Staton v. Atlantic Coast Line R. Co.

• Decision Date: 12 March 1907
• Citation: 56 S.E. 794,144 N.C. 135
• Parties: STATON v. ATLANTIC COAST LINE R. CO. et al.
• Court: North Carolina Supreme Court

56 S.E. 794

144 N.C. 135

STATON v. ATLANTIC COAST LINE R. CO. et al.

Supreme Court of North Carolina

March 12, 1907

Appeal from Superior Court, Edgecombe County; Cooke, Judge.

Action by L. L. Staton against the Atlantic Coast Line Railroad Company and another. From a judgment refusing to remove the cause to the federal court on the petition of defendant the Atlantic Coast Line Railroad Company, it appeals. Affirmed.

The question whether the controversy in an action by a citizen of the state against another citizen of the state and a citizen of a sister state is separable, so as to authorize the latter to remove the cause to the federal court on the ground of diversity of citizenship, must be determined by the complaint, and the petition for removal cannot be considered.

The plaintiff alleged that during the year 1760 one Joseph Howell conveyed to trustees a tract of land to be laid off into streets and lots for the purpose of establishing a town; that a town common of not less than 50 acres should be reserved for the use of the citizens of said town; that thereafter the said land was surveyed and streets and lots laid off, and 50 acres set apart for a town common; that a map of the lots, streets and common was made and duly recorded in the office of the register of deeds of Edgecombe county; that on November 30 1760, an act was passed by the General Assembly of the state incorporating the town of Tarboro, and the said trustees constituted directors or trustees of the town; that thereafter, November 18, 1786, the General Assembly enacted that a map, plan, and survey of the town showing the lots streets, and portion reserved as a town common, then made under the direction of the town commissioners and filed in the office of the Secretary of State, and of the board of commissioners of the town, should be ever thereafter held and deemed to be the bounds and plan of the town; that by the act of 1852, the General Assembly authorized the commissioners of the town to lay off into lots and streets, in conformity with the plan of the town as then established, the whole or any portion of the common lying on the western side thereof between the inhabited portion thereof and Hendrick's creek, the western boundary of the town, and to sell such lots; that pursuant to said act Wilson street was extended 70 feet wide to said creek; that parallel to Albemarle avenue, and west of it, Hendricks street was laid off and dedicated to the use of the public; that the lot formed by the intersection of said streets was numbered 122, as shown on the map, and was sold pursuant to the authority conferred by said act; that said lot was subsequently purchased, and is now the property of the plaintiff, being used with a dwelling house thereon as a residence for himself and family; that the plaintiff, relying upon the provisions of the deed of Howell to the trustees, and the acts of Assembly aforesaid, and believing that said streets and common would continue to be used only for the purposes to which they had been dedicated, purchased said lot and made valuable improvements thereon, aggregating the sum of $6,000; that surrounding said lot are valuable shade trees; "that the Atlantic Coast Line Railroad Company, of Virginia is now, and has been, at the times mentioned, a corporation organized and existing under, and by virtue of, the laws of the state of Virginia, and operating a steam railroad in the state of North Carolina, subject to the laws of said state, which runs through Edgecombe county;" that the defendant the East Carolina Railway Company is a domestic corporation duly organized and existing under, and by virtue of, the laws of the state of North Carolina, and operating a steam railroad in said state; that without the consent of the plaintiff, and without any lawful right or authority, the Atlantic Coast Line Railroad Company, of Virginia is maintaining and operating a steam railroad in and along Albemarle avenue upon a track within 29 feet of the plaintiff's residence; that during the year 1889, without legal right or authority, and without the consent of the plaintiff, the said defendant constructed, and has since maintained and operated, a railroad leading from Albemarle avenue, north of Wilson street, crossing diagonally across Wilson street in front of the plaintiff's premises, and down said street to a point west of the plaintiff's premises on Wilson street; that in 1902, the said defendant without the consent of the plaintiff, and without lawful authority, constructed, and has since maintained, other tracks, spur tracks, etc., in front of the plaintiff's premises, crossing the side track within two feet of his fence; that said defendant has built and maintains a track on said common; that the defendant the East Carolina Railway Company, without the consent of the plaintiff, and without lawful authority, is maintaining and operating, in and along Albemarle avenue, a steam railroad track, under an agreement or arrangement with the Atlantic Coast Line Railroad Company, of Virginia; that the East Carolina Railway Company is owned or controlled by and operated in conjunction with the Atlantic Coast Line Railroad Company, of Virginia, by an agreement between them. The plaintiff sets out at much length the several acts and doings of the defendants, respecting the moving of cars, loading and unloading freight, and otherwise annoying his family, disturbing their peace and preventing them from resting and sleeping at night, thereby injuring their health and creating a private nuisance. He also avers that without lawful authority the authorities of the town of Tarboro intend to sell the common in front of the plaintiff's premises to the defendant the East Carolina Railway Company for the purpose of establishing a depot; that the building of another track on Albemarle avenue will necessarily appropriate that part of the avenue from the Atlantic Coast Line track to the plaintiff's sidewalk, and completely deprives the plaintiff of all use of said street, and renders ingress and egress to and from his premises dangerous and practically impossible; that there is not now so much as 50 acres of the common reserved, and if the common is permitted to be sold for railroad purposes, its value for any other purpose will be destroyed and the plaintiff deprived of his easement therein. Because of the trespass and wrongs set out, the plaintiff demands judgment for damages, and, to prevent further injury and interference with his easement and rights in the premises, he asks injunctive relief. An order was made by Judge Cooke, requiring the defendants to show cause why a restraining order should not be issued. The defendant the Atlantic Coast Line Railroad Company, of Virginia, within the time required by law, filed its petition for removal, for that "the defendant the Atlantic Coast Line Railroad Company is not a domestic corporation, but is a foreign corporation created under and by virtue of the laws of the state of Virginia, and is a citizen of Virginia, and is not a resident or citizen of the state of North Carolina; (2) that at the time the plaintiff instituted his said suit, to wit, September 26, 1906, and long prior to said time, the said defendant was, and is now, a foreign corporation, as stated in the preceding paragraph, and a citizen of the state of Virginia; (3) that the plaintiff, L. L. Staton, is a citizen and resident of the state of North Carolina"; that the amount in controversy is the sum of $10,000, and the controversy between the petitioner and the said plaintiff is separable from the controversy between the plaintiff and the codefendant, the East Carolina Railway Company. The petition is verified, and accompanied by the undertaking required by statute. The court denied the petition, and refused to remove the case. Defendant excepted, and appealed.

John L. Bridgers, for appellant.

G. M. T. Fountain, for appellee.

CONNOR J. (after stating the case).

The record presents two questions for decision: (1) Is the defendant Coast Line Railroad Company, of Virginia, a foreign corporation? (2) Is the controversy, set out in the complaint, separable as between the plaintiff and the two corporations? It will be convenient to dispose of the second question first. Removal Act 1887, § 2 (Act Cong. Aug. 13, 1888, 25 Stat. 433, c. 866 [U. S. Comp. St. 1901, p. 509]), provides that only those suits may be removed, by reason of diverse citizenship, when the controversy is wholly between citizens of different states. A large number of decisions are to be found in the state and federal reports, in which the term "separable controversy" is discussed. It is not always easy to say upon which side of the line dividing those cases, in which for this cause suits may be or may not be removed, any given case falls. The tendency of the courts has been to narrow the line of cases which are removable, under the act. The petitioner is required to comply strictly with the provisions of the statute, and bring the case clearly within its terms. Hughes on Fed. Proc. 302.

To constitute a separable controversy "the action must be one in which the whole subject-matter of the suit can be determined between the parties to the separable controversy, without the presence of the other parties to the suit." Moon on Removal of Causes, § 140. The question in respect to the separability of the controversy must be determined upon an examination of the plaintiff's complaint. Allegations in the petition, respecting the defenses of the several defendants are not to be considered.

In C. & O. Ry. Co. v. Dixon, 179 U.S. 131, 21 S.Ct. 67 45 L.Ed. 121, Fuller, C.J., says: "It is conceded that if an action be brought on a joint cause of action, it makes no difference that separate causes...