Georgia Peruvian Ochre Co. v. Cherokee Ochre Co. , 152 Ga. 150 ( 1921 )

George, J.

“A demurrer to the whole bill should be overruled if any part thereof be sustainable.” Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874). But it is insisted that the petition does not allege any act or omission on the part of either of the defendants, constituting a violation of any right of the plaintiff, and that no judgment is prayed against either of the defendants, in that a declaratory judgment only is prayed. It appears that the lessee has deposited in bank to the credit of the plaintiff the sum of $1767, representing the royalties at the rate of one dollar per ton on ore mined by the lessee in the contested area to the date of the filing of the suit. The money thus deposited can not be withdrawn by the plaintiff, is not subject to its check, and the plaintiff is losing the use of the money and the interest thereon. Under plaintiff’s contract with, its lessee the money on deposit is to remain in bank “until it is determined to whom the royalties belong.” While the owner of lot No. 478 is not actively asserting any claim to the fund, it does assert that the ore was taken from its land, and that the money is its money. In the second prayer of the petition the plaintiff specifically prays for the recovery of the sum of money on deposit with the bank; and this must be construed as a prayer for judgment against the lessee, binding upon the Cherokee Ochre Company as the owner of the mineral interest in lot No. 478. Since the passage of the uniform-procedure act of 1887 (Civil Code of 1910, § 5406) a petition praying for only ordinary equitable relief is not demurrable on the ground that the plaintiff has a complete and adequate remedy at law. Teasley v. Bradley, 110 Ga. 497 (4) (35 S. E. 782, 78 Am. St. R. 113). But we do not agree that the plaintiff has a complete and adequate remedy at law. “ Where the boundaries between two adjacent parcels of land, even when held by their respective owners under purely legal titles, have become confused or obscure, equity has, from an early period, exercised a jurisdiction to settle them. . . Courts of equity will not interpose to ascertain boundaries, unless, in addition to a naked confusion of the controverted boundaries, there is suggested some peculiar equity which has arisen from the conduct, situation, or relations of the parties.” 4 Pomeroy’s Eq. Jur. § 1384; see also 9 C. J. 266 et seq., and numerous cases cited in notes. While generally a superinduced equity must exist between the plaintiff and the defendant, and an equity in favor of the plaintiff against other persons will not give jurisdiction (Steed v. Baker, 13 Gratt. (54 Va.) 380), sufficient equitable grounds exist, in the peculiar circumstances of this case, to give jurisdiction to the ' court of equity. The prevention of a multiplicity of suits is recognized as a ground of equitable jurisdiction in cases of this character. 9 C. J. 268, and cases cited in note 87; 4 Pomeroy’s Eq. Jur. § 1385, and cases cited in note 2. Our Civil Code (§ 4538) provides: “Equity will not take cognizance of a plain legal right, where an adequate and complete remedy is provided by law; but a mere privilege to a party to sue at law, or the existence of a common-law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction.” In Scott v. Scott, 33 Ga. 102, it was held: “A demurrer to a bill, on tbe ground that the complainant has a complete remedy at law, ought not to be sustained -unless it appears that the complainant has a remedy at law that will secure his whole rights in a perfect manner, at the present time, and in the future.” In the circumstances of this case, as set up in the petition, the case is peculiarly one for equity. It does not follow that the settlement of the disputed boundary by an action at law • — • either by processioning or by ejectment — will secure the plaintiff’s “ whole rights in a perfect manner.” “ All persons who are directly or consequentially interested in the event of the suit are properly made parties to a bill in equity, so as to prevent a multiplicity of suits by or against parties at once or successively affected by the original case.” Blaisdell v. Bohr, 68 Ga. 56 (3). The plaintiff prays not merely for the location of the true boundary line, for judgment for the money already deposited in bank, but for an accounting in the event an accounting should be necessary. Not only is the lessee a necessary party to the suit, if full, complete, and adequate relief is to be granted plaintiff, but the lessee is a proper party defendant. If the ore belongs to the plaintiff, the lessee is liable at the rate of one dollar per ton; if the ore belongs to the Cherokee Ochre Company, the lessee is liable at the rate of thirty-five cents per ton. The lessee is therefore interested adversely to the plaintiff in the result of the suit. “ A bill is not multifarious because all of the defendants are not interested in all of the matters contained in the suit. It is sufficient if each party has an interest in some matter in the suit which is common to all, and that they are connected with the others.” Brown v. Wilcox, 147 Ga. 546 (4) (94 S. E. 993). It follows from what has been said that the petition was not subject to demurrer on the grounds that it set forth no cause of action, that plaintiff had an adequate remedy at law, that there was a misjoinder of parties defendant, or that the petition was multifarious.

Only one other ground of the special demurrer requires consideration. So far as the allegations of the petition disclose, the surface interest in both lots may be owned by the same party or by the respective owners of the mineral interests in the lots. If the surface owner be a person other than the persons owning tbe mineral interests, he has no interest in the mineral estate. Where the ownership of the surface is in one person and the ownership of the minerals in another person, on the same tract, they each own a separate and distinct estate from the other. 1 Jones Eeal Property, § 537. It is agreed that if the surface interest in lot 531 is in one person and the surface interest in lot 478 is in another person, then and in that event the surface owners are proper parties to the action; but they are not indispensable parties. The surface owners are not directly interested in the minerals, and their interests would not be directly affected by a settlement of the dispute between the owners of the mineral interests. At least, so far as disclosed by the petition, the interest of the surface owners would not necessarily be affected by the granting of the relief sought in the action; and considering the allegations of the petition, the surface owners are not necessary parties to the action. We conclude, therefore, that the court erred in dismissing the petition upon demurrer.

Judgment reversed.

All the Justices concur, except 'Hill, J., absent.