mms ·v. mnnnnn. ll
claiming ownership is not in possession, the land must continue in its unim-
proved condition. It is manifestly for the interest of the community that con-
flicting claims to property thus situated should be settled, so that it may be sub-
jected 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. * * * There can be no controversy at law respecting the title to
or right of possession of real property when neither of the parties is in posses-
sion. ,* * *, Undoubtedly, as a foundation for the relief sought, the plain-
tiff must show that he has alegal title to the premises, and generally that title
will be exhibited by convcyances or instruments of record, the construction
and effect of which will properly rest with the court. * * * But should
proofs of a different character be produced, the controversy would still be one
upon which a court of law could not act. It is not an objection to the juris-
diction of equity that legal questions are presented for consideration which
might also arise in a court of law. If the controversy be one in which a court
of equity only can afford the relief prayed for, its jurisdiction is unaffected
_ by the character of the questions involved. " I
The principle issaid to be somewhat analogous to the jurisdiction
{entertained by courts of equity to compel a person having a prima
facie right of action to put it in suit in a reasonable time, and in de- .
fault to protect the party liable from being molested at law. Spence,
Eq. Jur. [659,] note 9. , V
"The jurisdiction of a court of equity to set aside deeds and other
legal instruments which are a cloud upon the title of real estate, and »
to order them to be delivered up and canceled, appears to be now
fully established." Willard, Eq. Jur. 304.
A terse and comprehensive statement of the principle upon which
the jurisdiction is founded, is contained in Marsh v. City of Brooklyn,
5,9 N. Y. 280. Judge Forces, delivering the opinion of the court,
said:
" When the claim or lien purports to affect real estate, and appears on its
face to be valid, when the defect in it can be made to appear only by ex-
trinsic evidence, which will not necessarily appear in a proceeding by the
claimant thereof to enforce the lien, there is a case presented for invoking
the aid of a court of equity, and to remove the lien which is a cloud upon
the title." , y
Mr. Pomeroy, in his valuable treatise on Equity Jurisprudence, lays
it down that courtsof equity have jurisdiction to remove cloudsfrom
title where the title to be protected is equitable in its nature, or where
the title is legal and the remedy at law is inadequate, (section 1399 ;)
and in a note to this section the learned author shows the statement
of the text is supported by the general, though not quite uniform,
doctrine of theauthorities in this country. On the precise question
in the case at 'bar he says: T
"Where, on the other hand, ·a party out of possession has anrequitable title,
or where he holds the legal title under circumstances, that the law cannot
/ `