In re Bensel

Citation206 F. 369
Decision Date15 July 1913
Docket Number68.
PartiesIn re BENSEL et al., Board of Water Supply. v. SAGE. CITY OF NEW YORK
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

On writ of error to the Circuit Court of the United States for the Southern District of New York to review an order confirming awards made by commissioners of appraisal for certain land known as Parcel No. 733, Section 15, Ashokan Reservoir, owned by William Sage, Jr. The commissioners allowed him $7,624.45 for the land and buildings thereon and the further sum of $4,324.45 for reservoir availability and adaptability amounting in the aggregate to $11,948.90, with 5 per cent. on the total amount to cover counsel fees and expenses. The plaintiff in error also seeks to review an order made by the Circuit Court refusing to remand the proceedings to the Supreme Court of the state of New York held in and for Ulster county.

The argument in this court took place on November 14, 1912, but the decision was withheld pending the action of the Supreme Court in McGovern v. City of New York, 229 U.S. 363 33 Sup.Ct. 876, 57 L.Ed. . . ., previously argued. The decision in the McGovern Case was announced June 9, 1913.

Archibald R. Watson, of New York City (William McM. Speer and Louis C White, both of New York City, of counsel), for plaintiff in error.

Edward A. Alexander, of New York City, for defendant in error.

Before COXE and WARD, Circuit Judges, and HOLT, District Judge.

COXE Circuit Judge.

Two principal questions are involved in this review:

First. Were the condemnation proceedings properly removed to this court?

Second. Were the commissioners and the court in error in adding to the sum awarded for the value of the land and buildings, viz., $7,624.45, the further sum of $4,324.45, for reservoir availability and adaptability?

We think the proceedings were properly removed to this court and that the motion to remand to the state court was properly denied. William Sage, Jr., the claimant and defendant in error, was at the time of the commencement of the proceedings to condemn his property and since has been a citizen of New Jersey, residing at Orange, Essex county, in that state. The city of New York is a municipal corporation created by the state of New York and the members of the board of water supply of the city are all citizens and residents of New York. We have, then, a controversy which is wholly between citizens of different states and we see no reason why it was not removable on April 29, 1910 to the Circuit Court of the United States for the Southern District of New York. It is urged that Sage did not obtain title to the land in question until May 17, 1909, when the deed to him was executed, and that proceedings to condemn the land had been instituted prior to this date. This argument rests upon the contention that the proceedings to acquire the land in question were commenced when maps were filed in the clerk's office of Ulster county and notices posted on the property and published in newspapers. We are convinced that the proceeding was not commenced until the petition had been actually filed in the state court and this was done after the deed to Sage had been executed and recorded. As pointed out by Judge Noyes, the filing of maps and the publishing of notices did not commence any legal proceedings, but at best only indicated an intention so to do. That intention might be abandoned or modified and no actual proceeding to acquire the land in question was commenced until the petition was filed.

The only reason urged for remanding the case in the brief of the plaintiff in error is that the land in question was transferred to a nonresident for the purpose of creating jurisdiction in the federal courts. Neither fraud nor collusion is charged, but it is asserted that after the state court had obtained jurisdiction the controversy was removed for the sole purpose of securing a tribunal where a more liberal rule of damages obtains than in the New York courts. This contention cannot be sustained for the reason, already pointed out, that the land was purchased by the defendant in error before the condemnation proceedings were begun in the state court. We cannot indulge in conjecture or guesswork. For aught that appears in the record the sale to William Sage, Jr., was a perfectly fair, honest and legitimate one.

The second, and principal, question is, was the court justified in awarding an additional sum of $4,324.45 because of the availability and adaptability of the land for reservoir purposes? The answer to this question depends largely upon whether we are to be controlled by the rule of the state or the United States courts. The McGovern Case throws very little, if any, light upon the present controversy. Although the same question was involved, it was decided adversely to the contention of the land owner by the commissioners, by the Supreme Court and by the Court of Appeals of New York, which courts sustained the ruling of the commissioners, refusing to admit testimony as to the exceptional value of the land for a reservoir site. The claimant thereupon sued out a writ of error, insisting that the refusal to hear the testimony was in effect depriving him of his property without due process of law, contrary to the fourteenth amendment of the Constitution of the United States. The Supreme Court decided that the record did not show that the plaintiff in error had been deprived of his property without due process of law, even if it be assumed that it was error to exclude the proffered evidence.

Although there are expressions in the opinion which, perhaps, indicate that the court regarded the ruling of the state court correct, the question now in issue was not decided. The opinion concludes as follows:

'We are satisfied on all the authorities that whether we should have agreed or disagreed with the commissioners, if we had been
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3 cases
  • City of Greenwood v. Humphrey & Co., Inc
    • United States
    • Mississippi Supreme Court
    • May 23, 1938
    ...sec. 3624, page 586; 2 Hughes Federal Practice, sec. 714, page 39; City of Detroit v. Detroit City Ry. Co., 54 F. 1; City of New York v. Sage, 206 F. 369. eminent domain proceeding was legally removed by proper procedure and by the judgment of the county court, from the county court into th......
  • County of Allegheny v. Frank Mashuda Company
    • United States
    • U.S. Supreme Court
    • June 8, 1959
    ...54 L.Ed. 762. 4 E.g., Wabash R. Co. v. Duncan, 8 Cir., 170 F.2d 38; Franzen v. Chicago, M. & St. P.R. Co., 7 Cir., 278 F. 370; In re Bensel, 2 Cir., 206 F. 369; Broadmoor Land Co. v. Curr, 10 Cir., 142 F. 421; South Dakota Cent. R. Co. v. Chicago, M. & St. P.R. Co., 8 Cir., 141 F. 578; Chic......
  • In re Bensel
    • United States
    • U.S. District Court — Southern District of New York
    • February 18, 1916
    ...each proceeded by eminent domain; indeed, that possibility was expressly suggested by Judge Coxe in the Circuit Court of Appeals. 206 F. 369, 124 C.C.A. 251. the Supreme Court (239 U.S. 57, 36 Sup.Ct. 25, 60 L.Ed. . . .) considered the matter, they certainly had in mind no such possibility.......

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