Myers v. Chi. N. W. Ry. Co.

• Decision Date: 28 October 1902
• Citation: 91 N.W. 1076,118 Iowa 312
• Parties: MYERS ET AL. v. CHICAGO N. W. RY. CO.
• Court: Iowa Supreme Court

118 Iowa 312

91 N.W. 1076

MYERS ET AL.

v.CHICAGO N. W. RY. CO.

Supreme Court of Iowa.

Oct. 28, 1902.

Appeal from district court, Marshall county; Obed Caswell, Judge.

The railroad company filed with the sheriff of Marshall county December 7, 1899, its application for the condemnation of a strip of ground 100 feet wide for a right of way over the land of plaintiffs. Commissioners were appointed, and duly assessed the damages. The owners appealed to the district court, and on April 16, 1900, a transcript was filed with the clerk. On the 2d day of August following, the company filed its application for removal to the circuit court of the United States, alleging as ground therefor that at the beginning of the action defendant was a resident in Illinois, the plaintiff Jane V. Myers a resident of Pennsylvania, and the other plaintiff was a resident of Iowa, and that the amount in controversy exceeded $2,000. September 1, 1900, plaintiffs filed what they denominated an “answer,” challenging the right to condemn the right of way, as the company had one already through the premises, and three days later filed exceptions to the application for removal. These were sustained, and, against defendant's protest, the trial proceeded, resulting in an award of damages much in excess of those allowed by the commissioners. The defendant appeals. Reversed.Hubbard, Dawley & Wheeler, for appellant.

J. M. Parker, for appellees.

LADD, C. J.

The petition for removal contained statements sufficient to require an order transferring the cause to the circuit court of the United States, if permissible in such a case. The exceptions thereto, sustained by the district court, were (1) that the railroad company was really the plaintiff, as it instituted the proceedings; (2) that, as the cause might not have been brought originally in the United States circuit court, it could not, under the acts of congress, be removed there; (3) that the district court had merely appellate jurisdiction of the proceedings; and (4) that the condemnation proceedings are not “a suit of a civil nature at law or in equity,” as contemplated by the federal statutes. As a matter of convenience, we shall take up these objections in inverse order of that stated.

Section 1999 of the Code, following others conferring the power to condemn land, reads: “If the owner of any real estate necessary to be taken for either of the purposes mentioned in this chapter refuses to grant the right of way or other necessary interest in said real estate required for such purposes, or if the owner and the corporation cannot agree upon the compensation to be paid for same, the sheriff of the county in which such real estate may be situated shall, upon written application of either party, appoint six freeholders of said county, not interested in the same or like question, who shall inspect said real estate, and assess the damages which the owner shall sustain by the appropriation of his land for said corporation, and make report in writing to the sheriff of said county; and, if the corporation shall, at any time before it enters upon said real estate for the purpose of constructing said railway, pay the sheriff, for the use of the owner, the sum so assessed and return to him as aforesaid, it may construct its railway over and across such premises.” The nine sections following relate to procedure, such as fixing the time of assessing the damages, serving notice, the manner of appraising, and filing the report; and section 2009 provides that “either party may appeal from such assessment to the district court, within thirty days after the assessment is made, by giving the adverse party, or, if such party is the corporation, its agent or attorney, and the sheriff notice in writing that such appeal has been taken. The sheriff shall thereupon file a certified copy of such of the appraisements as applies to the part appealed from, and said court shall try the same as in an action by ordinary proceedings. The land owner shall be plaintiff and the corporation defendant.” An appeal, however, works no delay in the improvement, if the corporation deposits with the sheriff the amount assessed, which he is to retain until the proceedings are terminated. Section 2010, Code. Section 2011 of the Code reads: “On trial of the appeal, no judgment shall be rendered except for costs. The amount of damages shall be ascertained and entered of record, and if no money has been deposited with the sheriff, the corporation shall pay the amount so ascertained, or deposit the same with sheriff, before entering upon the premises. Should the corporation decline to take the property and pay the damages awarded on final determination of the appeal, then it shall pay, in addition to the costs and damages actually suffered by the land owner, reasonable attorney's fees to be taxed by the court.” Section 2012 of the Code: “If, on the trial of the appeal, the damages awarded by the commissioners are increased, the corporation shall pay or deposit with the sheriff the whole amount of damages awarded before entering on, using or controlling the premises. The sheriff upon being served with a certified copy of the assessment, may remove said corporation, and all persons acting for or under it, from said premises, unless the amount of the assessment is forthwith paid or deposited with him.” Section 2013 of the Code: “If the amount awarded by the commissioners is decreased on the trial of the appeal, the reduced amount only shall be paid the land owners.”

From these statutes it plainly appears that the proceeding before the commissioners appointed by the sheriff to appraise the land is not a suit at law, but in the nature of an inquest to ascertain its value. No hearing is had, and no evidence introduced. The commissioners merely inspect the land, determine upon the amount of damages which will be occasioned by the appropriation, and make a written report to the sheriff. Thus far then the proceeding is in no respect a suit. That “term is certainly a very comprehensive one,” said Chief Justice Marshall in Weston v. City of Charleston, 2 Pet. 464, 7 L. Ed. 481, “and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceeding may be various, but, if a right is litigated in a court of justice, the proceeding by which the decision of the court is sought is a suit.” Unless in court, or before those exercising judicial functions, the proceeding cannot be regarded as a suit. Ulshafer v. Stewart, 71 Pa. 174;Ex parte Towles, 48 Tex. 433. That the proceeding to condemn land is not a suit, within the language of the removal acts of congress, and is such after the appeal to the district court, seems to be conclusively settled against the appellees in Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 207, and Railroad Co. v. Myers, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319. See, also, Searl v. School Dist., 124 U. S. 197, 8 Sup. Ct. 460, 31 L. Ed. 415. In the first-cited case the court said, speaking through Field, J.: “The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law, in the ordinary sense of those terms. But when it was transferred to the district court by appeal from the award of the commissioners, it took, under the statute of the state, the form of a suit at law, and was thenceforth subject to its ordinary rules and incidents. The point in issue was compensation to be made to the owner of the land,--in other words, the value of the property taken. No other question was open to contestation in the district court. Turner v. Holleran, 11 Minn. 253 (Gil. 168). The case would have been in no essential particular different had the state authorized the company, by statute, to appropriate the particular land in question, and the owners to bring suit against the company in the courts of law for its value. That a suit of that kind could be transferred from the state to the federal court, if the controversy were between the company and a citizen from another state, cannot be doubted. And we perceive no reason against the transfer of the pending case that might not be offered against the transfer of the case supposed.”

Appellees contend, however, that these decisions are not applicable, because of changes made in the law by the act of congress of March 3, 1887 (24 Stat. 552), amended the following year. Chapter 137 of the act of congress approved March 3, 1875 (18 Stat. 470), had for its purpose the enlargement of federal jurisdiction, especially in respect to controversies between citizens of different states. Pirie v. Tvedt, 115 U. S. 45, 5 Sup. Ct. 1034, 1161, 29 L. Ed. 331. This is manifest from the wording of the second section: “Any suit of a civil nature, at law or in equity, now pending or which may hereafter be brought where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, * * * in which there shall be a controversy between citizens of different states, * * * either party may remove said suit into the circuit court of the United States for the proper district.” The opposite is true of the removal act approved March 3, 1887 (24 Stat. 552), amended by the act of August 13, 1888 (25 Stat. 433). The object in this enactment was to restrict the jurisdiction of the federal courts, both original and by removal, and to obviate certain abuses in the matter of the assignment of causes of action in order to confer jurisdiction, and the tendency has been toward a strict construction. See Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511, and cases cited. The portions of the statutes material to our inquiry may be set out.

“Section 1. That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all...