United States v. Puget Sound Traction, Light & Power Co.

299 F. 869, 1924 U.S. Dist. LEXIS 1580

• Court: District Court, W.D. Washington
• Decided: May 23, 1924
• Status: Published

Opinion

NETERER, District Judge

(after stating the facts as above). This action is brought in equity. The bill is grounded in equity. The prayer is for equitable relief, and where it is .for legal relief must be incidental to the equitable relief asserted. This case can only proceed in equity, and as an election on the part of the plaintiff to have the patent and mesne conveyances set aside and for incidental damages, until it is 'transferred to the law side (rule 22, new series) and necessary amendments made to convert it into a legal action for damages. Friederichsen v. Renard, 247 U. S. 210, 38 Sup. Ct. 450, 62 L. Ed. 1075; U. S. v. Oregon Lumber Co., 260 U. S. 290, at page 295, 43 Sup. Ct. 100, 101 (67 L. Ed. 261). The Supreme Court in the last case said:

“Any decisive action by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies, and one of 'the most unequivocal of such determinative acts is the bringing of a suit based upon one or the other of these inconsistent conclusions. * * * ”

The plaintiff cannot disaffirm and recover the land, and affirm and recover damages in the same action. The remedies are inconsistent. The rule that, if -uncertain as to the specific relief to which he is entitled, the complainant may frame his prayer in the alternative, so that if one kind of relief is denied another may be granted, has no application here. This rule had -application in Cooper v. U. S., 220 Fed. 867, 136 C. C. A. 497. The patent was obtained by fraud on the part of Frick. Cooper was a party to the fraud, and subsequently took title from Frick, and sold the land to Heaton, an innocent purchaser on contract, the conditions of which had not been fulfilled, and—

“It was decreed, therefore, in effect, that Cooper pay to the government the amount of such purchase price to be received by him from Heaton, and that it he declared a lien on the land in Heaton’s hands.”

The motion of the defendant Donovan to dismiss must be granted, as also the motion of the Bellingham Bay Improvement Company, so far as it relates to the Donovan amendments and parts of the sixteenth paragraph of the second amended complaint above set out. An amendment should not be permitted where it changes the nature of the action and the relief sought, and “rarely, if ever, be permitted where it would materially change the very substance of the case made by the bill. * * * Hardin v. Boyd, 113 U. S. 756, 761, 5 Sup. Ct. 771, 773 (28 L. Ed. 1141).

What has been said determines the remedy invoked, and, this being an equitable action, other issues ráised by the motions can be disposed of upon the trial without prejudice to any party. Except as herein indicated, the motions are denied.