Williams v. Elting Woolen Co.

Park, J. The petitioner seeks to have the question determined by a court of equity whether his interest in certain lands can be taken by the respondents in the proceedings they have instituted under the flowage act against E. W. Williams, in whom was the legal title to these lands at the time the proceedings were brought, but which was soon after-wards conveyed to the petitioner. If the facts stated in his petition are sufficient to maintain his case in a court of chancery, it is difficult to see why the petitioner cannot successfully defend in the case already pending. Sometimes a party is driven into a court of equity to save his rights in a court of law, because he has an equitable and not a legal defence; but nothing of that kind exists in this case.' The question presented here is, whether these lands can be taken by the respondents and appropriated to public use under the flowage act; and this depends upon the question whether they have been already appropriated to such úse by the petitioner, or parties under whom he claims title to them. [356] If they have been' so appropriated, then it is clear that they cannot be taken by the respondents, for the law is no respecter of persons and has no favorites, and the maxim applies, prior tempore prior jure. The flowage act makes provision for the trial of this question in the proceedings which it authorizes to be instituted, and certainly a court of equity will not take the case from that tribunal and dispose of it, any more than it will give redress to a party who has an adequate remedy at law. The petitioner complains that he has not been made a party to the proceedings which the respondents have instituted. But how can his rights be jeopardized ? The proceedings will be void as to him, if he has no opportunity for defence in the case. If he has the right to be heard, then certainly his rights will be as much protected in that case as in this. The question is not properly before us now to determine whether or not he has the right to appear and be. heard in that case, without being made a party to the record. If he claims the right before the court where the case is pending, that court will decide the question, and if it errs in its decision the petitioner will have an opportunity for review in the usual course. We think the petition is insufficient, and should be dismissed, and so we advise the superior court. In this opinion the other judges concurred.