Van Allen v. Atchison, C. & P. R. Co.

• Decision Date: 31 August 1880
• Citation: 3 F. 545
• Parties: VAN ALLEN v. ATCHISON, COLORADO & PACIFIC RAILROAD CO.
• Court: U.S. District Court — District of Kansas

3 F. 545

VAN ALLEN v. ATCHISON, COLORADO & PACIFIC RAILROAD CO.

United States Circuit Court, D. Kansas.

August 31, 1880

McBride Bros., for plaintiff.

W. T S. May and D. Martin, for defendant.

McCRARY C.J.

Motion to remand to state court. This is a proceeding instituted under the statute of Kansas to condemn land for railroad purposes. Laws of Kansas, 1879, p. 230.

The plaintiff's land was taken for the right of way of the defendant's railroad, and his damages were assessed by the county commissioners in accordance with the statute. The plaintiff appealed to the district court, where, in accordance with the practice in such cases, he filed a petition claiming a larger sum as damages than that allowed by the commissioners.

The defendant, answering said petition, set up as a defence that the plaintiff has no title to the locus in quo, and is therefore entitled to no damages.

The premises consist in part of a farm, and in part of town lots in the town of Kernan. The answer avers that the farm is occupied by plaintiff under the homestead act of congress, and that such occupancy does not constitute ownership. It is further alleged in the answer that the Kernan town lots are held by the plaintiff under the provisions of the town-site act of congress, and that he has never had possession, and his claim under said act of congress is fraudulent and void. After the filing of this answer, upon motion of defendant the cause was removed to this court on the ground that the case is one arising under the said acts of congress.

Plaintiff moves to remand, because-- First, the case does not arise under the constitution of the United States, the laws of congress, or a treaty of the United States; second, the application was not filed in time; third, no sufficient bond is filed, as required by law.

1. That the record presents for adjudication a federal question to-wit, the construction of the homestead and town-site acts of congress is clear; but, inasmuch as the question of the construction of these acts is raised by the answer, the question presents itself whether the case is one arising under them. The removal act of 1875 (section 2, act of March 3) employs, in defining the causes that may be removed, substantially the same language used in the constitution to define the jurisdiction of the federal courts:

'The judicial power shall extend to all cases in law and in equity arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority. ' Const. art. 3, Sec. 2.

'Any suit of a civil nature, at law or in equity, * * * arising under the constitution or laws of the United States, or treaties made, or which shall be made under their authority, * * * either party may remove,' etc. Section 2, act of March 3, 1875.

It is manifest that the words 'arising under the constitution or laws of the United States' mean the same thing in the act of congress and in the constitutional provision. These words have been frequently construed by the supreme court. Thus, in Cohens v. Virginia, 6 Wheat. 264, it is said: 'A case in law or equity consists of the right of one party, as well as of the other, and may truly be said to arise under the constitution, or a law of the United States wherever its correct decision depends on the construction of either. ' And 'the rule applies with equal force where the plaintiff claims a right, and where the defendant claims protection by virtue of one or the other. ' Id. 379. Mayor v. Cooper, 6 Wall. 247, 253. In Tennessee v. Davis, 100 U.S. 257, ...