Baltimore & O.R. Co. v. Wabash R. Co.

• Decision Date: 11 November 1902
• Docket Number: 863.
• Parties: BALTIMORE & O.R. CO. et al. v. WABASH R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

119 F. 678

BALTIMORE & O.R. CO. et al. v. WABASH R. CO.

No. 863.

United States Court of Appeals, Seventh Circuit.

November 11, 1902

W. H H. Miller, for appellants.

Addison C. Harris, for appellee.

The Wabash Railroad Company, the appellee, acquired the right to construct a railway from New Haven to Butler, Ind. The line crosses a railway in possession of and operated by the Baltimore & Ohio Railroad Company, one of the appellants, at a certain point in De Kalb county. Being unable to agree with respect to the point and manner of crossing and the damages on August 28, 1901, the Wabash Company filed its 'Instrument of Appropriation,' under the statutes of Indiana, for a grade crossing, making the two companies appellants here, parties thereto. Pending the proceedings an agreement was reached between the parties to the effect that the judge should appoint three commissioners to ascertain and report whether an overgrade crossing at the point in question was reasonable and practicable, and whether a crossing at grade should be established, and to assess the damages upon the theory of an interlocking plant being put in, used, and maintained by the Wabash Company under plans and specifications to be submitted to and approved by the auditor of the state. Commissioners were appointed by the court, who reported that an overgrade crossing was impracticable, and reported in favor of the construction of a grade crossing, assessing the damages at $12,000. Upon that report, on the 19th of October, 1901, the court decreed the Wabash Company 'to have a right to and to be possessed of a right to such grade crossing, and to the rights and privileges appropriated in said instrument of appropriation at such place. ' The damages assessed were paid into court. On October 30th plans and specifications for an interlocking system and plat at such crossing were approved by the auditor of the state, of which the appellants were duly notified. The Wabash Company was about to put an interlocking plant in place, but was notified on the 10th of December, 1901, by the Baltimore & Ohio Railroad Company, that it would not permit a grade crossing. At that time there being only two tracks, 8 feet apart, the latter company changed the grade of one of the tracks so as to give it a super-elevation of 4 inches over the grade of the other track, moved the south track a distance of 20 feet, and between the two tracks constructed a third track, and placed thereupon engines and cars at that crossing, detaching the middle track from each of the other tracks; thus obstructing the making of the grade crossing. Both companies, appellants here, appealed from the decree of appropriation to the appellate court of the state of Indiana, which appeal is still pending. On the 14th of December, 1901, the Wabash Company, which is a corporation of the state of Indiana, filed its bill in the circuit court of the United States for the district of Indiana, seeking to enjoin the Baltimore & Ohio Railroad Company, a corporation of the state of Maryland, from resisting the making of the grade crossing, and requiring it to remove the obstruction, to rearrange the level of the tracks, and restore them to the condition they were in at the time of the decree. Upon the 18th of December the Baltimore & Ohio & Chicago Railroad Company, a corporation of the state of Indiana, presented its petition seeking to be made a party defendant; setting forth that it was the owner of the railway, and that the Baltimore & Ohio Railroad company is the owner of a part of its capital stock. But the court refused to allow the petition to be filed, to which ruling it excepted. And on that day, upon bill and answer, the court enjoined the Baltimore & Ohio Railroad Company, substantially as prayed for in the bill, and thereupon the decree or order allowing the injunction is brought by appeal to this court for review upon a joint and several appeal by both companies appellant.

Before JENKINS and GROSSCUP, Circuit Judges, and SEAMAN, District Judge.

JENKINS Circuit Judge (after stating the facts).

It is settled that, when a state court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted. Harkrader v Wadley, 172 U.S. 148, 19 Sup.Ct. 119, 43 L.Ed. 399; Farmers' Loan & Trust Co. v. Lake Street El. R. Co., 177 U.S. 51, 20 Sup.Ct. 564, 44 L.Ed. 667. We have followed this rule, declaring 'that the court which first obtains possession of the res or of the controversy, by priority in the service of its process, acquires exclusive jurisdiction for all the purposes of a complete adjudication.' 505,000 Feet of Lumber, 24 U.S.App. 509, 517, 12 C.C.A. 628, 65 F. 236. The rule is not only one of comity, to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons, but between state courts and those of the United States is something more. 'It is a principle of right and law, and therefore of necessity. It leaves nothing to discretion or mere convenience. ...