Ferguson v. Omaha & S.W.R. Co.

• Decision Date: 13 September 1915
• Docket Number: 4407.
• Citation: 227 F. 513
• Parties: FERGUSON et al. v. OMAHA & S.W.R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

227 F. 513

FERGUSON et al. v. OMAHA & S.W.R. CO. et al.

No. 4407.

United States Court of Appeals, Eighth Circuit.

September 13, 1915

Francis A. Brogan, of Omaha, Neb. (Anan Raymond, of Omaha, Neb., on the brief), for appellants.

Arthur R. Wells, of Omaha, Neb. (Byron Clark and Jesse L. Root, both of Omaha, Neb., on the brief), for appellees.

Before ADAMS, Circuit Judge, and TRIEBER and REED, District Judges.

REED District Judge (after stating the facts as above).

The defendants have presented to this court a motion to dismiss the appeal upon the ground as follows:

'The appellees move the court to dismiss this case on the ground that this court has no jurisdiction of the appeal taken therein, for the reason that the jurisdiction of the District Court to hear and determine the cause under the Constitution and statutes of the United States was in issue in the District Court, and that court entered a decree dismissing the suit for want of such jurisdiction.'

The motion rests upon section 5 of the Court of Appeals Act of Congress, approved March 3, 1891 (26 Stat. 827, c. 517), now included in section 238 of the Judicial Code, which reads in this way:

Section 238: 'Appeals and writs of error may be taken from the District Courts * * * direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision. * * * '

Prior to the decision of the Supreme Court in Louisville Trust Co. v. Knott, 191 U.S. 225, 24 Sup.Ct. 119, 48 L.Ed 159, there was some diversity of opinion in the Circuit Courts as to what 'question of jurisdiction' may be certified direct to the Supreme Court under this section upon final determination of the cause. But in that case it was determined by the Supreme Court that the 'question of jurisdiction,' which, when put in issue and is determined by the lower court, may be certified to the Supreme Court must be one involving the jurisdiction of that court as a federal court, and not merely its general equity jurisdiction and practice applicable to the state as well as to the federal courts. See Bogart v. Southern Pacific Co., 228 U.S. 137, 33 Sup.Ct. 497, 57 L.Ed. 768, and Geneva Furniture Co. v. Karpen Brothers, 238 U.S. 254, 35 Sup.Ct. 788, 59 L.Ed. 1295.

The first question for consideration upon the motion to dismiss therefore is: Was the jurisdiction of the District Court as a federal court distinctly put in issue in that court and determined by it? A correct understanding of the nature of the cause of action is necessary to a determination of this question. The bill alleges, and the proofs show, that on and prior to January 3, 1872, one Charles Childs was the owner and in possession of a large tract of land in Sarpy county, Neb., bordering on the westerly bank of the Missouri river immediately south of the city of Omaha in that state. The defendant Omaha & Southwestern Railroad Company, desiring to construct its railroad upon and over said land, obtained from Childs a right of way deed to a strip of land 100 feet wide over the same on that date (January 3, 1872), which deed contained the following provisos and reservations to the effect:

That in case said railroad company shall permanently abandon the route through said tracts of land, then the same shall revert to and become revested in the said grantor, his heirs or assigns; that the grantor reserves the rock and timber on said strip of land, and may enter thereon and remove the same in a manner not to interfere with the operation of the railroad; also reserves the right to cross the railroad track, and travel with teams or otherwise along the right of way parallel with the tracks; and it is expressly understood 'that the grantees are to make and keep in repair a wagon road parallel with the track of the railroad, and two permanent crossings for teams at points to be designated by the grantor, and the grantor reserves the right to make other crossings and use them, not interfering, however, with the operation of the railroad.'

The railroad company afterwards constructed its railroad upon said right of way, and a wagon road and two crossing for the use of the grantor at points designated by him, and maintained them for many years. At the time of making this right of way deed Childs was using all of his lands for farming and other purposes, and at the point where the wagon road and two crossings were reserved there was a narrow passageway between the river and a high bluff fronting thereon, which passageway afforded the only means of passing from one part of the land to the other on either side of the bluff, and the wagon road and crossings were reserved over such passageway and constructed by the railroad company to enable Childs to do so. About March 7, 1895, Childs being still the owner of the land, subject only to said right of way deed, conveyed the same with general covenants of warranty to Everard D. Ferguson, which deed was duly acknowledged and recorded in the office of the proper register of deeds on April 20, 1895, and possession of the land thereunder was delivered to said Ferguson. Said conveyance, though in form an absolute deed, was intended as security only for an indebtedness owing by Childs to Everard D. Ferguson. January 20, 1900, Everard D. Ferguson commenced suit in the Circuit Court of the United States for the District of Nebraska against Childs and others to foreclose such mortgages upon said real estate, and such proceedings were had therein that a decree of foreclosure was rendered in his favor, under which the said real estate was sold and deeded to him by a master in chancery, and such deed and sale were duly approved by that court on February 26, 1904, and Ferguson thereupon became entitled to and continued in possession of said premises, except only to the extent that he was prevented by the railroad companies from using the wagon road, and crossings over the railroad tracks. September 8, 1906, Everard D. Ferguson died testate in the state of New York, where he resided, and by his will left his property to his children, the plaintiff, Smith F. Ferguson, and a daughter, now Hortense E. Childs, and named the plaintiff, Smith F. Ferguson, as executor of his will and trustee of his property during the widowhood of his surviving widow, which will was duly probated in the state of New York, and also in the state of Nebraska, where he left real and personal property to be administered.

Paragraph 5 of the bill alleges:

'That this suit is brought by the complainants for the purpose of enforcing the rights in the said premises which Everard D. Ferguson acquired under the decree of foreclosure, and the sale and master's deed to him pursuant thereto, and is ancillary to the said prior suit, and that this court has jurisdiction to hear the bill of the plaintiffs and grant the relief herein prayed, for the purpose of fully carrying out the decree entered in said former suit.'

The answer of the defendants admits the making of the deed of March 7, 1895, by Childs to Everard D. Ferguson, the foreclosure of that deed as a mortgage in the Circuit Court, the sale and deed of the premises by the master to Everard D. Ferguson under said decree, and the confirmation thereof by the Circuit Court; the reservations by Childs in the right of way deed of January 3, 1872; the construction by the railroad company of the wagon road and crossings over the railroad for the use of the grantor in said deed, and the maintenance thereof as alleged in the bill. As to the jurisdiction of the District Court in this case it is alleged in paragraph 5 of the answer as follows: 'Deny that this suit is brought for the purpose of enforcing the rights in the said premises which the said Everard D. Ferguson acquired under the said decree of foreclosure or under the sale made or the master's deed issued pursuant thereto, and deny that this suit is ancillary to said prior suit, and submit whether this court has jurisdiction to hear the bill of your orators or grant the relief prayed for in the bill of complaint for the purpose mentioned in the fifth paragraph of said bill.'

Otherwise the jurisdiction of the court is not questioned, nor is the jurisdiction of the Circuit Court to foreclose the mortgage challenged, but is admitted by the answer.

On June 7, 1901, while Everard D. Ferguson was in possession of said real estate, and the use and enjoyment of said wagon road and the crossings over the railroad, and while the foreclosure suit was pending, Childs made to the Omaha & Southwestern Railroad Company a quitclaim deed of a strip of land described by metes and bounds, and as being 100 feet in width, immediately south of the 100 foot right of way granted by the deed of 1872. In said quitclaim Childs also released all rights, privileges, or claims reserved or contracted for in the deed of January 3, 1872, and any right or privilege granted or recognized by the railroad company for use as a wagon road or for any occupancy, use, or easement in any respect; and since such deed the railroad companies have refused to maintain a wagon road upon and along the right of way, and the two crossings over the railroad for the use of Everard D. Ferguson, or his executor and the devisees under his will, thus preventing them from having access from one part of said real estate to other parts thereof. The prayer of the bill is that a further decree be entered by the court defining the rights which Everard D. Ferguson acquired under the decree of foreclosure, and that it be found and determined that the wagon road along said right of way parallel to the railroad and the crossings over the railroad...