Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co.

• Decision Date: 09 April 1907
• Citation: 152 F. 824
• Parties: DEEPWATER RY. CO. v. WESTERN POCAHONTAS COAL & LUMBER CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

152 F. 824

DEEPWATER RY. CO. v. WESTERN POCAHONTAS COAL & LUMBER CO. et al.

United States Circuit Court, S.D. West Virginia.

April 9, 1907

Brown Jackson & Knight and A. N. Campbell, for plaintiff.

J Lewis Bumgardner, Simms & Enslow, and J. W. McCreery, for defendants.

DAYTON District Judge (sitting specially).

The Deepwater Railway Company, a corporation, on the 9th day of October, 1905, lodged with the clerk of the circuit court of Raleigh county, W. Va., its petition against numerous parties, among others the Western Pocahontas Coal & Lumber Company, a West Virginia corporation, J. C. Maben, and Charles Catlett (successor of Richard P. Bell, deceased) trustees, and James Knox Cain, seeking for public railroad uses to condemn various parcels of land, among others three parcels of 23.47, 2.59, and 2.8 acres, respectively, legal title to which it alleges is vested in the Western Pocahontas Coal & Lumber Company, subject to a mortgage executed by it to J. C. Maben and Richard P. Bell (who had died and been succeeded by Charles Catlett), trustees, nonresidents.

Notices that application would be made on December 11, 1905, to said circuit court of Raleigh county to appoint commissioners to assess damages and to condemn the various parcels of land proposed to be taken by the plaintiff corporation, and used in the construction of a branch line less than 50 miles long, from Slab Fork of Guyandotte river up Winding Fork, and down Soak creek, to Piney river, were given by the plaintiff and served at different times on the various parties, those on the Western Pocahontas Coal & Lumber Company on October 12, 1905, on James Knox Cain, in Philadelphia, on October 9, 1905, and again on October 20, 1905, and upon the nonresident parties, including Maben and Catlett, by publication commencing October 12, 1905, and running four weeks as required by statute. On the 11th day of December, 1905, in the circuit court of Raleigh county, the plaintiff by leave of the court filed its notices and docketed its proceeding, and thereupon Maben and Catlett, James Knox Cain, and the Western Pocahontas corporation, incorporated under the laws of Virginia, tendered a joint petition to 'remove' to this court, which petition, upon objection made, was not allowed to be filed because the Western Pocahontas corporation was not a party, thereupon the latter filed its petition, setting up title to said three parcels of land, and was admitted as a party defendant. Then the said Maben and Catlett, trustees, James Knox Cain and the Western Pocahontas corporation, again tendered their petition to 'remove' the cause to this court, tendering bond admitted to be sufficient, but the said court refused the prayer thereof and exception was duly taken. On the 3d day of April, 1906, the said defendants filed in this court a certified record, and the cause was ordered to be docketed. The plaintiff thereupon moved to remand the cause, and it is this motion I am now to determine.

In their petition to remove the said defendants allege that their interests in dispute exceed in value $2,000, that they are all nonresidents of West Virginia, Maben being a citizen of Alabama, Catlett of Virginia, Cain of Pennsylvania, and the Western Pocahontas corporation a Virginia one; that they have no title to or interest in any other of the lands sought to be condemned other than the said three parcels; that a separable controversy exists between them and the plaintiff as to these three, and that the facts as to the title of these three parcels were that the legal title was in Maben and Catlett (successor of Bell, deceased), trustees in a mortgage executed by the Western Pocahontas Coal & Lumber Company; that James Knox Cain was the owner by purchase of the equity of redemption of the said Western Pocahontas Coal & Lumber Company, and so on the day plaintiff's petition to condemn was filed and notice thereof given to them the Western Pocahontas Coal & Lumber Company had no title nor interest whatever in said three parcels of land, but they were wholly owned at that time by Maben and Catlett, trustees, and James Knox Cain; that afterwards, on October 16, 1905, the whole tract of which the three parcels were part was sold under decree entered July 21, 1905, of the circuit court of Raleigh county, by a special commissioner appointed in a chancery proceeding of J. C. Maben et al. v. Western Pocahontas Coal & Lumber Company et al., at which sale the Western Pocahontas corporation became the purchaser of the whole tract, including the three parcels, which sale, by decree, was confirmed on November 1, 1905, and from that time became the sole property of the Virginia corporation, the Western Pocahontas corporation; that no notice to condemn was served upon it until October 27, 1905.

The jurisdiction of federal courts to try and determine controversies touching the condemnation of land, either by original proceeding or upon removal from state court, is now so well settled as to admit of no further argument. Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; Kirby v. C. & N.W.R. Co. (C.C.) 106 F. 551; Terre Haute v. E. & T.H.R. Co. (C.C.) 106 F. 545; U.T. Ry. Co. v. C.B. & Q.R. Co. (C.C.) 119 F. 209; In re Delafield (C.C.) 109 F. 577. Nor under the law and facts in this case can there be any question of there being a separable controversy between the plaintiff and those claiming these three distinct parcels sought to be condemned such as to authorize removal, if the necessary amount involved is large enough and the required diversity of citizenship exists. The fact that numerous other resident parties interested in other parcels sought to be taken are joined is immaterial. The West Virginia statute (section 4, c. 42, Code 1906) expressly provides that in such proceeding owners of different parcels may be joined in one proceeding, or be proceeded against in separate ones. The claimants of the three parcels here had and have no interest whatever in the other ones sought to be taken. The authorities are clear that such condition of facts presents a separable controversy or, speaking accurately, a distinct and separate controversy. Pacific Ry. Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113, 29 L.Ed. 319; Sugar Creek P.B. & P.R. Co. v. McKell (C.C.) 75 F. 34; N.Y., N.H. & H.R.R. Co. v. Cockcroft (C.C.) 46 F. 881; Chicago v. Hutchinson (C.C.) 15 F. 129. The controversy, therefore, narrows itself down to the question of whether at the time of the institution of the suit or proceeding the Western Pocahontas Coal & Lumber Company, the West Virginia corporation, had such title or interest in the lands sought to be condemned as to make it a necessary party, and thereby destroy the diversity of citizenship required for removal to this court.

On behalf of the plaintiff, it is insisted that this suit was 'instituted' on October 9, 1905, when it lodged in the clerk's office of Raleigh county its petition and served its first notice on parties of its purpose to apply to the court on December 11th following for the appointment of commissioners; that at this time the title to the parcels sought to be taken was in the West Virginia corporation, the Western Pocahontas Coal & Lumber Company, subject to the mortgage to Maben and Catlett, trustees; and that, jurisdiction being absent at the institution of the suit, the subsequent conveyances, pendente lite to Cain and the Virginia corporation, the Western Pocahontas corporation, cannot supply it. On the other hand, it is insisted that the suit was not 'instituted' until December 11th, when the plaintiff's notices, petition, exhibits, etc., were filed and the cause by order duly docketed in court and by its order, and, further, that the West Virginia corporation did not have even on October 9th, when the first notice was served, any title or interest in the lands that then required it to be notified or made party. In short, two questions must be answered. First. When is a condemnation proceeding in legal sense instituted? Second. What interest on October 9th did the West Virginia corporation have in these three parcels sought to be taken? Considering the first proposition, it is never to be forgotten that in West Virginia the common-law practice prevails unless expressly modified by statute, and that at common law the beginning of a suit is the issuance of the original writ or summons from the clerk's office signed by the clerk. Va. Fire & Marine Ins. Co. v. Vaughan, 88 Va. 832, 14 S.E. 754. It is further to be noted that no declaration or pleading in ordinary actions can be filed in the clerk's office save and except upon legally constituted rule days. While our statutes have provided certain exceptional actions may be brought other than by issuance of this original writ, yet in every instance, I think, the statute itself fully sets out the practice to be observed in such case. For example, ejectment may be instituted by service of the declaration with a notice appended that it will be filed upon some specified rule day in the clerk's office or upon a day named in court. Upon the filing of such declaration a rule issues to require defendant to plead at the next rule day or within the time fixed by the court. Again, under Code W.Va. c. 121, Sec. 6 (Code W.Va. 1906, Sec. 3786), provision is made for the recovery of money due on contract by notice and motion, but it is expressly provided that such notice shall be given for 30 days and returned to the clerk's office 20 days before the day fixed for such motion. And it has been expressly held that, while judgment in a suit regularly matured at rules and on the docket relates back to the first day of the term of court when taken, such is not the case of a judgment taken upon such notice. Nat. Bank v. Distilling Co., 41 W.Va....