Ennis-Brown Co. v. Central Pac. Ry. Co.

(after stating the facts as above). It will be readily seen that, while the bills allege that the defendant companies are “engaged in the general business of railroad corporations as common carriers of passengers and freight,” and that the defendant Southern Pacific Company is, in the conduct of such business, in the exclusive possession of the property described in the bills, and that the defendant Central Pacific Railway Company “is not in possession of” it, they make no reference to the fact, alleged in the answer of the defendants to the original bills, that the Southern Pacific Company entered into the actual possession of the property about 50 years before the bringing of the suits under a lease from the pred *829 ecessor in interest of the Central Pacific Railway Company, and has ever since held the same under such lease; and while the bills as amended allege the public character of the business of the Southern Pacific Company and the exclusive possession of that company of the property in question in the carrying on of such business, they do not allege that the complainant had any interest therein at the time that company took possession of the land in the carrying on of…

I dissent from the opinion of the majority of this court on two grounds:

First. The defendants in the court below, the appellees here, answered the bill of complaint on the merits and asked for equitable relief, without raising any objection to the jurisdiction in equity on the *832 ground of the existence of a remedy at law. The rule is well settled that, by thus answering in a case where it is competent for a court of equity to grant the relief sought, the defendant waives the objection that the plaintiff has a plain and adequate remedy at law. Southern Pac. R. Co. v. United States, 133 Fed. 651 , 66 C. C. A. 581 ; Southern Pac. R. Co. v. United States, 133 Fed. 662 , 66 C. C. A. 560 ; Southern Pacific Railroad Co. v. United States, 200 U. S. 341 , 26 Sup. Ct. 296, 50 L. Ed. 507 ; Cobban v. Conklin, 208 Fed. 231 , 125 C. C. A. 431 .

Second. I cannot assent to the proposition that the appellant has an adequate remedy at law. If the allegations of the bill are true—and we must take them to be true—the appellant owns land of which the appellees have taken possession, and which is not necessary for tlieir uses as railroad corporations. What remedy has the appellant at law? It is…