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Plaintiff could not have been misled to its prejudice by any such variance as is here complained of; it was the duty of the court, therefore, to disregard it: Laws 1884, p. 211, sec. 340; p. 212, sec. 346; Began v. O'Reilly et al.. 32 Cal., 11; Peters v. Foss, 20 Cal., 591; Gay v. Winter, 34 Cal., 153; Quackenbush v. Sawyer, 54 Cal., 441; James v. Goodenough, 7 Nev., 326; Burnham v. Call, 2 Utah, 433.

ZANE, C. J.:

This is an appeal from a judgment rendered in the first district court on a cross-complaint filed by respondents. Reversal of the judgment is asked on account of alleged errors in every stage of the proceedings. The alleged errors that are deemed most important, and those upon which chief reliance was placed during the hearing will be separately considered.

The appellant alleged in its complaint ownership in fee and lawful possession of lot No. 76, (describing it;) and appellant further alleged that there was in said lot a lode of rock in place, bearing silver and other valuable minerals, having its apex wholly within the surface lines thereof; that on and subsequently to the third day of January, 1883, and before the institution of this suit, the defendant company, claiming to be in the possession of the Eureka mine, adjoining plaintiff's claim on the east, had extended its underground workings into the claim of the plaintiff, and had taken therefrom 2,000 tons of ore of the value of $150,000; that the defendant company was still working, and threatening to continue, and is thereby committing waste and irreparable injury upon plaintiff's property, which is valuable for its ore alone; and plaintiff asked for judgment, for an injunction during the pendency of the suit, and for a perpetual injunction upon the trial.

Answering the foregoing complaint, the defendant company admitted that it claimed to be a corporation, and that it was in the possession of the Eureka Hill mining claim, lying immediately east of lot No. 76, but denied all the other material allegations. The defendant company also filed a cross-complaint, and alleged ownership of the

Eureka Hill mining claim known as lot No. 39, (describing it); and further alleged that it claimed a lode of rock in place therein, bearing silver and other precious metals for its entire width; that it was older in location and title than the Bullion claim; that the Eureka lode was very wide, and dipped westerly; that a small and comparatively unimportant part of the width thereof was west of the westerly surface line of lot No. 39; that the main part of the width of the vein, and its apex for the entire length of the lot, was within lot No. 39; that for more than one year past appellant had been in possession of lot No. 76, claiming to own it, and asserting an adverse claim to about 700 feet of the northerly end of the Eureka lode, and claiming that the same was part of the appellant's claim; that in pursuance of such adverse claim, and in the assertion thereof, the plaintiff had sunk a shaft in the surface of lot No. 76, near the defendant company's side line, and had extended it into defendant company's lode, and had taken therefrom a large quantity of valuable ores, carrying silver and other metals, and had appropriated the same to its own use, thereby wasting and causing irreparable damage to defendant company's property; that plaintiff continued, by said work, and by this action and otherwise, to assert its adverse claim, and, as defendant company was informed and believed, threatened to continue and would continue said. work, and would further waste defendant company's property, unless restrained by injunction; and the defendant company prayed that plaintiff's action be dismissed; that its adverse claim to said lode, or any part thereof, be adjudged invalid; that the title and possession of the defendant company to such lode, for the entire length of the lot and width of the lode, although some part thereof be in lot No. 76, be quieted and confirmed; that appellant be enjoined pending the action, and upon trial perpetually; and that defendant company have such other and further relief as might be proper.

To this cross-complaint the appellant interposed a general demurrer, alleging that the facts stated did not constitute a cause of action, and also answered fully.

The court overruled the demurrer, and the appellant as

signs that ruling as error. In the cross-complaint an attempt was made to describe the property affected, the right of the defendant company to it, and the wrong committed by appellant. Are these three facts sufficiently alleged? and, if so, do they, with the other allegations, show a cause of action?

First. As to the description of the property. The property consists-First, of the lot, and secondly, of the lode. The term "lot" has one signification; the term "lode" another. The lot consists of a certain number of feet in length and breadth, and is easily ascertained by measurement on the surface. There is no contention as

to the description of the lot in this case. The lode consists of aggregations of peculiar matter, and its form can only be found, and its limits determined, by discerning and identifying the qualities and appearances of its composition. In some cases the apex of a vein crops out on the surface; in others it is found a hundred feet or more beneath the surface, and in such a case it can be known with certainty only by the expenditure of time, much labor, and large sums of money. The law does not require impossibilities in describing the subjects of litigation, but reasonable certainty in view of the difficulties. We hold, therefore, that the description of the property is sufficient on a general demurrer. When we reach the question of variance, we will have occasion to consider the allegations of description further. We will defer the consideration of the question raised by the demurrer as to the respondent company's right to that part of the lode in question, and will consider it with respondent company's right, as the same appears from the evidence; because, if no variance between the allegation and proofs are found, the legal questions will be identical, and it will be more convenient to consider them together.

With respect to the wrong complained of for which a remedy is sought by the cross-complaint, the appellant affirms that it is not shown that the wrong affected the property to which the plaintiff's action relates: Section 305, Code Civil Proc., (Laws Utah, 1884), is as follows: "Whenever the defendant seeks affirmative relief against

any party, relating to or depending upon the contract or transaction upon which the action is sought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court, subsequently, a cross-complaint..

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The appellant instituted the original action to recover damages of respondent for alleged trespass upon the lode or ore bodies described in its complaint, and to restrain further trespass thereon. The respondent company alleged in its cross-complaint that plaintiff in the original action had set up an adverse claim to 700 feet of its lode, and had asserted, and still was asserting, such claim by the original action, and otherwise. Both wrongs, as alleged, must have affected the same property. The contentions of the original and cross-actions relate to the same property.

When this case was called for trial in the court below, the plaintiff was unwilling to proceed in the absence of certain witnesses necessary to prove the execution of a contract which it was claimed affected the rights of the parties to the property in dispute; and, to prevent an application for a continuance, the parties stipulated in writing, as we construe the paper, that any rights which the parties might have under that contract should not be litigated in this action, or in any way affected by any decision, finding, judgment, or decree therein, and to that extent (it was further stipulated) the pleadings should be modified. The rights of the parties remaining to be litigated and determined, were such as existed without regard to the contract, and the cross-cause of action was not stricken out as appellant claims.

The appellant also contends that the cross-complaint does not state a good equitable cause of action. By section 620 of the Code of Civil Procedure, supra, "an action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claim." The language used in this section is very comprehensive. In terms, it authorizes an action by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such ad

verse claim. Whether the action shall be legal or equitable must be determined by the facts of the case. In 1 Story, Eq: Jur., sec. 76, speaking of the concurrent jurisdiction of equity, the learned author says: "The concurrent jurisdiction, then, of equity, has its true origin in one of two sources; either the courts of law, although they have general jurisdiction in the matter, cannot give adequate, specific, and perfect relief, or, under the actual circumstances of the case, they cannot give any relief at all. The former occurs in all cases when a simple judgment for the plaintiff or for the defendant does not meet the full merits and exigencies of the case, but a variety of adjustments, limitations, and cross-claims are to be introduced and finally acted on, and a decree meeting all the circumstances of the particular case between the very parties is indispensable to distributive justice. The latter occurs when the object sought is incapable of being accomplished by the courts of law; as, for instance, a perpetual injunction or a preventive process to restrain trespass, nuisance, or waste. It may therefore be said that the concurrent jurisdiction of equity extends to all cases of legal rights when, under the circumstances, there is not a plain, adequate, and complete remedy at law." The author, in the quotation, instances certain classes of cases in illustration of the application of the principles that he states. He mentions one class in which a simple judgment for the plaintiff or for the defendant would not meet the full merits and exigencies of the case; another in which a variety of adjustments, limitations, and cross-claims are to be introduced; another in which a perpetual injunction or preventive process is necessary to restrain trespass, nuisance, or waste.

In the case of Livingston v. Livingston, 6 Johns. Ch. 497, in delivering the opinion, Chancellor Kent said: "Lord Eldon repeatedly suggested the propriety of extending the injunction to trespass as well as waste, and on the ground of preventing irreparable mischief, and the destruction of the substance of the inheritance. The distinction on this point between waste and trespass, which was carefully kept up during the time of Lord

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