South Dakota Cent. Ry. Co. v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 20 October 1905
• Docket Number: 2,268.
• Citation: 141 F. 578
• Parties: SOUTH DAKOTA CENT. RY. CO. v. CHICAGO, M. & ST. P. RY. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 578

SOUTH DAKOTA CENT. RY. CO. v. CHICAGO, M. & ST. P. RY. CO. et al.

No. 2,268.

United States Court of Appeals, Eighth Circuit.

October 20, 1905

Joe Kirby for plaintiff in error.

H. H Field (Porter & King, on the brief), for defendants in error.

Before SANBORN, Circuit Judge, and PHILIPS and RINER, District Judges.

RINER District Judge.

The South Dakota Central Railway Company, a corporation organized under the laws of South Dakota (hereinafter called the 'Central Company'), filed its application in the circuit court of Minnehaha county, S. D., to condemn, for its use as a right of way, a strip of land lying within the right of way of the Chicago, Milwaukee & St. Paul Railway Company (hereinafter called the 'Milwaukee Company'), in the city of Sioux Falls, S. D., and also for the condemnation of a right of way to cross the right of way and railroad of the Milwaukee Company. The amended petition was filed on the 15th day of September, 1904, and a summons was issued, which was served on the Milwaukee Company September 16, 1904, requiring it to appear in the proceeding within 20 days from the service of the summons, exclusive of the date of service. On the 5th of October the Milwaukee Company presented to the judge of the circuit court of Minnehaha county its petition for removal, accompanied by a bond, in due form. On the 6th day of October the petition was filed and an order made for the removal of the cause to the federal court, as provided by law. Simultaneously with the filing of the petition, bond and order of removal the Milwaukee Company served its objections and answer upon the attorneys for the Central Company.

The petition for removal set forth the diversity of citizenship between the companies, alleging that the Central Company was a corporation and citizen of the state of South Dakota, and that the Milwaukee Company was a corporation and citizen of the state of Wisconsin; that the Milwaukee Company was the exclusive owner of the right of way sought to be condemned that no other party to the action had any title or interest therein, or claim, or right to the damages or compensation that might be allowed, and that the amount in controversy exceeded the sum of $2,000, exclusive of interest and costs. The answer of the Milwaukee Company to that portion of the petition, filed by the Central Company, which sought to condemn that part of the land lying within the right of way of the Milwaukee Company, set forth and alleged its ownership of the right of way sought to be condemned, and that it had used and occupied it for railroad purposes for more than 20 years; that the Central Company had no right or authority under the laws of South Dakota, to acquire this right of way by condemnation proceedings; and that the Milwaukee Company was entitled to the sole and exclusive possession thereof, for the operation of its railroad. For answer to that portion of the amended petition, which sought to condemn the right to cross the right of way and railroad of the Milwaukee Company, it was alleged that the Central Company had made no effort to agree with the Milwaukee Company as to the amount of compensation to be made for the right to cross, or as to the point and manner of such crossing. Pursuant to the order of removal, a transcript of the proceedings was filed in the federal court. The Central Company thereafter filed a motion to remand, which was overruled, and on the 21st day of October, 1904, the case came on for trial before the court and a jury. At the close of the evidence offered by the Central Company, a motion was made by the Milwaukee Company to dismiss, upon the ground that no case had been made out for the condemnation of the property sought to be acquired. This motion was sustained by the court, and a judgment entered dismissing the proceedings upon the merits and for costs.

The first assignment of error challenges the correctness of the ruling of the circuit court denying the motion made by the plaintiff in error to remand the case to the state court. In determining this question, we must consider (1) whether the proceeding in the state court was a suit or controversy to which the judicial power of the United States extends; (2) if a suit or controversy, was it removable to the Circuit Court of the United States; (3) if removable, was it in law removed? We are of the opinion that the proceeding in the state court was a suit or controversy to which the judicial power of the United States extends, and that it was removable to the federal court. 'It related to property rights, the parties are corporate citizens of different states, and the value of the matter in dispute exceeds the amount required to give jurisdiction to the circuit court. ' It falls, therefore, clearly within the provisions, both of the constitution and the judiciary act of 1887-88. Judiciary Act March 3, 1877, c. 373, Sec. 1, 24 Stat. 552 (U.S. Comp. St. 1901, p. 508) declares:

'That the Circuit Court of the United States shall have original cognizance concurrent with the courts of the several states, of all suits of a civil nature at common law, or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall be a controversy between citizens of different states.'

Chief Justice Marshall, in Weston v. City of Charleston, 2 Pet. 464, 7 L.Ed. 481, in considering what constituted a suit, said:

'The term 'suit' is certainly a very comprehensive one and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. Modes of proceeding may be various; but, if a right is litigated in a court of justice, the proceeding by which a decision of the court is sought is a suit.'

The statutes of South Dakota provide that where a corporation, invested with the power of taking private property for public use, desires to do so, it shall file a petition in the circuit court of the county in which the property is situated, and that the party filing the petition shall be named therein as the plaintiff and all persons affected by the proceeding shall be named as defendants, and the petition must contain a description of the property to be taken. It is further provided that a summons may issue which shall be entitled in the action or proceeding and which shall state the time and place of filing the petition, the nature of the proceeding, and contain a notice to the effect that if the defendants do not appear in said proceeding within 20 days from the service of the notice, exclusive of the day of service, the plaintiff will apply to the court to impanel a jury and ascertain the compensation. Provision is also made for the publication of the summons on defendants who are nonresidents as in other actions. It is further provided that upon affidavit of the default of the defendants the plaintiff may apply to the court to draw and summon jurors, and that the proceedings of impaneling the jury and rendering a verdict may be had during a regular term of the court, or in case of default that a special term of court shall be held at which the proceedings in impaneling a jury, trial, and rendering the verdict shall be conducted in the same manner as trials of actions in the circuit court, giving to defendants the right to challenge jurors and the right to examine and cross-examine witnesses. It is further provided that the jury shall ascertain and return in their verdict the compensation to be paid for each lot or parcel of land or property taken or damaged. It is also provided that the only issue or question to be tried by the jury shall be the amount of compensation for the property taken or damaged, and that upon the return of the verdict the same shall be recorded and a judgment entered thereon. Provision is also made for appeal the same as in other actions.

Proceedings under these statutes are, we think, civil suits within the meaning of the act of 1887, and where the necessary diverse citizenship exists and the amount in controversy is sufficient are removable under the provisions of that act. But it is insisted that the proceeding is an exercise, by the state, of its sovereign right of eminent domain, and can only be maintained as authorized by the laws of the state, and could not, in the first instance, be brought in the federal court. This position, in our judgment, cannot be sustained; for, notwithstanding the right is one that appertains to sovereignty, yet, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance, and, if that inquiry take the form of a proceeding before the courts between the parties, there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the state. In Colorado Midland Ry. Co. v. Jones (C.C.) 29 F. 193, Mr. Justice Brewer said:

'I do not suppose that a state can, by making special provisions for the trial of any particular controversy, prevent the exercise of the right of removal. If there was no statutory limitation, the Legislature could provide for the

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