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C.&P.R. Co"et,aZ. '
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S. D. Florida.
,;,In E q u i t y . , ' S. iY' &:Lttciu8 PinlfJy, for complainant. Joseph. B. Wall, for defendants.
L09KE,<J. 'This is a bill ,asking an injunction to restrain defendant
companyArom bpilding road and'laying its track across a piece of latld oQcupied by plaintiff, andin which he claims he has an equitato justify this action. The piece of land ble :w.llich the right,::lf. way is in controversy is a pOl'tion of the Ft. nroolfe,:reservation, adjoining the city of Tampa. It was originally held by the United States for nlilitary purposes, but it is alleged by plaintiff, /tAd oonce.dedbydefendant, that it had been transferred from the war to the illterior department, and therefore became a part of the ordinary pubUc ll;tllds of the United States, subject to entry under the general land laws, '.elle bill alleges that plaintiff entered upon the land with the inof making a home thereon, and securing title to the tent be has made efforts to obtain title; that his application is now"peJlPing, and being investigated by the land department of the Uni,tedStatesl that he has possession of and is residing upon it; and tl)at by"rElason of these facts he has equitable title to and claims the same u,nderA-nd by virtue of the laws of the United States.·· The affidavits filed by ,de!en<i/tntshow that complainant had··filed a declaratory statement f'or the ,pprpo-se of pre.empting said land; that under an order of the commissioner of the general land-office a hearing has been recently had, and testimony taken, but that no decision has been rendered thereon; that there are many contests over the rights to enter and purchase said reserved lands, and that no decision on the merits of the several contestants has been made by the executive department of the government. A letter from the local land-office has been presented, showing that the plaintiff is recognized as one of the claimants to rights in the land, and that the case is being investigated. Defendant's affidavits also show that, under It charter and laws of the Rtate, it has surveyed, and is constructing, a railroad to the waters of Tampa bay, and that crossing the land in question is the only practicable way of entering the city of Tampa,
FLOl1ID4, Co & ,Po R. 00.
where there can be for side tracks lliOd,v,rarehouses for the operationEl of the railroad; and that the location is ,a'bsolutely essential to the company. is These allegations of the bill and. affidavits show clearly that but one important question in the case, and that is the right plaintiff has in the land entered upon. He claims rightful possession arid eq:uitable title under the laws of the United States, and defendant denies that his rightsllnder such claim are sufficient to justify a negotiation with, him for the right of way, or to prevent its entering upon and occupying the,land without compensation. This question can only be determined by an examination and construction of the United f?tates land laws, and the federal courts have jurisdiction where such and construGtion is demalll;led.The act of congress of 1875, which confe:r:red upon the circuit co:urt jurisdiction all cases "arising under the constitution or laws of the United State.s," and which has so frequently reoeived judici,al interpretation from the supreme court, was n.ot changed by theactof.1887in that particular. It has been repeatedly decided that a suit may properly be said to arise und,er the constitution, or a law the conof the United States, whenever its correct decision depends struction ohither; that cases arising under the laws of theU,nited States are such as grow out of the legislation of congress, whether the right, privilege, claim, protection, or defense of the pa!tyby whom it is in whole or in part. Wherever theright or reII,l,ydy sought. or tht;l d,efellj>e made, depends upon a law of congress, or the. cOJ;lstruction of the constitution, the act of 1875 unquestionably opened the .federal courts to such suitors: This doctrine has been so frequently that it requires.no further argument. Cohens V. Virgi:n:ia, 6 Wheat. 2,64; OslJorn v.Bank, 9 Wheat. 738; Mayorv. Cooper, 6 Wall. 247;, Water CO. V. Keyes, 96U:. S.. 199; V. Davia, 100 U. S. 257; Railroad 00. V. Missis$ippi, 102 U. S. 135. . . , , In thisQase the title to the land is at present unquestionf\ply in the United States. The plaintiff claims rightfl through, by, and under the acts of congrei3S for the disposing of public1ands, and if with thelawEl for that purpose, so as to hold a or;pre-emption right, he is entitled to some remedy in this case. :S;o\V cari; this question he determined but by an examination and cODstru9tionof land laws,. and a determination of the equities existing lJetween the United States and plaintiff? Certainly such inquiry should,not be referred toa etatecQurt. The law has given to the the United of the interior, the,duty ,to States, through the and deterIllinethe title to puplic lands, and, untils\1Ch deterJDiIlati,QIl has been reached, the courts will not interfere with,. anticipate; or forestall such action; but where it that any he may be protected in them until final action ofth,e land may charflcter,,aqd of such rights. While .it is plllinly within the jurisdiction and duty of this court. to in anypgbts it may finally appear that be. has,the , protl'lct question naturally arises, how, in this case, shall such be
given? Evety I!tate'has, 'by virtue ofits sovereignty, and rigbtof emi.. nen'tdomain, power to create, by the establishment of railroads; easereserved for purments upon all Jands within its limits, unless poses of the nationa,! government, and such easement would interfere with the purpo!le for which they were reserved. U. S. v. Bridge Co., 6 McLean, 517. So if the lands were unquestionably the property of the United States, without flny interfering equities, the defendant would . have the right of way, and an injunction would not lie. On the other hand, were the title of plaintiff full and complete, defendant would have a right to institute condemnation proceedings, and, upon paying the compensationawarded, continue its road. ' Under the laws of the state, it would seem that the owner has right to dernand that the payment be simulta.neous with entry. 'Courts will generally enjoin disseisin of land until compensation has peen paid, but, where any question of title is pending investigation, the compensation lilhouldbe ascert.ained, and its payment made certain. The owner will not be put to his remedy at law. Bonaparte v. Railroad Co., 1 Baldw. 205. Certainly plaintiff can have no greater rights in opposing the progress of or turning it aside from the land in question, than he would have had he perfect titlein it.. The public is interested in the construction of railroads, it is the policy of the law to assist, rather than implilde,''and encourage, rathel'than obstruct, them. The granting ali injunctioncoilld haVe but one oftwo effects,-to prevent any further advance,or'to'turn the course aside to the land of some one else, who might have as'good Qr better reasons for objecting. , TherEj'is no doubt as to the power of the railroad company to acquire the right to continue its surveyed course, regarding the question of title whichever'rfay we may; but the plaintiff may have rights in which he should be' protected, although he may have asked more than can be granted. If he has shown a case for relief within its jurisdiction, it is the duty of 'the court to grant it, although the form of asking may not be critically correct. Griffing v. Gibb, 2 Black, 519. The question now to be considered is not whether an injunction may issU·e.' but upon what conditions, so as to protect the plaintiff in hiS ri*hts without inflicting'· unnecessary hardship upon the defendant. Upon what conditions should the defendant be permitted to proceed with the road? If there were no question as to the right of title, it would be necessary to have an appraisement,arid pay the damage awarded. Defendant has no right to so determine this unsettled question as to deny the possibility of any damage to the plaintiff, and take possession of land which may eventually prove to be his. But this is not the time, nor is this the forum, to determine the amount of damage. This court cannot interfere with the executive department in determining the questions of title which the law submits to it, nor with the practice which . the state has established' for determining values. When the character .and nature of the title is settled under the ads of congress, the amount of damage ir. this case is considered to call for no further action of ana- ' tional tribunal. .
COATES 'l1. MERRtcx: THREAD CO.
It is not an unusual proceeding in courts of equity, where questions arise in which time may be-taken to determine the value of certain rights, to declare conditions upon which injunctions will be granted or refused. Bonds of indemnity are not only consistent with the general principles of equity, but are in frequent use. Stewart v. Railroad Lb., 7 Smedes & M. 568; Floyd v. Turne:r, 23 Tex. 292; Railroad Co. v. Railroad Co., 2 McCrary, 260. This appears to be the only course in this case by which the rights of both parties will be fully protected, and the burden of untlsual hardship rest upon neither. Untilsueh bond be given, defendant may be enjoined from proceeding. It is therefore ordered that an injunction issue, as prayed, until the defendant company take steps under the state laws for ascertaining the value of the land taken for railroad purposes, now occupied by plaintiff, and give a bond for payment of the amount of damages a.warded., whenever tbe land-office decides the plaintifl' herein is entitled to the land, and a patent issues therefor.
et al. v.
(CircuU Court, 8. D. New York. July 14,1887.)
in elfect.to turn the proceedi'ngs into viva voce examina.tion; arid,.i'! the power to
. An order for .oral cross-elCamination of a witness whent(.lking his deposition is, .. in
make th'e. order is discretionary with the court,.it will C8seo! necessity.
In Equity. On motion for a commission to take a deposition.· Frederick H. Betts, for plaintiffs. William a. Witte:r, for defendants.
LAOOMBl:, J. This is a motion for a commission to take thetestimcmy of Frederick· Smith, of Burlington, Kan., as a witness' on the part- of complainants, upon interrogatories in the usual form. The granting of the motion is practically unopposed, but defendants insist that they should be allowed to attendby counsel before the commissioner, and to cross-examine the witness orally, if they so desire. In effect, this would turn the proceeding into a viva voce examination, because it can hardly be supposed that the cOD)plainaIlta will run the risk of waiving all redirect examination, as they must necessarily do, if they are not advised in advance what cross-interrogatories will be put. Withou't passing upon the two points raised by complainants, viz., that such a composite COIl;lwission as· is proposed is not known to equity practioe, and that no oral examination, whether director cro!ls, can be had without the notice reqUired by equity rule 67, I am of. the opinion that the modification asked for by theg.elelldants should· not be allowed. Concededly, st1ch a mode of taking proof,namely, by interrogatories in chief settled in:advance, and