City of Chicago v. Hutchinson

• Decision Date: 26 January 1882
• Citation: 15 F. 129
• Parties: CITY OF CHICAGO v. HUTCHINSON and others.
• Court: U.S. District Court — Northern District of Illinois

15 F. 129

CITY OF CHICAGO v. HUTCHINSON and others.

United States Circuit Court, N.D. Illinois.

January 26, 1882

Frank Adams, City Atty., Mr. Coburn, Mr. High, and Mr. Winston, for plaintiff.

Edsall & Hawley, for defendants.

DRUMMOND J.

By an ordinance of the city council of Chicago, passed March 16 1882, Dearborn street was directed to be opened from the south line of Jackson street to the north line of Taylor street, to the width of 80 feet, and on the twenty-fourth of March, 1882, a petition was filed in the superior court of Cook county, by the city attorney, for the condemnation of the land and lots necessary to be taken in order to have the street opened as provided by the ordinance. The petition required about 200 lots, or parts of lots, to be condemned and comprehended, of course, a very large number of owners about 40 of whom were named, the remainder being described as 'unknown;' and in conformity with the statute provided in such cases, this fact was shown, and publication of the application was made, and all parties in interest required to come into court and be heard as to their claims. A summons issued to the persons named, returnable on the first Monday of May then next ensuing, and was returned served on many of them, who appeared in answer to the same.

It is claimed on the part of the city that by the service of the summons thus issued and served, and by the publication made in conformity with the statute as to unknown owners, all the defendants who were the owners of the property were in court and subject to its action at the June term, 1882. But nothing seems to have been done towards an immediate hearing of the case until the seventh day of December, 1882, when, on the application of the city attorney, the court ordered that 'this cause be and the same is hereby set down for trial for Monday next. ' On the second day of January, 1883, before the trial of the cause, Jane E. Martin, a citizen of Berrien county, in the state of Michigan, filed an affidavit, stating that she was the owner of part of one of the lots sought to be condemned, and prayed to be made a party to the suit, stating that she had no knowledge of the application until that time. With the consent of the city attorney, and by the order of the state court, she was then made a party defendant. On the third day of January, she filed a petition in the court for the removal of the cause to this court, under the act of congress of 1875, and filed the requisite bond. On the 6th the court refused the application for the removal of the case, for the reason that the proceeding connected with the extension and opening of Dearborn street did not present, as to her, a controversy wholly between citizens of different states, and which could be fully determined as between them; and for the further reason that the application for removal came too late, as not being filed before or at the term at which the cause or proceeding could be first tried. Under these circumstances she asks leave to file a transcript of the case in this court and to have it docketed. This application is opposed by the city because the case is not within the terms of the act of congress authorizing the removal of cases from the state to the federal court.

The petitioner, in her application for removal of the cause, stated that she was then, and had been from a time prior to the commencement of the proceedings in the state court, continuously a citizen of the state of Michigan. She did not then state, nor does it appear, when she became the owner of the part of the lot which is sought to be condemned, further than at the time she applied to become a party defendant, she says 'that she is the owner of the south 24 7-10 feet of lot 16 of block 133 of school-section addition to Chicago. ' Her application was made to the court to become a party as one of the numerous defendants called 'unknown' in the petition and other proceedings in the cause. The statute of the state under which the application was made by the city for the condemnation of the property in this case, requires that a jury shall be impaneled to ascertain the compensation to be paid to the owners, and declares: 'If any defendant or party in interest shall demand, or the court shall deem it proper, separate juries may be impaneled as to the compensation or damages to be paid to any one or more of such defendants or parties in interest. ' In this case the ordinance directing the opening of the street provided that the cost thereof should be paid by special assessment levied upon the property benefited thereby, to the amount that the same might be legally assessed therefor, and that the remainder of the cost should be paid by general taxation. Chapter 24 of the Revised Statutes, art. 9, Sec. 133, and the following sections, declare how the special assessment shall be made under such circumstances, and how the money shall be raised and paid; and section 167 provides for a supplemental petition to be filed to assess the benefits to the owners by the proposed improvements in condemnation cases.

It will be seen, from the foregoing statement of facts, that there was but one petition filed by the city, which covered a series of lots lying upon one street. It, of course, affected the interest of every separate owner of the property to be condemned, and, in one aspect of the case, the controversy which he might have with the city was one in which the other owners were not directly interested. The question as to him was what was the value of his property which was to be appropriated for the use of the street. At the same time in another aspect of the case, it is said the proceedings were more or less united, and in making the special assessments which might be necessary to pay in part for the opening of the street, the interest of adjoining lots were more or less connected together. It is in this view of the case that it is contended, on the part of the city, that it is not such a suit or such a controversy as is referred to in the second section of the act of 1875.

In Boom Co. v. Patterson, Co. v. Patterson, 98 U.S. 403, the supreme court of the United States held, where an application was made by the company to condemn the land of Patterson for its uses under the law of Minnesota, the case was subject to removal from the state to the federal court under the act of 1875. In that case, commissioners in the first instance appraised the value of the land, there being only one owner. Under the law the case then went to the district court of the state, and the owner of the land, as a citizen of another state, made the application for removal, which was sustained by the supreme court of the United States. This case, of course, decides the general question in favor of the jurisdiction of the federal court on an application for removal in a condemnation proceeding. In other words, that it is the kind of controversy referred to in the act of 1875, which, under the circumstances therein named, will authorize the removal of the cause; and, if this case is in principle like that as to the subject-matter of the controversy, then it is, under that decision, removable.

The language of the second section of that statute is 'that one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper district. ' A condemnation proceeding, as such, is, under the decision just referred to, such a suit as can be removed. Is this such a suit?

We have seen that it is commenced by a petition of the city. The city, a corporation of Illinois, is the sole plaintiff and actor in the case. All the property-owners of different lots, or those interested therein, are defendants-- expressly so called in the statute. A summons is to issue and be served upon them 'as in cases in chancery.' As to the unknown defendants, publication is to be made containing a notice of the pendency of the 'proceeding,' the parties thereto, and the title of the court; and then the statute declares that such notices so given by publication shall be sufficient to authorize the court to hear and determine the 'suit.' And upon the return of the summons, and at the time fixed by the court, a jury is to be impaneled as already stated. Now, the question is, whether, as this is an application for the condemnation of the property of different owners, it is a suit within the meaning of the act of congress, and as such is removable, notwithstanding the interests of the respective owners named as defendants are all distinct as to the several parcels of land which they own. There can be no doubt is a suit of some kind, known as such in law.

This being an application made by one of the numerous defendants who, as known or unknown, were named in the summons, and some of whom afterwards appeared in the case by being made parties, the question arises whether, within the meaning of the second section of the act of 1875, there was a controversy which was wholly between the applicant and the city, which could be fully determined as between them. If that were so, then, within the express terms of the statute, she had the right to have the controversy and her suit removed. No question is made about her interest in the property. The only controversy between the city and herself is as to the value of the land, and it follows that it is a controversy wholly between them, and when the value of the land is ascertained by a jury, and...