Franzen v. Chicago, M. & St. P. Ry. Co.

• Citation: 278 F. 370
• Decision Date: 20 August 1921
• Docket Number: 2894.
• Parties: FRANZEN et al. v. CHICAGO, M. & ST. P. RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

278 F. 370

FRANZEN et al. v. CHICAGO, M. & ST. P. RY. CO.

No. 2894.

United States Court of Appeals, Seventh Circuit.

August 20, 1921

Rehearing Denied October 25, 1921.

The parties will be designated as they appeared in the court below. Plaintiff, operating a railroad, instituted in the state court proceedings to acquire certain rights in land owned by defendants. Its right so to do was at first denied but on appeal was established. C., M. & St. Paul Ry. Co v. Franzen, 287 Ill. 346, 122 N.E. 492. Thereafter condemnation proceedings were instituted in the federal court to acquire land from the defendants; the basis for the claim of jurisdiction being diversity of citizenship and the amount involved exceeding $3,000. A judgment based on the verdict was duly entered, and this writ of error followed.

A. F Mecklenburger, of Chicago, Ill., for plaintiffs in error.

O. W. Dynes and C. S. Jefferson, both of Chicago, Ill., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge.

Plaintiff's right to maintain condemnation proceedings for the purposes set forth in the petition was established by the decision of the Supreme Court of Illinois in the case above cited. No reason is advanced why this ruling should not be accepted by us, and the issue is therefore settled. Hairston v. D. & W. Ry. Co., 208 U.S. 598, 28 Sup.Ct. 331, 52 L.Ed. 637, 13 Ann.Cas. 1008; Strickley v. Highland Boy Mining Co., 200 U.S. 527, 26 Sup.Ct. 301, 50 L.Ed. 581, 4 Ann.Cas. 1174; Union Lime Co. v. C. & N.W. Ry. Co., 233 U.S. 211, 34 Sup.Ct. 522, 58 L.Ed. 924.

But defendants contend that the federal court cannot maintain an action to condemn; the state court alone being authorized by the Illinois statute to try issues arising out of such proceedings. A very interesting and, we may add, able brief is submitted in support of this contention. But the question is closed by the decisions of the Supreme Court. Miss., etc., River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; Searl v. School Dist., 124 U.S. 197, 8 Sup.Ct. 460, 31 L.Ed. 415; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462; Mason City & Ft. Dodge Ry. Co. v. Boynton, 204 U.S. 570, 27 Sup.Ct. 321, 51 L.Ed. 629; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449.

10 Ruling Case Law, 207, we think, correctly announces the law of these decisions to be:

'A judicial proceeding to take land by eminent domain and ascertain compensation therefor is a suit at common law within the meaning of the federal Judiciary Act; and when the requisite diversity of citizenship exists such a suit may be brought in or transferred to the federal District Court of the district in which the land lies.'

See, also, Nichols on Law of Eminent Domain (1917 Ed.) pp. 1040, 1041.

True, in the cases above cited, the court was considering the propriety of removing condemnation proceedings from the state to the federal court, and in at least one case the landowner was the moving party. We fail, however, to appreciate the force of the distinction, for actions are removable only when they could, in the first instance, have been brought in the federal court.

Attack is made upon the judgment because there was a proceeding pending in the state court, involving the identical issues, when this action in the federal court was begun and when it was tried. We do not find substantiation for this position in the record. It does appear that condemnation proceedings were begun in the state court, that a judgment dismissing the petition was entered, an appeal taken, and the Supreme Court reversed the judgment of dismissal. The record does not disclose what occurred subsequently, and we are not able to say that the two actions involved the same land. The burden being upon the defendants to establish their plea in abatement, it follows that no error was committed in refusing to dismiss on this ground. But had the record disclosed pending condemnation proceedings involving the same land, it would have been no bar to the maintenance of this action, in view of the character of a condemnation proceeding. McClellan v. Carland, 217 U.S. 268, 30 Sup.Ct. 501, 54 L.Ed. 762; 1 Corpus Juris, 87, 88.

A different situation would have existed had a state court, in first taking jurisdiction of the cause of action, also taken possession of the res. Farmers' Loan & Trust Co. v Lake Street Elevated Rd. Co., 177 U.S. 51, 20 Sup.Ct. 564, 44 L.Ed. 667. It is apparent from the large and carefully selected list of cases cited by defendants' counsel that courts have not always recognized the necessity of the res being possessed, but an examination of the facts in most of these cases discloses such possession, and...