City of Seattle v. Great Northern Ry. Co.

• Decision Date: 17 September 1913
• Docket Number: 2531.
• Citation: 239 F. 1009
• Parties: CITY OF SEATTLE v. GREAT NORTHERN RY. CO. et al.
• Court: U.S. District Court — Western District of Washington

239 F. 1009

CITY OF SEATTLE v. GREAT NORTHERN RY. CO. et al.

No. 2531.

United States District Court, W.D. Washington, Northern Division.

September 17, 1913

James E. Bradford, Corp. Counsel, and Howard M. Findley, Asst Corp. Counsel, both of Seattle, Wash., for plaintiff.

C. H Winders, of Seattle, Wash., for defendant Northern Pac. Ry Co.

F. V Brown and F. G. Dorety, both of Seattle, Wash., for other defendants.

NETERER District Judge.

The city of Seattle brought this action against the Great Northern Railway Company, a corporation, Northern Pacific Railroad Company, a corporation, and Seattle & Montana Railway Company, a corporation. It alleged, in substance, that it is a municipal corporation organized under the laws of the state of Washington; that the Great Northern Railway is a corporation organized under the laws of Minnesota; that the Northern Pacific Railroad Company is a corporation organized under the laws of Wisconsin; that the Seattle & Montana Railroad Company is a corporation organized under the laws of Washington; that the plaintiff is the owner of block 19, situated on the northeast corner of Madison street and Fourth avenue; that upon this property is a building of stone, brick, concrete, and steel construction, known as the Seattle Public Library; that the building is used by the general public as and for a general library building, and is intended for no other purpose; that during the 'year 1904 the defendants constructed a tunnel, for the purpose of laying down, constructing, maintaining and operating sundry railway tracks through the same, along, across, and beneath certain streets, avenues, and alleys, and, among others, under the surface of and in the said Fourth avenue in front of block 19, and have ever since operated and maintained the same. ' It is further alleged:

'That by reason of the negligent, careless, and unskillful manner in which said tunnel was constructed by said defendants, and the negligent, careless, and unskillful manner in which said defendants have operated and maintained said tunnel, the said Fourth avenue has sunk and been depressed below the established grade thereof, and the said block 19 has been undermined and deprived of its natural and lateral support, thereby causing the earth on plaintiff's said premises to cave in, slip, slide, and move, and the support and foundations of said building and the ornamental and retaining walls about and in front thereof, and the stone and concrete walks, terraces, and approaches thereto to crack, settle, become displaced, damaged and destroyed, and the bonds of said building to sever, and the walls, partitions, floors, roof, tiling, plastering, plumbing, and the entire structure to be cracked, broken, racked, damaged, and destroyed, on account of which the value of plaintiff's said premises has been greatly lessened and the use and occupation thereof impaired and diminished.'

Judgment is prayed for $450,000. The defendant Seattle & Montana Railroad Company, in its answer, admits that it constructed the tunnel, and denies all other allegations in the complaint, and 'specifically denies that it has, at any time since the 26th day of November, 1907, owned, operated, or maintained the said tunnel, railroad tracks, right of way, or any of the property or facilities located in said tunnel or connected therewith,' and, further answering, the defendant alleges:

'That all of the matters and things complained of by the plaintiff in said complaint occurred, if at all, more than two years prior to the commencement of this action, and that the plaintiff's cause of action herein if any it had, accrued to it more than two years prior to the commencement of this action, and that none of the acts, injuries, or damage alleged in said complaint occurred or happened within the period of two years immediately preceding the commencement of this action.'

The defendants Great Northern Railway Company and the Northern Pacific Railway Company presented a petition for removal to this court, in which they allege:

That the Great Northern Railway Company is a corporation of the state of Minnesota, with its principal place of business at St. Paul in said state, and the Northern Pacific Railway Company is a corporation of Wisconsin, with its principal place of business at Madison, and 'that the controversy in this action and every issue of fact and law therein is wholly between citizens of different states, and which can be fully determined as between them; that is to say, the plaintiff, the city of Seattle, and the defendants Great Northern Railway Company and Northern Pacific Railway Company.'

The petition further avers:

'That the defendant Seattle & Montana Railroad Company * * * is not now the owner of the railroad, or any portion of the railroad or railroad facilities, or of the said tunnel or any of the right of way, or anything pertaining thereto, mentioned in said complaint,' nor has it been interested in any way since the 26th day of November, 1907, and that the 'Great Northern Railway Company and the Northern Pacific Railroad Company have owned, operated, and maintained the said tunnel and the railroad therein and the right of way thereof, and that no other persons or corporations whatever have been interested or taken part in the ownership, operation, or maintenance of said railroad, right of way, or tunnel, since said date.'

The petition further avers that a deed, transferring all interest from the Seattle & Montana Railroad Company in all of said right of way, railway, and tunnel property to the other defendants, was filed for record in the office of the auditor of King county, on the 28th day of January, 1908, and has been recorded therein, and further avers:

That the Seattle & Montana Railway Company has been joined as a party defendant in this action improperly and fraudulently, for the sole purpose of defeating the jurisdiction of the District Court of the United States for the Western District of Washington, Northern Division, and for preventing the removal of said action from the state court; 'that said plaintiff had not at the time of the commencement of this action, and has not since had, and has not now, any reason whatever to believe, or any reasonable grounds of establishing, any facts connecting the Seattle & Montana Railroad Company with the cause of action herein, and has not now, or has it had, any reasonable grounds to believe that a cause of action against said Seattle & Montana Railroad Company exists now, or existed at the time of the commencement of this action, arising out of the facts set forth in said complaint.'

A proper bond, with the said petition for removal, was filed, and an order of removal was entered by the state court. The plaintiff has filed its motion to remand the case to the state court on the ground: That the complaint shows that the Seattle & Montana Railroad Company is a corporation organized and existing under and by virtue of the laws of the state of Washington, and is a proper, necessary, and indispensable party defendant; that there is not involved in this action a controversy which is wholly between the citizens of another state on the one side and citizens of the state of Washington on the other side which can be fully determined as between them; 'that there is not a fraudulent joinder of parties defendant, made for the purpose of preventing a removal to this court; that upon the face of the record the petitioning defendants are not entitled to have said cause removed to the federal court for trial.'

Upon the argument of the motion to remand, the nonresident railroad companies offered in support of their contentions as a matter to be considered by the court in this hearing, ordinances of the city of Seattle Nos. 9116 and 10545, and also presented certified copies of deeds wherein the Seattle & Montana Railroad Company, Washington corporation, is the grantor, and the Northern Pacific...