session was, clearly, the term at which it could be first tried, and the petition was filed too late. Pullman Palace Car Go. v. Speck, 113 U. S. 84; S. C. 5 Sup. Ct. Rep. 374; Alley v.Nott, 111 U. S. 472; S. C. 4 Sup. Ct. Rep. 495. The plaintiff alleges that he is seized in fee. This is denied in the answer, and defendant alleges affirmatively that the land in question is public land, subject to pre-emption; and that he, being duly qualified, entered within plaintiff's inclosure, and performed the necessary acts to establish a valid pre-emption claim; that he claims a pre-emption right; and that plaintiff claims no right under the laws of the United States; and, upon this allegation of facts, he alleges his legal conclusion, that. the cause arises under the laws of the United States, and that, upon that ground, this court has jurisdiction. But it does not appear that there is any disputed construction of any statute of the United States involved. It does not appear but that both parties agree upon the construction of the pre-emption laws. For all that appears from the facts alleged, the whole controversy may turn on the proof of the facts. There is nothing to show that any disputed question of construction will arise, and this must affirmatively be shown, in order to make it affirmatively appear that the court has jurisdiction. It might as well be claimed that it is a proper case for jurisdiction by alleging that the plaintiff claims title by virtue of a patent issued by the United States, without stating that there is any question arising upon a disputed construction of the patent, or any dispute as to its validity. The authorities are numerous to the effect that the record in this case does not affirmatively disclose a case ,')Ver which the court has jurisdiction; and that it is insufficient to sustain a removal. Trafton v. Nougues, 4 Sawy.178; Gold Washing Co. v. Keyes, 96 U. S. 199; Hambleton v. Duham, 10 Sawy. 490; S. C. 22 Fed. Rep. 465. On both grounds the case must be remanded to the state court, and it is so
SIOUX CITY & D. M. By. Co. v. CHICA.GO, M. & ST. P. By. Co. and others.
(Circuit Court, No D. I()Wa, "Iv. D. May Term, 1886.)
REMOVAL Oll' CAUSE-CITIZENSHIP Oll' NOMINAL PARTY.
The question of the citizenship of nominal parties, joined as defendants with the real defendants in an action, is not to be considered, as against the jurisdiction of a federal court, after removal from a court of one of the states. When the allegations of the bill filed in a cause do not show that a sherilf and other officials named therein as joint defendants had any real joint interest in the subject in controversy, they are to be deemed mere nominal parties.
SAME-WHO ARE NOMINAL PARTIES.
SIOUX CITY & D. 1\1. HY. CO. V. CHICAGO, M. & ST. P. RY. CO.
RAILROAD COMPANIES-RIGHT TO EXCLUSIVE USE OF LAND.
One railroad cannot, by purchasing land, and proceeding to lay its track thereon, debar from the same land another company which had previously surveyed and staked out there a branch line of its own.
In Equity. Motion to dissolve injunction. Joy, Wright It Hudson, for complainant. R. J. Chase, O. J. Taylor, and J. W. Cary, for defendants. SHIRAS, J. The bill in this cause was originally filed in the district court of· Woodbury county, Iowa, a writ of injunction being allowed, upon the filing of the bill, restraining the defendants from proceeding with the condemnation of the right of way over certain realty in the bill described. The Chicago, Milwaukee & St. Paul Railway Company filed its answer to the bill, and a petition for the removal of the cause into the federal court, accompanied with a proper bond. The state court refusing to grant an order of removal, the petitioner procured a transcript, and filed the same in this court, and thereupon filed a motion to dissolve the writ of injunction, on the ground that the answer fully met and denied all the grounds relied upon in the bill as reasons for enjoining the condemnation proceedings. At the time set for the hearing of this motion the complainant filed objections to the jurisdiction of the court, and it therefore becomes necessary to determine whether the case is one that isremovable to this court. The record shows that the complainant is a corporation organized under the laws of Iowa; that the defendant, the Chicago, Milwaukee & St. Paul Railway Company, is a corporation organized under the laws of the state of Wisconsin, and the other defendants are the sheriff of Woodpury county, and the commissioners by him summoned to appraise the damages to be paid by the Chicago, Milwaukee & St. Paul Company for its right of way over the premises in the bill described, and that these individual defendants are citizens of Iowa. The allegations of complainant's bill show that the subject of controversy is the question of which company has the right to occupy the premises in question for the construction of its line of railway. In this question the sheriff and the commissioners have no personal interest. They etand wholly. indifferent between the parties. No action by them in the cause can affect the rights of railway companies. They are purely nominal parties, and thei! joinder cannot affect the question of jurisdiction and the right of removal. There is but one controversy in the cause, and that is, which company has the prior, and therefore better, right to the occupancy of the premises in dispute, for the purposes of constructing and operating its line of railway? The sole parties in interest in this controversy are the railway companies, and the other defendants having no interest therein, and no right of control over the litigation intended to settle this question, it must be held that these parties