Chicago, RI & PR Co. v. Stude

• Decision Date: 17 June 1953
• Docket Number: No. 14724-14726.,14724-14726.
• Citation: 204 F.2d 116
• Parties: CHICAGO, R. I. & P. R. CO. v. STUDE et al. STUDE v. CHICAGO, R. I. & P. R. CO. STUDE et al. v. CHICAGO, R. I. & P. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F.2d 116 (1953)

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

STUDE v. CHICAGO, R. I. & P. R. CO.

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

Nos. 14724-14726.

United States Court of Appeals Eighth Circuit.

April 30, 1953.

Rehearing Denied June 17, 1953.

A. B. Howland, Des Moines, Iowa (R. L. Read and B. A. Webster, Jr., Des Moines, Iowa, were with him on the brief), for Chicago, R. I. & P. R. Co.

Raymond A. Smith, Council Bluffs, Iowa, and Harold W. Kauffman, Omaha, Neb. (Philip J. Willson, John M. Peters, Council Bluffs, Iowa, G. C. Wyland, Avoka, Iowa, Daniel J. Gross, Omaha, Neb., and Dorothy O'D Martin, Atlantic, Iowa, were with them on the brief), for Archie C. Stude et al.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

Rehearing Denied June 17, 1953. See 204 F.2d 954.

COLLET, Circuit Judge.

This action involves the right of the Rock Island Railroad Company to have the issue of damages for the taking of private property by eminent domain under state law determined in the federal courts.

The actions, ten in number,¹ were initiated by the Rock Island by filing with the sheriff of Pottawattamie County, Iowa, a written application conforming to the Iowa Code of practice in eminent domain proceedings by railroad companies. Authority had theretofore been obtained from the Interstate Commerce Commission and the state authorities of Iowa to relocate a short section of the Rock Island's line in the interest of better alignment and reduction of mileage. The Iowa Code fixes the following procedure. An application is filed with the sheriff of the county, requesting that he appoint a commission to assess the damages. The commissioners make their report fixing the damages and the condemning party takes possession of the property upon paying the amount of the commissioners' award to the sheriff for the use of the property owner. In this case the amount of the commissioners' awards was paid, the Rock Island took possession, and the sheriff holds the funds subject to orders. The assessment made by the commissioners becomes final if not appealed from within a period fixed by the statute. Either party may appeal. An appeal is taken by giving notice to the sheriff and the interested parties, the appeal is lodged in the district court of the state for the appropriate county in which the land is situated, and docketed in that court. The Iowa Code, I.C.A., provides that appeals shall be docketed in the name of the owner of the land, or the name of such other appealing party interested in the land, as plaintiff, and in the name of the applicant for condemnation as defendant, and thereafter tried "as in an action by ordinary proceedings." I.C.A. § 472.21. After the appeal is docketed the Code provides that:

"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."

The issue of damages is then tried de novo by jury on demand of either party.

The foregoing statutory procedure was strictly followed by the Rock Island up to the point of lodging the appeals with the state district court. The Rock Island paid the amount of the commissioners' award to the sheriff, took possession of the condemned property and began the construction of the railroad on it. But instead of filing appeals only with the state district court it lodged one appeal from each award of the sheriff's commission with that court and another, duplicate in effect, with the United States District Court. The appeals docketed in the state district court were docketed in the names of the landowners as plaintiffs and the Rock Island as defendant as the statute provided. After the appeals were docketed in the state district court, the property owners filed their "petitions" as plaintiffs, as provided for under the state Code, setting up their claims for damages for the taking of their property. Those claims were substantially in excess of the amount awarded by the commissioners. Those appeals were removed to the United States District Court by the Rock Island. Thus the Rock Island sought to insure the trial of the issue of damages in the United States courts by taking alternate procedural methods of obtaining that result, an expedient not heretofore unknown to federal jurisprudence in other types of actions. The requisite diversity of citizenship and amount involved existed in each case. Motions to remand were filed by the property owners in each of the cases removed from the state district court, on the ground that the Rock Island, being the plaintiff, could not remove. Motions to dismiss the appeals which had been taken by the Rock Island direct from the sheriff's commissioners' awards to the United States District Court were filed by the property owners on the ground that such appeals were unauthorized by either the state Code or by the Federal Rules of Civil Procedure, 28 U.S.C.A., applicable to proceedings in eminent domain. The trial court sustained the motions to dismiss the appeals to the United States District Court taken direct from the award of the commissioners on the ground that at that stage of the condemnation proceedings, under the state Code those proceedings were not "civil actions brought in a state court" within the meaning of the removal statutes, but were in the nature of inquests to ascertain the value of the land, not then pending in any court. The trial court denied the motions to remand on the ground that the Rock Island was, at the time of removal, the defendant within the meaning of the removal statutes. Chicago, Rock Island & P. R. Co. v. Kay, D.C., 107 F.Supp. 895. The Rock Island appealed from the judgment of dismissal. The property owners cross-appealed from the order denying the motion to remand. The appeals were submitted as one case. Under these circumstances the propriety of the order denying the motion to remand will be reviewed,² although such an order, standing alone, is not an appealable order.³

The Rock Island contends that it had the right of appeal direct from the commissioners' award filed with the sheriff to the United States District Court before rule 71A of the Federal Rules of Civil Procedure became effective and that since the effective date of rule 71A, and particularly rule 71A (k), the specific procedure for the exercise of that right of appeal is fixed by that rule.⁴

There can be no doubt that when the requisite diversity of citizenship and the amount involved exist, proceedings for the acquisition of private property by eminent domain under state law may be removed from a state court to a federal court. But that right of removal⁵ exists only when the proceedings have ripened into a civil action in a state court. In Boom Co. v. Patterson, 8 Otto 403, 98 U.S. 403, 406, 25 L.Ed. 206, the Supreme Court said:

"The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of those terms. But when it was transferred to the District Court by appeal from the award of the commissioners, it took, under the statute of the State, the form of a suit at law, and was thenceforth subject to its ordinary rules and incidents. The point in issue was the compensation to be made to the owner of the land; in other words, the value of the property taken. No other question was open to contestation in the District Court. Turner v. Holleran, 11 Minn. 253. The case would have been in no essential particular different had the State authorized the company by statute to appropriate the particular property in question, and the owners to bring suit against the company in the courts of law for its value. That a suit of that kind could be transferred from the State to the Federal court, if the controversy were between the company and a citizen of another State, cannot be doubted. And we perceive no reason against the transfer of the pending case that might not be offered against the transfer of the case supposed."

That the condemnation proceedings under the Iowa Code, I.C.A., did not become suits or civil actions in the state courts of Iowa until the appeals were lodged and docketed in the state district court is clear from the following expression of the Iowa Supreme Court in Myers v. Chicago & N. W. Ry. Co., 118 Iowa 312, 315-316, 91 N.W. 1076, 1078:

"From these statutes it plainly appears that the proceeding before the commissioners appointed by the sheriff to appraise the land is not a suit at law, but in the nature of an inquest to ascertain its value. No hearing is had, and no evidence introduced. The commissioners merely inspect the land, determine upon the amount of damages which will be occasioned by the appropriation, and make a written report to the sheriff. Thus far then the proceeding is in no respect a suit. * *

"Unless in court, or before those exercising judicial functions, the proceeding cannot be regarded as a suit. (Citing cases.) That the proceeding to condemn land is not a suit, within the language of the removal acts of congress, and is such after the appeal to the district court, seems to be conclusively settled against the appellees in Boom Co. v. Patterson 8 Otto 403, 98 U.S. 403, 25 L.Ed. 207, and Union Pacific Railroad Co. v. Myers, 115 U. S. 1, 5 S.Ct. 1113, 29 L.Ed. 319. See, also, Searl v. School Dist., 124 U.S. 197, 8 S.Ct. 460, 31 L.Ed. 415."

But the question of whether the proceedings were removable at the time of the attempted appeal to the federal court from the commissioners' award is beside the point in determining the existence of a right of appeal of those proceedings to the federal court. The short and simple answer to the Rock Island's contention that it had the right of direct appeal...