WESTERN UNION TEL. CO.
NATIONAL TEL. CO.
WESTERN UNION TEL.
NATIONAL TEL. Vo.
(Circuit Oourt, S. D. New
March 6, 1884.)
SAME-SEPARATE CONTROVEUSY BEtwEEN CITIZENS OF DIFFERENT STATES. Boyd v.Gill, 19 FED. HEP. 145, followed:
Motion to Bemand. Dillon cf Swayne,. for Western Union Tel. Co. Dorsheimer, Bacon et Steele, for Nat. Tel. Co. and B. & O. Tel. Co. P. B. McLennan, for N. Y., W. S. & B. By. Co. . WALLACE, J. Whether the complainant acquired any exclusive right as against the telegraph companies, the defendants, to build or maintain its lines upon the lands of the railway company; whether. it acquired any easement not subject to a co-extensive easement in favor of the other telegraph companies; and whether any easement it may have acquired is of such character-as would entitle it to compensation before the other telegraph companies can occupy the lands of the railway company with their lines, are all qnestions which may depend upon the force and effect of ·the act of congress of July 24, 1866, and arise under the il:!sues presented by the pleadings. The au t was therefore properly removed from the state court as a controvers.) arising under the laws of the United States. Cases arising under the laws of the United States, within the meaning of the removal act, are 'uch as grow out of the IElgislation of congress, whether they constitute the right, claim, protection, or defense, in whole or in P&l·t, of the party by whom they are asserted. If a federal law is to any extent an i4gredient of the controversy by'way of claim or defense, the condition exists upon which the right of removal depends, and the right is not impaired because other questions 'tre involved which are not of a federal character. Oruikshank v. Fourth Nat. Bank, 16 FED. BEP. 888; Mayor v. Cooper, 6 Wall. 241-252; Railroad 00. v. Mississippi, 102"U. S. 135. The motion to remand is denied. . Too defendant the Baltimore & Ohio Telegraph Company, has also removed the suit upon its separate petition, alleging that there is a controversy which is wholly between it and the complainant citizens of different states. Within the recent deoision of this court in Boyd v. Gill, 19 FED. BEP.145, such a separate controversy is not diselosed by the pleadings. See also Peterson v. Ohapman, 13 Blatchf. 395. So far as the removal has been effected upon this petition the suit should be remanded. v.19,no.8-36
(Oircuit Oo'Urt, D. CaUfornia.March 8. 1884.)
NAVIGABLE RIVEREl-UNBETTLED QUESTION 011' STATE AND FEDERAL POWERS.
the bounda of a state "is· held by the legislature thereof,until the con· gress of the United· States paBBes some act assumillg control for the national government. In the Wheeling Bridge.()a.e, 13 Row. the same court held that .the mere confirmation bycongreBB of a compact theretofore made between Kentucky and Virginia, relative .tokeeping open the Ohio river. was tantamount to an act assuming such control. Under these two deCisions, whether such navigable rivers of California are within the control of that state. or have been removed therefrom by the act 1)f congress admitting it into the Union, which act COntains these -words: .. All Jlavigable rivers within the state of shall be common highways and forever free, as well to the inhabitants of that state 88 to the citizens of the United States, without any tax, dhty. or impost Deoided (pro!lWma) the latter. Escanaba Co. v. (Jhicago,2 Sup. L't.Rep. 187, and other reflectintt OR the matter in discussion, noted and commented upon, and their varloU8 distlDguish. lug points mentioned.
The supreme court of the United States, in the case of ElCanaba Co. v. (Jhtcago, 2 Sup. Ct. Rep. 187, determines that the control of .. rivers wholly
In Equity. Scrivener d: McKinney, for complainant. H. O. et W. H. Beatt.lJ and J. B. ,Haggin, for defendant. SAWYER,J. This case is clearly within the rule as laid down in the Wallamet Bridge Case, 7 Sawy. 127; S. C. 6 FED. REP. 326,780. If that case can be sustained in tae broad terms of the rule stated, then the demurrer in this case should be overruled. Since that decision was rendered, the supreme court of the United States has decided the case of Escanaba Co.- v. Chicago, 107 U. S. 679, S. C. 2 Sup. Ct. Rep. 185, which defendant insists overrules the principle announced in the Wallamet Bridge Case; that, under the clause of the act. admitting Oregon into the Union, the state has no power to authorize -the construction of bridges over the navigable waters of the state which shall materially obstruet their navigation. It must be admitted, I think, that there is language in the opinion that favors that view i and I am by no means'certain that the court did not intend to go as far as its broadest language indicates. It is sought to distinguish this case from the Chicago B1idge O(($e. If it can be distinguished, it must be on the following grounds: In the BldckbirdCreek Case, 2 Pet. 245, arising in Delaware, the Schuylkill Bridge Gas.e, 14 Wall. 442, in Pennsylvania, and all other.s sinc6 uecided, followi:pgthe,decisions in those cases, it was held that congress, under its anthority to regulate commerce and establish post·roads, had power to, control, ,for those purposes, the internal navigable waters of the yari0tls states; that a,s soon as congresslegislatef,'l in. regard to any such navigable waters, afterwards authorits power becomes exclusive and the states ize any material obstruction to their navigation; but, till congress acts, the legislature of any state has the pOW£f to authorize the ob-