McMillan v. Noyes

Citation146 F. 926
Decision Date12 July 1906
Docket Number350.
PartiesMcMILLAN et al. v. NOYES et al.
CourtU.S. District Court — District of New Hampshire

Drew Jordan, Shurtleff and Morris, for complainants.

Anthoine & Talbot and Edmund Sullivan, for defendants.

PUTNAM Circuit Judge.

This is a bill in equity brought originally in a court of the state of New Hampshire. The complainants are citizens of New Hampshire, and two of the respondents, Edward A. Noyes and The Berlin Electric Light Company, are citizens of Maine. The citizenship of the remaining respondents, constituting the firm of Ward Bros. & Co., is now shown. Noyes and the Berlin Electric Light Company claim that there is a separable controversy so far as they are concerned, and they thereupon removed the proceedings to this court; and now the complainants have asked that the case be remanded to the state court.

With reference to determining questions whether there are separable controversies, certain general rules are now established beyond doubt; one to the effect that the courts are controlled absolutely by the proponent's pleadings as shown on the face of his declaration at law or of his bill in equity, except so far as matters are alleged which are plainly contradictory, irrelevant or immaterial, or unless the party desiring the removal submits evidence that a joinder was made for the express purpose of defeating the jurisdiction of the federal courts. This record presents no such evidence, and the case is submitted to us on the complainants' pleadings.

The gravamen of the bill is that Noyes and the Berlin Electric Light Company are preparing to unlawfully flow out a water privilege belonging to the complainants, situate on the Androscoggin river, and that these two respondents have already, in pursuance thereof, done an overt act in the way of building a coffer dam. It is also alleged that they have contracted with War Brothers & Co. for the erection by the latter of a permanent dam which, if erected, will constitute the permanent illegal structure which the bill seeks to avert by a proper prayer for an injunction. The bill does not allege that Ward Bros. & Co. have done any overt act, except so far as the execution of the contract for the construction of the permanent dam may be regarded as such. Under these circumstances, the respondents Noyes and Berlin Electric Light Company apparently maintain that no relief can be granted against Ward Bros. & Co., and therefore,...

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2 cases
  • Schwyhart v. Barrett
    • United States
    • Kansas Court of Appeals
    • June 28, 1910
    ...v. Mills, 113 U.S. 257; Tenn. v. Bank, 152 U.S. 460; Thomas v. Railroad, 147 F. 83; Knuth v. Butte Electric Co., 148 F. 73; McMillen v. Noys, 146 F. 926; Railroad v. Vincent, 116 Tenn. 317; Railroad Leggett, 162 F. 571. (6) The allegations of the petition are taken as confessed, in determin......
  • In re Smith
    • United States
    • U.S. District Court — District of Rhode Island
    • July 18, 1906

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