WINSLOW v. NAYSON.

SUPREME JUDICIAL COURT, MASSACHUSETTS. 1873.

113 Massachusetts 411.

[BILL in equity to enjoin the defendants as road commissioners from trespassing on plaintiffs' land. Before the suit was brought the defendants entered upon the land and began to remove a fence and shed. After hearing, the case was reserved for the consideration of the Supreme Judicial Court.] 1

1

GRAY, C. J.2 .. under the bill, the plaintiffs, upon the facts found at the hearing, are entitled to the relief which they seek. Having maintained their fence in the same place for forty years, they had the right to keep it there as against the public. Gen. Sts. c. 46, § 1. Cutter v. Cambridge, 6 Allen, 20. The defendants, acting as public officers, under an unfounded claim of authority to appropriate the plaintiffs' land to the use of the public for a highway, having unlawfully removed a part of the fence, and dug away the soil to such a depth as to make the access to the land from the highway inconvenient and unsafe, should be restrained from doing further mischief, and the injunction must be made perpetual. Boston Water Power Co. v. Boston & Worcester Railroad Co. 16 Pick. 512, 525. Kerr on Injunctions, 295, 296. And the court, having obtained jurisdiction in equity of the case for this purpose, may properly, in order to prevent multiplicity of suits and to do complete justice between the parties, under the prayer for general relief, also award damages for the injury already done by the defendants to the plaintiffs' premises, instead of obliging them to bring a separate action at law therefor. Jesus College v. Bloom, 3 Atk. 262; S. C. Ambl. 54. Cathcart v. Robinson, 5 Pet. 263, 278. Franklin v. Greene, 2 Allen, 519. Creely

with reference to some particular theory upon which he bases his right to relief. The pleading cannot be made elastic, so as to bend to changing views of counsel as the cause proceeds. It must proceed to the end upon the theory upon which it is constructed. It must be good on the theory upon which it proceeds, or it will not be sufficient, though it states facts enough to be good on some other theory, for the plaintiff can have no relief on a theory different from that disclosed by his pleading."

As to whether relief inconsistent with the frame of the bill may be granted under a prayer for general relief, see Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 21 Pa. 131, 146-147 (1853). Compare VanZanten v. VanZanten, 269 Ill. 491, 498 (1915).

1 The statement of facts is much condensed.

2 So much of the opinion as relates to questions other than that of the kind of relief grantable is omitted.

v. Bay State Brick Co., 103 Mass. 514. Milkman v. Ordway, 106 Mass. 232. Brown v. Gardner, Harringt. Ch. 291.1

Neither party having moved to have an issue framed for the submission to a jury of the question of the amount of such damages, they may be assessed by a master, unless the parties agree upon the amount. Upon such agreement, or the return and acceptance of the master's report, the plaintiffs will be entitled to a final decree, with costs, except so far as the costs have accrued upon the motion for an attachment for contempt.2

Decree accordingly.3

FEDERAL RULES OF CIVIL PROCEDURE (1938).

Rule 8. GENERAL RULES OF PLEADING.

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or thirdparty claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.*

1 The question of when damages in addition to or in lieu of specific performance of a contract or specific relief against a tort may be given is considered in the course on Equity. Cf. Ch. XVIII, § 2, infra.

2 See 2 Story, Equity Jurisprudence (13th ed. 1886) § 795.

3 See Alden Bros. Co. v. Dunn, 264 Mass. 355, 363-364 (1928) (damage occurring in part after bill filed).

As to the scope of a general prayer, see Keigwin, Cases on Equity Pleading (2d ed. 1933) 164-167. In Cook v. Martyn, 2 Atk. 2 (Ch. 1737), Lord Hardwicke said (p. 3): "Praying general relief is sufficient, tho' the plaintiff should not be more explicit in the prayer of the bill; and Mr. Robins, a very eminent counsel, used to say, general relief was the best prayer next to the Lord's prayer." But see Langdell, Summary of Equity Pleading (2d ed. 1883) § 61. "A special prayer is requisite to obtain any relief desired pending the suit, such as an immediate injunction, a writ of ne exeat, or an order for the transfer of property from one possession to another." Keigwin, Cases on Equity Pleading (2d ed. 1933) 164. In some states special prayers are required by statute or rule of court.

4 See also Rule 54 (c), pp. 475, n. 1, 477, n. 1, supra.

BILL IN EQUITY to restrain the defendants, the burgess and members of the town council and the borough of Beaver, from enforcing an ordinance annexing to the borough a certain section of territory in the township of Borough. Before Porter, P. J.

The bill was demurred to on the ground that the question involved had been previously adjudicated at law in the court of quarter sessions.

The court sustained the demurrer and dismissed the bill.

OPINION BY MR. JUSTICE MESTREZAT, January 7, 1907: The court below sustained the demurrer and dismissed the bill in this case for the following reasons set forth in the brief opinion filed: “An examination of the proceedings at No. 29 December Term, 1905, reveals that the questions involved in this suit were thereat adjudicated and a court of equity will not again try the same question. Upon the appeal the court of quarter sessions had jurisdiction of the subject-matter. We therefore are of the opinion that the demurrer should be sustained and the bill dismissed." This ruling was based on the fact assigned as the first ground or cause of demurrer that "all questions of fact and law raised by plaintiff's bill of complaint in this case have been adjudicated by a court of law at No. 29 December Term, 1905, in the court of quarter sessions of Beaver County, Pa." This fact is not found in the bill but is averred in the demurrer and, as we have seen, was the ground on which the court sustained the demurrer.

When a defendant in an equity suit interposes a demurrer as a defense he admits the truth of the material facts set out in the bill, but denies that they are sufficient to justify the court in granting the

1 Under the Federal Equity Rules of 1912, as we have seen, the place of the demurrer in equity was taken by a motion to dismiss, and this practice has been followed in some of the states which retain separate equity procedure. Under the codes and the Federal Rules of Civil Procedure, the method of objecting to a complaint is the same in cases formerly in equity as in cases formerly at law. But under any of these forms of procedure, it is necessary to know what sort of defects in a bill or complaint seeking equitable relief may be attacked by demurrer or the equivalent motion.

relief prayed for by the plaintiff. The defense must be made out from the allegations of fact in the bill which, so far as material, are taken as verity. It is a settled rule of equity pleading that the defendant is not permitted to introduce averments of fact in his demurrer, and if he does so, and the facts thus averred are necessary to support the demurrer, it constitutes a speaking demurrer, and is bad. In 1 Daniell's Ch. Plead. & Prac. (6th Am. Ed.) *587 it is said: "Care must be taken in framing a demurrer, that it is made to rely only upon the facts stated in the bill; otherwise it will be what is termed a speaking demurrer, and will be overruled." And in Adams on Equity *335 the learned author says: "A demurrer introducing contrary or additional averments is termed a speaking demurrer, and cannot be sustained."

Applying this rule to the case in hand, we must hold that the trial court committed error in sustaining the demurrer. As we have seen, there was no allegation in the bill that the questions raised therein had been adjudicated by the court of quarter sessions, and the fact only appeared by an averment in the demurrer. The learned judge, however, examined the proceedings in the quarter sessions and found that they "revealed that the questions involved in this suit were thereat adjudicated," and for that reason sustained the demurrer. This was manifest error and requires the reversal of the decree, regardless of the merits of the case.

Decree reversed at the cost of the appellee, and a procedendo is awarded.

WETHERELL v. EBERLE.

SUPREME COURT, ILLINOIS. 1888.

123 Illinois 666.

Mr. JUSTICE MULKEY delivered the opinion of the court: Louisa Eberle brought her bill in the Superior Court of Cook county, against the appellant, James W. Wetherell, to remove an alleged cloud upon her title to certain real estate, particularly described in the bill. It appears from the bill that the property in question originally belonged to appellee's father, from whom she derives title; that after her title accrued, it was sold by A. M. Jones, United States marshal, under a judgment and execution against her husband, to the appellant, and that the latter subsequently received a marshal's deed therefor, which constitutes the alleged cloud on her title. The court overruled a demurrer to the bill, and the defendant declining to answer further, a decree was entered in conformity with the prayer thereof, to reverse which Wetherell prosecutes this appeal. The question presented by the record for determination is the suf

ficiency of the bill on demurrer. It is alleged in the demurrer, that the plaintiff is not entitled to the relief prayed, first, "because it appears that said court has no jurisdiction in regard to the matters in said bill set forth, the same relating to the acts of the United States court and its officers;" second, "and because it is not shown but that complainant has an adequate remedy at law, by ejectment." If either of these grounds of demurrer is well taken, the decree, of course, will have to be reversed.

A's to the first ground, we think the law is with appellee.1

Coming now to the other alleged cause of demurrer, namely, that "it is not shown but that complainant has an adequate remedy at law, by ejectment," that presents a much more serious question. It is said in Hardin v. Jones, 86 Ill. 313: "There are only two cases, under our law, in which a party may file a bill to quiet title, or to remove a cloud from the title to real property, first, when he is

in possession of the lands; and second, when he claims to be the owner, and the lands in controversy are unimproved and unoccupied." This is conceded to be a correct statement of the law. In the present case it is neither averred that the complainant was in possession of the lands, nor that they were unimproved and unoccupied. The bill, therefore, was bad in substance. The defect in it, as is clearly shown by the case cited, went to the jurisdiction of the court, in the limited sense in which that term is often used in equity. This, also, is admitted. But it is claimed that the defect in the bill is not pointed. out in the demurrer, and that therefore the point is waived. This position, even conceding the fact to be as claimed, is not tenable. All matters which go to the jurisdiction of the court may be taken advantage of by demurrer, whether specially pointed out in the demurrer or not, for whenever it appears that the case made by the bill is not brought within the class of cases in which courts of equity assume the power to hear and determine, it shows, in the technical sense of the expression, "there is no equity in the bill;" and this defect may be pointed out ore tenus, on the argument. (1 Daniell's Ch. Pr. 608, 656, 658, and notes.) Indeed, this doctrine is so elementary in its character, and has been so often recognized by this court, that it does not require argument or authority for its support. Gage v. Abbott, 99 Ill. 366; Gage v. Griffin, 103 id. 41.

But the claim that the defect in the bill is not pointed out in the demurrer, is not justified by the facts. The demurrer alleges, that "it appears that said court has no jurisdiction in regard to the matters in said bill set forth, * * * because it is not shown but that complainant has an adequate remedy at law, by ejectment." In view of this distinct allegation in the demurrer, it is difficult to conceive what.

1 So much of the opinion as deals with this matter is omitted.

2 This rule has been changed by statute or otherwise in many states. The matter is considered in courses on Equity.