NEW JERSEY ZINO & !RON CO.
TROTTER and others.
(Oircuit (}ourt D. New Jer8ey. November 6,1883.'
RICHOVAL OF CAUSES.
The second clause, section 2, of the removal act of 1875, enacts that when m any suit pending in a state court there shall be a controversywhich is wholly between citizens of different states, and which can be fully determined between them, then either one or more of the plaintiffs or defendants actually interested in' such controversy may remove said suit to the circuit court of the United States for the proper district. To enable a par,ty to remove under this cla,use there must exist in the suit a separate aud distInct of action, in respect to which all the necessary parties on one side are citizens of different states " from those on the other.
On Motion to Remand. T. N. McCarter, for plaintiff. C. cJ: R. W.. Parker, for Trotter. NIXON, J. This is, a motion to to the state court a suit originally commenced, in .the court of chancery of :New Jersey, and which one of the defendants (Trotter).has attempted to remove into this court. The decision of the question depends upon the nature of the suit, as disclosed in the pleadings and the construction oithe second clause of· the second section of the removal act of March 3, 1875. The bill is filed by the complainant corporation of New Jersey against Charles V'f. Trotter, James L. Curtis, surviving trustee ()f the Franklinite Mining Company, and the Franklinite Steel & Zino Company. Trotter and Curtis are citizens of New York, and the Franklinite Steel & Zinc Company is a corporation of the state of New Jersey. The object of the bill seems to be to obtain the reformation of certain deeds, .under which the oomplainant corporation claims title to the ore called "franklinite" in a portion of the premknown as Mine Hill, in Sussex county, New Jersey. The first of these deeds was executed by Samuel Fowler, on March 10, 1848, to the Sussex Zinc & Copper Mining & Manufacturing Company, and describes the tract of land on which the franklinite, claimed to have been conveyed, is contained, by specific monuments, and by metes and bounds. The allegation of the bill is that by reason of the inaccuracies and defects in the description of the premises, which inaccuracies and defects are repeated in the subsequent conveyances of titles, there is a difficulty in locating the said deed upon the frank· linite vein, as it was intended to be located, unless the same shall be corrected so a.s to make it conform to the intention of the parties. The relief asked for is that the said deeds may be so amended 'and corrected in the description therein as to make them conform to the intention of the several parties thereto, when they were respectively executed, and so as to convey, without doubt or mistake, that portion of the franldinite vein on Mine Hill which. is included within a parv.18,no.6-22
allelogram described in a certain map of Isaac Shiner, a copy of which was annexed to the bill; that said amendment and reformation in the sevel'al deeds may be. made in such manner as will effectually operate to convey and confirm unto the complainant the portion of the franklinite vein claimed by defendants, in accordance. with the intention and design of the parties; that the several defendants may be directed ahd decreed to execute proper and sufficient deeds of release to the complainant, so as to release and discharge that portion of the franklinite vein, so intended to be conveyed, from all claims thereto on the part of the several defendants, and that the defend· ants may be severally enjoined and restrained from executing any further leases, conveyances, or transfers of any right to franklinite ore on that part of Mine Hill within the limits thereof so intended to be conveyed to the complainant, and may also be restrained from removing any are therefrom, or committing any trespass thereon, or from bringing any suit or action at law to recover possession thereof, or from taking any 'other step, oraoing any other act, to interfere with the possession of complainant. James L. Curtis, Charles W. Trot· ter, and the Franklinite Zinc & Steel Company are made defendants, because they unite in themselves the whole legal and equitable title t() the premises in dispute, so far as it is claimed adversely to the complainant; Curtis being thetruatee who holds the legal title to the reversion in fee in trust for the FrankliniteSteel & Zinc Company, "fr9tter the lessee of Curtis for a termof years, and who claims und his lease a 'Present right of possession, and the Franklinite Steel r' & Zinc Company being the cestui que trust of Curtis. ' The second clause, section. 2, of the removal act of 1875, ellacts that when, in any suit pending in a state court, there shall be a con· troversy which is wholly between citizens of different states, and which can befuUy determined as beiweElD them, then either one or more of the plaintiffs or defendants actually interested in such controv81:sy may remove said suit to the circuit court of the United States for the proper district. Can a controversy' be found in this suit which is wholly between the defendant Trotter and the complainant, and which can be fully determined between them? This provision of the section is Tiredicated upon the fact that actions are often in their nature severable, and frequently embrace more thallone controversy. The object of the clause was to enable citizens of different states, who found themselves involved in a suit in which more ihan one controversy existed, and one of which was capable of being fully determined without the presence of other parties named in the action, to avail themselves of their constitutional right to have their separate controversy sattled in a federal court. But the bill of complaint in the present case seems to reveal only one cause of action, to-wit, the reformation of certain deeds. The several defendants are made parties beoause they are directly interested. in this single controversy,-the Franklinite Steel & Zinc Com-
NORTHERN PACIFIO TERMINAL CO. V.LOWENBERG.
pany, because it claims an equitable title to the premises in dispute; Curtis, bec!tuse he holds the legal title as the surviving trustee of said corporation, and exercises the right of leasingthe property for a term of years; and the defendant Trotter, because he has an immediate interest in defeating the complainant's attempt to amend and reform the deeds, which, if successful, would deprive him of the right, as lessee of Curtis, to enter upon the disputed premises to mine for franklinite. Under well-established principles of equity practice, any court would require the presence of all these parties before it would proceed to a final decree. 1 Daniell, Uh. Pro (5th Amer. Ed.) 190, note 5; Story, Eq. Pro § 72; Shields v. Barrow, 17 How. 13P; Ribon V. Railroad G08. 16 Wall. i46; Abbott V. Rubber Go. 4 BIatchf.489. Calvert, in his excellent Treatise upon the Law respecting Parties to Suits in Equity, (p. 285,) states that a bill cannot be filed against a lesilee for the purpose of disputing the title of the lessee or owner of the inheritance without making him a party. In the recent case of Hyde v. Ruble, 104 U. S. 409, the supreme court, in considering the clause of the second section of the removal act on which the present removal is demanded, say: "To enable a. party to remove, under this clause there must exist in the suit a sepa.rate and distinct cause, of action, in respect to which all the necessary parties on one side are citizens of different states from those on the :other." , Holding this view of the nature and character of the, action, and the subeing bound by the construction of the removal aQt "preme court in the cases of Barney, v. Latham, 103 U. S. 206, and Hydev. Ruble, supra, I ,must .remand this cause to the state court, and it is accordingly so ordered.
NORTHERN PACIFIC TERMINAL
(Oircuit Oourt, D. Oregon. :Novemper 16,1883.) 1.
PETITION FOR REMOVAL.
When it appears, upon a petition for removal ofa cause, that the same IS removable upon the application of the petitioners under the second clause of . section 2 of the act of 1875, it will not limit or restrain the effect or operation of such petition if the petitioners only ask the court therein to proceed no further " all to them."
PROCEEDING TO ApPROPRIATE PROPERTY.
A judicial proceeding to appropriate private property to the use of a railway corporation is subject to the usual incidents of a civil action or suit, including the liability to removal into the circuit court. .
,In an action agaiust two or mote persons to IIopproprillte property held by them as tenants in common to the use of a railway CoxplJration, thtlre is a separable controversy between such corporation and 'each Of said tenants, .which' can be fully determined as uctwccnthcm,.und if either of;sllch tenants is scit-