March 16, 1876, that any of the lands in controversy were relected by the company,-an average of 10 years after the rights of defendants had vested. We are of opinion that the defendants had the right to do this in regard to any but the odd sections within the sixmile limit; that there was no contract between the United States and plaintiff which forbid it. No right existed in plaintiff to all these lands, or to any specific sections of them, during this period; no obligation of the government to withdraw them from sale until plaintiff filed a map definitely showing the entire line of its road in the general land-office. The defendants purchased from officers who had the power to sell. They acquired a valid title. If plaintiff has been injured it is by its own laches. If there is no land to satisfy its demand, it is because it delayed over three years to file its map to establish the line of its road, and for years afterwards to make selections. It is unreasonable to say that during all that time these valuable lands were to be kept out of the market, when the country was rapidly filling up with an agricultural population, settling and making valuable farms on them.

The judgments of the supreme court of Iowa are affirmed.

ACTION TO QUIET TITLE-PREREQUISITES-JURISDICTION OF FEDERAL COURTS— STATUTES OF STATE.

In those states where the action of ejectment is abolished, and any one claiming title to real estate is authorized by statute to bring an action against any adverse claimant for the purpose of quieting his title, it is not necessary, as was the case at common law in bills for similar purposes, that the plaintiff, to maintain his action, should either be in possession or have obtained a previous judgment in favor of the validity of his title.

A federal court, sitting in such a state as a court of equity, has jurisdiction to give the relief accorded by the statute, although a bill in equity could not formerly have been supported in such a case, and though the domain of equity is enlarged thereby.

Appeal from the Circuit Court of the United States for the District of Nebraska.

C. S. Montgomery, for appellant.

T. M. Marquette, for appellee.

*FIELD, J. This is a suit in equity to quiet the title of the plaintiff to certain real property in Nebraska as against the claim of the defendant to an adverse estate in the premises. It is founded upon a statute of that state which provides "that an action may be brought and prosecuted to final decree, judgment, or order by any person or

persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest and quieting the title to such real estate." The bill alleges that the plaintiff is the owner in fee-simple and entitled to the possession of the real property described. It then sets forth the origin of his title, particularly specifying the deeds by which it was obtained, and alleges that the defendant claims an adverse estate or interest in the premises; that the claim so affects his title as to render a sale or other disposition of the property impossible, and that it disturbs him in his right of possession. It therefore prays that the defendant may be required to show the nature of the adverse estate or interest claimed by her; that the title of the plaintiff may be adjudged valid and quieted as against her and parties claiming under her, and his right of possession be thereby assured; and that the defendant may be decreed to have no estate in the premises and "be enjoined from in any manner injuring or hindering" the plaintiff in his title and possession. The defendant demurred to the bill, on the ground that the plaintiff had not made or stated such a case as entitled him to the discovery or relief prayed. The court below sustained the demurrer and dismissed the bill. From this decree the case is brought here on appeal.

It does not appear from the record in what particulars it was contended in the court below that the bill is defective; that is, in what respect it fails to show a right to the relief prayed. We infer, however, from the briefs of counsel that the same positions now urged in support of the decree were then urged against the bill; that is, that the title of the plaintiff to the property has not been by prior proceedings judicially adjudged to be valid, and that he is not in possession of the property-the contention of the defendant being that, when either of these conditions exist, a court of equity will not interpose its authority to remove a cloud upon the title of the plaintiff, and determine his right to the possession of the property. The statute of Nebraska enlarges the class of cases in which relief was formerly afforded by a court of equity in quieting the title to real property. It authorizes the institution of legal proceedings, not merely in cases where a bill of peace would lie, that is, to establish the title of the plaintiff against numerous parties insisting upon the same right, or to obtain repose against repeated litigation of an unsuccessful claim by the same party, but also to prevent future litigation respecting the property by removing existing causes of controversy as to its title, and so embraces cases where a bill quia timet to remove a cloud upon the title would a lie.

A bill of peace against an individual reiterating an unsuccessful claim to real property would formerly lie only where the plaintiff was in possession, and his right had been successfully maintained. The equity of the plaintiff in such cases arose from the protracted litiga,

tion for the possession of the property which the action of ejectment at common law permitted. That action being founded upon a fictitious demise, between fictitious parties, a recovery in one action constituted no bar to another similar action, or to any number of such actions. A change in the date of the alleged demise was sufficient to support a new action. Thus the party in possession, though successful in every instance, might be harassed and vexed, if not ruined, by a litigation constantly renewed. To put an end to such litigation and give repose to the successful party, courts of equity interfered and closed the controversy. To entitle the plaintiff to relief in such cases, the concurrence of three particulars was essential. He must have been in possession of the property; he must have been disturbed in its possession by repeated actions at law; and he must have established his right by successive judgments in his favor. Upon these facts appearing the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief could be afforded against vexatious litigation and the irreparable mischief which it entailed. Ad. Eq. 202; Pom. Eq. Jur. § 248; Stark v. Starrs, 6 Wall. 409; Curtis v. Sutter, 15 Cal. 259; Shipley v. Rangeley, Daveis, (3 Ware,) 242; Devonsher v. Newenham, 2 Schoales & L. 208.

In most of the states in this country, and Nebraska among them, the action of ejectment to recover the possession of real property, as existing at common law, has been abolished with all its fictions. Actions for the possession of such property are now not essentially dif ferent in form from actions for other property. It is no longer necessary to allege what is not true in fact and not essential to be proved. The names of the real contestants must appear as parties to the action, and it is generally sufficient for the plaintiff to allege the possession or seizin by him of the premises in controversy, or of some estate therein, on some designated day, the subsequent entry of the defendant, and his withholding of the premises from the plaintiff; and although the plaintiff may in such cases recover, when a present right of possession is established, though the ownership be in another, yet such right may involve, and generally does involve, a consideration of the actual ownership of the property; and in such cases the judgment is as much a bar to future litigation between the parties, with respect to the title, as a judgment in other actions is a bar to future litigation upon the subjects determined. Where this new form of action is adopted, and this rule as to the effect of a judgment therein obtains, there can be no necessity of repeated adjudications at law upon the right of the plaintiff as a preliminary to his invoking the jurisdiction of a court of equity to quiet his possession against an asserted claim to the property. A bill quia timet, or to remove a cloud upon the title of real estate, differed from a bill of

peace in that it did not seek so much to put an end to vexatious litigation respecting the property, as to prevent future litigation by removing existing causes of controversy as to its title. It was brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the court was invoked because the party feared future injury to his rights or interests. Story, Eq. § 826. To maintain a suit of this character it was generally necessary that the plaintiff should be in possession of the property, and, except where the defendants were numerous, that his title should have been established at law or be founded on undisputed evidence or long continued possession. Alexarder v. Pendleton, 8 Cranch, 462; Peirsoll v. Elliott, 6 Pet. 95; Orton v. Smith, 18 How. 263.

The statute of Nebraska authorizes a suit in either of these classes of cases without reference to any previous judicial determination of the validity of the plaintiff's right, and without reference to his possession. Any person claiming title to real estate, whether in or out of possession, may maintain the suit against one who claims an adverse estate or interest in it, for the purpose of determining such estate and quieting the title. It is certainly for the interest of the state that this jurisdiction of the court should be maintained, and that causes of apprehended litigation respecting real property, necessarily affecting its use and enjoyment, should be removed; for so long as they remain they will prevent improvement, and consequent benefit to the public. It is a matter of every-day observation that many lots of land in our cities remain unimproved because of conflicting claims to them. The rightful owner of a parcel in this condition hesitates to place valuable improvements upon it, and others are unwilling to purchase it, much less to erect buildings upon it, with the certainty of litigation and possible loss of the whole. And what is true of lots in cities, the ownership of which is in dispute, is equally true of large tracts of land in the country. The property in this case, to quiet the title to which the present suit is brought, is described in the bill as unoccupied, wild, and uncultivated land. Few persons would be willing to take possession of such land, inclose. cultivate, and improve it, in the face of a disputed claim to its ownership. The cost of such improvements would probably exceed the value of the property. An action of ejectment for it would not lie, as it has no occupant; and if, as contended by the defendant, no relief can be had in equity because the party claiming ownership is not in possession, the land must continue in its unimproved condition. It is manifestly for the interest of the community that conflicting claims to property thus situated should be settled, so that it may be subjected to use and improvement. To meet cases of this character, statutes like the one of Nebraska have been passed by several states, and they accomplish a most useful purpose. And there is no good reason why the right to relief against an admitted obstruction to the cultivation, use, and improvement of lands thus situated in the states

should not be enforced by the federal courts, when the controversy to which it may give rise is between citizens of different states.

In Clarke v. Smith, 13 Pet. 195, a doctrine is declared, with reference to the legislation of Kentucky as to the removal of clouds upon titles to land, which seems to us to be applicable here, and to be decisive of this point. A law of that state, regulating proceedings in the courts of chancery, provided "that any person having both the legal title to and possession of land may institute a suit against any other person setting up a claim thereto, and if the complainant shall be able to establish his title to such land, the defendant shall be decreed to release his claim thereto and pay the complainant his costs, unless the defendant shall by answer disclaim all title to such lands, and offer to give such release to the complainant." Under that act, the complainant Clark filed a bill in the circuit court of the United States to compel the defendant to release the title claimed by him to certain lands, under patents from the state of Kentucky, obtained years after the registration of the survey of the ancestor of the complainant and patent to him. The circuit court heard the evidence of the parties as to their respective claims, and was of opinion that the complainant had established a legal title to the premises under a valid grant from the commonwealth, and was in possession at the commencement of the suit, and that the defendant had not shown any right or title, either in law or in equity, to the land or any part of it; but being divided in opinion on the question of the jurisdiction of the court to compel the defendant to execute a conveyance, the bill was dismissed. On the case coming here, the decree below was reversed. In giving its decision this court referred to the unsettled condition of titles in Kentucky, and observed that "conflicts of title were unfortunately so numerous that no one knew from whom to buy or take lands with safety, nor could improvements be made without great hazard by those in possession, who had conflicting claims hanging over them, and which might thus continue for half a century; the writ of right being limited to fifty years in some cases, that is, where it was brought upon the seizin of an ancestor or predecessor, and to thirty years if on the demandant's own seizin. During all which time the party in possession had no power to litigate, much less to settle the title at law, though he might be harassed by many actions of ejectment, and his peace and property destroyed, although always*successful, by no means an uncommon occurrence. This evil it was the object and policy of the legislature to cure, not so much by prescribing a mode of proceeding as by conferring a right on him who had the better title and the possession to draw to him the outstanding inferior claims." And again: "Kentucky has the undoubted power to regulate and protect individual rights to her soil, and to declare what should form a cloud on titles; and, having so declared, the courts of the United States, by removing such clouds, are only applying an old process to a new equity created by the leg