'ec al. t7. MUWELL LAm> GRANT Co. POU,-c oJ: Ctrcuu. May 16;'
," No. 58. 1o.1Iqurrr·..·..l tJRIBDlcnoN....MtlLTIPLIclT1' OJ' BtJIT8-BILL.
.L ' '. ' , ,Qontplainant'I;l>,U averred that it w""' the owner ot certain landl to whioh fte, title establisned by divers aotioDs' at iaw against personl io like oosel with de, tetuilliUt1iI; thatdefendante were,unl&wfully in possession of part of land,mintoll' .,and mi1lerals and cutting, . thete0l1; that the damages for theseuniawful acts was incapable of'computatlOn 'andiSdjUdiOatio.o.,'8,.. Wi.tbai.tWhile, o.am Plain.ant's, title: was, Bingl.e ,aod ex,clusive" .. , lIo3 1lI1tM (lOuld not quieted nUmerous actions In law; fnvolving'the'same becaule, defendante' olaiins, 'as between themselves, were sepal'llteand. liferent; and it prayed that oomplaiIlant'8title migM l);y' inj)lnotionfrom further tres: pwes. Held, 'tbat the avermeltte of tliebill make the case one'ot eqUitable 'COgni'la,
iN,C?:r OJ' EqIJITr. tbere ;lnay be a doubt whether tbe calle made by a bill ill, on,e of equitable , jilJfsdidtioo, bemuse thatcomplBinant may bave at law, tbe doubt ,resolved. of the ;the wu
trom of the ,United States for the District of COlofiido, sitting' at Denver. BiUJ,in equity by the Maxwell Land Grant COmpany against Vicente Pretecaandothers to restrain trespasses. There was a pUrSuant to a stipulation tiled, and defendants appeal.'c' Decree 'll.fJirmed. " ' A,le:r4ntkr appellants. 'Before and: SANBoRN,Circuit Judges, and SHmAS, District
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CALDmLL, Circuit Judge. The complainant filed its bill in equity inthebdtut belo\t, aUegingthat it was the legal owner of the lands deseriboo in the bill known as'then'Beaubien and Miranda Grant;" that complainant's /ltitle to the Said lands has been established at law by divers Abtions of, ejflctment, dUly ,and, regularly brought and prosecuted to in t11e. courts of the; tei-ptory of New Mexico, by and on behalf of your 'orator ,and those throuih' whom it derives its title, against pereOns hdike situation with saitl derendants, which said actionl!! at law involvedand depended on the sarrie questions of title now in controversy betweert your Ofll.tor and each ofsaid that your orator, and, as it is iriformed and believes, its several predecessors in interest successively, nave oocupied possession ofthe said grant and tract of land, 'claimirigthe the said' grant, patent, and conveyan&ls (with theexceptio,n 'aforesaid) continuously from the date of of juridical pOl!!session,thereof by the Mexican government in A. 184:3 to the present time, save in so far as they have from time to interfered with by tblf unlawful acts of said defendants and otheta in like13ituation as to portions thereof; " that the defendants" have lately wrongfully, unlawfully, and without the permission of your oratol' entered upon and taken possession of certain portioIUl' of the said landa
PRETEC.t· t/;'MAXWEtL'LAND GRANT 00.
of your'6ratrir not 'heretofore conveyed to any other party under whom the said defendants, or any of them, claim any right thereto, and still hold andmafntaifi possession thereof, and have excluded, and still do exclude; your orator, and those claiming under it, from occupying and enjoying the same, and· have proceeded to mine, remove, and appropriate to their own use the precious and valuable minerals, ores, and coal in and upon said lands; to cut, remove, and use the trees and timber, grass and hay, growing thereon;. * * * that the said actsof said defendants are not committed upon any portion of said grant and tract of land clahnedor held by them, or any of them, under any grant from tile government of Mexico, or u'nder any conveyance or license frorn your orator, or any of its predecessors in interest, but solely on the pretended ground that said grant is public domain of the United States, and that they have the right to enter the same as such;" that" the damages resulting from the aaid unlawful acts of the said defendants are of such a nature as to be incapable of computation and adjudication at law, and as torequirejif sued for at law, a multiplicity of Buits, at various and successive times, against various parties, as to the same subject-matter, and fonndedupon the'same claim, right, and title, and at great cost, expense, and vexation to your orator, and that your orator will therefore sustain irreparable loss and damage by means of the said repeated, continuous, and various acts and trespasses, unless the same are restrained by the order of this honorable court; * * * that the claims of the said defendants, although separate and different as between themselves, are all subordinate to your orator's single title, and to its rights, and are assertions of claims which cast a cloud upon your orator's possession and title, and prevent your orator from the peaceable enjoyment of the fruits ofitssaid ownership; that the right, title, nnd claim of your orator is single, general, and exclusive against all of said defendants, and that such ri?:ht and title cannot be quieted at law by one or two actions, but numerous suits would be required, involving the same question, wherein each suit would determine such right only between your orator and the defendant in that suit, thereby making great and unnecessary costs, expense, and vexation, both to your orator and 'said defendants." The bill prayed for a decree quieting complainant's title, and for a perpetual injunction restraining the defendants from mining or from committing other acts of trespass upon the lands. The defendants entered their appearance to the suit, and filed an answer and cross bill. On the 21st day of June, 1890, the following stipulation was entered into between the parties to the suit: "It is stipulated and agreed that the above-entitled cause may be continued until after the appeal in the case of Intel'state Land Co. v. Maxwell Land (},'ant Co., No. 2365 on the docket of this court, has been determined by the supreme court of the United States, and, in the event that the jUdgment of the circuit court in the aforesaid case is reversed by the supreme court of the United States, then this case shall stand for trial; and in the event that the judgment of the circuit court is affirmed, then the cross complaint in this case shall be dismissed, the denials of the defendants withdrawn, and judgment enteredfortue plaintiff in accordance with the prayer of the complaint."
The case of Land 00. v. MatCWell Land Grant 00., mentioned in stipulation, was determined by the supreme court of the United States in favor of the Maxwell Land Grant Company, (11 Sup. Ct. Rep. 656,) apd thereupon a decree was rendered in this cause by the court below, in exact conformity to the stipulation of the parties. From this decree the defendants l1Ppealed to this court. The only error relied upon in argument is that the complainl}.nt's edy was at l!lw," and a court of chancery has no jurisdiction of the cause." From the averments of the bill it is obvious the complainant resorted to eqqity to avoid a multiplicity of suits and irreparable damage. resulting from continued acts of waste and trespass to land. These recognized heads of equity A court of equity may take cognizance of a controversy to prevent a multiplicity of suits, although the exercise of such jurisdiction may call for the adjudication upon purely legal rights and confer purely legal relief; and so a court has jurisdiction to restrain waste and trespass to land where the facts are of such a natpre that the law cannot afford adequate relief. 1 Porp. Eq. Jur. §§ 243. 245, 252, 271-274, and cases. there cited. The bill avers that the complainant's title has been finally adjudicated in its favor by a court of competent jurisdiction in suits brought against persons in like situations with the defendants. The averments of the bill make the case one of equitable cognizance. Against irresponsible parties taking mineral out of the land and removing the same, and cutting and removing timber, actions of ejectment would have been wholly inadequate-for the protection of the corpplaipant's rights. , It may be true thaUhe complainant bad a remedy at law, but "it is not enough that there is a remedy at law i it must be plain and adequate, or,in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity." Boyce v. Gl'Undy, 3 ];>et. 215; Oelrich8 V,. Spain,15 Wall. 211, 228. This objection was not made in the court below. In the states where the distin0tion between law and equity is still maintained, the prevailing rule is that such an objection will not ,be f:lustained by the appellate court, unless 'it was made and insisted on in .the court below. M088 v. Adam8, 32 Ark. 562; May v. Goodwin, 27 Ga. 352; Stout v. Cook, 41 Ill. 447; Crocker v. DUWit, 133 Mass. 91; RusBell v. Loring, 3 Allen, 121,125; Blair v. Railroad Co.,89 Mo. 383,1 S. W. Rep. 350;lron 00. v. Trotter, 43 N. J. Eq. 185, 204, 7 Atl. Rep. 650, and 10. Ail. Rep. 607; Underhill v. Van Cortlamdt, 2 Jobns. Ch. 339, 369. And in the courts of the United States the objection, when made for the first time in the appellate court, is looked upon with extreme disfavor. In the late case of Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. Rep. 340, the court say: "In recent cases in this court the subject of the raising for tpe first time in tbis court of the question of want of jurisdiction in equity has been consid. In Reynes v. lJumO'll,t, 130 U. S. 354,395,9 Sup. Ct. Rep. 486. it was said tpat the court, for its own protection, might prevent matters properly cognizable at law from being drawn into chancery at the pleasure of the pal" ties interested. but that it by no means followed, where the subject-matter belonged to that claSS. ,ov:er. Which a court ot equity had jurisdiction, and the
DELAWARE &: A. TELEGRAPH &: TELEP. CO. t1. STATE OF DELAWARE.
ilbjection that the complainant had an adequate remedy at law was not made until the hearing in the appellate tribunal, that the latter could exercise no discretion in, the disposition of such objection; and reference was made to 1 Daniell, Ch. Pro (4th Amer. Ed.) 555: Wylie V. Ooxe, 15 How. 415, 420; Oelrichs v. Spain, 15 WaIl. 211; and Lewis V. Oocks, 23 Wall. 466. To the same effect are Kilbourn V. Sunde1'land, 130 U. S. 505, 514, 9 Sup. Ct. 594: Brown V. Iron 00., 134 U. S. 530, 535, 536, 10 Sup. Ct. Rep. 604; and Allen V. Oaf' 00., 139 U. S. 658, 662, 11 Sup. Ct. Rep. 682." Answering an objection of this kind made for the first time in the supreme court, Chief Justice FuLLER, speaking for the court, said: "Under the circumstances of this case, it comes altogether too late, eveq though, if taken in limine, it might have been worthy of attention." R81/1lU v. Du,mont, 130 U. S. 354, 395, 9 Sup. Ct. Rep. 486. . We 'think the facts alleged in the bill make the case one of equitable cognizance, but, if we entertained doubts of this point, we would, be:cause of the fact that the objection was not made in the court below, resolve them in favor of the jurisdiction. Decree affirmed.
& TELEPHONE Co. ".
April 21, 1892.)
No. & L
TELEPHONE COMPANIES-COMMON CARRIERS-DUTY TO FURNISH EQUAL
Telephone companies are subject to the rules governing cemmon carriers, :and are bound to furnish equal facilities to all persons or corporations belonging to the olasses which they undertake to serve. .
SAME-USE 011' PATENTED INSTRUMENTS.
They are not exempt from this obligation by the fact that the instruments by which their business is carried on are patented; for while a patentee has a perfect title to the patented, and its use, and is not bound to apply it to a publio use; yet when he does so he is bound by the rules governing such use.
011' TELEGRAPHIC MESSAGES.
A Delaware telephone company, which furnishes facilities to the Western Union Telegraph Company for the transmission of telegraphic messages, 'cannot be excused from furnishing like facilities to other telegraph cempanies because its license to use the telephones is expressly subject to an exclusivillicense in favor of the Western Union Company for the transmission of telegraphic messages; for such exclusive license creates a monopoly, and is void under the Delaware law.
Error to the Circuit Court of the United States for the District of Delaware. Petition by the Postal Telegraph-Cable Company for a writ of manda'Vlusto compel the Delaware & Atlantic Telegraph & Telephone Company to place a telephone transmitter and receiver in the office of relator on the same terms as are given to other subscribers. The petition was inally brought in the superior court of the state of Delaware, for New Castle county, and was removed therefrom to the court below, which awarded the writ as prayed. See 47 Fed. Rep. 633. Respondent brings error. Affirmed.