El Dora Oil Co. v. United States

(after stating the. facts as above). It is contended that upon the facts shown on the face pf the bill the plaintiff has an adequate remedy at law in ejectment, and it is also urged that where, as here, a bill alleges that the defendant is in possession, equity has no jurisdiction of an action to recover possession, or to remove a cloud, or to quiet title, even though other relief be asked.

*948 [1,2] As to the suggestion that there is an adequate remedy at law, it is to be said that the defendants failed in the court below, by motion, plea, or otherwise, to raise that objection to the jurisdiction in equity, and therefore they have waived the same. Southern Pac. R. Co. v. United States, 133 Fed. 651 , 66 C. C. A. 581 ; McCloskey v. Pacific Coast Co., 160 Fed. 794 , 87 C. C. A. 568 , 22 L. R. A. (N. S.) 673. But, even if timely objection had been made on that ground, we are of the opinion that the court below had jurisdiction of the suit, for the reason that the essential and primary purpose of the same is to restrain waste, which, if continued, will work irreparable injury to the property in controversy. Said the court in Wood v. Braxton (C. C.) 54 Fed. 1005 :

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