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    U. S. v. BITTER ROOT DEVELOPMENT CO., 200 U.S. 451 (1906)

    U.S. Supreme Court

    U. S. v. BITTER ROOT DEVELOPMENT CO., 200 U.S. 451 (1906)

    200 U.S. 451

    UNITED STATES OF AMERICA, Appt.,
    v.
    BITTER ROOT DEVELOPMENT COMPANY (a Corporation), Anaconda Mining Company (a Corporation), Anaconda Copper Company (a Corporation), Anaconda Copper Mining Company (a Corporation), Margaret P. Daly, Margaret P. Daly as Executrix of the Last Will and Testament of Marcus Daly, Deceased, John R. Toole, William W. Dixon, William Scallon, and Daniel J. Hennessy, Appellees.
    No. 223.

    Argued January 8, 9, 1906.
    Decided February 19, 1906.

    The appellant filed this bill of complaint in the circuit court of the United States for the district of Montana, on the equity side of the court, for the purpose of recovering from the defendants the value of certain timber, alleged to have been wrongfully cut and taken by the defendants and converted to their own use from the public lands belonging to the complainant in the state of Montana. The defendants, those of them who appeared, demurred to the bill on the ground, among others, that a court of equity had no jurisdiction over the [200 U.S. 451, 452]   cause of action set up in the bill, for the reason that complainant had a plain, full, and adequate remedy at law therefor. The circuit court sustained the demurrer and granted leave to the complainant to amend; but the complainant elected to stand by the bill, and the same was thereupon finally dismissed. The case was taken to the United States circuit court of appeals for the ninth circuit, where the judgment of the circuit court was affirmed (66 C. C. A. 652, 133 Fed. 274) and the complainant was appealed here.

    (It appears from the return of the marshal that, after diligent search, no service of process could be made on the defendants Bitter Root Development Company, Anaconda Mining Company, and Anaconda Copper Company [ corporations], as they could not be found.

    The bill alleged that on the 1st day of April, 1888, the complainant was, and at the time of the filing of the bill continued to be, the owner in fee and in the possession of certain lands in the state of Montana, described in the bill. Description of the lands from which the timber was cut and carried off was given at great length, and a large number of sections of land were included therein.

    [200 U.S. 451, 468]   Messrs. L. O. Evans, A. J. Campbell, A. J. [200 U.S. 451, 469]   Shores, C. F. Kelley, and John F. Forbis for appellees.

    Statement by Mr. Justice Peckham:

    [200 U.S. 451, 471]  

    Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

    Although there is a liberal use in the bill in this case of averments in regard to fraud, conspiracy, and violation of trust, of which the pleader avers the defendants have been guilty [200 U.S. 451, 472]   in various ways, yet, upon a careful examination of the pleading itself, and the actual facts therein stated, we concur in the view of the courts below, that the action is really nothing but an action of trespass or trover to recover damages sustained by the complainant by reason of the wrongful cutting, carrying away, and conversion of the property of the complainant, consisting of the timber on the land mentioned in the bill; and for the wrong thus done we think it clear that the complainant has a plain, adequate, and complete remedy at law, and consequently the court has no jurisdiction of this bill in equity.

    It is not necessary to cite many authorities for the proposition that where the main cause of action is of a legal nature, equity has no jurisdiction, provided the complainant has full and adequate remedy at law for the wrongs complained of. Buzard v. Houston, 119 U.S. 347 , 30 L. ed. 451, 7 Sup. Ct. Rep. 249; Scott v. Neely, 140 U.S. 106, 110 , 35 S. L. ed. 358, 360, 11 Sup. Ct. Rep. 712. A mere charge of fraud does not give equity jurisdiction. Buzard v. Houston supra; Ambler v. Choteau, 107 U.S. 586 , 27 L. ed. 322, 1 Sup. Ct. Rep. 556; Safford v. Ensign Mfg. Co. 56 C. C. A. 630, 120 Fed. 480, and cases cited in opinion. Tyler v. Savage, 143 U.S. 79 , 36 L. ed. 82, 12 Sup. Ct. Rep. 340, bears no resemblance to the case at bar. As the court there said, there were in the case discovery, account, fraud, misrepresentation, and concealment. There was no demurrer for multifariousness, and no objection in the court below for want of equity, and the case was not one of a plain defect in equity jurisdiction. The suit was clearly one for equitable relief.

    The principal ground upon which it is claimed that the remedy at law is inadequate is really nothing more than a difficulty in proving the case against the defendants. The bill shows that whatever was done in the way of cutting the timber and carrying it away was done by the defendants as tort feasors, and the various devices alleged to have been resorted to by the deceased, Daly, by way of organizing different corporations, in order to, as alleged, cover up his tracks, and to render it more difficult for the complainant to make proof of his action, does not in the least tend to give a court of equity jurisdiction on that account. It is simply a question of evidence to show [200 U.S. 451, 473]   who did the wrong and upon that point the fact could be ascertained as readily at law as in equity.

    The complainant is entitled in an action at law to an inspection of the books and records of these various corporations, and it has the same power to obtain the facts therefrom in that action as it would have in this suit in equity.

    The complainant contends that where property has been stolen or obtained by fraud, equity recognizes the law to be that the property always belongs to the true owner, and therefore its proceeds must also belong to him, and may be reclaimed in a suit in equity against the voluntary assignee or one holding in bad faith. The cases of Newton v. Porter, 69 N. Y. 133, 25 Am. Rep. 152, and American Sugar Ref. Co. v. Fancher, 145 N. Y. 552, 27 L. R. A. 757, 40 N. E. 206, are cited to sustain the contention. These cases it will be seen, upon examination, show that the plaintiff had no remedy at law, and he was able to fully identify the particular property into which the original property belonging to him had been converted, and which was in the hands of a voluntary assignee. It was a question of following the proceeds, and accurately and certainly identifying them, which the court held was necessary to order to permit of such following. The defendants were also insolvent. The case of Angle v. Chicago, St. P. M. & O. R. Co. 151 U.S. 1 , 38 L. ed. 55, 14 Sup. Ct. Rep. 240, did not involve any question like the one herein. In that case the land had been granted to the Portage company by the state for the purposes named, and it was conceded by the demurrer that the officials of the Portage company had been bribed by the Omaha company to betray their trust, and the legislature had been induced by false allegations to revoke the grant to the Portage company and to bestow it upon the Omaha company. The plaintiff had obtained a judgment against the Portage company in an action at law, and the execution had been returned nulla bona, and the bill in equity was filed in the circuit court of the United States by the administratrix of the judgment creditor against the Omaha company to reach the land formerly owned by the Portage company, and then in the hands of the Omaha [200 U.S. 451, 474]   company by reason of its own wrongdoing. Thus there was the illegal and wrongful act of the Omaha company, by which the land once vesting in the Portage company had been taken away and that same land regranted to the Omaha company, and it was to reach that particular land which the Omaha company had obtained by its wrongful act that the bill was filed. Mr. Justice Brewer, delivering the opinion of this court, said:

    These lands were identified, and were found in the hands of the actual wrongdoer, who had acquired them by reason of such wrong.

    Now, there is no pretense in this case that any specific piece of property was in fact either the same timber or the proceeds of the timber wrongfully cut and disposed of by the defendants, or any of them. Nor was it averred that any particular timber had been taken from the land described in the bill. On the contrary, it is alleged in the bill that the complainant was unable to show just when or by whom the cutting had been performed, or the logs manufactured into lumber had been sold, or just when and by whom the proceeds thereof were obtained, and when the same were divided. There is a general allegation in the bill of complaint that the deceased, Daly, left an estate worth $12,000,000, located in the state of Montana and elsewhere, and that a large portion of that estate was the [200 U.S. 451, 475]   result of the proceeds of Daly's illegal acts in his lifetime, in trespassing upon the lands of the complainant, and converting the proceeds of the sale of the timber growing thereon to his own use and benefit. It is also averred that he made his will, appointing Margaret P. Daly, defendant, executrix; and the will was duly admitted to probate, and letters of administration were duly issued to the defendant Margaret P. Daly, on the 15th day of February A. D. 1901, and she duly qualified and entered upon the discharge of her duties as such executrix; that Margaret P. Daly, under and by virtue of the terms of the will, and as the wife of Marcus Daly, is the owner of a large portion of his estate. It is plain that such allegations fall far short of even a pretense of identifying specific, definite property as the proceeds of certain other property wrongfully or fraudulently taken by defendants from the lands described in the bill. Such allegations are totally inadequate for that purpose.

    Under the law providing for the examination of defendants, and under 724 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 583), providing for the production of books and writings in actions at law, under the same circumstances that defendants might be compelled to produce them under the ordinary rules of proceeding in chancery, there is nothing in these allegations which shows any necessity for a discovery in equity, such as would render the remedy more adequate therein than in an action at law.

    Nor was there anything in the cases cited by complainant as showing a right to proceed in equity because one of the defendants is the executrix of a deceased person, who, it is alleged, was one of the parties guilty of the wrongdoing set forth in the bill. Upon the question of liability she is entitled to a trial at law and by jury, as well as the other defendants. In Green v. Creighton (Kendall v. Creighton) 23 How. 90, 16 L. ed. 419, it was said that a single creditor has been allowed to sue an administratrix for his demand in equity, and obtain decree for payment out of the personal estate, without taking a general account of the testator's debts. In that case the facts were complicated; [200 U.S. 451, 476]   the original debtor and his surety were dead, and had died insolvent, and a portion of the assets of the estate of the latter could be traced to the possession of his administratrix, and the authority of a court of equity was required to call for a discovery of the nature and amount of the assets in hand. It was said that the debtor, Tunstall, had died insolvent, and Whiting, his surety, had also died insolvent. A portion of the assets belonging to the estate of the latter was in the hands of the surety of this administrator. A discovery of the nature and amount of the assets in hand was necessary if they were subject to the application, and it was held that the circuit court was authorized to entertain the suit, and the decree dismissing the bill was reversed. Certainly there is nothing in that case which in the least degree aids the proposition that because there is an administratrix named as a party, equity has jurisdiction, even though no discovery of assets is sought, and the bill shows that the estate represented by the administratrix is largely solvent, and the demand is for unliquidated damages against others besides the administratrix, and no debt is admitted, the alleged cause of action having arisen against the deceased, among others, for a tort.

    In Kennedy v. Creswell, 101 U.S. 641 , 25 L. ed. 1075, it was held that the creditor of a deceased person had a right to go into a court of equity for a discovery of assets and the payment of his debt, and that when there he would not be turned back to a court of law to establish the validity of his claim. The basis of getting into a court of equity being a discovery of assets, the object of the bill was obtained, as the court held, by the admission of the executor that he had sufficient assets, and that if so, the jurisdiction of the court remainded to give a decree for the payment of the debt. Here is no such case. Daly is alleged to have been the principal wrongdoer, out of several defendants, in cutting and converting the timber on these lands owned by the government. He died, leaving an estate of over $12,000,000, as averred in the bill of complaint, and the claim of the complainant is only for $2,000,000. Thus, by com- [200 U.S. 451, 477]   plainant's own averment, the estate is largely solvent. There is no endeavor to discover assets and no ground for jurisdiction in equity simply because one of the defendants is an executrix. The proposition of the complainant would confer jurisdiction in equity in every case of a legal cause of action for unliquidated damages for a tort where one of the wrongdoers had died and an administratrix had been appointed, and the existence of assets was alleged by complainant, largely in excess of the complainant's demand, and the other defendants remained parties. This has never been so held in any case to which our attention has been called, and we are unable to find any principle of equity jurisdiction upon which to permit the maintenance of this suit on the special ground here asserted.

    But it is averred there was a fiduciary relationship existing on account of the permits or licenses to cut timber, which, it is alleged, were given the defendant Bitter Root Development Company, and that in such permits there was set forth an obligation on the part of that company and others acting for it, to make, under oath, monthly returns of the amounts and kinds of timber cut, with a description of the particular tract or tracts from which it was cut, how much was disposed of, and to whom, and that a failure to do so was a failure in a fiduciary capacity on the part of the defendant company, and therefore there is jujurisdiction in equity. The government contends that by reason of the duty of the Bitter Root Development Company to keep true and accurate accounts and to monthly submit statements to the officers of the government, and by reason of its failure so to do, the proceeds of the lumber retained by it became in its hands a trust fund belonging to the complainant; that there was a breach of this trust; its extent is in the defendants's knowledge; and in such cases choice of remedy is with the party aggrieved, and he may proceed in equity for an accounting and pursue the fund. It is doubtful, to say the least, whether an obligation to report as to timber cut on the permitted lands constitutes any fiduciary relationship between the licensees and the government, [200 U.S. 451, 478]   with regard to an alleged wrongful cutting of timber on other and separate lands. It is not, in truth, alleged that the returns called for by the permit were not made. Safford v. Ensign Mft. Co. 56 C. C. A. 630, 120 Fed. 480. However that may be, there is no such obligation (to render monthly accounts) set forth in the bill as being part of the permit or license referred to therein. The bill simply avers that Daly did, at certain times, during the several years of said depredations, apply to and obtain from the lawful agents of the government licenses to cut upon certain small portions of the tracts above described, and under cover of such permits the conspirators not only cut, carried away, and manufactured timber growing on the said lands included in such licenses, but, well knowing that such permits gave them no right or authority to enter upon other lands, they wilfully and fraudulently entered upon large tracts of land adjacent thereto and cut the timber therefrom. There is no mention of an obligation to render monthly accounts. The fact that the defendants had permission to cut timber on certain tracts of land described did not make their cutting of timber on other tracts the act of trustees ex maleficio. When they went outside of the tracts for which license was given, they committed a trespass for which they were liable at law. And, again, as the contents of the permits are not set forth, we cannot take judicial notice of such contents in any particular case. Different conditions may be contained in different permits, and they are the subject of the discretion of the department giving the permits.

    It also argued that a court of equity has jurisdiction in such a case as this on the ground of an accounting. We do not think that this is any such case as gives a court of equity jurisdiction because of an accounting being necessary. There are no accounts between the parties. The cause of action is one arising in tort, and cannot be converted into one for an account. The case made is a plain trespass, for which the defendants are liable in damages. Or it might be termed an [200 U.S. 451, 479]   action in trover, as stated. Whatever books, if any, defendants may have kept, showing the amount and location of the timber cut and its value, can be perfectly well obtained by an inspection of these books in an action at law. No discovery is alleged to be necessary in aid of any action at law, although the bill shows that several such actions have in fact been commenced. The facts averred do not show jurisdiction for the general purpose of discovery.

    Nor do we see that there is any jurisdiction on the ground of prevention of a multiplicity of suits. Those persons who were guilty of the wrong must be made parties in either court, in order to bind them. Such alleged multiplicity is not avoided in one court more than in the other. It is not a case where a few defendants may be made parties as representatives of a class holding under or claiming the same title of right, and so that a judgment against the representative defendants may bind all others of the class. There is no class and there can be no representatives.

    We fail to see any fact alleged in this bill which constitutes a proper foundation for the jurisdiction of a court of equity. The government counsel, however, assert that since the filing of this bill new and material facts have been discovered by the government, which, in the judgment of counsel, would furnish foundation for a bill in equity, even though this bill is defective. In order to permit of the filing of such a bill, if counsel should be so advised, and so as not to run against a plea of res judicata, the judgment of dismissal is affirmed, without prejudice, etc.

    Mr. Justice White and Mr. Justice McKenna took no part in the decision of this case.

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