Colorado Eastern R. Co. v. Chicago, B. & Q. Ry. Co.

• Decision Date: 09 November 1905
• Docket Number: 2,279.
• Citation: 141 F. 898
• Parties: COLORADO EASTERN R, CO. v. CHICAGO, B. & Q, RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 898

COLORADO EASTERN R, CO. v. CHICAGO, B. & Q, RY. CO.

No. 2,279.

United States Court of Appeals, Eighth Circuit.

November 9, 1905

(Syllabus by the Court.)

The granting of a temporary injunction does not determine the rights of the parties. The court need be satisfied no further than of a probable right and a probable danger, and that such right may be defeated without the interposition of a restraining order, and that the granting of such order will probably be attended with less injury to the respondent than to the complainant.

Section 720, Rev.St.U.S. (U.S.Comp.St. 1901, p. 581), declaring that the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, has no application to the instance of a nonresident owner of land entered upon by the defendant in condemnation proceedings instituted in the state court, to which such nonresident owner is not made a party, and does not prevent him from applying to the United States Circuit Court for an injunction to restrain the trespass upon his land.

The provision of the state statute of Colorado (3 Mills' Ann.St.Rev.Supp. 1716) authorizing the plaintiff in condemnation proceedings to proceed against the apparent owner of the land of record, and, after paying into court the prima facie damage to the land, to enter and begin the construction of a railroad thereon, does not preclude the real owner from enjoining the further entry and use of his land, especially where the petitioner for condemnation before entry, has notice of the claim of title to the premises by such third party.

Section 1726, Mills' Ann.St.Colo., providing that any person not made a party to such proceeding may become such by filing a cross-petition at any time before hearing, setting forth that he is an owner or has an interest in the property sought to be taken, etc., and that the rights of such persons shall thereupon be fully considered and determined, is only permissive in character, and does not operate to deny such third party, a nonresident, the right to appeal by injunction to the United States Circuit Court to prevent the appropriation of his land. Such statutes do not meet the requirement of due process of law, as the law abhors a judgment without notice.

As the state statute of Colorado in condemnation proceedings authorizes the petitioner to institute the same in the state district court, with the right to amend the petition at any time before final judgment by bringing in a new party defendant, a temporary restraining order at the suit of a nonresident owner of the land, not made a party to the proceeding, ought not to enjoin the petitioner for condemnation from making such claimed owner a party defendant therein. Such nonresident, when made a party defendant, may remove the controversy into the federal court, and there try out the whole question of the right to appropriate by condemnation his land to the use of the petitioner.

On the 15th day of April, 1905, the complainant, Chicago, Burlington & Quincy Railway Company, an Iowa corporation, filed in the United States Circuit Court for the District of Colorado its bill of complaint against the Colorado Eastern Railroad Company, a Colorado corporation, alleging that since the 20th day of November, 1901, the complainant has been the owner of two parcels of land, known as 'Parcel No. 1' and 'Parcel x or No. 2,' within the corporate limits of the city of Denver; that it had obtained said property by mesne conveyances under the Republican Valley Railroad Company and the Burlington & Colorado Railroad Company; that said parcels of land had, long prior to said acquisition of title, been appropriated to the use of said railroad companies for railway tracks, switches, and terminal facilities; that at the time hereinafter complained of the same was being so actually used by the complainant, or such portions of it as were not being so actually used were absolutely necessary for its future uses in the development of its business; that in the latter part of the month of March, 1905, while the complainant was so in and entitled to the exclusive possession and occupancy of said tracts of land, the defendant, appellant, wrongfully, with force entered thereon and excluded the complainant therefrom without warrant or authority of law; that if the defendant is permitted to continue its said wrongs and retain possession of said parcels of land the complainant will be deprived of the use thereof, and be forced to procure, by condemnation or otherwise, other tracts of land in the vicinity thereof for its legitimate railroad uses and purposes; that as to said parcel x or No. 2 the complainant, from the necessities of its increasing business and requirements for more extended terminal facilities, side tracks, and storage tracks, had previous to the injuries complained of, commenced to grade and prepare the same for railroad tracks, to be used in connection with its railroad operations; that it was being prevented by defendant's said wrongs from improving said parcels and laying its railroad tracks thereon; that the possession of said parcels of land by the defendant is inconsistent with the use thereof by the complainant, and would prevent the complainant from using the same as hitherto and as it intends to use the same in the future, thus unduly interfering with the exercise of the complainant's franchise and use of said property as a railroad, which interference would be increased by the defendant further prosecuting its proposed work of construction of a railroad for its use on said property. From the map filed as an exhibit in the case, giving a survey of the proposed route of the defendant's railroad, it is shown to run longitudinally on the right of way of the complainant's railroad. The bill further alleges that the defendant threatens and intends to institute against the complainant proceedings, in some court of the state, to condemn to its use said parcels of land in the event the complainant does not acquiesce in said wrongs and injury, and thereby to undertake to deprive the complainant of said lands under the guise of devoting the same to its public use for railroad purposes, notwithstanding the fact that said parcels had already been purchased, acquired, dedicated, and appropriated to railroad uses and purposes by the complainant; that unless the defendant is enjoined by the equitable interposition of the court, it would continue its unlawful possession of said lands, and to place thereon its railroad tracks and other structures, thereby depriving the complainant of its rightful use, and would forthwith proceed to tear up and destroy the complainant's railroad track located as aforesaid. It alleges want of power in the defendant corporation to exercise the right of eminent domain as to said lands, and the existence of any necessity therefor. The bill further charged the defendant with insolvency, and that the complainant had, prior to the bringing of this suit, instituted in said United States Circuit Court an action of ejectment against the defendant to evict it from said lands. The prayer of the bill is that the defendant, its officers, and agents be restrained and enjoined from continuing said possession, and from further trespassing thereon, or further constructing or attempting to construct any railroad or other structures thereon, and from interfering with the complainant in its use of said parcels of land, or with the complainant in constructing railroad tracks or other structures the complainant might desire to erect or construct thereon, and restraining the defendant from instituting or commencing in any court any proceeding whatever, in the nature of condemnation or otherwise against the complainant in relation to said parcels of land, and to enjoin the defendant from tearing up or in any way interfering with the railroad track of the complainant located thereon, until the further order of the court.

The court granted a temporary injunction, enjoining the defendant, its officers, agents, servants, and employes, from further working upon or trespassing upon either of said parcels of land, and from constructing or attempting to construct any railroad or structure over said parcels of land, and from in any manner interfering with the complainant in its use of its railroad track located on said parcel No. 1, and from interfering with the complainant in the use of said parcel No. 2, and further enjoining the defendant from instituting or commencing in any court any proceeding in the nature of condemnation or otherwise against the complainant in relation to said land, and from tearing up, touching or in any manner interfering with the railroad track of the complainant located upon said parcel No. 1. From this order the Colorado Eastern Railroad Company appealed to this court.

Lucius M. Cuthbert (Henry T. Rogers, Daniel B. Ellis, Lewis B. Johnson, and Pierpont Fuller, on the brief), for appellant.

Charles W. Waterman (Joel F. Vaile and William W. Field, on the brief), for appellee.

Before SANBORN, Circuit Judge, and PHILIPS and CARLAND, District Judges.

PHILLIPS District Judge, after stating the case as above, delivered the opinion of this court.

Counsel for appellant has argued this case as if the appeal had been from a final decree making the injunction perpetual. This is a misconception. The case was heard on the bill for a temporary injunction, and the order of the court was only provisional-- 'until the further order of the court ' The bill was sworn to, and no answer thereto has been filed. The allegations of the bill, therefore, for the purposes of a temporary restraining order stood presumptively true. Affidavits were submitted by both parties on the hearing. Such...