Delaney's Estate v. Kiernan

GUNNISON, District Judge. For the purpose of the determination of this suit, it is necessary to first dnswer the question as to the possession. The evidence disqlosing the fact that Kiernan was in the actual physical possession, let us examine into the contention of the defendant that the bill should be dismissed. The plaintiffs set up in their complaint that on the 21st day of July, 1899: “D. W. Gallagher, this plaintiff, and James Delaney were the owners of, in the possession of, and eptitled to the possession of the claims in controversy at all times from that date until the death of said Delaney, May 1, 1903; that plaintiff D. Gallagher pnd the estate of Delaney, deceased, are and have been the owners of both of said claims since the death of Delaney, and are now entitled to the possession thereof; and that defendant claims an adverse interest or estate in both claims.” I But nowhere do plaintiffs allege possession at the time of the commencement of the suit. Affer a general denial of the allegations of the complaint, defendant sets up two affirmative defenses, alleging himself to have been in the sole, lawful, and exclusive possession of the property, and prays: I “That the plaintiffs’ bill of complaint be dismissed, and¡ that plaintiffs take nothing by reason thereof, and, further, that this honorable court grant to defendant such further relief as, under the law and the evidence, he may prove himself entitled to” [197] —and for costs and disbursements. In their reply plaintiffs, among other things, deny: “That the defendant Is or ever has been in the lawful occupation or possession of the said mining claims or any part thereof.” They then set up an attempt by plaintiffs’ agent to do the assessment work for 1904, and that the defendant, by threats and the display of a pistol, drove the agent from the claims, and that the agent did not return. In' other words, the defendant, while, under the Alaska Code, unable to enter a plea in abatement, has by his answer made an issue of jurisdictional facts; that is, he has asserted his own actual, physical possession of the claims. It has been held in the case of Love v. Morrill, 19 Or. 545, 550, 24 Pac. 916, that this is the proper manner of raising the question of jurisdiction. The court there said: “The answer tendered an issue on the material allegations of the complaint which could only be determined from the evidence, and if it appears from the evidence that the real dispute between the parties is not cognizable by a court of equity, the complaint should be dismissed.” O’Hara, v. Parker, 27 Or. 156, 39 Pac. 1004, arising in Oregon, was a suit to quiet title, in which the actual possession was in the defendant. The court there refused to dismiss the plaintiffs’ bill, on the ground that the defendant had in no way pleaded to the jurisdiction of the court, but, on the contrary, had himself prayed for equitable relief; in other words, that he had waived the question to the jurisdiction. In another and later case from Oregon (Moore v. Shofner, 40 Or. 488, s. c. 67 Pac. 511) the defendant denied plaintiffs’ allegation of possession, alleged possession in himself, and asserted that the court was without jurisdiction. He was held not to have waived the question of jurisdiction, and that the effect was that the trial was as to the jurisdiction of the court. [198] It will be seen, therefore, that the jurisdiction ojf the court in a suit to quiet title turns primarily upon the question of possession. Section 475 of the Alaska Code of Civil Procedure declares that: “Any person in possession, by himself or his tenant, of real property, may maintain an action of an equitable nature against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate or interest.” Is the possession, there referred to, to be actual or constructive? Plaintiffs contend that, under this language, constructive possession is sufficient, and rely upon the case of Fulkerson v. Chisna Mining & Improvement Co., 122 Fed. 782, 58 C. C. A. 582. We do not think that the! case cited sustains the contention. The question there was! not as to what constituted possession, but what was the character of the title requisite to support a suit to quiet title. It was there held that: “It is clear that one who first makes a valid location of a mining claim and enters into the possession acquires a title théreto, not, it is true, the legal title, which remains in the United States until conveyed by it, but such a title as the laws of the United States recognize, and will protect as against an intruder, such as fhe evidence embodied in the record shows the defendants in the present case to have been.” ¡ The plaintiffs there were in possession of the property, or the greater part of it. They held the actual pedis possessio, not a constructive possession. In that respect it differs from the case at bar, where the plaintiffs do not allege | possession in themselves. On the other hand, the defendant pleads the possession, and the plea is sustained by the evidence. The rule of the law, that before a person may¡ commence a suit to quiet title he must not only have a title in himself, but that he must also be in the actual, physical possession of the property, is so firmly established that a discussion of the multitude of cases on the subject seems unnecessary. A few [199] of them are here cited: Badger G. M. & M. Co. v. Stockton G. & C. M. Co. (C. C.) 139 Fed. 838; O’Hara v. Parker, 27 Or. 156, 39 Pac. 1004; Stark v. Starr, 6 Wall. 419, 18 L. Ed. 925; California Oil Co. v. Miller (C. C.) 96 Fed. 19; Frost v. Spitley, 121 U. S. 556, 7 Sup. Ct. 1129; 30 L. Ed. 1010; Coolidge & McClaine v. Forward & Heneky, 11 Or. 120, 2 Pac. 293; Silver v. Lee, 38 Or. 508, 63 Pac. 882; Elbing et al. v. Hastings et al., 3 Alaska, 125. Not only is this rule sustained by the decisions, but in the opinion of the court no other conclusion can be reached from a perusal of the Alaska Code. Section 475, quoted above, provides that “any person in possession” may maintain an action of an equitable nature against the adverse claimant. And Congress, careful to protect the interests of the public, provides a method by which one deprived of the actual possession and enjoyment of property in which he has a legal estate may recover the same. Section 301 of the Alaska Code of Civil Procedure, under the title “Actions to Recover Possession of Real Property,” is as follows: “Any person who has a legal estate in real property, and. a present right to the possession thereof, may recover such possession with damages for withholding the same, by an action. Such action shall be commenced against the person in the actual possession of the property at the time, or if the property be not in the actual possession of any one, then against the person acting as the owner thereof.” Having found that, as a matter of fact, the actual possession of the property in controversy was, at the time of the commencement of this suit, in the defendant, and that, as a matter of law, a suit to quiet title may not be maintained where the plaintiff is out of possession, it is, we think, clear that the bill should be dismissed, and defendant should be paid his costs. This being decisive of the cause, a consideration of the other questions is unnecessary. Let a decree entér..