FEDERAL REPORTER, vol. 44 ATLANTIC DREDGING CO.
BERGEN NECK Ry. Co.
October 22, 1890.)
(Otrcutt Oourt, 8. D. NfJW York.
W ATERS-OBSTRUCTION-IN.JUNCTION-JUJlISDICTION. The circuit court of the United States sitting in the southern district of New York will not grant an injunction against the erection of embankments or trestles on the. soil of New Jersey, though such structures may project into the waters of a navigable channel leading into the Bav of N"AW Yorlr
In Equity. Order to show cause why temporary injunction should not be made permanent. The Atlantic Dredging Company was a New York corporation, which had dredged a navigable channel from the waters of New York into the territory of New Jersey, at Bayonne, at the head of which channel, and within the limits of the city of Bayonne, was situated its repair yard. The Bergen Neck Railway Company in laying its tracks claimed the right to cross such channel by embankment or trestle. This court granted a temporary injunction restraining the obstruction of the channel by defendant, and required the latter to show cause why the injunction should not be made permanent. Robert D. Benedict, for complainant. Gilbert Collins, for defendant. LACOMBE, Circuit Judge. I am not satisfied that this court, sitting in the southern district of New York, has jurisdiction of this action, which is concerned with structures in process of erection on the soil of New Jersey, although such structures may project into the waters of a navigable channel coming up from the Bay of New York. People v. Railroad, 42 N. Y. 283; In re Devoe ManuJ'g Co., 108 U. S. 401, 2 Sup. Ct.Rep. 894. Let the temporary stay be vacated.
STRASBURGER V. BEECHER.
et al. v.
(Circuit Coy,rt, D. Montana. June 80, 1890.)
FBDERAL COURTS-ADMISSroN COURTS. , ,
Act Cong.· Feb. 22,1889, under which the state of Montana was admitted to the Union, provides that the federal circuit and district courts established by that act shall be the successors of the supreme and district courts of the territory, in respect of all casell then pending in the latter of which the federal courts would have had jurisdiction had they been in existence; but it further provides that no civil action in which the U.nited States is not a party shall be transferred to the federal courts except on the written request of one of the parties, filed in the proper court. HeUl, that the provisions of the general statute regulating the removal of causes from, state to federal courts have no application to transfers made under this statute. "', .The filing of a stipulation for a continuance in the state court after the admisllion of. the state is not a waiver of the parties' right to transfer the caulle to the federal court, under this statute.
OF N'BW STATES ':""TRANSFERS '
SAME-'GRANTING TRANSFER-DISQUALIFIOATION OF JUDGE.
The fact judge of the state court had been an attorney of record in the cause would not dillqualify him from entertaining the application for a transfer to the federal'court, 'cOntemplated by the statute, as he is not called on to exercise any judicial function In regard thereto, and his order for the transfer is merely formal.
SAME-NoTIOE Td ADVERSE PARTY.
II·. SAMJi:......CITIZENSRIP:· . . . An allegation in the petition for thirtransfer that plaintift was at the institution of, the suit a citizen of "the state of Montana," and defendant a citizen of Minne80ta, does not show 1urisdiction in the federal court,. as contemplated by'the statute; for when the suit was instituted Montana was a territory, and jurisdiction on the ground of citizenship doell notar1lle where one party is a citizen of a state and the other of a territory.
The adverse party entitled to notice of such application for transfer to the federal court, as there is nothing in,the statute requirmg it.
An allegation that the property in dillpUte, which is mining property, is worth more than 15,000 at the date of the applIcation, is not su1llcient to show thlf; the value at the time of bringing suit was within the jurisdiction of the federal courts, as reqUired by the statute.
At Ll\w. On motion to remand from the circuit court of the United States to the state court. Luce &- Luce, for plaintiffs. P. P. Sterling and J. A. Savage, for defendant.
KNOWLES, J. The above suit is one at equity, instituted in one of the district courts for the territory of Montana, to determine the right to the :possession of a lode mining daim, and as to who has the right to a patent to the same from the United States. Plaintiffs instituted their suit in the territorial district court.in Park county, Mont., on the 14th day of May, 1887. The defendant subsequently answered to the merits of plaintiffs' compll\int. The parties entered into several stipulations .for continuances of the cause from term to term. The last one was on the 29th day of December, 1890, and, as it will be seen, after Montana became a state in tM Union.. On the 5th day of February, 1890, defendant filed his petition in said district court for said Park county, duly verified, asking to have the to the United States circuit v.44F.no.4-14