Chicago, RI & PR Co. v. Kay

• Decision Date: 19 July 1952
• Docket Number: Civ. No. 1-80 to 1-83,1-85 to 1-101.
• Citation: 107 F. Supp. 895
• Parties: CHICAGO, R. I. & P. R. CO. v. KAY et al. CARBUHN et al. v. CHICAGO, R. I. & P. R. CO. et al.
• Court: U.S. District Court — Southern District of Iowa

107 F. Supp. 895

CHICAGO, R. I. & P. R. CO. v. KAY et al.

CARBUHN et al. v. CHICAGO, R. I. & P. R. CO. et al.

Civ. Nos. 1-80 to 1-83, 1-85 to 1-101.

United States District Court S. D. Iowa, W. D.

July 19, 1952.

COPYRIGHT MATERIAL OMITTED

A. B. Howland (of Gamble, Read, Howland, Gamble & Riepe), Des Moines, Iowa, for condemnor Railroad Co.

Raymond A. Smith (of Peterson, Smith, Peterson, Beckman & Willson), Council Bluffs, Iowa, and G. C. Wyland, Avoca, Iowa, for certain landowners.

John M. Peters (of Hess & Peters), Council Bluffs, Iowa, for certain landowners.

Daniel J. Gross (of Gross, Welch, Vinardi & Kauffman), Omaha, Neb., for certain landowners.

RILEY, District Judge.

There has been no order of consolidation of the twenty separate cases here involved, but since the motions to dismiss in ten of them and the motions to remand in the remaining ten make them companions, they will be treated as consolidated for the purpose of the motions and the present rulings thereon.

All of the cases are related to condemnation proceedings commenced by the Chicago, Rock Island and Pacific Railroad Company as condemnor of lands in Pottawattamie County taken under the power of eminent domain in the change of location of its line of railroad between Atlantic and McClelland, Iowa.

In January, 1952, pursuant to authority granted by the Iowa State Commerce Commission so to condemn, Sec. 471.10, Code of Iowa, 1950, I.C.A., the condemnor instituted proceedings under Chapter 472 of the Code of Iowa, 1950, I.C.A., by filing with the sheriff of Pottawattamie County a written application conformed to Sec. 472.3. The sheriff appointed a commission, which assessed the damages as to each tract involved and filed its written report with him. The ten tracts are owned by nine different property owners.

Condemnor served notices of appeal from the awards, as permitted by Sec. 472.18, docketing the several notices of appeal as ten separate cases in the District Court of the State of Iowa in and for Pottawattamie County. Thereafter, condemnor, under the claimed authority of Tit. 28, Sec. 1441(a) United States Code, filed in this court petition for removal of each of the ten cases, which are docketed separately here. The petitions for removal are in due form. In each of these cases the landowner has filed a motion to remand, claiming in each that this court "is without jurisdiction either to determine or pass upon any further question" in the case, and that the appeal pending in the state court "is not removable to this court for the reason that the Chicago, Rock Island and Pacific Railroad Company is not the defendant in said action within the meaning of Section 1441 of Title 28 United States Code so as to be entitled to remove said action." Contemporaneously with the motion to remand, each property owner has attempted to comply with Sections 472.21, 472.22 of the Iowa Code, I. C.A., by filing what is denominated a "petition," in which the owner is designated as plaintiff, and which is filed "subject to the ruling on his motion to remand this action to the District Court of Iowa, and in compliance with the Statutes of Iowa." Sections 472.21, 472.22 are as follows:

"472.21 Appeals — how docketed and tried. The appeal shall be docketed in the name of the owner of the land, or of the party otherwise interested and appealing, as plaintiff, and in the name of the applicant for condemnation as defendant, and be tried as in an action by ordinary proceedings."

"472.22 Pleadings on appeal. A written petition shall be filed by the plaintiff on or before the first day of the term to which the appeal is taken, stating specifically the items of damage and the amount thereof. The defendant shall file a written answer to plaintiff's petition, or such other pleadings as may be proper."

Prior to docketing in the state court the several appeals just described which were removed to this court, the condemnor caused to be served on the sheriff as to each tract of land involved a "Notice of Appeal from Assessment of Damages by Chicago, Rock Island and Pacific Railroad Company." It was addressed to the sheriff and the landowner, informed each of the condemnor's appeal, and recited: "Said appeal is taken to the United State District Court for the Southern District of Iowa, Western Division, at Council Bluffs, Iowa, and will be docketed in the office of the Clerk of said Court." These notices were docketed in this court, along with a complaint contemporaneously filed in each case, wherein the condemnor named itself as plaintiff and the landowner as defendant and alleged requisite diversity and amount in controversy, authority to construct the new line of railroad, appropriate authority from the Iowa State Commerce Commission to proceed by condemnation, the institution of the proceedings before the sheriff of Pottawattamie County, the appointment of the commissioners, their report and the appeal from the award and assessment of damages by serving the notice (a copy is attached to each complaint), a description of the premises involved, the actual damages claimed to be sustained by the taking of the lands and the award of the commissioners. A transcript of the prior proceedings is attached to the complaint. The prayer of the complaint is, "that upon the trial of this cause the damages sustained by the lands" be fixed at not to exceed an amount named and that the plaintiff have further "just and proper relief."

To each of these ten complaints filed as original suits in this court, the landowners, as defendants, filed motions to dismiss, asserting lack of statutory authority for the appeal to this court, the condemnor's previous election to proceed in the state court by instituting the proceedings before the sheriff as alleged in the complaint, with the consequent finality of the award of the condemnation jury, the deposit of the amount of the award with the sheriff to obtain possession of the property, the election to appeal from the condemnation award to the state court, the filing of the petition for removal from the state court to this court (as disclosed by the removal proceedings in the ten cases recited above), the consequent election to proceed as prescribed by the law of Iowa and that this court is without jurisdiction of the alleged claim. These respective motions to remand and to dismiss were orally argued and written briefs have been filed.

The court will first consider the landowners' motions to dismiss the complaints in the ten cases originally docketed in this court as direct appeals from the commissioners' awards.

The condemnor contends that before August 1, 1951 (the effective date of Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C.A.) the condemnor had the right of appeal from the award by the sheriff's commission directly to this court; that since August 1, 1951, Rule 71A(k) provides the specific procedure for the exercise of the right of such appeal. Subsection (k) is as follows:

"Condemnation Under a State's Power of Eminent Domain. The practice as herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed."

In support of the claimed right of direct appeal to this court, condemnor's counsel cite Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462. That action was an original suit in equity by the mining company to enjoin the state court from proceeding to have lands condemned in a case instituted in the county court of Kentucky despite the fact of removal of the proceedings to the Federal Circuit Court. The Traction Company, authorized by law and its charter to construct an electric railroad, had filed its application in the County Court for appointment of commissioners to assess damages for the taking of private property. The Kentucky statutes prescribing this procedure provided for appeal by either party to the Circuit Court and trial de novo there by jury of the amount of compensation. Commissioners were appointed who made an award of $100 to the Mining Company. Before any action on the award, the landowner petitioned for removal to the Circuit Court of the United States, alleging requisite diversity of citizenship and amount. The County Court refused to recognize any right of removal and was about to proceed when the landowner sued in equity in the Circuit Court of the United States for injunction. The Traction Company demurred to the bill, urging lack of jurisdiction and authority in the Circuit Court. The demurrer was overruled. The Traction Company elected to stand on the ruling. Injunction was issued enjoining the Traction Company from proceeding further in the County Court. The opinion is not authority for the condemnor's claim here. It recognizes that the proceeding commenced in the County Court, and removed to the federal court, was already a "suit" or "controversy between citizens of different States" within the meaning of the Constitution and laws of the United States. That is because the condemnation proceeding under Kentucky law was required to be commenced as a suit in the County Court. That court was asked to appoint commissioners to assess the damages to which the landowner was entitled. Such was the statutory method provided for condemnation. The opinion recognized that "After the removal of a case of condemnation from a state court, the Federal court would proceed under the sanction of state legislation." Referring to judicial power to be exercised by the courts of the United States, the opinion said, 196 U.S. at page 255, 25 S.Ct. at page 257:

"In the exercise of that power a circuit court of the United States, sitting within the limits of a state, and having jurisdiction of the parties, is, for every practical purpose,

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