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In the latter case, at page 293, in referring to the statute of Arizona, in terms precisely like section 3511, supra, it is said:

"The manifest intent of the statute

is that any person own

ing real property, whether in possession or not, in which any other person claims an adverse title or interest, may bring an action against him to determine the adverse claim and to quiet the plaintiff's title. It extends to cases in which the plaintiff is out of possession, and the defendant is in possession, and in which, at common law, the plaintiff may have maintained ejectment. An allegation, in ordinary and concise language, of the ultimate fact that the plaintiff is the owner in fee is sufficient, without setting out matters of evidence, . . . and an allegation that the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer."

The section was also referred to by Mr. Chief Justice Straup in Wey v. Salt Lake City, 101 Pac. 381, 35 Utah 504, where it was held that section 3511 has "enlarged the ancient jurisdiction of courts of equity in respect of suits to quiet title and to determine adverse claims." The foregoing is in strict harmony with the holding of the Supreme Court of the United States, as is manifest from what we have quoted from that court, and is likewise in harmony with the holding of the Supreme Court of California, as appears from the case cited and from other cases. Without referring to other cases it is sufficiently clear that under the authorities the complaint stated a cause of action, and the court therefore committed no error in overruling the de

murrer.

The contention that because respondent relied wholly upon his legal title the action was one at law, and not in equity, and that appellants were therefore entitled to a jury trial, in view of the record, is not tenable. Assuming, without deciding, that where in an action based on section 3511 a plaintiff relies upon his legal title merely, the defendant is entitled to a trial by jury, yet that question is not properly before us for determination. In this state a jury in civil actions is waived unless demanded. Section 10, art. 1, of the Constitution provides that "a jury in civil cases shall be waived unless demanded." Pursuant to this provision, section 3129, Comp. Laws 1907, was adopted. That sec tion, in substance, provides that a jury must be de

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such action for trial or within such reasonable time
thereafter as the court may order
and [the appli-
cant] must at the same time deposit with the clerk the
sum of five dollars." In State v. Cherry, 22 Utah, 1, 60
Pac. 1103, this court held that the provisions of the forego-
ing statute were not in conflict with section 10, art. 1, of the
Constitution, and that in order to be entitled to a jury a
party must make the demand and deposit as the statute re-
quires. In this case there is nothing to indicate that the
respondent ever demanded a jury. Upon the contrary, the
usual preliminary statement to the findings of fact signed by
the judge is that "a jury having been waived by the re-
spective parties, the court, sitting without a jury," proceeded
to try the case. If the action, therefore, had been a law
action, pure and simple, appellants are not in a position to
claim error upon the grounds that they were deprived of a
jury trial. Nor can the contention prevail that appellants
were misled by the form of the action, and therefore did not
demand a jury. They must be deemed to have known that
respondent might rely upon his legal title merely. In view
of section 3511 he had a choice of remedies. He could sue
in ejectment or under said section. In either case,

if
appellants desired a jury trial, they were required
to demand a jury in accordance with the statute,
which they have not done.

3

It is also asserted that there is no evidence to sustain the court's findings that the respondent was entitled to the possession of the land in controversy. We have already pointed out that a party out of possession may bring an action under section 3511, as well as one in possession, and that he need not allege that he is in or entitled to possession. If this need not be alleged, it need not be proved. So far as appellants were concerned, it was quite sufficient if the respondent established that the legal title was in him, and that the appellants had no right, title, or interest adverse to him in the premises in controversy. If they had no valid

claim to, or interest in, the premises in question, the 4, 5

respondent's title, as against them at least, ought to prevail. But, if we assume that, in view that respondent had alleged in his complaint that he was entitled to possession, therefore he had to support this allegation by proof, we think the record discloses that he did so. When he had proved the legal title was in him, then the law presumed that he was in constructive possession, and, in the absence of all evidence to the contrary, that he was entitled to the actual possession. (Flood v. Templeton, 152 Cal. 148, 92 Pac. 7884, 13 L. R. A. (N. S.) 579; Cottrell v. Pickering, 32 Utah, 62, 88 Pac. 696, 10 L. R. A. [N. S.] 404.) If the finding was at all material, it was therefore supported by sufficient evidence.

6

The contention that the finding of the court that the property described in the complaint was included within the description contained in the patent introduced in evidence is not supported by evidence cannot be sustained. It is true that there was no direct evidence offered by respondent to show that the property described in the complaint was included in the patent which was introduced in evidence. Such proof was, however, made unnecessary by the admissions of appellant's counsel, the substance which we have set forth in this opinion. The admissions made by counsel that the description in the deeds offered by respondent included the land described in his complaint also covered the patent. As appears from the patent, one Lorenzo Pettit was the grantee therein. The land in controversy is only a small portion of the lands described in the patent, and this is likewise true with regard to a number of the deeds offered in evidence. When the patent was offered in evidence no objection was made that the land in controversy was not covered by the patent. The next deed in the chain of title offered in evidence was one from Lorenzo Pettit, the grantee in the patent, to one Samuel M. Green. The admission that the description in all the deeds referred to covered the land in controversy was made when this deed was being discussed and offered in evidence; and, as this deed directly referred to the patent, and as Mr.

Pettit, by this deed, conveyed a part if not all the lands described in the patent to Mr. Green, the admission covered the land in the patent, as well as in the subsequent deeds. To hold otherwise would result in permitting appellants to take advantage of a mere technicality. To prove that the land in question was included within the description contained in the patent and deeds, all of which described more land, or at least by a different description than the description contained in the complaint, was merely a formal matter, and no doubt would have been affirmatively met by respondent, if counsel for appellants had not frankly admitted that the land in controversy was in fact covered by the descriptions contained in the instruments offered in evidence in support of respondent's title. It is apparent, therefore, that both the court and counsel assumed and were justified in assuming, that counsel for appellant conceded that the description in the complaint was in fact covered by the description contained in the patent and deeds offered in evidence by respondent, and that no other identification except counsel's admission was required. This, in our judgment, was the purpose, and is clearly the effect of counsel's admission, and hence the court did not err in making the finding complained of.

All the other assignments made by appellants, except the one relating to the bill of exceptions, are covered by what has already been said, and hence need no further consideration. The contention that the court erred in incorporating certain matters into the bill of exceptions, in review of the result reached, is immaterial. Nor is it necessary to refer to respondent's assignment of cross-errors. These, as well as all other objections urged by him, are immaterial, in

view of the result.

ent.

The judgment is therefore affirmed, with costs to respond

STRAUP, C. J., and MCCARTY, J., concur.

SALT LAKE CITY v. HOWE.

No. 2050. Decided January 10, 1910 (106 Pac. 705).

1. FOOD ORDINANCES-VALIDITY-POLICE POWER-SALE OF MILKOTHER PROVISIONS. Comp. Laws 1907, sec. 206, subd. 44, authorizes municipal corporations to regulate the sale of meats, fish, butter, and all other provisions. Subdivision 45 authorizes them to provide for, and regulate, the inspection of meats, butter, etc., and all other provisions. Subdivision 65 authorizes regulations to secure the general health of the city, and prevent the introduction of contagious disease, and subdivision 88 authorizes cities to pass all ordinances, and make all regulations necessary to preserve the health of the inhabitants. Held, that a municipality was authorized to enact an ordinance regulating the inspection and sale of milk and making it an offense to sell milk within the city without a permit from the city food and dairy commissioner, though milk was not specifically included in the statutes as a subject of regulation, it being included in the term "other provisions" in subdivisions 44 and 45, and the ordinance was also authorized under the city's power under subdivisions 65 and 88 to enact ordinances for the protection of health. (Page 173.)

2. MUNICIPAL CORPORATIONS-POLICE POWERS-LEGISLATIVE AUTHORITY-CONCURRENT REGULATIONS. The Legislature can confer police powers upon a city over subjects included within existing statutes, and authorize it to prohibit and punish by ordinance acts which are also prohibited and punishable by the statute. (Page 174.) 3. MUNICIPAL CORPORATIONS- -ORDINANCES-VALIDITY-CONFLICT WITH STATUTES-PENALTIES. An ordinance made it unlawful to bring milk into the city to sell or offer for sale without a permit from the city dairy and food commissioner, and imposed a penalty for its violation of not less than fifty dollars or more than two hundred dollars, or by imprisonment in the city jail for not more than one hundred days, or both. Comp. Laws 1907, tit. 18, secs. 729746x39, creates the office of state dairy and food commissioner, prescribes his powers and duties, and prohibits the sale of improper milk and other dairy products, but does not otherwise regulate the sale of milk or require a license for its sale. The penalty imposed for its violation is a fine of not less than fifty dollars or more than two hundred dollars. Held that, as the statute did not prohibit and punish the same acts as the ordinance, the latter did not conflict with the statute in imposing a different penalty than provided by it, and was valid; Comp. Laws 1907, sec. 206, subd. 88, permitting the punishment of violations of ordinances by fine in any sum less than three hundred dollars, or imprisonment not exceeding six months, or both. (Page 175.)

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