Illinois Central Railroad Co. v. LeBlanc

• Decision Date: 05 April 1897
• Citation: 74 Miss. 626,21 So. 748
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD CO. ET AL. v. R. E. LEBLANC

21 So. 748

74 Miss. 626

ILLINOIS CENTRAL RAILROAD CO. ET AL. v. R. E. LEBLANC

Supreme Court of Mississippi

April 5, 1897

March 1897

FROM the circuit court of Pike county HON. W. P. CASSEDY, Judge.

This was a suit at law brought by LeBlanc against the Illinois Central Railroad Company, and a number of laborers in its employ, to recover damages for the taking of gravel from plaintiff's land. For a full statement of the facts in the case, reference is made to the cases of LeBlanc v Illinois Central Railroad Co. et al., 72 Miss. 669; LeBlanc v. Illinois Central Railroad Co., 73 Miss 463; and Illinois Central Railroad Co. v. LeBlanc post, 650, as well as to the opinion herein. The declaration demanded $ 202, 479.76; the verdict and judgment of the court below was for $ 60, 000 in plaintiff's favor, and defendant appealed.

Reversed and remanded.

Mayes & Harris, for the appellant.

Removal to federal court.--The averments of the petition for removal are sufficient, and the appellant had the right, and now has it, under the statute, to remove a case into the federal court when sued in this state by a citizen thereof, on the ground of diversity of citizenship, notwithstanding the fact that it is operating a line of railroad within this state. This is well settled. The determining question is its citizenship, and not its business location or residence; and that citizenship is determined alone by the grant of its charter. In other words, it is a citizen of that state which granted its charter, to wit, the State of Illinois. Railroad Co. v. Koontz, 104 U.S. 5; Shaw v. Quincy Mining Co., 145 U.S. 444; Martin v. B. & O. R. R. Co., 151 U.S. 673.

The court will observe that the state court refused the petition for removal without a denial being made of the averments of the petition. In other words, the refusal was on the face of the petition. If the petition stated a case for removal, this was erroneous. It would have been erroneous, even if the averments of the petition had been traversed. In cases where the proceedings for removal are in conformity with the act, the removal is imperative, both upon the state and the federal court; and if the facts upon which the removal is based are contested, it must be done in a formal manner, by pleading and proofs, in the federal court. The question of jurisdiction in such a case belongs to the federal court, and must be determined there. Dillon on Removals, 92, note 2; Dennistoun v. Draper, 5 Blatchf., 336, 338; Taylor v. Rockefeller, 7 Cent. L. J., 349; Cobb v. Ins. Co., 3 Hughes, 452.

That the averments of the petition are sufficient, we maintain. The petitioner showed that it was a citizen of the State of Illinois and not of this state; that the plaintiff was a citizen of the State of Mississippi. That made a clear case for removal, except for the fact that sued along with the petitioner were the laborers described in the petition, and the averment is that those laborers were united fraudulently, for the purpose of preventing the right of removal. Plymouth Co. v. Amador Co., 118 U.S. 264; Louisville R. R. v. Wangelin, 132 U.S. 599. In this latter case, it is true, the supreme court decided against the removal, but the reason which they gave for their decision supports the right of removal in this case. There the supreme court decided against the right of removal because no fraud was alleged in the petition, while in this case such fraud was alleged. In fact, this petition for removal was drawn with the case in 132 U.S. before the pleader, and in view of that decision. The question of the burden of proof to support the averment of the petition is irrelevant and immaterial here. That would arise upon the motion to remand in the federal court, which has exclusive jurisdiction to determine that question. Jackson v. Railroad Co., 58 Miss. 648. That the wrongful refusal of the state court to remove the cause, and its wrongful subsequent proceeding in the cause, is ground for reversal is clear. After the presentation of the petition and bond in proper form, the jurisdiction is changed, and subsequent proceedings in the state court are void. Railroad Co. v. Miss. 102 U.S. 135; Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. (U.S.), 198; Kern v. Huidekoper, 103 U.S. 485; Railroad Co. v. Koontz, 104 U.S. 5; Davis v. South Carolina, 107 U.S. 597; Railroad Co. v. White, 111 U.S. 134. If the party fails in his efforts to obtain a removal and is forced to trial, he loses none of his rights by defending against the action in the state courts. Removal cases, 100 U.S. 457; Railroad Co. v. Miss. 102 U.S.; Kern v. Huidekoper, 103 U.S.; Railroad Co. v. White, 111 U.S. The court will observe that the point of the error of the court in refusing the removal, expressly reserved in the special bill of exceptions, but also it was again insisted upon in defendant's motion to exclude plaintiff's evidence, which was overruled.

Measure of damages.--Our proposition that the court erred in numerous particulars in its rulings in respect to the measure of damages, comes next in order. That proposition needs to be looked at from several points of view.

1. We maintain that, under the circumstances of this case, what the plaintiff was entitled to recover was the value of the material as it lay in the pit, without any augmentation growing out of the labor expended thereon by defendants in getting it out, or the accession of value which it received by and through the fact of transportation from the pit to its place of market or use.

2. We maintain that it was error in the court to allow the plaintiff to prove by himself and other witnesses special sales of limited quantities, whether selected or not, as the basis of computation of value--as, for instance, the pretended offer received from the man April and that from the man Rosenfield, and also the case of the sale to Maurice Hart and that to the city of Brookhaven.

3. We maintain that it was error in the court to allow the plaintiff to attempt to prove a basis of value by showing the price obtained by street paving contractors in the city of New Orleans under their street paving contracts for work done on the streets in which gravel was used, and to endeavor to deduce therefrom, by calculation on insufficient data, the value of gravel at the pit.

4. We maintain that it was error in the court to allow the plaintiff to show, as a basis for his recovery, the use of the gravel by the defendant railroad company as ballast and for other railroad purposes.

5. We maintain that it was error in the court below to allow other than a nominal recovery in this case, in the absence of any proper proof of either a market for the material taken or a market value for the same.

The law in respect to the measure of damages is as follows:

English rule.--"We have had occasion before to examine the case of trespass committed by mining and carrying away minerals. Here the most essential part of the wrong consists in the removal of the mineral, which is to be estimated at its value at the time the defendant began to take it away--that is, as soon as it existed as a chattel, its value will be the sale price at the pit's mouth, after deducting from it the expense of carrying from the place in the mine where it is got to the pit's mouth, but not the cost of severing it. Separate compensation must be given for all injury done the soil by digging, and for trespass committed in dragging the mineral along the plaintiff's adit. It seems, however, that where there is a real disputed title, the case is different, and the minerals are to be valued as if the soil in which they lay had been purchased from the plaintiff." Woods' Mayne on Damages, 1st Am. Ed., top p. 546; 9 Meeson & Welsby, 673; Word v. Moorewold, 3 Qu. Bench, 440; United Merthys Coleridge Co., Law Rep., 15 Eq., 46; Jegon v. Vivian, Law Rep., 6 Chy., 743; 40 Law Jour., Chy., 389; Jobe v. Potlin, Law Rep., 20 Eq., 84; 44 Law Jour., Chy., 262; 8 Meeson & Welsby, 146.

American rule.--"The general rule upon which compensation for injuries to real property is given, is that the plaintiff should be reimbursed to the extent of the injury to the property. The injury caused by the defendant may be of a permanent nature. In such case, the measure of damages is the diminution in the market value of the property. If the injury causes a total or partial loss of the land for a limited time, the diminution in the rental value is the measure. One of these measures is always applicable." Sedgwick on Damages, vol. 3, par. 932.

"When, by a trespass upon real property, trees standing upon the property are destroyed, the value of the trees can be recovered. If the trees are full grown timber trees, this is all that can usually be recovered. If they are fruit or ornamental trees, however, the injury goes beyond the mere destruction of the trees. It is an injury to the realty, since the value of that is diminished by more than the value of the trees as timber, because their chief value is for productive and ornamental purposes. The measure of damages when ornamental and fruit trees are cut, is the difference in the value of the realty before and after the trespass." Sedgwick on Damages, vol. 3, par. 953.

"In this case, as in others where labor has been expended upon the chattels obtained by trespass on real property, attempts have been made to recover the value of the chattels after the labor has been expended upon them, upon the ground that the chattels still remain the plaintiff's property, and he had a right to take them where he finds them, or, at his option, to recover compensation for the loss of them at that time. It has accordingly been held in many cases that the measure of damages is the value of the logs immediately after cutting. It...