Seaboard Air Line Ry. v. North Carolina R. Co.

• Decision Date: 02 July 1903
• Citation: 123 F. 629
• Parties: SEABOARD AIR LINE RY. v. NORTH CAROLINA R. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

123 F. 629

SEABOARD AIR LINE RY. v. NORTH CAROLINA R. CO. et al.

United States Circuit Court, E.D. North Carolina.

July 2, 1903

R. W Winston and Manning & Foushee, for the motion.

F. H Busbee, opposed.

PURNELL District Judge.

The Seaboard Air Line Railway filed a petition in the state court under the state statute asking for a condemnation of a strip of land 15 feet wide of the right of way of the North Carolina Railroad Company, Southern Railway Company, lessee and what is known as 'Peabody Street' in the city of Durham. See plat in Re City of Durham v. Southern Railway Co. (C.C.) 121 F. 895. On a verified petition of the Southern Railway Company the cause, on account of local prejudice and inability to get justice in the state court, as set out, was removed to the United States Circuit Court. The Seaboard Air Line Railway now moves to remand the cause alleging the same was improperly removed, because there are other defendants than the Southern Railway Company (admitted to be a nonresident corporation), who are residents of the state; that this is not a separable controversy, and there is no local prejudice against the Southern Railway Company, but it is growing in favor in Durham.

The facts found in the former decision of this court must be taken as res adjudicata, certainly as far as this court is concerned, and for these facts a reference to the case supra is sufficient without repeating. The pregnant facts are that the Southern Railway Company is entitled to the right of way under the 99-year lease, no one can claim the abandonment therein except the original owners of the fee or their representatives, and that by the provisions of section 29 of the charter of the North Carolina Railroad Company they are estopped by presumption to have executed a grant after two years, under the act of the General Assembly of North Carolina.

Is this a separable controversy? Who is interested in its settlement? To determine this question the court, if necessary, may arrange the parties, and this court cannot be deprived of jurisdiction by an arbitrary arrangement of parties plaintiff and defendant. If the real party in interest is entitled to remove and have his rights passed upon in the courts of the United States, he may remove, though a nominal party has no such right. Meyer v. Construction Co., 100 U.S. 457, 25 L.Ed. 593; Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; Harter v. Kernochan, 103 U.S. 562, 26 L.Ed. 411; Wormley v. Wormley, 8 Wheat. 421, 5 L.Ed. 651; Wood v. Davis, 18 How. 467, 15 L.Ed. 460.

Following this well-established rule, who is interested in this controversy--who should or may be plaintiffs, and who defendants? It may be here noted that, at the time the former decision referred to was rendered, a proceeding for a similar purpose, the same relief-- a condemnation of a part of the right of way on what is known as 'Peabody Street'-- was pending in this court, entitled 'The Durham and Northern Railroad Company (owned and operated by the complainant) v. North Carolina Railroad Company et al.' Soon after the decision the plaintiff took a nonsuit, and this proceeding was instituted in the name of the Seaboard Air Line Railway, seeking the condemnation of a part of the locus in quo for a right of way for that corporation. Under such circumstances, where mere nominal parties are joined, it will be held to have been done to prevent removal. Powers v. C. & O. R.R. Co. (C.C.) 65 F. 129.

The North Carolina Railroad Company has leased all its property, franchises, etc., for a term of 99 years, to the Southern Railway Company, and this lease has been held to be valid. The North Carolina Railroad Company could not, therefore, under any circumstances, except upon an abandonment or surrender of the lease, have any interest in the controversy until the expiration of the lease, in 1994. It has no present interest in the controversy; only a contingent interest, and that contingency remote. It has recently been held that when the lessor and lessee of a railroad are joined as parties defendant, the lessee, being a nonresident, may remove the cause to the courts of the United States. Kelly v. C. & A. Ry. Co. (C.C.) 122 F. 286. It would seem, therefore, that the Southern Railway Company is at present alone interested in the controversy, and if the other defendants are interested, which interest has not been manifested by an appearance, as to the Southern Railway Company it is a separable controversy. Is the new plaintiff in any better plight? Is it not the same defendant, the Southern Railway Company, that is vitally interested in the controversy? As already decided in the case of City of Durham v. Southern Railway Company, by this court, the city of Durham, joined as party defendant, has no title or interest in the subject-matter of this proceeding.

Several of the alleged heirs of the original owners of the fee are joined as defendants. Referring to the former decision, it will be seen they can have no interest in common with the North Carolina...