National Quarries Co. v. DETROIT, T. & IR CO.

• Decision Date: 14 January 1926
• Docket Number: No. 4441.,4441.
• Citation: 10 F.2d 139
• Parties: NATIONAL QUARRIES CO. v. DETROIT, T. & I. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.2d 139 (1926)

NATIONAL QUARRIES CO. v. DETROIT, T. & I. R. CO.

No. 4441.

Circuit Court of Appeals, Sixth Circuit.

January 14, 1926.

G. W. Ritter, of Toledo, Ohio (H. O. Bentley, and Wheeler & Bentley, all of Lima, Ohio, on the brief), for appellant.

Edgar J. Matz, of Detroit, Mich. (Clifford B. Longley, of Detroit, Mich., and Leete & Light, of Lima, Ohio, on the brief), for appellee.

Before DONAHUE, MACK, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge.

This bill was dismissed for lack of equity. It averred diversity of citizenship between plaintiff and defendant; that plaintiff owned property adjacent to the lines of defendant, a railroad company; that defendant had filed a petition in the probate court of Allen county, Ohio, to appropriate a part of plaintiff's land adjoining its railroad tracks, asserting the necessity of establishing a railroad yard thereon, and unless restrained from so doing would proceed to appropriate the property to the irreparable injury of plaintiff. The specific prayer was that defendant "be enjoined from appropriating or attempting to appropriate any of the land," etc., and "from taking the property of the plaintiff or entering upon the same without due process of law."

In addition to the allegations indicated the bill presented several questions as to the validity of the appropriation laws of Ohio and the proceedings thereunder in the probate court. These may be grouped into the contentions that the taking of the property would violate article 1, section 19, of the Constitution of the state and also the Fourteenth Amendment of the federal Constitution.

If it be conceded that the elements of federal jurisdiction exist, as likewise the power to grant the relief sought, nevertheless there is a question preliminary to those argued by plaintiff which we think is decisive of the case. It arises on the inquiry as to whether the bill shows facts justifying equitable intervention. We think it does not. Among the reasons for this view is the fact that every question arising under the state Constitution that is made here can be made and determined in the proceeding in the state court, and similarly the federal questions may be presented there, with the right of ultimate determination by the Supreme Court of the United States. Furthermore, it does not appear from the facts alleged that the courts of the state have not full power to award adequate compensation if the property is eventually taken. Hence no irreparable damage is shown in the bill. Nor is any other ground of equitable jurisdiction set forth. This is not a suit to enjoin the execution of a void or unconscionable judgment as Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. Ed. 870, and Simon v. Southern Ry. Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492, or against officials to test the validity of a state statute the penalties of which are so oppressive as to amount to spoliation and which would be incurred unless the proceedings were enjoined, as Ex parte Young, 209 U. S. 123, 28 S....