Ward v. Congress Const. Co.

• Decision Date: 09 February 1900
• Docket Number: 646.
• Citation: 99 F. 598
• Parties: WARD et al. v. CONGRESS CONST. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

99 F. 598

WARD et al. v. CONGRESS CONST. CO.

No. 646.

United States Court of Appeals, Seventh Circuit.

February 9, 1900

George P. Merrick and S. S. Gregory, for appellants.

S. H Bethea, for appellee.

Before WOODS and JENKINS, Circuit Judges, and SEAMAN, District Judge.

WOODS Circuit Judge.

The superior court of Cook county, Ill., in which the proceeding was begun, issued an order of injunction commanding the appellee, the Congress Construction Company, to 'desist and refrain from digging any trench or ditch in Lake Park, in the city of Chicago, and * * * from proceeding with the construction of an addition to the temporary post office or any other building in said Lake Park until the further order of the court. ' The case having been transferred by writ of certiorari to the circuit court of the United States for the Northern district of Illinois that court denied a motion to remand the cause to the state court and on November 7, 1899, sustained a motion to dissolve the injunction. The appeal is from that order. No question is made of the sufficiency of the petition for the writ of certiorari, if, upon the facts disclosed, the case was removable.

The underlying question, aside from that of the jurisdiction of the court below over the subject-matter, is whether the United States and the construction company, which was acting by the employment and under the authority of the treasury department, were bound by a decree of the superior court of Cook county entered on September 14, 1896, in a suit wherein A. Montgomery Ward and George R. Thorne were the complainants, and the city of Chicago, North Chicago Railway Company, West Chicago Street-Railway Company, Baltimore &amp Ohio Railroad Company, Illinois Central Railroad Company, Charles T. Yerkes, De Witt C. Creiger, mayor, William A. Purdy, and Lawrence McGann were the defendants. That decree forbade the erection upon grounds described, including those now in question, of any and all buildings or structures, except those required of the Illinois Central Railroad Company by an ordinance of the city passed on October 21, 1895; but, by express proviso, nothing in the decree was to be construed to prohibit or restrain 'the use, occupation, repair, or necessary enlargement' of the Art Institute, at the foot of Adams street; 'and, provided, further, that the building now used as a temporary post office by the United States government shall remain where the same is now located, opposite the foot of Washington street, and it, together with all necessary repairs of the same, shall be permitted to remain and to be used as the temporary post office until a permanent post office shall be completed and occupied on the cite bounded by Clark, Adams, Dearborn, and Jackson streets, in said city. ' The suit in which that decree was rendered was commenced in 1890, and while it was pending, in 1895, the federal authorities obtained of the city and the owners of the property fronting upon the park whatever right was granted for the erection of the temporary post office at its present site. The contention of the appellant is that, though the United States was not, and could not have been, made a party to the suit, it was let into possession by the city of Chicago, which was a party defendant, and, by the law of privity and lis pendens, is bound by the decree subsequently rendered, and is entitled to occupy and maintain in proper repair 'the building now used,' but not, as in the case of the Art Institute it was expressly provided, to make an addition or enlargement. To this contention the response of the appellee is-- First, that the United States did not acquire and does not hold possession under the city of Chicago, but under the appellants themselves; and, second, that in any event the United States ought not to be bound by the decree. The latter proposition is based on the authority of Stanley v. Schwalby, 162 U.S. 255, 16 Sup.Ct. 754, 40 L.Ed. 960. It was there declared to be 'a fundamental principle of public law, * * * that no suit can be maintained against the United States, or against their property, in any court, without express authority of congress'; and it was accordingly held that 'neither the secretary of war, nor the attorney general, nor any subordinate of either,' had 'been authorized to waive the exemption of the United States from judicial process, or to submit the United States or their property to the jurisdiction of the court.' But it by no means follows, and we think it not true, that, if the United States shall choose to acquire of one of the parties to a suit an interest in or possession of property already in litigation, it will not, as would an individual purchaser in a like case, take the interest or possession subject to the result of the litigation.

The first proposition, modified to conform to the facts, presents a more interesting and important question. The actual possession of Lake Park was held by the city of Chicago, but under conditions and restrictions which forbade the presence there of all buildings or structures which would interfere with the view from adjacent properties. The owners of those properties, it is settled, had such an interest as enabled them to maintain suits to enjoin the construction or compel the removal of forbidden structures; and in recognition of that fact the United States, after the giving of the consent of the city, refused to proceed with the erection of the temporary post office until the consent of the interested property owners was obtained. That consent was given in writing by all but Ward, who represented the appellants, and by him through his attorney, and thereafter, with his knowledge, and without objection from him, the building was erected, but, on account of the lack of a larger appropriation, upon a smaller scale than originally planned; and the addition now proposed, it is conceded, if erected, would not extend beyond the limits of the original plan, as shown by the drawings in existence when the consent to the erection of the building was given. There is, however, no direct evidence that Ward or others in like interest saw or knew of the drawings or plans, though they could hardly have been ignorant that such plans were customary. It is fairly inferable that they and he had little concern on the subject, and anticipated the erection of such structure as was then supposed or thereafter should be found to be necessary. In respect to the alleged estoppel by the decree of the state court, it is, therefore, nor the ordinary case of a third party acquiring from one of the parties to a pending suit an interest in or possession of the disputed land. The possession in this instance was taken with the consent of both parties to the litigation,-- the city, representing the fee, and the appellant Ward, representing the easement, if it may be so called, for the supposed vindication of which he instituted this proceeding. No precedent has been cited, but we are of opinion that when both parties to a suit consent to the putting of a third person into possession for a specified purpose, or to the acquirement by that person of a particular interest in the property which is the subject of a pending litigation, the result of the litigation will not affect the right, interest, or possession so obtained and held. One who gets his right from both parties can be under no obligation to observe the course of the litigation, and if, without his participation, the final decree, in an attempt to declare his right, shall define it inaccurately, he will not be bound thereby, and, in a dispute with either party, will be at liberty to assert the right actually acquired. It follows that, if the decree of the superior court should be construed to forbid any enlargement of the temporary post office as it stood when the decree was entered, the restriction is without effect, and if the consent of the plaintiffs in error, as originally given, was broad enough to include additions to the original intention and understanding, we have no doubt. If nothing was said on the subject, that intention nevertheless should be imputed, because nothing else could have been reasonable. Chicago is not, and was not expected to be, stationary; and from the fact that the arrangement was merely temporary; yet likely to continue for a number of years, it must have been contemplated that, to begin with, the building should be made as small as practicable, and whenever necessary should be enlarged.

There remains the question of jurisdiction. Was the case removable from the state court to the federal court? The proceeding seems to have been begun by a notice entitled in the case already mentioned, of A. Montgomery Ward et al. v. City of Chicago et al., signed by the solicitor of the complainants and addressed to Gus Williams, superintendent, of the Congress Construction Company, whereby they were notified that on September 16, 1899, at an hour and place stated, in the room occupied as a court room by Judge Brentano, the solicitor would ask a rule against them, and each of them, to show cause why they should not be attached for contempt of court for violation of the decree and injunction in that cause, and that at the same time he (the solicitor) would ask that they, and each of them, be ordered to desist and refrain from digging any trench, erecting any building, or placing any obstruction whatever on Lake Park, according to the decree of said court, and upon the said motion would read the affidavit of George Gascoigne, a copy of which was served with the notice. Thereafter, on the day named, without appearance for or representation of the construction company or the United States, the court entered the injunction which, after the transfer, the court below dissolved. Upon...