case and in Boom Co. v. Patterson, that the removal should be had from the circuit court, and not from the probate court. But does the failure of the statute to provide for an appeal from the award of the commissioners to the circuit court, and the framing of an issue there, deprive the case of its removable character? We think not. Had the petition been in the general form contemplated in some cases for the condemnation of all the land within the county needed for the purposes of the railway, making all the owners along the line of its road parties defendant, it might be a serious question whether a single non-resident proprietor whose property was sought to be taken could remove the case, even so far as it respected himself, to this court, although this also seems to be answered in the Pacific Railroad Cases, 115 U. S. 19; S. C. 5 Sup. Ct. Rep. 1113. But we do not find it necessary to determine whether there might not be cases of this description to which the removal acts would not apply. In this case the railroad seeks the condemnation of a single specific parcel owned by the defendant. To its petition the defendant has filed its answer, setting forth its reasons why the prayer of the petition should not be granted. There is here a single, indivisible suit or controYersy to obtain the possession of land in which the railroad company is plaintiff and the copper company is defendant, and the case does not differ essentially from an ordinary action of ejectment, except in the fact that plaintiff offers compensation for the lands it seeks to condemn. Further objection is made to our assumption of jurisdiction, for the reason that it involves the exercise of the right Of eminent domain, which is claimed to be non-judicial in its character, and therefore a special proceeding, to be carried on solely by virtue of the statute, in the courts of the state therein designated. The same position was taken by the landowner in the case above referred to, viz.: that the proceeding to take private property for public use was an exercise by the state of its sovereign right of eminent domain, and with its exercise, the United States, a separate sovereignty, had no right to interfere. The position was said to be a sound one so far as the act appropriating the property was concerned; that when the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. "The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But, notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance." We understand the meaning of this language to be substantially this: That the right of eminent domain, or of appropriating private property to public use, is a sovereign right, vested in the state itself, acting through its legislature; that the state may delegate this right
MINERAL RANGE R. CO. 'IJ. DETROIT &; LAKE SUPERIOR COl'PER CO.
to railway and other corporations, as it has done in this state, and may impose upon the exercise of the right such conditions as it chooses, with reference to the manner in which the application shall be made, the necessity for the appropriation of any particular lands determined, and their value ascertained, and when the court observes that the necessity of appropriating any particular property is not a. subject of judicial cognizance, it means simply that it is not necessarily a su bject of judicial cognizance. The legislature may seize upon and appropriate directly a piece of private property, upon paying the owner its value, or it may authorize a corporation to do this by an appeal to its judicial tribunals. The court itself has no right to appropriate property; but in carrying out the will of the legislatur8, and in making the proper inquiriel> as to the necessity of the appropriation and the value of the lands, it is exercising ju,lioial power. "If that inquiry take the form of a proceeding before the courts between parties, the owners of the land on the one side, and the company seeking the appropriation on the other, there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of thesto.te." In the Minnesota case, as reported in 3 Dill. 465, it appears that the boom company was authorized by a special act to condemn the land necessary to its business, while in this state the same power is conferred by a general act upon all railroad companies. There is, however, no practical difference in the nature of the power vested in the courts in each case. . It is true, there are some expressions in the cases of Toledo, etc., Ry. Co. v. Dunlap, 47 Mic,h. 456, 462, S. C. 11 N. W. Rep. 271, and Port Huron, etc., Ry. Co. v. Voorheis, 50Mich. 506, S. C.15 N. W. Rep. 882, which indicate that, in the opinion of the supreme court, these proceedings to condemn lands are not in themselves, and never have been,regarded as judicial proceedings, because the legislature might, and sometimes does, authorize such proceedings to be carried on before highway commissioners or other non-judicial bodies, and because, even when acting by appointment from a court of justice, the jury or commissioners are judges of the law as well as of the facts. But Mr. Justice CAMPBELL afterwards qualifies this remark to a certain extent by observing that "they are not judicial proceedings in the ordinary sense;" a comment in which we entirely concur. We understand, however, that whenever a court of justice is called upon to determine or adjust the rights of two or more parties standing adversely to each other, the court is acting in a judicial capacity, whether the decision of the question presented lies with a judge, or a jury, commissioners, or referees selected by the court. Especially is this the case when such proceedings are subject to review by an appellate tribunal. In 1'e New York Cent. R. Co., 66 N. Y. 407, 409, the court of appeals held that the power of determining what lands were necessary to be appropriated to the use of railways was a judicial question, and, when
controverted, the facts must obviously, in some form, be laid before the court to enable it to decide. So, in Warren v. Wisconsin R. Co., 6 Biss. 425, which was also a proceeding to condemn land for railway purposes, a motion was made to remand, on the ground that, as it was a proceeding by the state in the exercise of its right of eminent do. main, the suit was to be regarded as substantially a suit against the state, of which the federal court had no jurisdiction. The motion, however, was denied; the court holding that the state had no interest in the controversy, and that, although it was a special proceeding, it was a suit within the meaning of removal acts. In Railway Co. v. Whitton's Adm'r, 13 Wall. 270, the supreme court holds that when a general rule as to property, or personal rights or injuries to either, is established by state legislation, its enforcement by the federal courts in a case between proper parties is a matter of course, and the jurisdiction of the court in such case is not subject to state limitation. In Weston v. City Council of Charleston, 2 Pet. 449, it was said that the term "suit" was certainly a very comprehensive one, and was un· derstood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him. But we think this point is also covered by the case of Kohl v. U. S., 91 U. S. 367, in which the circuit court was sustained in assuming jurisdiction of a proceeding to enforce the right of eminent domain in favor of United States, to condemn lands for a government building, although there was no statute authorizing the proceeding. That it was a suit was said to admit of no queiltion. If proceedings to condemn be a suit, then the conduct and determination of such suit must be an exercise of judicial power. But conceding that if the only question in this case were the amount of damages to be paid by the railroad company, the jurisdiction of this court would be sustained by the authorities a1)ove cited, it is insisted that these cases are inapplicable, because by the statute of this state the jury or commissioners must pass upon the question of the necessity for taking the property, as well as the amount of damages to be awarded. But we think that in this particular counsel overlook the distinction between the power to condemn, which confessedly resides in the state, and proceedings to condemn, which the state has delegated to its courts. The proceeding is certainly not deprived of its character as a suit by reason of its taking cognizance of this additional question; and if it be a suit, the right of removal attaches. Wherever a right is given by the law of a state, and the courts of such state are invested with the power of enforcing such right, the proceeding may be removed to a federal court if the other requisites of removability exist. The motion to remand must be denied, and the case will proceed in the manner provided for in the state statute.
GREAT FALLS MANUF'G CO. V. GARLAND.
GREAT FALLS MANUF'a
Atty. Gen., etc., and others. 1
(Oircuit Oourt, D. Maryland. July 28, 1885.)
EMINENT DOMAIN- WASHINGTON CITY WATER SupPLy-ASCERTAINMENT OF DAMAGES BY JURy-ACT OF CONGRESS OF JULY 15,1882.
The act of congress approved July 15, 1882, to increase the water supply of the city of Washington, is not unconstitutional for the reason that it does not provide that ascertainment of the compensation for property taken shall be by the verdict of a jury.
SAME-AsCERTAINMENT OF DAMAGES BY COURT OF CLAIMS.
SAME-EVIDENCE OF APPROPRIATION OF PROPERTY.
The advertisement, map, and survey made by the secretary of war, eXhibited in this case, sufficiently describe the property of complainant appropriated to the United States under the act of congress, and were sufficient to give jurisdiction to the court of claims.
SAME-NOTICE-FILING CLAIM IN COURT OF CLAIMS-WAIVER OF MENT.
SAME-POSSESSION BEFORE COMPENSATION.
The appropriation being by the United States itself, and not by a private corporation under its authority, held, that it was lawful for congress to authorize possession to be taken before the compensation had been ascertained, provided it designated a proper tribunal for ascertaining the compensation and made provision for paying the compensation when ascertained. The act of congress having provided that any judgment of the court Qf claims in favor of any claimant should be paid as other judgments of that court, although it is possible that congress may prevent payment to the complainant by failing to vote the necessary appropriation for that purpose, held, that this case is not one in which the court should interfere by injunction, the appeal having been filed 18 months after extensive works had been begun by the United States, and at a time when arresting the work would cause the sacrifice of very large expenditures; and it appearing that as the property taken from complainant was vacant, unimproved, and of no present use to anyone except the United States, the complainant's position is not one of hardship.
In Equity. G. M. Robeson, Benj. F. Butler, and O. D. Barrett, for complainant. John Goode, Sol. Gen., for defendant. . MORRIS, J. This motion for preliminary injunction is made upon a bill filed by the Great J!'alls Manufacturing Company, a corporation of the state of Virginia, against Augustus H. Garland, a citizen of Arkansas, now attorney general of the United States; William C. Endicott, a citizen of Massachusetts, now secretary of war of·the United States; Garratt J. Lydecker, a citizen of New York, IlOW mal
See 8 Sup. Ct. Rep. 631.