Williams v. Delaware, L. & W. R. Co.

• Decision Date: 23 July 1920
• Docket Number: 280.
• Citation: 266 F. 1003
• Parties: WILLIAMS v. DELAWARE, L. & W.R. CO.
• Court: U.S. District Court — Middle District of Pennsylvania

266 F. 1003

WILLIAMS v. DELAWARE, L. & W.R. CO.

No. 280.

United States District Court, M.D. Pennsylvania.

July 23, 1920

H. M Streeter and H. C. Reynolds, both of Scranton, Pa., for plaintiff.

J. H Oliver, of Scranton, Pa., for defendant

WITMER District Judge.

Under the right of eminent domain, the Delaware, Lackawanna &amp Western Railroad Company appropriated some land located in Susquehanna county, Pa., belonging to John W. Williams, a citizen of New Jersey. A formal petition and bond for the purpose, in accordance with the Pennsylvania procedure, was filed in court on March 23, 1914, to No. 105, April term 1914. Exceptions to the bond were filed, which were afterwards dismissed, and the bond was approved. A bill in equity was filed by Williams after the land was appropriated, one day before the petition and bond was filed as indicated. The equity suit, addressed to No. 100 April term, 1914, was tried in the lower court, and on appeal to the Supreme Court the bill was dismissed. 255 Pa. 133, 99 A. 477.

This suit was independent from the condemnation proceedings instituted to No. 105 of April term, and should not be confused with it. In the latter proceeding, the railroad company is the aggressor and Williams defendant; even though the Pennsylvania statute made him technically the plaintiff, so far as the removal statute is concerned, he is nevertheless to be regarded as the defendant. In condemnation proceedings the words 'plaintiff' and 'defendant' can only be used in an uncommon and liberal sense. Mason City R.R. Co. v. Boynton, 204 U.S. 570, 27 Sup.Ct. 321, 51 L.Ed. 629.

Without proceeding further, the defendant, Williams, on July 19, 1919, presented his petition and bond, asking for removal of the case to this court on the ground of diversity of citizenship. The order of removal was denied for the following reasons:

(1) 'There was no suit or action pending at the time of the presentation of the petition and bond, and the application was premature.'

(2) 'The petitioner, John W. Williams, is not defendant in the suit or action, the nature of which is an action by him, as plaintiff, against the railroad company, as defendant.'

There was no occasion for a formal order for removal, and such order is in fact of no effect. The right of removal is statutory, and is established immediately on the filing of a proper bond and petition, showing on its face that the case is one which the defendant has a right to remove under the provisions of the statute. No issue of fact raised upon the petition or record can be tried...