Carothers v. McKinley Mining & Smelting Co.

• Decision Date: 07 July 1902
• Docket Number: 725.
• Parties: CAROTHERS v. McKINLEY MINING & SMELTING CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 947

CAROTHERS v. McKINLEY MINING & SMELTING CO. et al.

No. 725.

United States Circuit Court, D. Nevada.

July 7, 1902

E. V Higgins, for plaintiff.

A. E Cheney and Oscar J. Smith, for defendants McKinley Mining &amp Smelting Co. and others.

HAWLEY District Judge (orally).

This suit was brought in the state court. Thereafter, upon the application of nonresident defendants, it was removed to this court. Plaintiff moves to remand the cause to the state court on the ground that this court is without jurisdiction to hear and determine the cause. The legal phase of the questions raised by the motion calls for a brief statement of the nature of the suit as gleaned from the complaint and matters set forth in the petition for removal.

The suit is in the nature of a bill to quiet title to the 'Fair Play,' formerly called the 'Saxton,' mining claim, situate in White Pine county, state of Nevada. It is averred in the complaint that the plaintiff is a resident and citizen of White Pine county, Nev., and that he is now, and since October 16, 1890, 'has been, in the open, notorious, peaceable, adverse, and, except as hereinafter stated, the exclusive, possession and occupation according to the laws and customs of the mining district therein situated,' of the mining claim in question, particularly describing it by metes and bounds; 'that this plaintiff is the sole and absolute owner of the aforesaid premises; that the said defendant McKinley Mining & Smelting Company is a foreign corporation, organized under the laws of the state of New York; that the aforesaid defendant claims an estate or interest in the aforesaid premises adverse to this plaintiff, and that, in pursuance to said pretended claim, it has at divers times since August 1, 1901, wrongfully and without right gone onto said premises and sunk shafts thereon and extracted valuable ores therefrom; * * * that the defendant Canton Mining Company is a corporation organized under the laws of the state of Ohio, and that the defendants Mrs. William McKinley and Mrs. Marshal Barber are residents of the state of Ohio; * * * that the said defendants * * * claim an interest in the aforesaid property adverse to the said plaintiff; that the claim of the said defendants, and each of them, is without any right whatever, and that the said defendants have no estate, right, title, or interest whatever in said land or premises or any part of them; * * * that the defendants Catherine Carothers, Alice Carothers Buntin, Virginia J. Carothers, and Ida Carothers are each and all citizens and residents of the state of Nevada; that they each claim an interest in the aforesaid premises adverse to that of this plaintiff; that the claim of said defendants, and each of them, if any such they have, is subject and inferior to that of this plaintiff. ' Plaintiff prays for judgment that 'the defendants, and each of them, be required to set forth the nature of their claim, and that all adverse claims of the defendants, and each of them, be determined by a decree; * * * that the defendant McKinley Mining & Smelting Company be forever restrained and enjoined from hereafter entering upon or extracting ore from said premises; * * * that all of the defendants be forever enjoined and debarred from asserting any claim whatever in or to said land and premises adverse to this plaintiff.'

The Canton Mining Company, Mrs. William McKinley, and Mrs Marshal Barber, in their petition for the removal of the cause, among other things aver 'that the rest of the said defendants, to wit, Catherine Carothers, Alice Carothers Buntin, Virginia J. Carothers, and Ida Carothers at the time of the commencement of this suit were, and now are, * * * sisters or other near relatives of the said plaintiff, and that none of said last-named defendants have any interest in the subject-matter in dispute in this suit, except such as is adverse and hostile to the rest of the said defendants and in common with said plaintiff, and that said Catherine Carothers, * * * and each of them, if proper parties to this suit at all, are parties plaintiff, and that they, and each of them, are fraudulently and improperly joined as parties defendant for the sole purpose of defeating the right of your petitioners and the others of said nonresident defendants to remove this cause to the United States circuit court; * * * that said Catherine Carothers, * * * or either of them, are not necessary parties to a controversy between plaintiff and your petitioners; * * * that there is a controversy herein between citizens of this state and of another state * * * which is a separable controversy; that said McKinley Mining & Smelting Company claims an interest in said property under and through your petitioners, and the title and claim of said McKinley Mining & Smelting Company and of your petitioners is and has been by, through, and under one and the same patent of the government of the United States to the mining ground and premises in controversy, and that the only title and claim of plaintiff set forth in said plaintiff's complaint is one of adverse possession, and the only claim and title or defense which said Catherine Carothers * * * or either of them has, if they have any at all, is also one of adverse possession to said mining ground or premises or some portion thereof; * * * that the sole...