Buckhannon & N.R. Co. v. Davis

• Decision Date: 21 February 1905
• Docket Number: 553.
• Citation: 135 F. 707
• Parties: BUCKHANNON & N.R. CO. v. DAVIS.
• Court: U.S. Court of Appeals — Fourth Circuit

135 F. 707

BUCKHANNON & N.R. CO. v. DAVIS.

No. 553.

United States Court of Appeals, Fourth Circuit.

February 21, 1905

W. S Meredith (Reese Blizzard, on the brief), for appellant.

John W Davis (John Bassel and Ira E. Robinson, on the brief), for appellee.

Before PRITCHARD, Circuit Judge, and BRAWLEY and WADDILL, District judges.

PRITCHARD Circuit Judge.

The bill of Coster et al., trustees, was filed March 13, 1899 its purpose being the foreclosure of the underlying mortgage of the Parkersburg Branch Railroad Company dated July 1, 1879. In accordance with the prayer of said bill, John W. Davis was appointed receiver of all the property of said railroad company, and he duly qualified as such officer. Pending the proceedings in that case the Buckhannon & Northern Railroad Company, on the 27th day of October, 1903, filed its petition therein, asking permission to institute and prosecute in the circuit court of Taylor county, W. Va., certain condemnation proceedings against the said receiver, the object of which was to secure a crossing for the Buckhannon & Northern Railroad Company over the railroad and right of way of the Parkersburg Branch Railroad Company at a point within the corporate limits of the city of Grafton, in Taylor county, W.Va. It was set out in the petition that the Buckhannon & Northern Railroad is a corporation organized under the laws of the state of West Virginia for the Purpose of constructing and operating a railroad for public use from the town of Buckhannon, in Upshur county, to Fairmont, in Marion county, W. Va., and thence on to the boundary line between the states of West Virginia and Pennsylvania; and that in constructing its railroad it is necessary for the petitioner to cross, at grade, the right of way and roadbed of the Parkersburg Branch Railroad at the point desired to be condemned for that purpose, and that such crossing was necessary in connection with the construction of petitioner's railroad; that said petitioner and the Parkersburg Branch Railroad Company could not agree upon the amount of compensation to be paid for such crossing, nor upon the point at which it was to be made, nor the manner of making the same. The court, after considering such application, granted permission to the Buckhannon & Northern Railroad Company to institute and maintain a suit against John W. Davis, receiver of the Parkersburg Branch Railroad Company, relative to such crossing, the order then entered containing these words: 'The court at this time not passing upon the forum in which said suit or proceeding is to be instituted. ' On the 4th day of November, 1903, the receiver moved the court to strike from the record the order entered therein on the 27th day of October, 1903, giving such permission to institute proceedings to condemn, and the court, on considering such motion, set the hearing of the same for November 17, 1903. Notice of the fact that the court had so set the hearing of such motion was served on the Buckhannon & Northern Railroad Company on the 6th day of November, 1902. On November 9, 1903, the Buckhannon & Northern Railroad Company served notice on the receiver that it would, on November 19, 1903, make application by petition to the circuit court of Taylor county, W. Va., to appoint commissioners to ascertain a just compensation to the owners, and to secure such orders as might be necessary to condemn the right of way before mentioned. This notice was served without any request having been made to the court to dispose of the question of the forum, reserved when leave to sue was granted. The receiver, on November 17, 1903, filed a report of his proceedings as such officer, and, the cause coming on to be further heard, it was ordered that the hearing on the motion to set aside the order giving permission to sue be had on December 2, 1903, and that in the meantime the Buckhannon & Northern Railroad Company be restrained from prosecuting its said action in the circuit court of Taylor county, W. Va., until the further order of the court. After a consideration of the questions presented by the record, the court amended the order of January 27, 1903, which gave the Buckhannon & Northern Railroad Company the right to institute proceedings against the receiver, by restricting the parties to the right to institute such proceeding in the Circuit Court of the United States in the cause of Coster et al. v. The Parkersburg Branch Railroad Company, 131 F. 115, and perpetually enjoining the Buckhannon & Northern Railroad Company from further prosecuting its suit for condemnation in the circuit court of Taylor county, W. Va.

It is contended by appellant that the court did not have power to revoke, annul, or modify its order of October 27, 1903, which granted permission to sue the receiver, and reserved the question as to the forum in which suit should be brought. The court undoubtedly had the right to attach any reasonable condition to the order which granted permission to sue the receiver, and, if necessary, to modify or revoke any order which it might have improvidently granted.

It is also contended by appellant that the state of West Virginia, in the exercise of its sovereign right of eminent domain, cannot in any way be interfered with by the courts of the United States. We do not understand such to be the law. In the case of Searl v. School District No. 2, 124 U.S. 199, 8 Sup.Ct. 461, 31 L.Ed. 415, Justice Matthews, in discussing this question, said:

'Such a proceeding, according to the decision of this court in Kohl v. United States, 91 U.S. 367 (23 L.Ed. 449), is a suit at law, within the meaning of the Constitution of the United States and the acts of Congress conferring

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