
    SCOTT v. MEANS.
    
      (Court of Appeals of Kentucky,
    
    
      October 19, 1882).
    
    Equity Jurisdiction. The mere fact of a controversy about a boundary, will not furnish ground for the exercise of the jurisdiction of a Court of Equity. There must be some peculiar equity superinduced, or, in such case, the party will be left to the law for redress.
   Hargis, C. J.

This was an action in equity for the purpose of ascertaining the boundary, and quieting, the title to certain lands which the appellees, who were plaintiffs in the Court below, allege belong to them.

The petition described the chain of paper title under w’hich the plaintiffs assert their title to exist, alleges that they are in legal possession of the lands to the extent of the patent boundaries, and that the defendants are constantly encroaching upon the boundary and possession of the plaintiffs, and devastating the timber, and are insolvent.

They pray for an injunction against defendants, restraining them from committing any other trespasses upon the land, that the lines be made definite and certain, .and plaintiffs quieted in their title and possession.

To the petition the defendants filed a demurrer, which the Court overruled.

The petition is in the nature of a bill to fix a controverted boundary, and a bill of peace.

The mere existence of a controversy about a boundary will not furnish ground for the exercise of the jurisdiction of a Court of Equity. There must be some peculiar equity super-induced, or, in such a case, the party will be left to the law for redress. ,

The petition does not disclose that there is a controversy between the parties as to the location of the boundary. It simply alleges that the defendants have trespassed upon their lands and slandered their title; and failing to allege any equitable consideration, or to seek damages for the alleged trespass, or to recover the possession of the land, the petition did not state a cause of action within the equitable jurisdiction of the Court. Nor can it be sustained as a bill of peace, as that must be preceded by the establishment of the right dr title at law. It is manifest, from the petition, that the whole object of the plaintiffs was to fix a certain line as a boundary between the parties, so that the future benefit of such a decree could be realized in actions for trespass or ejectment, wherein the title, or the title and possession would he involved.

As the petition states no cause for action which is embraced by the exclusive or concurrent jurisdiction of a Court of Equity before the adoption of our Code, we are led to consider whether it states any cause of action at law.

The judgment of the Circuit Court aptly illustrates the inconsistency which legally exists between the alleged facts set forth in the petition and the relief sought by plaintiffs.

That judgment decrees that the boundary between the parties is at a certain place specified by processioners, perpetuates the injunction, and gives cost.

The judgment perpetuating the injunction is merely an ancillary part of the relief prayed by the plaintiffs, and does not strengthen the cause of action, or render harmonious the relief sought and the facts stated in the petition.

The cost is .incidental to the judgment, so that the relief prayed and the relief granted expose the true object of the plaintiff’s suit, which is without support either by law or in equity.

J. & J. W. Rodman, for appellants.

Moore & ~Wadsworth, for appellees.

It is without foundation at law, because courts of law' cannot render a judgment establishing boundary unless damage or possession be sought.

And it has no support in equity, because there is no equity alleged ii> the petition.

The controversy developed by the record between the parties could be settled by a single action at law, and they should have been required- to pursue the remedies of that branch of jurisprudence.

Wherefore, the judgment is reversed and cause remanded, with directions to sustain the demurrer, and for such further proceedings as may be sought by the parties, not inconsistent with this opinion.  