Minneapolis, St. P. & S.S.M. Ry. Co. v. Nestor

• Decision Date: 15 March 1892
• Citation: 50 F. 1
• Court: U.S. District Court — District of North Dakota
• Parties: MINNEAPOLIS, ST. P. & S.S.M. RY. CO. v. NESTOR.

50 F. 1

MINNEAPOLIS, ST. P. & S.S.M. RY. CO. v. NESTOR.

United States Circuit Court, D. North Dakota.

March 15, 1892

A. H Bright and George K. Andrus, for plaintiff.

S. L Glaspell and Winterer & Winterer, for defendant.

THOMAS District Judge.

On the 3d day of July, 1891, the judge of the district court in and for Barnes county, N.D., upon a petition of plaintiff railway company, appointed commissioners to assess the damages that defendant land-owner might sustain by reason of the right of way granted to plaintiff over defendant's land in Barnes county, N.D., as provided in section 3000 of the Compiled Laws of North Dakota. August 22, 1891, the commissioners appointed filed their report in the office of the clerk of court, from which it appears that the damages of defendant were assessed at $1,186. September 14, 1891, defendant filed with said clerk a written demand for a trial by jury. On the first day of the term of court thereafter, to-wit, on the 8th day of December, 1891, the defendant presented to said court a petition and bond in due form for removal of the case to this court, which was granted. The petition shows that the amount in dispute, exclusive of interest and costs exceeds the sum of $2,000, and that the plaintiff and defendant are and were at and prior to that time citizens of different states. A transcript of the record having been filed in this court, the plaintiff now moves therein to remand the case to this court upon the following grounds: (1) That this court has no jurisdiction of the subject of this action; (2) that the petition for the removal of this action from the state court to this court was made too late; (3) that S. K. Nestor waived his right for removal of said cause from the state court by not making his petition for removal on or prior to the time when issue was joined in said cause; (4) that S. K. Nestor is the plaintiff in said cause; (5) that the said cause is not a removable cause, within the provisions and meaning of the act of congress of the 3d of March, 1887; (6) that the said circuit court has not original jurisdiction of the controversy, and it is not, therefore, removable. The statute providing for the condemnation of real property for railroad purposes, so far as it is necessary to refer to the same in the consideration of this motion, reads as follows:

'If the owner of any real property over which said railroad corporation may desire to locate its road shall refuse to grant the right of way through and over his premises, the district judge of the county or subdivision in which said real property may be situated, as provided in this article, shall, upon the application or petition of either party, and after ten days' notice to the opposite party, either by personal service or by leaving a copy thereof at his usual place of residence, or, in case of his non-residence in the territory, by such publication in a newspaper as the judge may order, direct the sheriff of said county to summon three disinterested freeholders of said county or subdivision (or, if there be none such, then of the territory) as commissioners, who shall be selected by said judge, and who must not be interested in a like question. The commissioners shall be duly sworn to perform their duties impartially and justly; and they shall inspect said real property, and consider the injury which such owner may sustain by reason of such railroad; and they shall assess the damages which said owner will sustain by such appropriation of his land.'

This statute has been, with others, adopted by the state of North Dakota as far as applicable.

It then provides for the making of the report of the commissioners to the clerk of the district court, and, among other things provides that the railroad company may pay to the clerk, for the use of the owner of the land, the sum assessed by the commissioners, and then proceed to construct and maintain its road over and across the premises appropriated. It is then further provided that the report of the commissioners may be reviewed by the district...