                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-12-1997

Newfound Mgt Corp v. Lewis
Precedential or Non-Precedential:

Docket
96-7702




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Recommended Citation
"Newfound Mgt Corp v. Lewis" (1997). 1997 Decisions. Paper 259.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/259


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Filed November 12, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7702

NEWFOUND MANAGEMENT CORPORATION, GENERAL
PARTNER OF NEWFOUND LIMITED PARTNERSHIP,

v.

CEDRICK LEWIS, individually and in his capacity as
Administrator of the Estate of Bernard Williams;
IRVIN A. SEWER; LUCINDA ANTHONY; EARLE SEWER;
VIOLET SEWER; JASMINE SEWER; LOREL SEWER;
JUDITH CALLWOOD; LEON CALLWOOD; LORNE
CALLWOOD; PERSONS UNKNOWN WHO HAVE
ATTEMPTED TO OBSTRUCT CONSTRUCTION WORK ON
PLAINTIFF'S LAND,

       Cedrick Lewis, Appellant

APPEAL FROM THE
DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
(D.C. Civ. No. 91-cv-00315)

Argued April 9, 1997

Before: BECKER, ROTH and WEIS, Circuit Judges

Filed November 12, 1997

       Aurelia D. Rashid, Esquire
        (ARGUED)
       No. 8 Crystal Gade
       St. Thomas, US Virgin Islands
        00804

       Counsel for Appellant Cedrick Lewis




       Clair A. Carlson, Jr., Esquire
        (ARGUED)
       Alan Garber, Esquire
       Paul D. Boynton, Esquire
       Mason & Martin
       600 Atlantic Avenue
       Federal Reserve Plaza
       Boston, MA 02210
       Counsel for Appellee Newfound
       Management Corporation

OPINION OF THE COURT

WEIS, Circuit Judge.

In these consolidated cases of quiet title and trespass, a
crucial issue is the location of certain boundary lines.
Under the unique circumstances presented here, we
conclude that the district court properly established the
property lines in a bench trial before submission of the
other issues to a jury. We also determine that the court did
not err in its evaluation of the evidence and application of
survey law. Accordingly, we will affirm the district court's
order as certified under Federal Rule of Civil Procedure
54(b).

This litigation arises out of a long-standing dispute over
ownership and boundaries of property located on the
eastern end of the Island of St. John, United States Virgin
Islands. After severing common issues from an action to
quiet title and consolidating them with a trespass action,
the district court in a bench trial resolved most of those
points against defendants (various heirs and devisees) and
entered judgment in favor of plaintiff Newfound
Management Corporation. Newfound Mgmt. Corp. v. Sewer,
885 F.Supp. 727 (D.V.I. 1995). On stipulation of the
parties, the order was certified as final within the terms of
Fed.R.Civ.P. 54(b).

The facts and disputes presented in this case are
complex and multifarious. Indeed, the district court
remarked in a pre-trial ruling: "As with all land disputes in

                                2



the Virgin Islands, this one involves a large cast of
characters, hard feelings, and an often incomprehensible
genealogy." To avoid complicating matters unnecessarily,
we will recite only those facts essential to deciding the
issues on appeal.

Although litigation over the realty had taken place in
earlier years, the matter before us began in 1980 as a
probate action brought by persons claiming ownership of
certain tracts of land as rightful heirs of the 19th-century
owners. At stake were the title to and boundaries of parcels
located in the Hansen Bay and Newfound Bay Estates in
the East End Quarter of St. John.1 Included in the relief
requested was the appointment of Eric Christian as
Administrator of the Estate of James George Sewer, who
would then bring an action to quiet title to the parcels.

Christian filed the quiet title action on December 15,
1987. Defendant Cedrick Lewis, as Administrator of the
Estate of Bernard Williams, filed an answer in February
1988. Newfound intervened as a defendant in December
1988.

On the eve of trial in December 1993, the parties agreed
in general terms to a settlement. Seven months later, the
court entered a detailed consent judgment in the quiet title
action that resolved most issues, but left others for future
determination. Over the objections of Newfound, the court
directed that the adverse claims of Newfound, the Estate of
Bernard Williams as represented by Lewis, and the heirs of
Martin Sewer to parcels designated 6-P Hansen Bay and
7-A Hansen Bay would be severed and consolidated for trial
with the pending injunction/trespass action brought by
Newfound on August 16, 1991.

In that suit, Newfound had asked for an injunction,
alleging that several individuals had repeatedly blocked
_________________________________________________________________

1. The colorful names given to the land date back, in part, to Danish
Colonial times when the rural parts of the Virgin Islands were divided
into large tracts for agricultural purposes called "Estates." Each
"Estate"
was given a distinctive name. Estates in close proximity to each other
were grouped together and designated as "Quarters." Dudley v. Meyers,
422 F.2d 1389, 1390 (3d Cir. 1970).

                                3



access to the land under development by Newfound and
stopped construction work underway. Named as defendants
were Lewis, the Sewer heirs, and unknown persons who
had attempted to prevent development of the land. In
addition to obstruction, which apparently occurred on
parcel 6-O-1, Newfound charged defendants with
vandalism, as well as threats of violence, trespass, slander
of title, and interference with business relations.

In his answer to Newfound's trespass action, Lewis
disputed the boundary lines of parcel 6-P and neighboring
parcels, including parcel 6-O-1, as drawn by Newfound's
surveyor, H. Marvin Berning.2 The answer contained a jury
demand and a request for affirmative relief in the nature of
a judicial determination of the property's rightful owners. In
addition, Lewis asked for damages. Two weeks later, in
September 1991, the parties stipulated to the entry of a
preliminary injunction.

On June 14, 1994 (two weeks after entry of the consent
judgment in the quiet title action), the district court
approved a final pretrial order for the two cases. Noting that
Newfound had objected to severance of its claims to parcels
6-P and 7-A for consolidation with the trespass action, the
order stated that "the quiet title portion of the action will be
tried as a jury-waived action."

The pretrial order set out the contentions of ownership of
the various parcels. The parties stipulated that Newfound
held record title to parcels 6-O, 6-O-1, 6-O-2, 6-Y, and 6-Z,
and that none of the defendants had record title to those
parcels. Essentially, Newfound claimed that parcels 6-O,
6-O-1, and 6-O-2 were located as shown on the Berning
survey to the north of 6-P.

The defendants' claim to parcel 6-P was based on the
consent judgment. Lewis and the Sewer heirs asserted that
6-P was incorrectly shown on that survey and, instead, was
located partially within the area that Newfound designated
as 6-O, 6-O-1, and 6-O-2.
_________________________________________________________________

2. We have attached a rough sketch of the relevant parcels as drawn in
the Berning survey.

                                4



The pretrial order also described Newfound's claim for
damages based on the blocking of construction, and listed
as exhibits newspaper articles containing the defendants'
claims of ownership of the land. The order noted that Lewis
was standing "by his demand for a jury trial on all
questions of fact." Newfound, however, continued to assert
that "the resolution of issues relating to the title and
boundaries of the Property are questions for the trial judge
to resolve," and that after these determinations, the
plaintiffs' damages could be tried to the jury.

On August 19, 1994, two months after approving the
pretrial order, the district court struck some of the
defendants' counterclaims and affirmative defenses. In their
proposed amended answer, the Sewer heirs had asserted
that they held undivided equitable interests in parcels 6-O,
6-O-1, and 6-O-2. Similarly, Lewis had claimed an
undivided interest in Longbay # 1 and sought to defend the
trespass claim on that ground.3 See Restatement (Second) of
Torts S 185 (1965) (title of defendant is a defense to
trespass).
Assessing the defendants' claims, the district court
pointed out that in the Virgin Islands an action to
determine "any right or claim to or interest in" real property
will be time-barred "unless it shall appear that the plaintiff,
his ancestor, predecessor, or grantor was seized or
possessed of the property in question within twenty years
before the commencement of the action." V.I. Code Ann. tit.
5, SS 32, 31(1)(A) (1967). As the court noted, "defendants
have failed to plead an essential element of their case --
that they or their predecessors in interest possessed the
land within twenty years of their commencing this action."
Accordingly, the affirmative defenses based on the
defendants' claims of ownership to Longbay #1 were
stricken. The order did not discuss the defendants' title to
parcel 6-P, nor did it prevent them from arguing that the
allegedly tortious conduct occurred within that parcel's
boundaries.
_________________________________________________________________

3. Parcels 6-O, 6-O-1 and 6-O-2 are adjacent and comprise part of a
larger parcel once known as Longbay #1.

                                5



The case came on for jury selection and trial on October
3, 1994. Acknowledging that the proceeding was
"essentially to determine whether or not an injunction
should be issued," counsel for the Sewer heirs argued that
there was no immediate harm and that Newfound had an
adequate remedy at law. In addition, counsel contended
that the jury should determine whether Newfound owned
the land and whether defendants had trespassed. The court
responded: "The jury will determine the trespass. The only
issue I'm determining is whether or not the plaintiff owns
the land on which the trespass allegedly occurred. .. . The
Court now only has to decide the issue of permanency and
that's what it will do."

On March 27, 1995, the court issued an exhaustive and
comprehensive opinion reviewing the extensive
documentary evidence and testimony presented at the two-
day trial. 885 F.Supp. 727 (D.V.I. 1995). The court
determined title to all disputed properties except parcel 10
and expressly located the boundaries of most of the other
parcels.

Rather than proceeding to the jury trial as originally
planned, on October 3, 1996 the parties stipulated to the
entry of a partial final judgment under Rule 54(b). The
following paraphrased provisions, inter alia, appeared in the
Order Certifying Final Judgment:
           - Defendants have title to parcel 6-P;

           - By locating parcels 6-O, 6-O-1, 6-O-2, 6-F, 6-Y, and
             6-Z, the court implicitly held that 6-P was not
             located on any of those parcels;

           - Defendants assert that the alleged trespass occurred
             on parcel 6-P, which should have been plotted
             where the court plotted 6-O, 6-O-1, 6-O-2, 6-F, 6-Y,
             and 6-Z;

           - If the Court of Appeals affirmed the judgment,
             "plaintiff would withdraw its tort claims against the
             defendants and the defendants would relinquish to
             the plaintiff their ownership interest in parcels 6-f
             and 6-p."

                                6



The court thereupon certified the March 27, 1995 order
as a final judgment under Rule 54(b). Lewis filed a timely
notice of appeal, but the Sewer heirs did not.4 Lewis raises
a number of issues in his brief that require us to examine
the proper scope of our jurisdiction and the adequacy of the
Rule 54(b) certification.

I.

We first consider whether we have appellate jurisdiction.
Rule 54(b) provides in pertinent part:

       When more than one claim for relief is presented in an
       action, . . . the court may direct the entry of afinal
       judgment as to one or more but fewer than all of the
       claims . . . only upon an express determination that
       there is no just reason for delay and upon an express
       direction for the entry of judgment.

We explained the requirements for a proper Rule 54(b)
certification in Sussex Drug Products v. Kanasco, Ltd., 920
F.2d 1150 (3d Cir. 1990). To qualify, the relevant order
must first be a final judgment in the sense that it
ultimately disposes of an individual claim brought as part
of a multiple claim action. Id. at 1153. Second, an
immediate appeal must foster efficiency and equitable
concerns. Id. We review the former question de novo. Id. We
review the decision to certify for an abuse of discretion. Id.

Finality under Rule 54(b) is synonymous with that
required under 28 U.S.C. S 1291. Sussex Drug Prods., 920
F.2d at 1153. If the order adjudicates the claim fully so that
the court's only remaining task is to execute on the
judgment, then the order will be considered final as to that
particular claim within the multiclaim action. Id. at 1153-
54. Partial adjudication of a single claim, however, is not
appealable despite a Rule 54(b) certification. Id. at 1154;
_________________________________________________________________

4. The Sewer heirs filed in our Court a motion to join as appellants,
which was received by the clerk some 83 days after the Rule 54(b) order
was entered. We denied the motion as untimely. Fed. R. App. P. 4(a)(1),
4(a)(3), 4(a)(5). We will deny their motion for resuscitation for the same
reasons.

                                7



see also Gerardi v. Pelullo, 16 F.3d 1363, 1368-70 (3d Cir.
1994).

As noted earlier, the parties have attempted to
manipulate the finality requirement. According to
paragraph 9 of the Rule 54(b) order, if, and only if, we
uphold the findings entered on March 27, 1995, then
Newfound will "withdraw its tort claims" in exchange for
title to parcels 6-P and 6-F. This agreement was modified in
a document entitled "Notice of Conditional Waiver of
Damage Claims," filed in our Court by Newfound after oral
argument. In this document, Newfound agreed to waive all
damage claims asserted in the trespass action and agreed
to relinquish its claim to Lewis' interest in 6-P if we
affirmed the judgment and remanded the case for
consideration of its request for a permanent injunction.

We reject this maneuvering as a method of
manufacturing finality because Newfound's offer to drop its
tort claim is intrinsically contingent. As one Court has aptly
held under similar circumstances:

       Litigants and courts cannot, by agreement, avoid the
       finality requirement of S 1291. While in this case the
       parties have settled their dispute, the settlement is not
       a final one, but a contingent one; if we affirm, the
       parties will go their own ways, but if we reverse the
       parties will continue to litigate the dispute. The fact
       that the court of appeals could end the litigation does
       not make a decision on a single issue final. True,
       litigation will continue in cases where a court of
       appeals reverses and remands a case, but in those
       circumstances the lower court has already ruled on the
       merits of the case. Here no decision on the merits has
       occurred.

Union Oil Co. of California v. John Brown, Inc., 121 F.3d
305, 309 (7th Cir. 1997) (quotation and citation omitted);
accord Dannenberg v. Software Toolworks, Inc., 16 F.3d
1073 (9th Cir. 1994) (parties cannot manufacture finality
by stipulating to dismissal of outstanding claims without
prejudice to reinstituting those claims if the Court of
Appeals reverses the judgment on appeal); see generally
Bethel v. McAllister Bros., Inc., 81 F.3d 376, 380-83 (3d Cir.

                                  8



1996) (final judgment rule does   not prevent appeal from
otherwise unappealable order if   plaintiff voluntarily and
finally abandons all other live   claims). Therefore, we must
review the jurisdictional issue   further.

The partial consolidation of the quiet title and trespass
actions presents complications. Consolidation orders tend
to obscure questions of finality and practice under Rule
54(b) because a factual determination may be conclusive in
one claim but not in the other. See, e.g., Bergman v.
Atlantic City, 860 F.2d 560, 565-67 (3d Cir. 1988); Bogosian
v. Gulf Oil Corp., 561 F.2d 434, 440-41 (3d Cir. 1977); see
also UGI Corp. v. Clark, 747 F.2d 893, 894 (3d Cir. 1984);
see generally Gaylord A. Virden, Consolidation Under Rule
42 of the Federal Rules of Civil Procedure: The U.S. Courts
of Appeals Disagree on Whether Consolidation Merges the
Separate Cases and Whether the Cases Remain Separately
Final for Purposes of Appeal, 141 F.R.D. 169 (1991)
("Virden"). We apply a case by case-by-case approach to
determine whether a judgment entered in one action may
be considered final and appealable while a second action
with which the first was consolidated remains pending in
the district court. Bergman, 860 F.2d at 566.

At this point, a brief review of the factual issues will be
helpful in understanding the appealability question. The
location of parcel 6-P is the crucial issue common to both
suits and the essential point of disagreement between the
parties. Parcel 6-P is bounded in part by parcel 6-O-1 on
the north and by the George-Sewer line on the south. The
parties do not disagree on the place on the ground where
the obstruction incidents asserted by Newfound allegedly
occurred, but heatedly contest whether that situs was
located within parcel 6-P or 6-O-1.

From the beginning, the parties have disputed the
location of the George-Sewer line, so named because in
1893 a Danish surveyor drew a line to separate the
property of William George to the north (through whom
Lewis and the Sewer heirs claim title) and Eve Marie Sewer
to the south. The rudimentary and unspecific nature of the
survey, coupled with the proliferation of George and Sewer
heirs, has contributed substantially to this lengthy
litigation.

                                9



According to Lewis, the eastern point of the relevant
segment of the George-Sewer line is 600 feet further north
than is shown on the Berning survey. If Lewis were correct,
the northern boundary of parcel 6-P would lie on the land
that Berning considered part of parcel 6-O-1 and would
place the site where the alleged obstruction of construction
occurred within parcel 6-P.

Lewis has title to 6-P by virtue of the consent judgment
in the quiet title action, and contends that he could not be
a trespasser on his own land.5 Newfound claims that
Berning properly located the George-Sewer line and, as a
result, the trespass occurred on parcel 6-O-1.

The district court located the George-Sewer line,
including the segment running along the southern border
of 6-P, as shown on the Berning survey. Thereafter, the
court plotted the boundaries of parcel 6-O-1, including its
southern boundary, which is common to the northern
boundary of 6-P. By locating the George-Sewer line, the
southern boundary of parcel 6-O-1, and the southern
boundaries of the other parcels comprising the former
Longbay #1, the district court, by necessary implication,
located parcel 6-P (at least the disputed northern and
southern boundaries) as shown on the Berning survey.

Because the effect of the district court's findings was to
negate his ownership defense to trespass, Lewis desired an
appeal before proceeding to a jury trial. For Newfound,
whose primary goal was to develop the land, resolution of
the boundary dispute would determine whether a basis for
permanent injunction existed. Therefore, in an effort to save
the time and expense of another trial, as well as to receive
prompt appellate review of the critical boundary
determination, the parties entered into the court-approved
Rule 54(b) stipulation. If the certification were dispositive,
we could proceed to the merits without further ado, but as
we stated in National Union Fire Ins. Co. of Pittsburgh v. City
_________________________________________________________________

5. The pre-trial ruling, which Lewis did not challenge in his brief,
prevents him from asserting title to parcel 6-0-1 in defense of trespass,
and he may not defend on the theory that some unrelated person
actually has title. Prosser & Keeton, The Law of Torts S 13 at 77 (5th ed.
1984).

                                10
Savings, F.S.B., 28 F.3d 376, 382 (3d Cir. 1994), "simply
because a district court certifies a matter under Rule 54(b)
does not automatically result in proper appellate
jurisdiction."

We agree with the district court that its findings with
respect to parcel 6-P in the quiet title case are final and
subject to appeal with a proper certification, even though
that parcel remains to be surveyed. See 885 F. Supp. at
771-72. For all practical purposes, title to 6-P and its
boundaries have been adjudicated beyond realistic
variance. See Sekaquaptewa v. MacDonald, 575 F.2d 239,
242-43 (9th Cir. 1978) (partition order that contemplated
future proceedings, including a survey, was final
nonetheless because it practically disposed of the parties'
interests in the land) citing Forgay v. Conrad, 47 U.S. 201,
204-05 (1848). But see Calistro v. Kean, 389 F.2d 619, 620-
22 (3d Cir. 1968) (determination of one boundary line in
boundary dispute was not final because placement of other
lines could have affected the first line's location).

On the other hand, with respect to the trespass action,
the court's order was not final because it disposed only of
a boundary defense and did not adjudicate liability,
damages or injunctive relief. In these circumstances,
certification does not put the trespass case before us
because the order lacks the requisite degree offinality. See
generally Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737
(1976). Nevertheless, we have jurisdiction to consider
whether the consolidation order prevented the district court
from resolving disputes over 6-P in the quiet title suit
before a jury would have addressed the same issues in the
trespass action. That is an important facet of the case to
which we shall turn. A challenge to the sequence of trial is
fairly within the scope of the district court's order in the
quiet title action which is properly before us. Accordingly,
we have jurisdiction to consider Lewis' claim that a jury
should have resolved the issues as to the location of parcel
6-P.6
_________________________________________________________________

6. We therefore need not decide whether this case is an appropriate
occasion for the discretionary application of pendent appellate
jurisdiction. See In re Tutu Wells Contamination Litig., 120 F.3d 368, 382
(3d Cir. 1997); Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 209
(3d Cir. 1990); United States v. Spears, 859 F.2d 284, 287 (3d Cir.
1988); Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir. 1982) (en
banc).

                                11
II.

The parties hold widely divergent views on the role of the
jury in this case. Lewis never demanded or asserted a right
to trial by jury in the quiet title action -- he had no such
entitlement. On the other hand, he at all times requested
that a jury determine all the issues in the trespass action,
including the boundaries of parcel 6-P.

The Seventh Amendment provides that "[i]n suits at
common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved."
Because the Virgin Islands is a territory, the provisions of
the Bill of Rights do not apply to it except as expressly
provided in the Revised Organic Act. The Revised Organic
Act does incorporate the Seventh Amendment into Virgin
Islands law. See 48 U.S.C. S 1561. We apply not only the
text of the Amendment, but also the judicial gloss as
developed over two centuries.

The word "preserved" demands a historical inquiry to
determine whether the suit, if filed in the English courts
before 1791, would have fallen within the jurisdiction of law
or equity. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-47
(1830). Actions at law entitle the parties to a jury, but
equitable cases do not. Whether a suit properly comes
within the scope of equity has customarily depended on
whether the plaintiff's remedy at law is adequate. This
inquiry is the touchstone of Seventh Amendment
jurisprudence. Dairy Queen v. Wood, 369 U.S. 469, 478
(1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500,
506-07 (1959).

When confronting a statutorily-created cause of action,
courts must draw analogies to traditional common law
suits in determining whether the case is within the
jurisdiction of law or equity. See, e.g., Tull v. United States,
481 U.S. 412, 417 (1987). This litigation, however, involves
the tort of trespass to land, a cause of action well-
recognized in 18th-century England. As such, we do not
resort to analogies, but look for guidance to the history of
those early suits, particularly those seeking injunctive
relief.

                                12



The generally accepted modern rule is that equity has
jurisdiction to grant relief against repeated trespasses on
the theory that successive legal actions for monetary
damages do not provide adequate relief. See 4 J. Pomeroy,
Equity Jurisprudence S 1357 (5th ed. 1941). According to
Pomeroy, "if repeated acts of wrong are done or threatened,
although each of these acts, taken by itself, may not be
destructive, and the legal remedy may therefore be
adequate for each single act if it stood alone, then also the
entire wrong will be prevented or stopped by injunction, on
the ground of avoiding a repetition of similar actions . . . ."
Id. at 964-65 (emphasis in original); see also Archer v.
Greenville Sand & Gravel Co., 233 U.S. 60, 65-66 (1914);
Donovan v. Pennsylvania Co., 199 U.S. 279, 304-05 (1905);
Pittsburg, S. & W. R. Co. v. Fiske, 123 F. 760, 761 (3d Cir.
1903).

Some early nineteenth-century American judges,
however, believed that equity had no jurisdiction in
trespass actions because the law provided adequate
remedies. See Jerome v. Ross, 7 Johns Ch. (N.Y.) 315, 336-
37 (1823) (Kent, Ch.). Our research, however, does not
support that conclusion. Several English courts,
particularly those presided over by Chancellor Hardwicke
and Lord Thurlow, granted injunctions in cases of
continuing trespass. See Flamang's case, noted without
citation in Hanson v. Gardiner, 7 Ves. 306, 308 (1802) (Lord
Eldon); Hamilton v. Worsefold, Register's Book, A. 1786 folio
1 (Lord Thurlow), noted in Courthope v. Mapplesden, 10
Ves. 290 (1804) (Lord Eldon); Coulson v. White , 3 Atk. 21
(1743) (Hardwicke, Ch.); see generally Zechariah Chafee, Jr.
and Roscoe Pound, Cases On Equitable Relief Against Torts
(1933 ed.).

It is in this context that Newfound argues that its
trespass action, historically sounding in equity, does not
entitle Lewis to a jury trial on all issues. Lewis' claim for
damages does not change that result, Newfound contends,
because once the chancellor assumes jurisdiction to grant
an injunction, he has the power to award monetary relief
against offending parties that is " `incidental to or
intertwined with injunctive relief.' " Chauffeurs, Teamsters
and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 571

                                13



(1990), quoting Tull v. United States, 481 U.S. 412, 424
(1987). However, Newfound's agreement at pretrial to try
most of the trespass issues, particularly damages, to a jury
makes that theory of equity jurisdiction largely irrelevant.

Lewis contends that this so-called "clean up" doctrine,
giving equity the right to assess damages, is totally
inapplicable. He argues that Beacon Theatres and Dairy
Queen entitle him to have a jury trial in Newfound's
trespass suit.
In Beacon Theatres, plaintiff requested a declaratory
judgment and defendant counterclaimed for antitrust
damages. The trial court ruled that certain issues common
to the plaintiff 's equitable claim and the defendant's
counterclaim for damages be tried first to the bench. The
Supreme Court reversed, reasoning that such a procedure
denied defendant a trial by jury of the issues raised in the
counterclaim in violation of the Seventh Amendment. 359
U.S. at 506-11.

The Court reinforced the Beacon Theatres principle in
Dairy Queen, by rejecting the notion that the "right to trial
by jury may be lost as to legal issues where those issues
are characterized as `incidental' to equitable issues." 369
U.S. at 470. The Court noted that "[i]t would make no
difference if the equitable cause clearly outweighed the legal
cause so that the basic issue of the case taken as a whole
is equitable." Id. at 473 n.8.

Finally, in Ross v. Bernhard, 396 U.S. 531 (1970), the
Court summarized the holding of Beacon Theatres and
Dairy Queen:

       "where equitable and legal claims are joined in the
       same action, there is a right to jury trial on the legal
       claims which must not be infringed either by trying the
       legal issues as incidental to the equitable ones or by a
       court trial of a common issue existing between the
       claims."

Id. at 537-38.

These cases share the common theme in the references to
procedural rules. In Beacon Theatres, Rule 13 authorized
assertion of the legal counterclaim. In Dairy Queen, Rule 18

                                14



permitted joinder of all claims in one complaint. Thus, if
the issues related to both the legal and equitable claims
can be resolved in one lawsuit, then the right to a jury trial
attendant to the legal claims will prevail. A contrary rule
would eviscerate the right to a jury given the preclusive
effect that would flow from the rulings in a prior bench
trial. Avoiding such a result was the "major premise" of
Beacon Theatres. Parklane Hosiery Co. v. Shore, 439 U.S.
322, 333 (1979); see also Amoco Oil v. Torcomian, 722 F.2d
1099, 1104 (3d Cir. 1983).

At first blush, therefore, it appears that Lewis' position is
supported by applicable precedent. But significant
distinctions exist that dictate otherwise.
The Beacon Theatres analysis applies when the legal and
equitable claims are joined either in the same complaint,
Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185,
1190 (3d Cir. 1979), or in the same action through a
complaint and counterclaim. Torcomian, 722 F.2d at 1104.
Here, however, we are presented with consolidation of legal
and equitable claims under Rule 42(a). Reevaluating
equity's jurisdiction over legal issues in light of"the liberal
joinder provisions of the Federal Rules which allow legal
and equitable causes to be brought and resolved in one civil
action," the Supreme Court in Beacon Theatres referred
specifically to Rules 1, 2, and 18 in a footnote. 359 U.S. at
509 n.14. Conspicuous by its absence from this list was
Rule 42 ("Consolidation; Separate Trials").

Although for purposes of appellate jurisdiction a
consolidation order entered under Rule 42(a) may result in
a single unit of litigation, the order entered here did not
create a "single case" for jury trial purposes. When
interpreting the predecessor to Rule 42(a), the Supreme
Court stated that "consolidation is permitted as a matter of
convenience and economy in administration, but does not
merge the suits into a single cause, or change the rights of
the parties . . . ." Johnson v. Manhattan Ry. Co., 289 U.S.
479, 496-97 (1933).

In Johnson, two suits brought by two separate groups of
creditors sought a receivership of the same company. The
Court held that attacks by plaintiff in the second suit on

                                15



the judge and receiver in the first suit were collateral, as
opposed to direct, despite the order of consolidation. Id. at
495-96. Johnson remains the "authoritative" statement on
the law of consolidation. 9 Wright & Miller, Federal Practice
and Procedure: Civil 2d S 2382, at 430 (1995); see also
Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682,
735 (1976) (Marshall, J., dissenting); Virden, 141 F.R.D. at
178.

We followed the teachings of Johnson in Bradgate
Associates v. Fellows, Read & Associates, 999 F.2d 745 (3d
Cir. 1993). There, the district court had consolidated two
lawsuits; one originally filed in federal court and the other
removed to that forum. Finding an absence of diversity, the
district court remanded both cases to the state court. Id. at
748-49. We reversed and held that treating the
consolidated cases as a single civil action would
impermissibly enlarge the rights of one of the parties by
affording it a state court trial in a case originally filed in
federal court. As to that suit, dismissal was the proper
disposition. By treating the actions as a single unit, the
district court's order failed to respect the separate and
distinct nature of the two lawsuits. Id. at 750-51.

The teachings of Johnson and Bradgate prevent Lewis'
jury demand in the trespass action from extending to the
quiet title portion of the case. To determine otherwise would
allow the consolidation order without more to "merge the
suits into a single controversy" contrary to prevailing
precedent.

We are not swayed in our conclusion by two cases
decided after Johnson. Both approved a jury trial on
common issues arising in consolidated cases when the right
was appended to only one of the actions. Neither case cited
Johnson. See Blake v. Farrell Lines, Inc., 417 F.2d 264 (3d
Cir. 1969); United States v. Nordbrock, 941 F.2d 947 (9th
Cir. 1991).

In Blake, the district court ordered a jury trial where two
suits had been consolidated. One case was for personal
injury and the other was in admiralty seeking indemnity. Of
course, the right to a jury trial did not apply to the
admiralty action. The case is easily distinguishable because

                                16



the personal injury suit was filed first and was a necessary
predicate to the indemnity suit. There, the factual issues
were interdependent and both suits were based on the
same incident.

Nordbrock began with an equitable action brought by the
Internal Revenue Service. After the trial, the court imposed
a penalty assessment against defendant. He paid part and
sued for a refund, demanding a jury trial. The cases were
eventually consolidated and common issues tried to the
bench. The Court of Appeals held that once the two cases
were consolidated defendant became entitled to a jury trial
on all issues. 941 F.2d at 949. We think Nordbrock is
distinguishable on its facts and not applicable here.7

The differences between these two cases and the case
before us are significant. Unlike the typical Beacon Theatres
scenario where the legal and equitable claims are filed
contemporaneously (or close to it) and arise out of the same
incident, the complaint in the quiet title action had been
filed almost four years before Newfound's trespass action.
In fact, the equitable case had been pending for years
before the alleged obstruction incident occurred. Moreover,
most of the claims in the quiet title action had been the
subject of a consent judgment entered before the trespass
case was even reached for pretrial. The post-consolidation
bench trial that located parcel 6-P was simply a
continuation of the quiet title trial.

Had the quiet title action been tried to completion in the
normal course of events, it would have resulted in a
judgment clarifying the state of the titles and the location
_________________________________________________________________

7. One commentator contends that courts should treat consolidated
cases as a single, civil action for most purposes. Joan Steinman, The
Effects of Case Consolidation on the Procedural Rights of Litigants: What
They Are, What They Might Be; Part 1: Justiciability and Jurisdiction
(Original and Appellate), 42 UCLA L. Rev. 717 (1995); Joan Steinman,
The Effects of Case Consolidation on the Procedural Rights of Litigants:
What They Are, What They Might Be; Part II: Non-Jurisdictional Matters,
42 UCLA L. Rev. 967 (1995). We are impressed with her efforts,
particularly as applied to Rule 54(b), but believe that Johnson, Bradgate
and Virden undermine the argument for creation of a single litigation
unit after consolidation.

                                17



of parcel 6-P even before the trespass incident took place.
Unfortunately, delays in disposition of litigation in the
Virgin Islands at that time were not unusual, caused as
they were by the lengthy period when the two resident
judgeships went unfilled.8

Furthermore, the only overlap of relevant issues between
the two suits was the location of parcel 6-P. The bench trial
did not address the other elements of the alleged trespass.
This situation thus contrasts with the usual Beacon
Theatres scenario where substantial factual overlaps occur.
Given these circumstances, we do not believe that Beacon
Theatres demands that the dispute over location of parcel
6-P be tried to a jury first.

In summary, we conclude that Beacon Theatres does not
apply in these consolidated cases where the equitable
action was filed long before the legal one, the trial was a
continuation of the equity matter, the overlap of factual
matters was not extensive, and inordinate delay had
prevented timely completion of the equity case. Thus, the
district court did not run afoul of the Seventh Amendment
by resolving the factual dispute over the location of parcel
6-P in a finding from the bench.

III.

Lewis complains that the court erred in accepting much
of Berning's testimony because Berning was not licensed in
1969 when he drafted some surveys, and because he did
not follow approved survey practices.

Berning testified that he performed survey work in the
Virgin Islands from 1958 through 1974 as a duly licensed
engineer. He then left the Islands. Upon returning some ten
years later, Berning encountered a new requirement that
forced him to take an examination to obtain a surveyor's
license. He successfully passed the test and was issued a
license. Berning had extensive experience in surveying
_________________________________________________________________

8. Judge Almeric Christian assumed Senior status on May 15, 1988.
Judge David O'Brien died on December 22, 1989. Thefirst vacancy was
not filled until June 30, 1992 when Judge Thomas Moore assumed
office. The second was filled by Judge Raymond Finch on May 9, 1994.

                                18



activity on St. John. In addition, he had prepared an aerial
survey of the East End and done personal research into
documents of title in Denmark. Understandably, the
defendants' counsel did not challenge Berning's
qualifications as an expert at trial.

Describing his surveying methods, Berning explained
that when monuments or precise definitions of metes and
bounds proved unhelpful, he would discuss boundaries
with older residents and adjacent owners, or rely on such
clues as fences or ridge lines. We are satisfied that the
district court properly evaluated this procedure in
appraising Berning's testimony. The fact that he had not
been licensed as a surveyor by the Virgin Islands in 1969
when drafting some of the surveys he referred to does not
furnish a basis for discrediting Berning's testimony on
those matters.

IV.

Lewis further contends that the district court erred in
failing to apply proper survey law in determining the
location of various parcels. Particularly, he finds fault with
the court's acceptance of Berning's survey as to the location
of the George-Sewer line that borders parcel 6-P on the
south.

As noted earlier, a Danish surveyor named Anderson
established the line in 1893, using compass bearings and
stone piles as markers. There were no pretensions that this
represented a precise survey on the ground. Acreage was of
little value at the time and would not have justified the
expense of an accurate survey. The George and Sewer
families memorialized their agreement to be bound by
Anderson's survey in 1894.

In the years following, the families' interests in the land
were transferred through deed and inheritance. Still,
imprecise boundary lines coupled with the increasing
number of descendants made accurate conveyancing an
ideal rather than a reality. Another agreement, intended to
identify numbered land parcels, was reached in 1913
among the defendants' ancestors. Like that reached in
1894, this agreement did not refer to any detailed survey.

                                19



Lewis raises these points in attacking the Berning survey,
which locates parcels with larger acreage than mentioned in
the 1913 agreement.

For example, Lewis contends that Newfound is not a
bona fide owner of parcel 6-O because the deed from one of
its earlier owners recited acreage of 7.25, but the 1913
agreement apparently referred to the same tract as
containing substantially less land. This theory is flawed,
however, since the 1913 agreement never purported to rely
on an accurate survey. Overall, we are not persuaded that
the district judge failed to evaluate this evidence
appropriately.

Lewis also contends that the district court erred in
accepting the Berning survey of the George-Sewer line in
preference to that of Rudolph Galiber, an expert who
testified on the defendants' behalf. For his location of the
line, Galiber relied on a stone pile marker on the east side
of the property and on Anderson's compass bearings when
placing one end of the George-Sewer line several hundred
feet farther north than located by Berning.

We believe that the district court was justified in
accepting Berning's location based on his greater familiarity
with the area and more extensive work on the survey.
Although Galiber had survey experience in various parts of
the world, Berning was more familiar with the practice in
St. John. He grappled with the problem of the George-
Sewer line at length, while Galiber spent only eight hours
on the question when preparing for trial.

One can scarcely underestimate the difficulties involved
in determining the state of titles and boundary locations in
the absence of adequate surveys, probate proceedings, and
appropriate monuments. The district court's review of the
available documentary evidence and testimony was careful
and painstaking. It applied appropriate legal principles and
its findings are not clearly erroneous.

We will affirm the judgment of the district court. The case
will be remanded to the district court for further
proceedings consistent with this Opinion. The court shall
entertain Newfound's request for a permanent injunction
and direct prompt completion of the survey of parcels 6-P

                                20



and 7-A. The court shall give full effect to the parties'
waiver of claims as set out in the district court's order of
October 3, 1996 and Newfound's Notice of Conditional
Waiver of Damage Claims dated July 3, 1997.9

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

9. Although jurisdiction over cases of this nature now resides in the
territorial court, the district court retains jurisdiction here because
the
suits were filed before October 1, 1991, the effective date of V.I. Code
Ann. tit. 4, S 76(a) (Supp. 1997). See Isidor Paiewonsky Assocs. v. Sharp
Properties, 998 F.2d 145 (3d Cir. 1993).

                                20
