It is contended by appellant that it does not appear from the cross-complaint herein that the affirmative relief therein sought relates to or affects the property to which the action relates.

In considering this objection it will be borne in mind. that no demurrer was interposed on the ground of uncertainty or ambiguity.

It may be conceded that defendant's cross-complaint was not drawn with the precision that it might have been. Nevertheless, in the absence of a special demurrer, if it can be ascertained therefrom that the relief therein sought affects the property to which the action relates, it is sufficient, no matter how defective or argumentative the allegation.

Now it is alleged in the cross-complaint that plaintiff. asserts an adverse claim to the property therein described; and it further alleges how the assertion is made, namely: "By the bringing of this action.” This allegation is admitted by the general demurrer. Now plaintiff's action is brought to recover damages for an alleged trespass by defendant on the property described in plaintiff's complaint. The bringing of such action could not be an assertion of an adverse claim to the property described in the cross-complaint unless the property described in the latter was the same as that described in plaintiff's complaint.

Uncertainty, ambiguity or any other defect in the manner or form of the allegation is waived by a failure to demur specially. Such is the express provision of the statute. And the rule always was that all defects in the form of the allegation-for instance that it was not sufficiently direct and express-were cured by verdict: Garver v. Marshall, 9 Cal., 269; Happe v. Stout, 2 Cal., 460; Garcia v. Satenstegin, 4 Cal., 244; People v. Raines, 23 Cal., 127.

A party in possession of real estate (or if the same be vacant) claiming to own the same or some interest therein, whether the title on which he relies be legal or equitable, may file his bill to have his title quieted whenever another claims an estate or interest therein adverse to him. He

is no longer required to delay seeking the aid of a court of equity to quiet his title until he has been disturbed by the institution of an action against him and until judgment therein has passed in his favor.

To this extent right to equitable relief has been carried by the statute: See Laws 1884, p. 271, sec. 620, p. 194, sec. 237.

Neither can there be any doubt as to the validity of such legislation.

Whether the legislature intended to carry the remedy still farther, (as it has been in Indiana, Iowa and perhaps some other states; Green v. Glynn, and Rose v. Nees, 61 Ind., 336, 484; Lewis v. Soule, 52 Iowa, 11; Lees v. Wetmore, 58 Iowa, 170), and to permit one out of possession to maintain his bill against one in possession; and if so, whether such legislation would be in conflict with the constitution, are questions, we submit, which do not arise in this case and need not therefore be considered.

Curtis v. Sutter, 15 Cal., 260, was an action to quiet title brought under the statute of that state which provided: "An action may be brought by any person in possession by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him for the purpose of determining such adverse claim, estate or interest."

Judge Field, speaking for the court, says: "This statute enlarges the class of cases in which equitable relief could formerly be sought in the quieting of title. It authorizes interposition of equity in cases where previously bills of peace would not lie." After discussing the former jurisdiction of the courts of chancery and showing in what cases bills of peace would lie, he proceeds: "Under the statute of this state it is unnecessary for the plaintiff to delay seeking the equitable interposition of the court, until he has been disturbed in his possession by the institution of a suit against him, and until judgment in such suit has passed in his favor. It is sufficient if, whilst in possession of the property, a party out of possession claims an estate or interest adverse to him. He can immediately, upon knowledge of the assertion of such claim,

require the nature and character of the adverse estate or interest to be produced, exposed and judicially determined, and the question of title be thus forever quieted."

The following cases are to the same effect: C. P. Ry. Co. v. Dyer, 1 Sawyer, 641; Leggett et al. v. Cole, 1 McCrary, 515; Holland v. Challen, 110 U. S., 15; Collins v. McDuffer, 89 Ind., 562, Low v. Blackburn, 2 Nev., 70; Reynolds v. Crawfordsville Bank, 112 U. S., 405; Pom. Eq. Jur. Vol. 3, Secs. 1396-7 and notes.

The action to quiet title under statutes like that we are considering have been uniformly treated as equitable in their nature: Curtis v. Sutter, 15 Cal., 259; C. P. Ry. Co. v. Dyer, 1 Saw., 641; Holland v. Challen, 110 U. S., 15; Reynolds v. Bank, 112 U. S., 405; Balemaer v. Ofis, 4 Dill., 558; Leggett v. Cole, 1 McCrary, 515; Massir v. Stradford, 17 Ohio St., 597; Brandt v. Wheaton, 52 Cal., 430; Low v. Blackburn, 2 Nev., 70; Richardson v. Smith, 2 Utah, 425.

The regular and proper practice is to dispose of the equitable branch of the case first: Estrada v. Murphy, 19 Cal., 248; Lestrade v. Barth, 19 Cal., 660; Weber v. Marshall, 19 Cal., 447; Bodley v. Ferguson, 30 Cal., 512; Martin v. Zellerbach, 38 Cal., 300; Low v. Crown Point Mg. Co., 2 Nev., 75; Whittier v. Stage, 61 Cal., 238; Kimball v. McIntyre, 3 Utah, 77; Dobbs v. Kellogg, 53 Wis., 448; Massir v. Stradford, 17 Ohio St., 597.

But it is urged by appellant that defendant was not in a position to ask the equitable relief sought in its cross-complaint, because as appellant contends, it had a complete and adequate remedy at law; first, by way of defense to the action of trespass brought by plaintiff; and secondly, in the action of trespass which, as appears from the allegations of the cross-complaint itself, defendant might have instituted against plaintiff.

Neither action, we say, afforded defendant complete and adequate relief in neither action would defendant obtain the relief to which the statute entitled it.

Under the statute the owner of real property being in possession, is entitled, whenever another out of possession

makes an adverse claim of any estate or interest therein, to have the question of such asserted claim at once adjudicated and forever disposed of and the question of his title set at rest. In such case the decree becomes matter of record in enduring form, and if in his favor it ever after constitutes a muniment of his title. This is the measure of the relief to which he is entitled under the 'statute; it is manifest that he cannot obtain it, either as plaintiff or defendant, in an action of trespass.

The question of title is not necessarily involved in such action the right of the plaintiff therein to recover depends upon his possession as against the mere trespasser. And should the plaintiff in his complaint allege that he was the owner in fee simple absolute and deraign title to the premises by deed or other matter of record, and fail to prove or offer to prove the title so set out, yet as against the mere trespasser he would be entitled to recover upon proof of his possession merely.

In McCarson v. O'Connell, 7 Cal., 152, it is said: "Possession is sufficient to enable the plaintiff to maintain trespass, and although a higher title may be attempted to be set up, the failure to sustain it will not defeat the right to recover damages."

See also: Parker et al. v. Hotchkiss, 25 Conn., 321; Morse v. Marshall, 97 Mass., 519.

So in the action of ejectment. It is said in Sears v. Taylor, 4 Colo.: "In actions of ejectment against a mere intruder, proof of possession in plaintiff, and an entry amounting to an ouster by defendant, is sufficient to support a verdict, whether the plaintiff has declared in fee, or upon possession generally, or upon possession under district rules, without proof of such district rules or of title of record in any manner."

It follows that notwithstanding the pleadings are so framed as to put the title in issue and to enable a trial thereof, yet it is not necessarily involved, and as a matter of fact may not be litigated or determined. Hence, no matter what the verdict or judgment, the record will fail to show, on its face, whether or not the question of title has been adjudicated.

Again: No matter what the scope of the pleadings, the evidence may be so shaped as to confine the inquiry as to title or possession to the very point where the trespass is alleged to have been committed. The plaintiff in such action will often have it in his power to so confine it.

For aught the record in such action will disclose nothing but the right of possession to that very spot may have been passed upon, notwithstanding that as matter of fact the title may have been litigated, and the inquiry may have extended to the whole tract, or the whole ledge: Morse v. Marshall, 97 Mass., 519; Hall v. Mayo, 97 Mass., 416; Howard v. Albro, 100 Mass., 236; suppose the title of the owner in possession is maliciously slandered, and the party guilty of the wrong in pursuance of the slander brings his action of trespass against the owner. Appellant says: "In such case we are confined to our legal remedy, namely, a defense in such action." When the property involved is such as is in controversy here, it may require a long time, much development, works and vast expense to prepare for trial. In the meantime the owner, his title being assailed, is discouraged from expending the large sums of money necessary for machinery, etc., required in the search for the hidden treasures of his mine. And when at last we come to the trial the plaintiff may stand up in court and dismiss his trespass suit; and leave the question of title in as much uncertainty and as seriously clouded as before.

Under no circumstances, we submit, can the action of trespass afford the owner of real estate whose title is slandered, an adequate remedy for the injury done him. Clear it is, we think, that the relief he is entitled to under the statute cannot be gained in such action, nor any relief which is its equivalent.

In this connection we invite particular attention to the case of Ayres v. Bensley et al., 32 Cal., 620; and to the brief of respondent's counsel in that case.

It is also assigned as error that there was a variance between the allegations, in the cross-complaint, descriptive of the lode, and the proof, in that the evidence showed a broader lode than that described in the pleading.