CITY OF WASHINGTON V. COLUMBUS & C. M. R. CO.
673
CITY OF WASHINGTON v. (Circuh· Court, S. D. Ohio, E. D.
& C. M. R. 00.
January 25, 1893.)
REMOVAL OF CAUSES-SEPARABLE CONTROVERSY.
In a suit. by a city to condemn land occupied by a raIlroad corporation of another state as lessee of a railroad corporation of the same state, when the main issue is as to the right to condemn, the controversy as to the foreign corporation is not separate, so as to give it a right to remove the cause to a federal court, although the home corporation tiles a disclaimer alleging that the lease is for 99 years, renewable forever, and that the foreign corporation is practically the owner of the property, and will su1fer all the dam-age that may be inflicted; for the home corporation, as reversioner, still has an interest in the property. City of Bellaire v. Baltimore & O. R. Co., 13 Sup. Ct. Rep. 16, follOWed.
Proceeding in the probate court of Fayette county, Ohio, by the city of Washington against the Columbus & Cincinnati Midland Rail· road Company for the appropriation of a right of way' for a street. From the verdict assessing the damages, defendant appealed to the court of common pleas of Fayette county. Subsequently the Baltimore & Ohio Railroad Company and the Central Ohio Railroad Company were made parties defendant, and the former petitioned for a removal to this court, which was granted. Heard on motion to remand. Granted. Joseph Hidy and Willis & Pine, for plaintilfr. J. H. Collins, for defendant.
·
SAGE, District The proceeding in this case in the probate court of Fayette county, Ohio, of which the plaintiff is the county seat, was for the appropriation of a right of way for a street within the incorporated limits of the plaintiff, and across the premises and traeks of the defendant. The defendant having demurred to the application, and, after the overruling of its demurrer, filed its answer, making sundry defenses to the application, and also setting up that the land sought to be taken was reasonably worth $100 per front foot, and that the residue of defendant's lands would be made less valuable, by reason of the appropriation, in the sum of $10,000, the appli· cation was heard before the probate court and a jury, which assessed the compensation for the lands taken at $264.79, and the damages to the residue of the defendant's lands at $125. The court having confirmed the verdict of the jury, and its assessment, the defendant filed written notice of an appeal to the court of common pleas of Fayette county, and on the 1st of February, 1892, filed the appeal bond, in due form, and the same was aPproved by the probate court, and a transcript of the proceedings in the cause sent to the court of common pleas. On the 30th of April, 1892, the defendant filed in the court of common pleas an additional answer, setting up that it had not then, nor had it had since the commencement of the proceedings, any interest whatever in the lands sought to be appropriated; that previous to the commencement of the proceedings it had leased its entire railway track, and all other property of every description, to the Central Ohio Railroad Company, ll--'I "' Organized, and that v .53w.no.8-43
674
FEDERAL, REPORTER,
vol. 53.
that company thereupon assigned and transferred said lease to the BaItinlore &:Ohio Raill'oad Company; that saidlease, by its terms, was for the term tool: effect on the ,1st daY of January, A. D. 1890, of 99 years, renewable forever, "so that," the answer proceeds to set f/?,I1;lll" is done, to the track by reason of these rlqi}l1etii;Q.ation will bellone to the property of the Baltimore Railrol'lQ. not w'this defendant herein, andtbatby virtue of said lease the said Baltimore & Ohio Railroad the owner of the p'roperty sought to be tak.etl., 3nd whatever compenSl1tion is awarded therefor should be :that and not'to this defendant; this defendant hereby: and ,herein disclaiming all interest in said property, in any form or manner, at the time of tliecommencement of this suit, nor si;nce, . ving an,SWered, asks tQ ,"be discha"rged." .On the 23d of a that & Ohio Railroad Compa.n,y ,peptraI, PAio Railro81l,COIn:i>any claimed ,some interest lIaal sougbtto be a:i>propriated, the c:outt of common ,Pij1d.f:1 ·poin companies, agamst .On the 30th of April, 1892, the BaltI&. Qpio Railroaq Company Waving been duly served with proday at April, 1892, noWying it that the cause on appeal would be for hearing before said court of common pleas on the 21st of May, 1892, and requiring it to appear at that time, and set up any claim which it might have to said premises, or to compensation and damages which might be awarded) filed its petition for the removal of the cause to this court, setting forth that it was a citizen of rthe stateot Maryland, and had a separable controversy with the" :plaintifl'. The Oentral Ohio Railroad Company was also served with summOns on the --', - day of April, and thereby required to appear at the same time as the Baltimore & Ohio Railroad Oom· pany. On .the 7th aay (If May, 1892, the court of common pleas made an entry ,granting the petition for removal. The motion to remand must be granted, upon the authority of Oity.of BelllLire v. Baltimore & O. R. 00., decided by the supreme court of the United States, November 14, 1892, (see 13 Sup. Ct. Rep. 16,) and ,holding- that in a suit by a city to condemn land occupied by a railroad Mrporation of another state as lessee of a railroad corporation of the same state, when the main issue is as to the right to condem.n,the 'controversy as to the foreign corporation is not separate, so 8B to give it a right to remove the cause to a federal COUl't, although. ithe interests of the two defendants, and their separate awards of damages, Itmst be determined as incidents to the princi1)aI controversy; unless the fi1!ng of a disclaimer of all interest by the Cincinnati ,MidlandOompany, which is an Ohio corporation, is a circumstance sufficient to distinguish this case from that. I do not think it is.Tb;e disclaimer is expressly, by the amended answer of the Midland ,Company, based upon the fact that it had made a lease of the property sought to be appropriated to the Baltimore & Ohio Railroad' Company, for 99 years, renewable forever. But the assignment of that lOOBe did not transfer to the Baltimore & Ohio Railroad l'eBt of the Midland'Oompany in the premises. It Company all the int
EGAN V. CHICAGO, Y. &:
st.
P. Ri.
co.
675'
still holds the reversion, and.llpon a surrender or forfeiture of the lease would be reinstated in,full .The plaintiff, therefore, was not bound to accept the disclaimer, or, if it did, was entitled to ,a judgment respecting the costs, and passing upoJ.:!. the effect of the disclaimer. Moreover, the same entry by which the Ba,ltimore' & Ohio Railroad Company wag made a party defendant, the Central Ohio Railroad Company, another Ohio corporation, was also made a party defendant, as claiming to have some interest in the property sought to be appropriated. Although it is set up in the amended answer of the Midland' Company that the Central Ohio Company was the lessee in the lease granted by the Midland Company, and the assignor to the Baltimore & Ohio Company, that amendment cannot be taken as establishing the fact, nor as authorizing the court to decide that the Ohio Central Company has no interest in the property. The decision in City of Bellaire v. Baltimore & O. R. Co., above cited, would apply and make an order remanding the case even if the disclaimer of the Midland Company, if it were the only other party defendant, would sustain the removal by the Baltimore & Ohio Railroad Company to this court. The motion to remand will be granted, with all costs attending the removal, and in this colll'4 to be taxed against the Baltimore & Ohio Railroad Company.
EGAN v. CmCAGO, M. & ST. P. RY. CO. (Ci!-,cuit Court, N. D. Iowa, E. D. January 21, 1893.) No. 445.
1.
REMOVAL OF CAUSES-TIME OF REMOVAL-FILING PLEADINGS IN STATE COURT.
It is not necessary, in order to the removal of a cause, that any pleading on behalf of defendant should first be filed in the state court; and decisions by a state court that such fillng Is necessary are not binding upon the federal courts.
2.
SAME-SUFFICIENCY OF PETITION.
In an action in a state court, plaintiff clalmed damages in the sum of $27,000 for a death by wrongful act. Defendant, being a citizen of another state, filed in the state court a petition for the removal of the cause to a federal court, averring that the "matter and amount in dispute" exceeded $2,000. The state court accepted this petition and the bond filed therewith, antl the transcript was filed in the federal court. Held, on a motion to remand, that it sufficiently appeared that a "controversy" existed between the parties, although the petition did not directly allege the same.
At Law. Action brought by Julia Egan, administratrix: of the estate of John J. Egan, in an Iowa state court, against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for the alleged wrongful death of the said John J. Egan. The cause was removed by the defendant to the United States circuit court, and is now heard on a motion to remand. Denied. Hubert O'Donnell and Henderson, Hurd, Daniels & Kiesel, for the motion. lV. J. J{night, opposed.