(District Oourt, S. D. New York. December 11, 1888.)
A wharf-owner is liable for damage caused to a vessel by concealed obstruc: tions which might have been ascertained by the owner with reasonable dlli·
In Admirlllty· Libel for damages. WilcOOi, Adams & Macklin, for libelant. ,Henry Beekman, BROWN, J. The liabili ty of the owner of a wharf for damages caused to a by concealed obstructions which ,might have been ·ascertained by the owner by reasonable diligence has been declared as a: rule of law. Christian v. Van Tassel, 12 Fed. Rep. 884. The case of Bmith v. Havemeyer, 32 Fed. Rep. 844, has be\Jnrecently affirmed in the circuit court, reasserting the same doctrine. 36 Fed. Rep. 927. also, TheMoorcock, 13 Prob., .oiv. 157. '" 'l'he was moored oq,; March, 10, 1888, alopg the, bulk-head between the piers off Sixty-First and Sixty-$econd streets, East river, up. On the following morning $e was found sunk. An examination showed that two Or three of her planks were broken on tht) port side, not far from her keel, 'and the adjoining, planks ohafed and rubbed up to the bilge. This was from 15 to 20Jeet aft of the ,stem. Her oaptaip ,estimates that she moored with. her stem about 45 feet below the Sixty-Second str,eet pier., Wh!Jn fOl.},nd sunk, heNtem.lines were broken, and. her bow. swung off a considerable distanoe into deep water. Other evidenoe shows ,that she sank about 3. o'clook A. M" about the time of low water ther,e.Subsequent examination of the bottom showed It bowleJer ata point about 75 feet beJow the street pieri' aneJ froI;n 6 to 8 the bulk-head. oorresponds as nearly as tope expected with mere estimates of the position of the other probable or adequate,oause appears in of, the or for her sinJ.'ing, I must find it to have, been oaused by the bowlder above ;referredto. That was 7.3 feet below the surface at low water. The oanal-boat drew between 8 and 9 feet. Hshe had first sunk from leaking, and then slid ,down the incline against Borne bowlders in the deeper. water .outside, the wound would hlli'Ve been on the side. No, oause for her leaking before bowlder appears, tbe allegation that she was previously in leakycondi. tion not being sustained. .' '. The master of the boat had no notice of any obstruotion in that locality, though he was cautioned to from the and for that reason, as he says, moved his boat oonsiderably downward.' The obstruotion being one that was discoverable by reasonable oare on the defendant's part, the libelant, not being in fault, is entitled to a de<lree, and to an order of referenoe to compute the damages.
'Reported by Edward G. Benedict, Esq., of the New York bar.
MILLER V. SHARP.
MILLER 'IJ. SHARPet
(Cirouit Court, N. D. Iowa, E. D. January 9, 1889.)
REMOVAL OF CAUSES-SEPARABLE CONTROVERSY.
A lessee is interested in the controversy in a snit to set aside his lessor's title to tbe leased premises as fraudulent. and to quiet title in complainant; and when he, being a resident of the same state as complainant. is made a party defendant. though the lessor is a resident of another state, the controversy is not wholly between citizens of different states, and is not removable.
In Equity. On motion to remand. Bill by Andrew Miller against John C. Sharp and others to set aside a conveyance of realty. and to quiet title. Blair, Norris & Dunham. for complainant. Fouke & Lyon, for defendants. SHIRAS, J. This suit was brought in the district court of Delaware county, Iowa, and in the bill herein filed the complainant avers that the defendant John C. Sharp, through fraud, procured the conveyance by complainant to Sharp of certain realty. situated in Delaware county; that thereupon Sharp and wife conveyed the same to John Utter by a quitclaim deed, knowledge of the alleged fraud being charged upon Utter, and that C. B. Eaton is in possession of the premises as a tenant of said Sharp. The prayer is that the conveyances to Sharp, and from Sharp to Utter, be declared and void; that complainant be decreed to be the owner of the realty in fee-simple; that the lease to Eaton be declared void, and that complainant's title be quieted as against all the defendants. The defendants Sharp and Utter filed a petition for the removal of the cause into the federal court, averring therein that the comof Iowa; that the defendants Sharp and plainant is a citizen of the Utter are citizens of the state of Wisconsin; and that C. B. Eaton is a citizen of the state of Iowa; that he is merely a nominal party; and that there is a separable controversy .in the suit, to which Eaton was not a proper or necessary party. The transcript of the record having been filed in this court, the complainant now moves for an order remanding the cause, on the ground that the complainant, Miller, and the defendant Eaton are shown upon the face of the record to be citizens of the same state. To sustain the jurisdiction of this couri it is urged that there is in the suit a controversy which is wholly between the complainant and the defendants Sharp and Utter, and therefore the cause is removable under the provisions of section 2 of the act of August 13, 1888. The contention is that the question of the fraud which is alleged to been practiced by Sharp upon complainant, and by which the latter was induced to convey the realty in question to Sharp, constitutes a separate c.ontroversy, which is wholly between the parties named. In one sense this is true, in that,according to the allegations of the bill, Sharp alone made the fraudulent representations which formed the inducement for the conveyance of the property; and therefore it may be said that as to the fraud v.37F.no.5-1l