Swan Island Club v. Ansell, 3175.

• Decision Date: 08 July 1931
• Docket Number: No. 3175.,3175.
• Citation: 51 F.2d 337
• Parties: SWAN ISLAND CLUB, Inc., v. ANSELL.
• Court: U.S. Court of Appeals — Fourth Circuit

51 F.2d 337 (1931)

SWAN ISLAND CLUB, Inc., v. ANSELL.

No. 3175.

Circuit Court of Appeals, Fourth Circuit.

July 8, 1931.

M. B. Simpson and J. C. B. Ehringhaus, both of Elizabeth City, N. C. (Ehringhaus & Hall, of Elizabeth City, N. C., on the brief), for appellant.

G. L. Jones, of Asheville, N. C. (George H. Ward, of Asheville, N. C., and Ward & Grimes, of Washington, N. C., on the brief), for appellee.

Before NORTHCOTT and SOPER, Circuit Judges, and CHESNUT, District Judge.

CHESNUT, District Judge.

The question presented by the appeal in this case is whether there was a sufficient amount in controversy to confer jurisdiction on the District Court, the parties being of diverse citizenship (U. S. Code Ann., title 28, § 41). The plaintiff's bill of complaint alleged, and the defendant's answer denied, that more than $3,000, exclusive of interest and costs, was involved in the controversy. The subject matter of the litigation is the plaintiff's effort, by bill in equity for an injunction, to protect its property, the chief utility of which is for shooting wild fowl, from threatened and continuing trespasses by the defendant in consequence of which the game is driven away, and the value of the property substantially destroyed.

On the filing of the plaintiff's bill supported by affidavits, the District Court entered a restraining order and set the case for hearing on the plaintiff's motion for a temporary injunction. After hearing counsel for the parties, but without taking any testimony, the court refused and dismissed the motion on the ground that the court was without jurisdiction of the cause. In view of the issue made by the bill and answer, the evident basis of the order was that the amount in controversy did not exceed $3,000 exclusive of interest and costs. As this conclusion was reached on bill and answer without testimony, it is necessary to examine the allegations of the bill and any other information appearing in the record to determine whether there is a legal possibility that the requisite amount is in controversy in good faith.

It is alleged that the plaintiff, a Massachusetts corporation, is the owner and in possession of certain tracts of land in Currituck county, N. C., containing about 9,236 acres, shown and described on a plat filed with the bill of complaint; that these tracts consist largely of islands, marsh lands, and lands under water, the chief utility of which is for gunning purposes and especially for shooting wild fowl; that the plaintiff's title to the property has been duly confirmed by statutory registration proceedings in the superior court of Currituck county, N. C., in accordance with the applicable North Carolina statute; that the lands have been equipped at great expense with the necessary appliances, equipment and decoys, and the plaintiff employs the necessary personnel to enable its stockholders to shoot wild water fowl in accordance with the law within the limits of its own property during a very limited shooting season; that the lands are of a value in excess of $50,000; that the defendant has trespassed upon said premises and located thereon certain devices known as "blinds" for the purpose of shooting wild water fowl and other game, and threatens to continue to trespass upon said lands whenever he desires and to take with him upon said premises other people for the purpose of shooting wild water fowl and other game thereon from the said "blinds"; and that the defendant's blinds are so strategically located with respect to the plaintiff's property that the effect of shooting water fowl, and particularly ducks, from the defendant's blinds will be to substantially destroy the gunning rights and privileges of the plaintiff on its property and thus render it almost valueless; and that the damage which will be sustained by the plaintiff unless the defendant's acts are enjoined, will amount to more than $3,000, exclusive of interest and costs; and that the defendant is insolvent.

Upon consideration of the facts so alleged, we are unable to concur in the opinion reached by the District Court that the requisite amount cannot in legal possibility be involved in the controversy. Barry v. Edmunds, 116 U. S. 550, 6 S. Ct. 501, 29 L. Ed. 729. In our opinion the allegations of the bill, if supported by testimony, are sufficient to establish the jurisdiction of the District Court with respect to the amount in controversy. Of course, the final determination of this issue as to the amount in controversy will depend upon the proof. The complainant's property is alleged to be of a value in excess of $50,000, and its chief utility is for the shooting of wild water fowl. It is specifically alleged that the effect of the defendant's trespasses will be to practically destroy this utility and render worthless the capital value of the plaintiff's investment. The trespasses sought to be enjoined are not merely sporadic and limited to a day or two in point of time and in effect to a small area of the plaintiff's property, but are alleged to be continuing in their nature, exercised under a claim of right by the defendant, and effective to substantially impair the chief utility of the whole or the larger part of the plaintiff's property.

It has been uniformly held by the federal courts that the test of jurisdiction in a case of this kind is the value of the object to be gained by the suit, which in this case is the preservation of the plaintiff...