,COHN t/; LOUISVILLE, N. O. &; T. R. CO.
panydoes not separate this part of the controversy from the rest of the action. What Huntington wants is not partial relief * * * against the Fidelity Companya]one, but a complete decree, which will give him a sale of the entire property, free of all incumbrances, and a division of the proceeds as the adjusted eqUities of each and all the parties shall require. The answer of this company shows the questions that will arise under this branch of the one cont1'llversy, but it does not create another controversy. The remedy which Huntington seeks requires the presence of all the defendants, and the settlement not of one only, but of all, the branches of the case." The language here used-and the like may perhaps be found in other cases-seems to imply that the presence on the same side with the petitioner of any party necessary to the granting of the complete relief sought by the opposite party will defeat a removal under the second clause of the statute; but this, as I suppose, is so only when the alleged separable controversy is determinable, and, in order to the granting of complete relief to the complainant, must be determined as an incident to the principalaction. In Ayres v. Wiswall, supra, it is said: "The rille is now well' established that this clause in the section refers only to suits where there exists a separate :md distinct cause of action, on which a separate and distinct suit might have been brought, and. complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. To say the least, the cause must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more states on one side and citizens of other states on the other, which can be fully determined without the presence of the other partie!'l to the suit as it has been begun." F1'asel' v. Jennison, 106 U. S. 194,1 Sup. Ct. Rep. 171. It is evident that neither Bissell nor Fitzgerald has any separate and distinct cause of action which he might prosecute to complete or even partial relief against the petitioner; and it is equally clear that the petitioner has no cause of action which he can maintain against Bissell or Fitzgerald withont the presence as a parly of the railway company, or of its representative in the of the receiver appointed by the Elkhart circuit conrt, from which removal is sought. Other questions discussed need not be considered. Cause remanded.
N. O. & T. R.
(Oircuit Oourt, S. D. Mississippi, W: D.
A cause to which an alicn is a party is not removable to the United States circuit court under the "local prejudice" clause of the removal act of 1887. which provides for the removal of controversies between citizens of the state in which the suit is brought and citizens of other states, on the ground of local prej ud. ceo
A. corporation created by the consolidation of several corporations existing in different states, by an act of the legislature, which provided that such cor-
potation should be treated as a corporation created by the la.ws of tbe sta.te authorizing the consolidation, is, as concerns a suit against it· by an alien, a citizen of that state, and not entitled to a removal of such suit uuder the local prejudice clause of the act of 1887.
At Law. On motion to remand to state court. Phelps & Skinner, for motion. Yerger & Percy, contra.
HILL, J. This is an action at law, brought by the plaintiff to recover damages for alleged personal injuries inflicted on him while a passenger on dehmdant's train, and alleged to have been caused by the negligence and carelessness of defendant's employes. The cause was removed from the circuit court of Washington county into this court, upon the petition of defendant under the fourth clause of the second section of the act of 1887, known as the "Prejudice Clause" of the removal act. The questions now for decision arise upon plaintiff's motion to remand the cause to the circuit court of 'Washington county, from whence it was removed into this court. It is agreed on the hearing of this motion that the plaintiff is not a citizen of the United States, but is a subject of the emperor of Austria. It is further agreed that the defendant corporation, as it now exists, and did exist when the injuries complained of occurred, was created by the consolidation of different railroad corporations, created by the acts of the legislatures of Louisiana, Mississippi, and Tennessee, respectively, and that the consolidation was authorized by the respective acts of the legislatures of these several states. It is further admitted that the act of the legislature of this state, authorizing this consolidation, provided that by whatever name the consolidated company should be called in the future, it should be held, deemed, and treated as a corporation created by the laws of this state, and liable to all the responsibilities, and entitled to all the rights of such as though said consolidation had not been made. The petition for removal avers that the defendant is a corporation created by the laws of Tennessee, and has its principal office and place of business in that state. While this is true in the state of Tennessee, it is clear from the admitted facts, as well as the act of consolidation of this state, that it is equally a corporation created under the laws of this state, and must be held and treated as such, so far as it relates to its contracts and liabilities incurred in this state, The grounds of the motion for remanding the cause to the court in which the suit was brought are,-first, that the plaintiff is an alien, and not a citizen of this state or district; and, secondly, that the defendant is a citizen of this district and state, and that for the want of necessary citizenship of the parties this court has no jurisdiction of the cause under the clause of the act of 1887, under which the removal of the cause was sought to be made. This clause reads as follows: "And where a suit is now pending, or may hereafter be brought, in any state court in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant being such citizen of another state may remove such suit into the circuit court of
SUNl<'LOWER RIVER PACKET CO. 'D. GEORGIA PAC. R. CO.
the Unitl'd States for the proper district at any time before the trial thereof. when it shall .be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court, to which the said defendant may. IInder the laws of said state, have the right. on account of such prejudice or local influence. to remove said cause." There is no provision in this clause, nor was there any provision in the act of 1875, of which this act is an amendment, where an alien is a party, for the removal of causes from a state court, whether the alien be a plaintiff or defendant; and if there was no other reason, the motion to remand the cause to the circuit court of Washington county must prevail. But if this were not so, it is clear that the defEmdant is a citizen of this state, so far as this suit is concerned, and was sued as such, and under the provisions of the fourth clause of the sevond section of the act of 1887, is not entitled to a removal of the cauee, and for this reason, the motion to remand must prevail, and such will be the order of the court.
SUNFLOWER RIVER PACKET
GEORGIA PAC. R.
(Circuit Court, S. D. Miaaiaaippi,
July Term, 1889.)
FEDERAL COURTS-JURISDICTION-NAVIGABI,E WATERS.
The federal courts have jurisdiction of an action by a steam-boat company to recover damages of a railroad company for obstructing a navigable river of the United States by building a bridge across it, regardless of the citizenship of the parties.
At Law. Motion to dismiss. Albert M. Lea, for plaintiff. Yerger & Percy, for defendant.
Hn,L, J. This is a suit brought by the plaintiff against the defendant to recover damages for the obstruction to the navigation on Sunflower river, by placing a bridge across said stream. The declaration alleges that the Sunflower river is one of the navigable streams of the United States, and has long been used as such for the transportation of persons and freights on steam-boats plying upon 8aid riverfor many miles above the point where said bridge is built, and that the plaintiff, as a corporation created under the laws of this state, is engaged in transporting persons and freight upon steam-boats from the port of Vicksburg to points on said Sunflower River as high as the same is navigable, and that its hoats are duly enrolled and licensed for the coasting trade, conformably with the provisions of title 50 of the Revised Statutes of the United States; that the defendant corporation obtained an act of the congress of the United States to place a bridge across said river, provided it should not interfere with the navigation by steam-boats upon said river; that the defendant, in the construction of said bridge, has so constructed