Sugar Creek, P.B. & P.C.R. Co. v. McKell

• Decision Date: 28 May 1896
• Parties: SUGAR CREEK, P.B. & P.C.R. CO. v. McKELL et al. McKELL v. SUGAR CREEK, P.B. & P.C.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

75 F. 34

SUGAR CREEK, P.B. & P.C.R. CO. v. McKELL et al.

McKELL v. SUGAR CREEK, P.B. & P.C.R. CO.

United States Circuit Court, D. West Virginia.

May 28, 1896

St Clair & Gaines, for the railroad company.

Brown Jackson & Knight, for McKell and others.

JACKSON District Judge.

These cases are heard upon a motion to remand them to the state court. The application for the removal in the condemnation case was made in conformity to the statute, as is shown by the record, and is in fact conceded by counsel who make the motion to remand.

Two points are relied upon to support the motion to remand. First, that the trial of the right to condemn is only cognizable in courts of the state under whose laws and within whose boundaries proceedings are had, and that the courts of the United States are without jurisdiction; second, that a part of the defendants in the condemnation proceedings are citizens of the same state as the applicant, and that there is no separable controversy as to them.

As to the first point relied upon by counsel, that the federal court is without jurisdiction in this class of cases, I am clearly of the opinion that the question has been repeatedly well settled. This is a suit between the applicant, on the one side, and the defendants, on the other, in which is involved the right of the applicant to condemn lands, under the constitution and laws of the state, for a public purpose. It is in no sense an ex parte application; and, under the constitution and law of the state, a right is given to any one who desires to make application for the condemnation of land under the statute, and to enforce it. This proceeding the object and purpose of which are to enforce this right between parties, has all the characteristics of a suit, and may be removed from a state to a federal court, Such I hold to be the law in this case, and therefore the first position is not well taken. Mineral Range R. Co. v. Detroit & L.S. Copper Co., 25 F. 515; Union Pac. Ry. Co. v. Kansas City, 115 U.S. 1-18, 5 sup.Ct. 1113; Boom Co. v. Patterson, 98 U.S. 403; Searl v. School Dist., 124 U.S. 197, 8 Sup.Ct. 460.

As to the second point, it is claimed that some of the defendants in the proceeding are citizens of the same state as the applicant. The petition discloses that Thomas G. McKell, one of the defendants, is the only owner of the land, so far as is known, and that he holds the title in fee. It is also claimed that McKell and his wife had executed a least to one McDonald for a portion of the land proposed to be taken, with the power and authority to organize a joint-stock company to lease said land to said company when so formed. It appears that McDonald has organized, under the terms and provisions of the state laws, the McDonald Colliery Company; but there is no evidence of its existence, so far as the records of the county disclose in which the land lies, of either of the lease to McDonald or McDonald's lease to the McDonald Colliery Company. It further appears that the defendants McDonald and the McDonald Colliery Company were only tenants at will of the defendant McKell to a very small portion of the land sought to be taken, and that the defendant McKell is the owner of a large tract of land, a small portion of which the applicant desires to condemn, as well as a part of that portion leased by McKell to the colliery company. It is apparent that, McKell being the owner in fee to the whole tract, subject only to a lease for a small portion of it to the colliery company, there is a separable controversy as between the applicant and McKell as to the land not leased by him to the colliery company. As to that portion, he is in the actual possession of it, exercising exclusive control over it, the colliery company having no interest of any kind...