Alabama Power Co. v. Gregory Hill Gold Mining Co.

• Decision Date: 07 May 1925
• Citation: 5 F.2d 705
• Parties: ALABAMA POWER CO. v. GREGORY HILL GOLD MINING CO. et al.
• Court: U.S. District Court — Middle District of Alabama

5 F.2d 705 (1925)

ALABAMA POWER CO. v. GREGORY HILL GOLD MINING CO. et al.

District Court, M. D. Alabama, E. D., at Opelika.

May 7, 1925.

W. Logan Martin, of Birmingham, Ala., for Alabama Power Co.

W. M. Toomer, of Jacksonville, Fla., for Gregory Hill Gold Mining Co.

CLAYTON, District Judge.

This proceeding was instituted by the Alabama Power Company, an Alabama corporation, in the probate court of Tallapoosa county, Ala., under the state statute for the condemnation of a large number of separate tracts of land, and water rights, separately owned by a large number of persons, all made defendants.

One of the defendants, the Gregory Hill Gold Mining Company, a Florida corporation, removed the controversy between it and the Alabama Power Company into this court. The amount involved exceeds the sum or value of $3,000, exclusive of interest and costs. The controversy here is between the Alabama corporation and the Florida corporation, citizens of different states, and is a separate and distinct controversy from that between the Alabama Power Company and all the other defendants in said proceeding. The cause is now submitted on the motion to remand upon the ground that there is not a diversity of citizenship between the Alabama Power Company and all of the parties interested in the property sought to be condemned — about 309, owning the 225 separate tracts of land.

The controversy to which the motion relates is between the Alabama Power Company, hereafter called the Power Company, and the Gregory Hill Gold Mining Company, hereafter referred to as the Mining Company, which owns two of certain tracts of land described in the original petition for condemnation. But the timber standing on such tracts of land was conveyed several years ago to L. J. Finch, a citizen of Alabama, and is now owned by him.

The motion is bottomed upon the proposition that there is an indivisible or community of interest in this property and timber as between the Mining Company and Finch, a citizen of Alabama.

In opposition to the motion, it is urged that the Mining Company and Finch each own separate and distinct interests in the property sought to be condemned; that the right to condemn the land of the Mining Company presents a distinct controversy from the right to condemn the timber thereon owned by Finch; and that damages for the land and the timber sought to be condemned may be separately and severally fixed and awarded.

It is settled that when the requisite difference of citizenship exists and the matter in controversy exceeds the jurisdictional amount, an action, although commenced by state process, e. g., attachment, in the state court, can be removed, even in case where the writ could not have been originally issued from the federal court. Crocker Nat. Bank v. Pagenstecher (C. C.) 44 F. 705; Vermilya v. Brown (C. C.) 65 F. 149; Long v. Long (C. C.) 73 F. 369.

It is true that while a proceeding for the appraisal of land by commissioners when their appointment is made ex parte is usually regarded as of administrative nature and not removable, where application for order of condemnation is made upon notice, as is the case here, and may be opposed, the proceeding is removable. N. Pac. Term. Co. v. Lowenberg (C. C.) 18 F. 339 (under Or. Stat.); Mineral Range R. Co. v. Detroit & L. Superior Cotton Co. (C. C.) 25 F. 515 (under Mich. Stat.); Col. Mid. Ry. Co. v. Jones (C. C.) 29 F. 193 (under Col. Stat.); Banigan v. Worcester (C. C.) 30 F. 392 (under Mass. Stat.); K. C. & Tr. R. Co. v. Interstate Lumber Co. (C. C.) 37 F. 3 (under Mo. Stat.); Sugar Creek, P. B. & P. C. R. Co. v. McKell (C. C.) 75 F. 34 (under W. Va. Stat.); Postal Tel. Cable Co. v. Southern Ry. Co. (C. C.) 88 F. 803 (under N. C. Stat.); Union Term. Ry. Co. v. Chicago, B. & Q. R. Co. (C. C.) 119 F. 209 (under Mo. Stat.); Searl v. School Dist., 124 U. S. 197, 8 S. Ct. 460, 31 L. Ed. 415 (under Col. Stat.).

In the Searl Case, above, page 199, 8 S. Ct. 461, it is declared that, "In Gaines v. Fuentes, 92 U. S. 10, it was held that a controversy between citizens is involved in a suit whenever any property or claim of the parties capable of pecuniary estimation is the subject of litigation and is presented by pleadings for judicial determination."

It is also said in that case, pages 199-200, 8 S. Ct. 461, that: "The appointment of the commissioners is not, as in the case of Boom Co. v. Patterson 98 U. S. 403, 406 and the Pacific Railroad Removal Cases 115 U. S. 1, 18, a step taken by the party seeking to make the appropriation ex parte and antecedent to the actual commencement of the adversary proceeding inter partes, which constitutes a suit in which the controversy takes on the form of a judicial proceeding. Because under the Colorado law the appointment of the commissioners is a step in the suit after the filing of the petition and the service of summons upon the defendant. It is an adversary judicial proceeding from the beginning. The appointment of commissioners to ascertain the compensation is only one of the modes by which it is to be determined. The proceeding is, therefore, a suit at law from the time of the filing of the petition and the service of process upon the defendant."

This case falls within such rule.

There is a well-understood distinction between separable controversies as contemplated by the removal statute, and separate and entirely distinct controversies which may be joined in one proceeding by express statutory permission. In the latter cases nothing will be removed except the controversy between the removing party and the plaintiff. That is the case here. Deep Water Ry. Co. v. Western Coal and Lumber Co. (C. C.) 152 F. 824. And a case is removable if it can be separated into parties so that a controversy will be presented wholly between citizens of different states which can be fully determined without the presence of the other parties to the original proceeding. Gardner v. Brown, 21 Wall. 36, 22 L. Ed. 527. And that is also the case now presented. No reason for convenience of pleading or practice occurs to show that any other defendant or any other interest must be represented in this proceeding in the federal court in order to condemn the lands owned by the non-resident defendant. For it is a general rule that where an action is brought by one plaintiff against several defendants, not because they claim any joint interest or are subject to any joint liability in the action, but merely for convenience, and the cause is capable of being resolved into separate and distinct controversies between the plaintiff and the defendants, it is therefore...