution of the United States, but also since that time, in both the English courts and the supreme court of the United States, as well as the most respectable courts of this country, to regard the recovery of the possession of land as an original motive of proceeding to belong to the domain of law; and, when the defendant is found in the peaceable possession of a specific tract of land, courts of chancery have heretofore uniformly refused to assume jurisdiction for the purpose of putting one party out of possession and another into possession, without the right of trial by jury; and that such a construction of general maxims as are quoted in the opinion of the court is aside from their true meaning and intent. On the contrary, the equity jurisdiction has been uniformly refused when applied for to recover the possession of real estate. It was said in Bracken v. Preston. 1 Pin. 584. that "courts of equity will rarely, and only under peculiar circumstances, entertain jurisdiction" even "in cases of tort"; and that when they do "an injunction will be granted to restrain trespasses in order to quiet the possession, or when there is danger of irreparable mischief, or where the value of the inheritance is put in jeopardy by a continuance of the mischief, or where the courts of law cannot give a complete remedy"; and that, in order to justify the interference of a court of equity even to restrain trespasses the complainant must, in general, be in possession, or have established his right at law to bring an action to recover possession; and the court will act in such cases with great caution, and they will not afford relief even to restrain the commission of tortious acts when the complainant is out of possession. And it was declared that "the plaintiff's exclusive right must be admitted by the defendant or established by law to warrant an interference of a court of chancery," and that an injunction will then only be issued in aid of a decree in chancery in putting a purchaser into possession, and is followed by a writ of assistance, for authority, upon the authorities cited above,--Eden, Inj. 261, Story, Eq. Jur. 226, 227, and Kershaw v. Thompson. 4 Johns. Ch. 609,-- and then declared that "the injunction would never be granted in a case like the one now under consideration," which was an application for injunction to restrain the defendants from digging mineral on the land pending an action of forcible entry and detainer, it appearing that the defendants were in possession under a claim of right. And the declaration is expressly made that, "if an appeal should be made for the possession of land, which is commonly called an 'ejectment bill,' it would be demurrable, for the proper redress is at law."

¶4 The case of Tomlinson v. Rubio, 16 Cal. 203, was upon an application to restrain the defendants from taking possession of certain real estate in which the plaintiffs averred title and possession to be in themselves, and that, if the court did not grant the injunction, and if the defendants were permitted to take the possession which was sought to be restrained, that the plaintiffs would be ruined in their business, and their property would be destroyed, and it was held upon that state of facts that these allegations were insufficient to authorize an injunction. There being no averment of insolvency of the defendants, and the complaint not showing that there is no adequate remedy at law, the court declared that in such cases forcible entry and detainer would be a speedy mode of regaining possession, if taken by the defendant; and for other damages the usual proceedings at law would suffice. In Ross v. Hobson (Ind. Sup.) 26 N.E. 775, in an action to rescind the sale of land, the defendant, by a cross complaint, sought to recover possession of the land, and to quiet his title thereto, and declared that the issues should be tried by the court. The application was refused. "since the issues in the cross action were clearly triable by a jury as a matter of right, upon the request of either party." Martin v. Martin, 20 N.E. 763, was a case in the supreme court of Indiana (decided April 6, 1889) in which the relief sought was the possession of real estate. The court declared that: "Whenever the cause of action is one that can only be enforced by invoking the equitable powers of the court, then the right of trial by jury does not maintain; but, if the cause if action does not depend on the equity jurisdiction of the court, then a jury trial may be demanded." In Tevis v. Ellis, 25 Cal. 515, the plaintiff was in actual possession of land, and sought equitable relief for the protection of that possession; but it was refused, the court saying that "the remedy at law would be speedy, adequate, and complete." And in Donahue v. Meister, 25 Pac. 1096, the supreme court of California declared that under the constitution of that state, which provided "that the right of trial by jury shall be secured to all, and remain inviolate, defendant, in an action to quiet title under the Code of Civil Procedure of California (section 738). is entitled to jury trial on the issues of prior possession and ouster when his verified answer shows that shortly before the commencement of the action he was rightfully in possession, and was ousted by the plaintiff, and wrongfully kept out of possession by him." The court declared that: "It is quite clear that the legislature, by the mere device of adding new cases to those of a class to which former equitable remedies were applicable, cannot encroach upon that provision of the state constitution which says that the right of trial by jury shall be secured to all, and remain inviolate." And the court goes on to say that under the laws of that state, if a decree is to deal "with ordinary common-law rights clearly cognizable in courts at law it is to that extent an action at law; that the proper course to be pursued in such a case is clearly pointed out by Judge Field in Curtis v. Sutter, 15 Cal. 259; and that the legislature attempted in several different acts to avoid the right of trial by jury by providing new proceedings in equity for the determination 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, commenting on the attempt above stated, says: '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.' Haines' Appeal, 73 Pa. St. 172. In another case the court, speaking of the provisions of the constitution, says: 'It cannot mean that the legislature conferred upon the supreme court and the courts of chancery any question which has always been triable according to the course of law by a jury.' Norris'Appeal, 64 Pa. St. 281. In another case the court say that: 'An act of the assembly transferring any part of the jurisdiction of the common-law courts to a court of chancery would be unconstitutional.' Tillmes v. Marsh, 67 Pa. St. 508. The limits of this opinion will not allow more extended quotations from other cases, but the point will be found to be fully discussed and pointedly decided in Coal Co. v. Snowden, 42 Pa. St. 488; Norris' Appeal, 64 Pa. St. 275; Haines' Appeal, 73 Pa. St. 169; and Tillmes v. Marsh, 67 Pa. St. 507."

¶5 Coal Co. v. Snowden, 42 Pa. St. 488, was upon a bill in equity to obtain the enjoyment of mining rights and privileges upon the land described in the bill. The supreme court of that state, by Strong, J., afterwards of the supreme court of the United States, said that the bill was what "is sometimes called an 'ejectment bill, " and is demurrable," and "charges nothing to give the court equity jurisdiction. *** It has never been held that equity courts have jurisdiction of actions founded on legal title, brought by one tenant in common against an alleged co-tenant to obtain possession or enjoyment of land"; and that there is, "and always has been, a class of cases which are exclusively cognizable in courts of law, and over which courts of equity have no jurisdiction, is not to be doubted, and we think the complainant's is one of them"; and that "trial, according to the course of a court of chancery, then, is trial by a single judge"; and that, "if there is any right to which, more than others, the people of Pennsylvania have clung with unrelaxing grasp, it is that of trial by jury. They brought it with them from the land of their fathers. In every constitution which has been adopted they have taken care to secure it against infringement, and put it beyond the power of either executive, the legislature, or the courts to take it away from any individual." The constitution of that state provided that "trial by jury shall be as heretofore, and the right thereof remain inviolate." "What can this mean but that the right of having controverted questions of fact in common-law cases decided by a jury should be beyond the reach of any department of the government, whether it be legislature, the executive, or the judiciary? This was the right which had always been enjoyed before, and, if the constitutional provisions were not intended to protect that in all its length and breadth, they can mean nothing." The learned judge said that the legislature of the state had no power to modify this provision of the constitution by an enactment which should undertake to relieve in equity in such cases as that in question, but that "any question which has always been triable according to the course of law by a jury," should still be so tried. And he said further that, if it were held otherwise, "then an ejectment founded solely on legal title, an action of debt on bond, or a replevin, or an action of trespass, may be sent into chancery, all contested facts in it be decided by the judge, and the intervention of a jury be unknown. *** Were it admitted that the legislature could authoritatively convert a legal right into an equitable one, a court of equity could not, as such, enforce it. The judiciary, no more than the legislature, can deny to any litigant the right of trial by jury, in a case appropriate to such a mode of trial." The rule and position of the court in that case was readopted in Norris' Appeal, 64 Pa. St. 275, by Sharswood, J., upon the same line of reasoning, concluding with the declaration that "a court of equity, as has been said, may do great things, but not all things." And the following year, in Tillmes v. Marsh, 67 Pa. St. 508, the supreme court of that state, by Sharswood, J., again reaffirmed the exclusive jurisdiction of a court of law over questions touching the possession of real estate, and the right of trial by jury therein, declaring of a bill, which was similar to the petition for mandatory injunction in this case, that "it certainly does not require any elaboration to prove that this is a mere ejectment bill, and might have been demurred to as such"; citing 2 Daniell, Ch. Prac. 29. And in Loker v. Rolle, 3 Ves. 4,--a bill in many respects similar to this,-- Lord Rosslyn said: "Upon the face of the bill it is quite clear the plaintiff may draw a declaration in ejectment. The bill states the title, and that by some means or other the same persons are in possession of all the lands, and have confounded the boundaries. *** If he had filed a bill for discovery; but it goes on to pray relief; that is, merely an ejectment." The case of Newman v. Duane, 27 Pac. 66, in the supreme court of California, was an action for the possession of land, and it was declared, under that section of the Code of Civil Procedure of California which provides that the right of a jury trial shall be preserved, "in actions for the recovery of specific real or personal property" "plaintiff cannot deprive him of this right by framing his complaint so as to make the action an equity case, under Code Civ. Proc. Cal. § 738, providing that 'an action may be brought by any person against another who claims an interest or estate in real property adverse to him, for the purpose of determining such adverse claim."' And the court said that: "Assuming that said section contemplates a case where the plaintiff is out of possession and the defendant in possession, still it is evident that the plaintiff herein, by simply framing his complaint in a particular way, could not deprive the defendant of a jury trial of the issues raised by his answer." And in the case of Bodwell v. Crawford, 26 Kan. 292, cited in the dissenting opinion of Woodruff v. Wallace

¶6 In the case of Church of Christ at Independence v. Reorganized Church of Jesus Christ of Latter-Day Saints, decided by the United States circuit court of appeals, at St. Louis (17 C. C. A. 387, 70 Fed. 179), Judge Thayer declared that: "A complainant who has only the equitable title to land cannot maintain a suit in chancery to recover possession from an adverse occupant, and that this could only be done where the party having the superior equity seeks, as against the person holding the legal title, to make him the trustee." And it has been recently held by the supreme court of Kentucky, in Hillman v. Hurley, 82 Ky. 626, that "one seeking an injunction against trespassers on land must be in actual possession, as well as entitled to possession." In the case of Killian v. Ebbinghaus, 110 U.S. 246, 4 Sup. Ct. 232, in which the appellee sought to obtain the possession of real estate by a bill in chancery, it was said in the opinion of the court that the "fatal objection to the suit is that it is in fact an attempt by the party claiming the legal title to use a bill in equity in the nature of a bill of interpleader as an action in ejectment," and declared upon the authority of the leading case of Hipp v. Babin, 19 How. 271, "that, whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right of a trial by a jury." And in Town of Grand Chute v. Winegar, 15 Wall. 373, it was again declared upon the authority of Hipp v. Babin that "the result of the argument is that, whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy without the aid of a court of equity, the plaintiff must proceed at law," because the defendant "has a constitutional right of a trial by jury"; that "right of trial by jury is a great constitutional right, and it is only in exceptional cases, and for specified causes, that a party may be deprived of it." It is in vindication of this great principle, and as declaratory of the common law, that the judiciary act of 1789, in its sixteenth section, declares that suits in equity shall not be sustained in either of the courts of the United States in any case where an adequate and complete remedy may be had at law. 1 Stat. p. 82. Fussell v. Gregg, 113 U.S. 550, 5 Sup. Ct. 631, was a case in which the bill of complaint alleged that the complainant had an equitable estate in fee in the premises in dispute, and that the defendants were in possession without title,--in other words, were naked trespasses,--and prayed that they might be turned out, and that complainant, who had the only equitable title, might be put in possession. In passing upon the case, the court said that: "To give a court of equity jurisdiction, the nature of the relief asked must be equitable, when the suit is based on an equitable title. The plaintiff does not allege that the defendants, who are in possession of the premises, have the legal title, or that they obtained possession under any person who had it; nor does she state any facts which connect them with her equity: that, being mere naked trespassers in possession, they might be turned out of, and she, who has only an equitable title, may be put into, possession. The relief prayed for is such as a court of law is competent to grant, if the plaintiff's title would justify it. But the plaintiff does not seek by her bill to better her title. If all the relief asked for were granted, she would still have an equitable title only. The case is, therefore, an ejectment bill, brought on an equitable title." The court then went on to cite the case of Galt v. Galloway, 4 Pet. 332, in which it was said that: "These occupants can be considered in no other light by the court than intruders, and the remedy against them is at law, and not in chancery. No decree could be made against them unless it be that they should deliver possession of the premises; and to obtain this the action of ejectment is the appropriate remedy." The court, in Fussell v. Gregg, then went on to say: "This decision is in point, and shows the bill to be without equity as to those of the defendants who are in possession. Their possession is good against all the world except the true owner. As the bill asserts no equity against them, they have the right to stand on their possession until compelled to yield to the true title, and to demand a trial by jury of the question whether the plaintiff has the true title. The plaintiff cannot deprive them of that right by neglecting to acquire the legal title, and upon the ground of her equitable title ask the aid of a court of equity. She can turn the defendants out of possession only upon the strength of the legal title, which she must first acquire. Having done this, a court of law is the proper forum in which to bring her suit. Hipp v. Babin, 19 How. 271; Parker v. Woollen Co., 2 Black, 545; Town of Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466; Killian v. Ebbinghaus, 110 U.S. 246, 4 Sup. Ct. 232." It would be supposed, after this decision, that a demand would not be made to substitute a writ proceeding alone from the power of the chancellor, in lieu of a procedure at law in which the complainant, having an equitable title, would not be given the possession of land, and that, if such a demand were made, it would be acceded to by this court. But it is further contended by the court that: "The legal status of the parties has been determined, and the contestant who remains upon the land after his rights have been finally and adversely passed upon is there without color of right, and as a mere naked trespasser." That is, that upon the case set up in the answer there is no question of fact for a decision of the jury, and that, if all the facts contained therein were presented in the trial in a court of law, it would still be the duty of the court to instruct the jury that the defendant had no case, and that his interest in law was extinguished, and that, therefore, there is no reason why this court, sitting as a court of equity, should not administer the remedy. The argument is fallacious. The defendant, in his answer, averred that this court had no jurisdiction as a court of equity, and he demanded his legal right; and, even if there were no evidence, he is still entitled to have his case heard in a court of law, and tried to a jury. Haines' Appeal, 73 Pa. St. 172, Sharswood, J. But this is not the case here. So much for such instruction as may be derived from the authorities of courts which appear not to have been directed by express and definite provisions of the statute. But no doubt whatever is left in this territory as to the law upon this subject, since it is provided in Code Civ. Proc. § 278 (St. 1893, p. 809, § 4156), that "issues of fact arising in action for the recovery of money, or of specific real or personal property, shall be tried by a jury unless a jury trial be waived." And the forum in which the trial shall be had is fully provided for in article 13, § 167, of the Code of Civil Procedure before Justices of the Peace (St. 1893, p. 919), in which it is provided that: "Any justice, within his proper county, shall have power to inquire, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully and by force hold the same, and if-it be found, upon such inquiry, that an unlawful and forcible entry has been made, and that the same lands and tenements are held by force, or that the same, after a lawful entry, are held unlawfully, then said justice shall cause the party complaining to have restitution thereof." And section 168: "Proceedings under this article may be had in all cases *** where the defendant is a settler or occupier of lands and tenements, without color of title, and to which the complaining has the right of possession." And when, or before, the land department has finally passed upon the rights of the entryman and settler and contestant in this territory, and has determined to whom the title is due, and it is found that the possession, or a part of it, is in the other, the losing party, and the matter of possession must be determined not by the land department, but by the courts of the territory, the legislature has incorporated the doctrine of the common law as hereinbefore set forth into precise and unmistakable provisions, by which that possession shall be determined. The instant the jurisdiction of the courts of the territory attaches, that instant the remedy provided by the statute of the territory attaches also, and when it is declared by the opinion of the court "that the courts of this territory are the courts of chancery to which litigants for public lands may come for relief after they have established their title in the tribunals of the law," it begs the question and assumes a jurisdiction that is without authority, and in defiance of a jurisdiction and remedy provided by the statute. It is an attempt to assumed an authority to the chancellor which is expressly provided by the statutes of the territory to be given to a jury; and when it is further said by the court that the land department, which, in the opinion of the court, is called the "law tribunal," not having the jurisdiction to give possession, "and the courts of the territory possessing it, what objection can be reasonably urged against granting immediate relief?" the court makes no advance in the argument, and but reaffirms an opinion not based upon "established practice and precedent," and which is in deflance to the statutes of the territory.

¶7 The court here also relies upon the precedent cases decided and passed upon in this court of Sproat v. Durland,