Tillamook County v. Wilson River Road Co.

Opinion by Mr. Justice Eakin. 1. Plaintiff brings this suit under Section 4946, B. & C. Comp., which provides that where a lessee, under the provisions of Sections 4937-4950, B. & C. Comp., fails or neglects to comply with the provisions of the lease, the district attorney may bring an action to have the lease declared forfeited. Defendant claims that this lease or contract was executed under Sections 5074 and 5077, B. & C. Comp., relating to condemnation proceedings. The agreement provided for in Section 5077, B. & C. Comp., is not a lease, but results in condemnation, as though [311] accomplished by judgment. There is nothing in the complaint or in the lease to indicate that it was intended as an agreement in condemnation, but, on the contrary, appears to be made to comply with or to take advantage of the terms of Section 4937, B. & C. Comp., which provides that whenever a road is so located- that there is little or no labor along the line of it, the county may lease it to a corporation to open, improve and keep the same in repiair for a period not exceeding 10 years. The lease recites that the road is a great public burden, requiring large expenditures of money to maintain it, as an inducing cause on the part of the county to make the lease. It contemplates that the county is still the owner of the road and liable for its condition, and we conclude that the contract is a lease, and therefore must be construed and enforced under the provisions of Sections 4937-4950, B. & C. Comp., inclusive. 2. Section 4946, B. & C. Comp., under which plaintiff brings this suit, only provides for forfeiture of the lease for failure to comply with its provisions, and therefore plaintiff cannot join in the same proceeding a claim to avoid the contract because made without authority, or because not yet fully executed by filing the undertaking provided for, therefore the motion to strike out was properly allowed. 3. The complaint sufficiently alleges the failure and neglect by the defendant to comply with the provisions of the lease. Defendant, however, insists that the proceeding under this section should be at law, and not in equity. The language of Section 4946, B. & C. Comp., “may maintain an action,” must be construed to mean suit in equity for the reason that the relief provided for therein can only be granted by a court of equity. Pomeroy (volume 1, § 170) says: “Another quality of the distinctively equitable remedies * * is their specific character, both with respect to substance and form. Except in actions to recover possession of land or of chattels, the legal remedies by action are all general recoveries of specified sums of money.” Piero the relief sought is the forfeiture of the lease; in other words, to cancel the instrument by which defendant holds title, [312] so that plaintiff may he restored to its title and possession. This belongs exclusively to equitable remedial jurisdiction. Mr. Pomeroy, in defining exclusively equitable jurisdiction, mentions several classes of subjects, under the second of which he says: “The important remedies contained in this class are re-execution of instruments, reformation of instruments, surrender or discharge of instruments and cancellation or rescission”: Section 171, B. & C. Comp. And such relief cannot be given in an action at law. The term “action,” used in Section 4946, B. & C. Comp., is not necessarily equivalent to “action at law.” In Ex parte Milligan, 7 U. S. (4 Wall.) 2,112 (18 L. Ed. 281), it is said: “In any legal sense, ‘action/ ‘suit’ and ‘cause’ are convertible terms.” Anderson’s Dictionary adopts this language, and Bouvier’s definition in its broader meaning includes suits. Our own statute maintains a distinction between “action at' law”- and “suit in equity,” indicating that the distinction is not based upon the word “action” alone; and in Fenstermacher v. State, 19 Or. 504, 506 (25 Pae. 142), it is held that the term “civil actions” includes actions at law and suits in equity. The provisions of this section determine that the remedy is in equity; and whether there is some relief that might be obtained at law is immaterial. It would not be adequate nor would it exclude equitable jurisdiction under this statute, and the court committed error in sustaining the demurrer. Cause reversed and remanded for such further proceedings as may be deemed proper and not inconsistent with this opinion. Reversed.