This complaint being, in effect, a bill to quiet title as
against an adverse claim, and the plaintiff having thus voluntarily
invoked the equity jurisdiction of the court, he is in no position
to urge on appeal that his complaint should have been dismissed
because of adequacy of remedy at law, and such an objection comes
too late in the appellate tribunal.
Where a case is one of equitable jurisdiction only, the trial
court is not bound to submit issues of fact to a jury, and, if it
does so, is at liberty to disregard the verdict and findings of the
jury.
By reason of his selection of this form of action and his
proceeding to a hearing and decree without objection, the
contention of the appellant in respect of his deprivation of trial
by jury comes too late.
The Act of March 3, 1881, c. 140, 21 Stat. 505, was not intended
to require and does not require all suits under Rev.Stat. §
2326, to be actions at law and to be tried by a jury.
This was a suit brought by William Perego against W. H. Dodge
and others in the District Court for the Third Judicial District of
the Territory of Utah, in pursuance of the provisions of §
2326 of the Revised Statutes. The complaint alleged the title of
plaintiff to a mining claim, called the Perego, of which he averred
he was in possession; described it, and stated the date of
location, existence of the vein, and the other facts entitling him
to a decree founded upon such title. It was then alleged that
defendants had made application for a patent to certain mining
claims known as the Mayflower Nos. 4 and 5, and that they had
wrongfully surveyed said claims so as to conflict with plaintiff's
claim, and, after describing the area in conflict, averred that
notice of the application for patent by defendants was published;
that, within the sixty-day period of publication, plaintiff filed
in the land office his adverse claim, and brought this suit within
thirty days thereafter. Plaintiff prayed judgment and relief
against defendants;
"that the plaintiff is the owner and lawfully in and entitled to
the possession of the last above described premises, the area in
conflict between the said Perego mining
Page 163 U. S. 161
claim and the alleged consolidated claim of Wm. H. Dodge
et
al. upon alleged Mayflower No. 4 and Mayflower No. 5 lode
locations and the lodes therein, and quieting and confirming
plaintiff's title thereto and possession thereof; that the
defendants have no title to or right of possession of said conflict
area, or the lodes therein, or any part thereof; that the
defendants be restrained pending the action and upon trial
perpetually from entering in or upon said conflict area, or the
lodes thereon, or any part thereof, or mining in or extracting any
ores or mineral therefrom, and from in any way interfering with the
possession thereof; also, that the plaintiff have all other and
further proper relief, with costs of suit."
Defendants answered, denying the material allegations of the
complaint, and further affirmatively set up the necessary
jurisdictional facts of their location, averred that the required
assessment work had been fully performed, claimed a valid location
of the Mayflower Nos. 4 and 5, and prayed that defendants be
adjudged to be the owners and entitled to the possession of the
said Mayflower Nos. 4 and 5 lodes and mining claims, including the
area in conflict, and for all other proper relief, and for costs of
suit.
The case came on for trial, and the parties appeared by their
attorneys, as the record states, "present and ready for trial, and
the case is tried before the court." The trial occupied three days,
May 6, 7, and 9, 1891, and on May 11, the following entry was
made:
"This case having been heretofore tried and submitted to the
court, and the court, being now fully advised, finds the issues for
the defendants, and it is ordered that decree be entered herein in
favor of the defendants, and against the plaintiff, and quieting
and confirming the title of the defendants to the area in conflict
herein, and plaintiff is allowed thirty days' stay and the same
time to file notice of motion and statement on motion for new
trial."
The district court made findings of fact and conclusions of law
which commenced as follows:
"This cause duly coming on for trial on the merits before the
court without a jury, and the court having heard the pleadings,
evidence, and arguments of the respective counsel, the court now
makes and files the following findings of fact and
Page 163 U. S. 162
conclusions of law."
The court found the claims of defendants valid and that of
plaintiff invalid as against defendants, and that defendants were
entitled to a decree
"adjudging them to be the owners (subject only to a paramount
title of the United States) and in and entitled to the possession
of the whole and every part of the said Mayflower No. 4 and
Mayflower No. 5 lode mining claims, and, as part thereof and
belonging thereto, the conflict areas described in the complaint,
and the whole thereof, and adjudging that the plaintiff had not at
the time he filed his protest and adverse claim, or at any time
since, and has not now, any right, title, or interest in or to said
or any part of said conflict areas described in the complaint, and
forever enjoining, estopping, and debarring the plaintiff, and any
and all persons claiming by, through, or under him, from at any
time setting up any claim of right or title to said or any part of
said mining claim or conflict area, and forever confirming and
quieting the defendants' right and title thereto, and awarding the
defendants their costs herein as against the plaintiff."
These findings and the decree in accordance therewith were filed
and entered on August 18, 1891. On August 5, 1892, plaintiff,
acting through other counsel than appeared at the trial, filed a
notice of intention to move the court to set aside and vacate the
findings and decision and decree, and for a new trial, on the
ground:
"(1) Irregularity in the proceedings of the court by which the
plaintiff was prevented from having a fair trial; (2) errors of law
occurring at the trial, to-wit, the trial of said cause by the
court without a waiver of jury by the plaintiff; (3) because the
findings and decree are irregular and void as appears by the
record."
This notice was accompanied by an affidavit that the value of
the property exceeded $1,000; that plaintiff had not by himself in
person or by attorney at any time, orally or in writing, waived his
right of trial by jury in said suit, and that he had at all times
desired to have the same tried by a jury; that no notice of the
decision of the court in the cause had been served upon him or his
attorney.
Notice of appeal to the Supreme Court of the Territory of
Page 163 U. S. 163
Utah was filed August 15, 1891, and on August 16th, plaintiff
was allowed thirty days' time to file an undertaking on appeal. On
September 3, a new notice was served of the motion to vacate and
set aside the findings and decree, and for new trial. On September
10, thirty days were allowed plaintiff for an undertaking on
appeal. On September 19, the motion to vacate and set aside the
decree and grant a new trial was submitted and overruled, and on
October 4, 1892, notice of appeal from that order was given, and an
undertaking on appeal was subsequently filed. No statement or bill
of exceptions appears in the record. The case was brought to a
hearing in the Supreme Court of the Territory of Utah, and the
judgment of the district court was affirmed, with costs. 9 Utah 3.
Affidavits of the value of the matter in dispute were submitted,
and an appeal allowed to this Court.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
In the Territory of Utah, there was but one form of action,
legal or equitable, through the intervention of a jury or by the
court itself, according to the nature of the relief sought,
provided, however, that no party could be "deprived of the right of
trial by jury in cases cognizable at common law." Rev.Stat. §
1868; Act April 7, 1874, c. 80, § 1; 18 Stat.
Page 163 U. S. 164
27; Comp.Laws Utah, § 3126;
Idaho & Oregon Land
Improvement Co. v. Bradbury, 132 U. S. 509,
132 U. S.
513.
By section 3468 of the Code of Civil Procedure of Utah, an
action might be brought by any person against another who claimed
an estate or interest in real property adverse to him for the
purpose of determining such adverse claim, and this complaint was
in effect a bill to quiet title as against an adverse claim, and
prayed accordingly for a decree quieting plaintiff's title and
adjudicating that defendants had no title or right of possession,
for injunction, and for general relief.
We are of opinion that it was competent for the district court
to grant the relief sought, and that it had jurisdiction of the
subject matter. Plaintiff, having voluntarily invoked the equity
jurisdiction of the court, was not in a position to urge on appeal
that his complaint should have been dismissed because of adequacy
of remedy at law. Even a defendant, who answers and submits to the
jurisdiction of the court, and enters into his defense at large, is
precluded from raising such an objection on appeal for the first
time.
Reynes v. Dumont, 130 U. S. 354,
130 U. S. 395;
Kilbourn v. Sunderland, 130 U. S. 505;
Brown v. Lake Superior Iron Co., 134 U.
S. 530,
134 U. S. 536.
Nor did the Supreme Court of Utah err in overruling the contention
that affirmative relief was improperly awarded defendants because
they had filed no cross-complaint. Such relief was sought by the
answer, which was treated by the parties and proceeded on by the
court as equivalent to a cross-pleading. The objection came too
late in the appellate tribunal.
Coburn v. Cedar Valley Land
Co., 138 U. S. 196,
138 U. S.
221.
Section 2325 of the Revised Statutes points out how patents for
mineral lands may be obtained. Application is filed in the proper
land office as therein prescribed, and notice of such application
published; and, if no adverse claim is filed at the expiration of
sixty days of publication, it is assumed that the applicant is
entitled to a patent, and that no adverse claim exists.
Section 2326 provides as follows:
"Where an adverse claim is filed during the period of
publication, it shall be upon oath of the person or persons
making
Page 163 U. S. 165
the same, and shall show the nature, boundaries, and extent of
such adverse claim, and all proceedings, except the publication of
notice and making and filing of the affidavit thereof, shall be
stayed until the controversy shall have been settled or decided by
a court of competent jurisdiction, or the adverse claim waived. It
shall be the duty of the adverse claimant, within thirty days after
filing his claim, to commence proceedings in a court of competent
jurisdiction, to determine the question of the right of possession,
and prosecute the same with reasonable diligence to final judgment,
and a failure so to do shall be a waiver of his adverse claim."
It is then provided that after judgment, the party shall file a
certified copy of the judgment roll with the register of the land
office, together with the certificate of the surveyor general as to
the requisite amount of labor or improvements, and that the whole
proceedings and the judgment roll shall be certified by the
register to the Commissioner of the General Land Office, whereupon
a patent shall issue for the claim.
Thus, the determination of the right of possession as between
the parties is referred to a court of competent jurisdiction, in
aid of the land office, but the form of action is not provided for
by the statute, and apparently an action at law or a suit in equity
would lie, as either might be appropriate under the particular
circumstances -- an action to recover possession when plaintiff is
out of possession and a suit to quiet title when he is in
possession.
In the case before us, plaintiff averred that he was in
possession, and framed his complaint in that aspect. Having
instituted his suit as an equity cause, issues were made up, and
the case heard and disposed of, and went to decree as in equity,
and nearly a year afterwards he carried the case to the supreme
court of the territory and complained that the decree was fatally
erroneous in that a jury trial was not had. But where a case is one
of equitable jurisdiction only, the trial court is not bound to
submit any issues of fact to a jury, and if it does so, is at
liberty to disregard the verdict and findings of the jury
"either by setting them or any of them aside or by letting them
stand and allowing them more or less
Page 163 U. S. 166
weight in its final hearing and decree according to its own view
of the evidence in the cause."
Idaho & Oregon Land Improvement Co. v. Bradbury,
132 U. S.
515.
By his selection of this form of action and his proceeding to a
hearing and decree without objection, his present contention in
respect of deprivation of trial by jury came too late. Even if the
action should have been an action at law, still the court had
jurisdiction, and a defective exercise of its power would only
amount to an irregularity capable of being waived by the parties,
and susceptible of correction, as any other mere errors are
corrected. Indeed, if the case were treated as an action at law,
the trial by jury might have been waived, and we think was waived
in this instance.
By the fourth section of the Act of Congress of March 3, 1865,
13 Stat. 500, c. 86, carried forward into sections 649 and 700 of
the Revised Statutes, it was enacted that
"issues of fact in civil cases in any circuit court of the
United States may be tried and determined by the court without the
intervention of a jury whenever the parties or their attorneys of
record file a stipulation in writing with the clerk of the court
waiving a jury."
In
Kearney v.
Case, 12 Wall. 275, this statute was considered and
it was held that parties might waive a jury, as they could before
the act was passed, without filing a written stipulation, but that
in such case, no error could be considered in the action of the
court on such trial, and that parties would be presumed in this
Court to have waived their right to trial by jury of issues of fact
whenever it appeared that they were present at the trial in person
or by counsel, and made no demand for a jury.
See also Bond v.
Dustin, 112 U. S. 604.
By section 3340 of the Code of Utah, issues of fact in actions
at law are required to be tried by a jury, and by section 3378,
provision is made for the waiver of a jury as therein prescribed.
But, as ruled in
Kearney v. Case, the right may be
otherwise waived, and such waiver be sufficient to support the
judgment, though not sufficient to authorize the review of the
rulings of the court at the trial. Tested by any rule, there can be
no question that this record shows such waiver here.
Page 163 U. S. 167
It is true that on the motion to vacate the decree and for a new
trial, an affidavit was filed that there was no waiver orally or in
writing, in person or by attorney, but we suppose that to mean a
waiver according to section 3378, and that was not material.
Moreover, the supreme court held that the notice of intention to
move for a new trial, the affidavit and the minutes of the trial
court were no part of the record, because not embodied in any
statement of case or bill of exceptions, and that appears to be the
settled rule in that jurisdiction.
But it is insisted that, by force of the Act of Congress of
March 3, 1881, 21 Stat. 505, c. 140, this class of cases must be
disposed of on trial by jury according to the course of the common
law, and that either these entire proceedings were absolutely void,
not for want of equity, but for want of power, or that at all
events, the requirement of trial by jury is imperative, and cannot
be waived, and that the seventh article of amendment and the law
were violated by proceeding to judgment without it.
The amendatory act provides:
"That if, in any action brought pursuant to section 2326 of the
Revised Statutes, title to the ground in controversy shall not be
established by either party, the jury shall so find, and judgment
shall be entered according to the verdict. In such case, costs
shall not be allowed to either party, and the claimant shall not
proceed in the land office or be entitled to a patent to the land
in controversy until he shall have perfected his title."
We do not think the intention of this act was to change the
methods of trial. Its manifest object was to provide for an
adjudication, in the case supposed, that neither party was entitled
to the property, so that the applicant could not go forward with
his proceedings in the land office simply because the adverse
claimant had failed to make out his case, if he had also failed. In
other words, the duty was imposed on the court to enter such
judgment or decree as would evidence that the applicant had not
established the right of possession, and was for that reason not
entitled to a patent. The whole proceeding is merely in aid of the
Land Department, and the
Page 163 U. S. 168
object of the amendment was to secure that aid as much in cases
where both parties failed to establish title as where judgment was
rendered in favor of either, and, while the finding by a jury is
referred to, we think that where the adverse claimant chooses to
proceed by bill to quiet title, and, as between him and the
applicant for the patent, neither is found entitled to relief, the
court can render a decree to that effect, just as it would render
judgment on a verdict if the action were at law. If Congress had
intended to provide that litigation of this sort must be at law, or
must invariably to tried by a jury, it would have said so. There is
nothing to indicate the intention thus to circumscribe resort to
the accustomed modes of procedure or to prevent the parties from
submitting the determination of their controversies to the
court.
It must be remembered that it is "the question of the right of
possession" which is to be determined by the courts, and that the
United States is not a party to the proceedings. The only
jurisdiction which the courts have is of a controversy between
individual claimants, and it has not been provided that the rights
of an applicant for public lands as against the government may be
determined by the courts in a suit against the latter.
United
States v. Jones, 131 U. S. 1;
Last Chance Mining Co. v. Tyler Mining Co., 157 U.
S. 683,
157 U. S.
694.
It was held by Mr. Justice Lamar, when Secretary of the
Interior, that, notwithstanding the judgment of a court on the
question as to the right of possession between two litigants, it
still remained for the Land Department to pass on the sufficiency
of the proofs, and to ascertain the character of the land, and
whether the conditions of the law had been complied with in good
faith before the government parted with the title. 4 L.D. 314, 316.
But whatever the extent of the conclusiveness of a judgment under
the statute, and granting that the government may be said to be
interested in respect to the possessory title, we do not regard the
Act of March 3, 1891, as intended to require or requiring all suits
under section 2326 to be actions at law and to be tried by a
jury.
Judgment affirmed.
