Hagerla v. Mississippi River Power Co.

• Citation: 202 F. 771
• Decision Date: 19 April 1912
• Docket Number: 277.
• Parties: HAGERLA v. MISSISSIPPI RIVER POWER CO.
• Court: U.S. District Court — Southern District of Iowa

202 F. 771

HAGERLA v. MISSISSIPPI RIVER POWER CO.

No. 277.

United States District Court, S.D. Iowa, Eastern Division.

April 19, 1912

Hughes & McCoid, of Keokuk, Iowa, for complainant.

W. E Blake, of Burlington, Iowa, and Geo. B. Stewart, of Ft Madison, Iowa, for defendant.

SMITH McPHERSON, District Judge.

The Power Company, a corporation under the laws of Maine, is constructing a dam across the Mississippi river between Keokuk, Iowa, and Hamilton, Ill., for the purpose of generating electricity to sell for power and light; and in conjunction therewith is erecting a lock to lift boats to such a height as to pass over the rapids of the river, and is constructing a dry dock. The river, both in fact and in law is a navigable stream. The improvement was authorized by congressional enactment, approved February 9, 1905, and is to be built under the supervision of the Secretary of War.

Hagerla owns land in Lee county, Iowa, which will be submerged by the backwater occasioned by the erection of the dam, lock, and dock. That is a taking of property within the meaning of the Constitutions, state and national. United States v Lynah, 188 U.S. 445, 23 Sup.Ct. 349, 47 L.Ed. 539. The parties not being able to agree, the Power Company applied to the sheriff of the county for the appointment of six freeholders to appraise the damages that Hagerla will sustain. Commissioners were appointed by the sheriff, who upon due notice to Hagerla, appraised the damages at the sum of $7,816.60.

Within the statutory time Hagerla appealed to the district court of the county. The appeal was by written notice directed to and served on both the sheriff and the Power Company, and the notice is one of much detail, reciting all that had been done in the matter, both by the Power Company and the sheriff's jury, describing the land, and the award. Thereupon the case was docketed in the district court of the county. Hagerla then filed a pleading in two paragraphs. The first paragraph is not designated by name, but recites the appraisement, and that the damages sustained by Hagerla are $20,000. The second paragraph is as follows:

'(2) This plaintiff by way of cross-petition and for affirmative relief alleges.'

Then follow recitals to the effect that the Power Company is a naked trespasser on the bed of the river, the lands of the state of Iowa, erecting a cofferdam; that it is a mere private corporation for profit, impeding navigation, beyond legal control, and is a continuing trespasser. The paragraph concludes in this language:

'And this plaintiff therefore prays that the defendant be enjoined and restrained from taking and appropriating the property of this plaintiff for its said illegal use and unwarranted purposes, and that said injunction be made permanent and perpetual, and that this plaintiff have all such other and further relief as in equity and good conscience he is entitled.'

Thereupon the Power Company filed its petition and bond for removal to this court.

The state court ordered the removal.

A motion by Hagerla to remand is now for decision.

There are some matters relating to removals, not longer subject to debate.

Under the Act of March 3, 1887, c. 373, 24 Stat. 554, and (Act Aug. 13, 1888, c. 866, 25 Stat. 436 (U.S. Comp. St. 1901, p. 582)), and the present Judiciary Act (Act March 3, 1911, c. 231, Sec. 28, 36 Stat. 1094 (U.S. Comp. St. Supp. 1911, p. 140)), whether by reason of a diversity of citizenship, or by reason of a federal question, no one but a defendant can obtain a removal.

Another proposition equally clear is that in a mere naked proceeding to appropriate land and ascertain the indemnity, under eminent domain proceedings, the landowner is the defendant and the corporation is the plaintiff. Railroad v. Boynton, 204 U.S. 570, 27 Sup.Ct. 321, 51 L.Ed. 629.

The designation by the Iowa statute of the landowner as plaintiff, and the corporation as defendant, is without effect as to removal proceedings, and the self-designation by the parties to the record is of no importance. And it is equally clear that such a proceeding is an action of a civil nature, and in this case the requisite amount is involved.

That there is no other phase of American jurisprudence with so many refinements and subtleties, as relate to removal proceedings, is known by all who have to deal with them.

Those who doubt this statement should but read my opinion in Kirby v. Railroad (C.C.) 106 F. 551, followed on the same record in Myers v. Railroad, 118 Iowa, 312, 91 N.W. 1076, citing my decision with approval. Then there is my decision in the Boynton Case, in which I reversed my own decision in the Kirby Case, and then the affirmation of my Boynton decision (204 U.S. 571, 27 Sup.Ct. 321, 51 L.Ed. 629). Then turn to the Wisner Case, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, followed by the criticism and partial overruling in Re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164, and in Re Winn, 213 U.S. 458, 29 Sup.Ct. 515, 53 L.Ed. 873, and then see Ex parte Harding, 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252, 37 L.R.A. (N.S.) 392, overruling the Wisner and Winn Cases.

I call attention to those cases, not by way of criticism, but to show the late decisions, and to show the vexing questions judges on the circuit have had to consider.

Here is a case which presents removal questions relating both to diversity of citizenship, and federal questions. Both of such questions are presented by the pleading filed by Hagerla and the removal petition filed by the Power Company. The latter specifically recites federal questions, and the pleading of Hagerla recites facts, coupled with facts of which the court takes judicial notice, such as the navigability of the river, and the ownership of the bed of the river, and the supervision and control over the same by the general government, which present federal questions equally clear. So that, both phases are kept in mind as I reach a conclusion.

And another proposition must not be overlooked. Under the Iowa practice acts, both legal and equitable defenses can be pleaded; even contradictory defenses can be pleaded. But the United States procedure forbids such a practice.

As a defendant only can remove a case, the question here is as to whether Hagerla or the Power Company is the real defendant. That Hagerla is the defendant as to the taking of his property in the proceedings at law, and the assessment of his damages, is not longer questioned, by reason of the Boynton Case. But this is not all of the case. He says in effect that the building of the lock and dry dock are but incidents to the building of the dam, and that the dam is an enterprise of a...