Colorado Midland Ry. Co. v. Jones

• Decision Date: 30 November 1886
• Parties: COLORADO MIDLAND RY. CO. v. JONES and others.
• Court: U.S. District Court — District of Colorado

29 F. 193

COLORADO MIDLAND RY. CO. v. JONES and others.

United States Circuit Court, D. Colorado.

November 30, 1886

Henry T. Rogers, for complainant.

Hugh Butler, for respondents.

BREWER J.

This was a proceeding by the petitioner, the railway company under the statute of this state, for the condemnation of a right of way through the lands belonging to the respondents. After the petition had been filed, and the summons issued and served, the respondents filed their petition and bond for removal to this court; and the question presented is whether that is a case of which this court has jurisdiction.

The right of eminent domain, as conceded, is one of the attributes of sovereignty. It is something which inures in the state by virtue of its sovereignty, and, except as limited by provisions in the state constitution, there is no question of the power of the state to take any land belonging to an individual which it may deem necessary for any public purpose. Being an attribute of sovereignty, it is one of those rights, the exercise of which cannot be questioned or challenged in the courts of any other jurisdiction. So far the authorities are all in accord. But the constitution of this as well as of other states provides that private property shall not be taken or damaged for public use without just compensation; and, when the right to take is asserted and adjudged, the question of compensation, a matter entirely independent of the right, still remains for determination. The legislature may provide under what circumstances and in what manner this compensation shall be determined, and, when it has provided that which is equivalent to a suit at law in which the only controversy remaining to be considered is the amount of compensation, there exists a suit,-- a controversy,-- which, under the removal act, may be removed to the federal courts, provided the citizenship of the parties justifies it. That right of removal has been affirmed in two cases in the supreme court, (Boom Co. v Patterson, 98 U.S. 403, and Union Pac. R. Co. v City of Kansas, 115 U.S. 1, S.C. 5 S.Ct. 1113;) so that the question in this case is narrowed to this: whether there was, at the time that this petition and bond for removal were filed, such a proceeding pending as could be considered fairly a suit at law, and in which the whole matter of inquiry was the amount of compensation. If there was, then there was a suit which is removable; otherwise not.

Now, turning to the statutes, I find, in section 238, 'that in all cases where the right to take private property for public or private use, without the owner's consent, * * * has been heretofore or shall hereafter be conferred by general law or special charter, * * * and the compensation to be paid for or in respect of the property sought to be apportioned or damaged, for the purpose above mentioned, cannot be agreed upon by the parties interested, * * * it shall be lawful for the party authorized to take or damage the property so required * * * to apply to the judge of the district or county court, either in term-time or vacation, by filing with the clerk a petition setting forth by references his or their authority in the premises,' (and certain other matters,) 'and praying such judge to cause the compensation to be paid to the owner to be assessed. ' That is, the question which is presented by that petition is simply as to the compensation to be paid to the owner. The right is already settled. It is a right which the legislature has granted either by special charter or general act; and the only question which upon that petition comes up for inquiry-- perhaps the only question which can ever thereafter be considered-- is that of compensation. When the petition is filed, a summons is issued and served upon the party as in other cases. At the day fixed for the hearing, which may be either in term-time or vacation, either before the court or before the judge, a commission of three persons is appointed, who assess and report the damages. There may be a jury at the demand of the owner of the property,-- only on his demand.

Section 237 says: ...