SUNl<'LOWER RIVER PACKET CO. 'D. GEORGIA PAC. R. CO.
229
the Unitl'd States for the proper district at any time before the trial thereof. when it shall .be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court, to which the said defendant may. IInder the laws of said state, have the right. on account of such prejudice or local influence. to remove said cause." There is no provision in this clause, nor was there any provision in the act of 1875, of which this act is an amendment, where an alien is a party, for the removal of causes from a state court, whether the alien be a plaintiff or defendant; and if there was no other reason, the motion to remand the cause to the circuit court of Washington county must prevail. But if this were not so, it is clear that the defEmdant is a citizen of this state, so far as this suit is concerned, and was sued as such, and under the provisions of the fourth clause of the sevond section of the act of 1887, is not entitled to a removal of the cauee, and for this reason, the motion to remand must prevail, and such will be the order of the court.
SUNFLOWER RIVER PACKET
Co. v.
GEORGIA PAC. R.
Co.
(Circuit Court, S. D. Miaaiaaippi,
w:
D.
July Term, 1889.)
FEDERAL COURTS-JURISDICTION-NAVIGABI,E WATERS.
The federal courts have jurisdiction of an action by a steam-boat company to recover damages of a railroad company for obstructing a navigable river of the United States by building a bridge across it, regardless of the citizenship of the parties.
At Law. Motion to dismiss. Albert M. Lea, for plaintiff. Yerger & Percy, for defendant. Hn,L, J. This is a suit brought by the plaintiff against the defendant to recover damages for the obstruction to the navigation on Sunflower river, by placing a bridge across said stream. The declaration alleges that the Sunflower river is one of the navigable streams of the United States, and has long been used as such for the transportation of persons and freights on steam-boats plying upon 8aid riverfor many miles above the point where said bridge is built, and that the plaintiff, as a corporation created under the laws of this state, is engaged in transporting persons and freight upon steam-boats from the port of Vicksburg to points on said Sunflower River as high as the same is navigable, and that its hoats are duly enrolled and licensed for the coasting trade, conformably with the provisions of title 50 of the Revised Statutes of the United States; that the defendant corporation obtained an act of the congress of the United States to place a bridge across said river, provided it should not interfere with the navigation by steam-boats upon said river; that the defendant, in the construction of said bridge, has so constructed
230
FEDERAL REPORTER,
vQl. 39.
it that it does prevent and obstruct the plaintiff from running its steamboats above aud beyond said bridge, to the damage of the plaintiff the sum of $5,000. The defendant moves the court to dis miss the suit for the want of jurisdiction in this court to try and determine the controversy between the parties, upon th'e ground that both the plaintiff and defendant are citizens of tblsstate, and that there is no federal question involved in the suit, as shown by the declaration. Whether there is or is not' such federal question is the only question now to be d,etermined. It is not.controverted that the Sunflower river is one of the navigable water"courses of the United States, and was so used at 'the point where di.ssaid bridge has been built across said river, and for a above said point, and was before the construction of said bridge navIgated by plaintiffs, by their steam-boats, under a license from the "{Jnited States. This right and privilege is certainly derived from the United States; and, for any unlawful obstruction or interference with the right to navigate the said river, this court certainly has the jurisdiction to try and determine the injuries done the plaintiff, and afford the proper remedy, if established as alleged in the declaration. I am satisfied that this court has full jurisdiction of the controversy stated in the pleadings, and that the motion to dismiss the cause must be overruled, and it will be so ordered. '
UNITED STATES V. AMERICAN BELl, TEL.
Co. ct al.
(Oircuit Oourt, D. MassaclLUsctts. EQUITY-REFERENCE TO EXAMINER.
July 2, 1889.)
On a motion for the appointment of an examiner to take testimony in an equity case, the court will not restrict the testimony to the single issue of fraud which is raised by the plea.
In Equity. Motion to appoint examiner. G. A. Jenks, C. 8. Whitman, and O. A. Galvin, for complainant. C. Smith and B. F. Thurston, for defendants. COLT, J. The plaintiff moves the court for the appointment of an examiner to take testimony. The Bell also moves for the appointment of an examiner to take testimony upon the issue raised by his plea filed in this case. The defendant company have answered generally to the bill. The defendant Bell has filed a plea and an answer in support of the plea. To the answer of the defendant company and to the plea the plaintiff has filed replications. The cause, therefore, is at issue, and it is proper for the court to appoint an examiner to take testimony. The defendants' motion seeks, in effect, to restrict the testimony by order of court to the single issue of fraud which is raised by the plea. It is certainly unusual, upon a motion made in the ordinary way for the appointment of an examiner, to ask the court by an interlocutory order to