yemand' until thE! present time.r cannot adopt that conclusion·. It wouldcettainly be singular if the. defendants could escape. the effect, of th,eir own laches by alleging ihatthe plaintiff ought so.onerto have complained of laches. . If tlfedefendailts had caused, a 6bpy of the record to be filed, even thoi:tgli'sodlewhat outof time, aiid then the plaintiff had unseasonably oelaye\:l fnakirig amotion to remand,. the question of waiverw'otild, present a dift'er.ent a'Spect. The facts in Miller v. Kent, 18 Fed. Rep. 561, cited in counsel'S! brief, are not given in the report of the case, btitlhllve no doubt the facts were that the removing party filed a record, andthe'n .that. there was unreasonable delay by tblj opposiw party in moving to remand. Certainly the party removing a caS6 o'ugnt not to De'permitted to charge tbeopposite party with lacheS while he is hidiself still in default. As is wen stated in one of the briefs subtnitted, it is npdn the theory of submission to the juristo renUlnd is a waiver diction o'fth'UedetaI bonn thittlll delay iIi onhe tight. And, in Ii legiilsense, there can be no submission to the jurisdiction 'until the court is in «'position tb proceed V1fith the case, and it is not.iti such position untirtlHHecbrd is filed. ." .In cdn'cllISion, hie order Of the coilrt will be that'the Cause be remanded for want of due proS'eciltWir tinder the removab . ,.,1;,'
,;
BANIGAN
t1.
CiH of· WORcESTJht
(OIretttt Oourt. D; Ma8Bao!l,u6ett8. March 16, .1881.) 1. RRMOVAL OF Pll' A CIvIL ;N"ATURE"-DlV:l!lR8ION OS' WATER FRoM MILIr-ASMSSYENT lOll' DAMAGES,.
A pr'ocee'ding ina. under St. MlIss. 18$1, c. 268, for the appointment o'fcomJilissi'oners. and the assessment of damages suffeTed by complainants, inill-pwners,i,n RhQ&e I,sland, by reallRn.otthe diversion of the water of astreaIIJ, in by: the defendant,Is removable to the federal court on the ground of citizenship of the parties. Such a proceeding is.1l. "sult of a civil nature either at law or in equity, "within the statutes as to removal of causes. 2. BAME-SPECIALSTATUTORY PRocE,EDmG-REYAND.
8: &ME-PETITION-AMoUNT.. from .a state court to the federal court, jUrisdioWhere a cause is removed 4. tion sufficiently appears in the'record if tlie amount in dispute is stated in the petition for removal, although it be not stated in the original petition in the cause. SAME-CITIZENSInP
Where cause.has been removed from a state court to the circuit court on the ground of citizenship, it will not be remanded because founded upon a special statutory procedure authorized by a statute of th'e state, if the Circuit has equal power, with the state court to follow,the Procedure prescribed by the state law. Midland Ry. 00. v. J"imiiB, 29 Fed. Rep. 198, approved.
a
Where a removal of a cause involving the ownership of land Is sought on the ground Of diverse citizenship of the parties, in determining the question of thecour,t is to 10\lk at the CItizenship of the real owners, and not to that of Ii party who is a trustee only. .
OF !tEAL
V. CITY OF WORCESTER.
393 be protected 188 Mass. 89,
I.
.
WATERS AND
land,' an interest -in land Or water in Massachusetts, ,which bfYIISJdt hI tllellOurts of thltt stltte. ¥anfJille v. Oity oj o ,owed.
The owner of land in an adjoitling state may have, as appurtenant to such ,
IN STREAM OUTSIDE STATE.
In Equity. lV. 8.13. F(crpkim G. RU88en, for plaintiff. F. P, Goulding, for defendant. Hal' In also in sever:¥ the same 411fendllnt, is nmde to :remand to the for of and a is also fi,led Which is step in Th,e caselS hllye
GO.wt
' , of pr()pin The 1P Pl1fli'W:J,lqe pf$t. 1;ll.ken fOr its W'4i pp in a,nd is a. ,of. t1;ie a,nd purstlant 'to fi}ed REltitipns ;the superior C9urt;. praying for of th,e assessment of the damage in 4iversioil o! the w:;J.ter of thlOlp,rqok; plainti:(fs have fi.le<l tluljr and 'bop.ds, have ,tb,e t9 this cqurt. the proceeding by petition and assflSSment:of dam::t:ges by with for 3¥ assessment by l1- jury in certain is not a "suit Qf a civil natl;lJe, e.itper at law or in ," of the acf\; providij)g for the rem.Qval of c!!,uS,e!l, p,ecaus the plaintiff is to proceed, not by the usual f0l'D\S of an hIlt accQrding tP a special procedure by the action _ t 'am ofopinion, however, it is the duty of tollfiteriain the and to ascertain an,d enforc.e the rights of the plll-fntiffs by the which the whether it .b e py the usual procflSS of law or by. a s.pecial prescribed for the 09casion. The argues the appointment properlY belqngs to the state court,. apd that.a controof to the federal court does not arifle in ,tb,ese cases, unless the:t:el;lrouldbe an 8:ppeal to a jury after the award of comes In. But I see no reason this court cannot administer relief by. the of as well as by trying the of da;mages with a jury. 1£ itappeared that the appointment oJ commlSsionersby th1s court is iInpracticable or incongruQus, .then, indeed, it would be inferred that the proceeding is not such a. proceeding as' was intended tope removable 'to thiscollrt. We so. beld on an applipation to ill th,is court of the. of actions pth,er th8.r of accoullt. In that case it a,Ppeared thl'Lt the qf which established the practice of appointing
Qr. Rhode. Island, and
e
"394
.'-r
,auditor" that the cOmpenSation of the auditor should be paid by thec<;lun,ty; ,and,aswehave no power to make a similar or analogous provision'10t the payment 'of the auditor, we concluded' that we had no power to adopt the procedure as part of the practice of this court. But in this case the defendant suggests no reason why we cannot fully and effectually carry out thepx:ovisionsfor the appoiI:\tment of the commissioners. The question is fully'discussed by Judge BREWER, in: Colorado Midland Ry. Co. v. Jones, 29 Fed. Rep. 193; and in that opinion I fully concur. '.' .. .. . . .; The defEiildantaJso jUrisdiction does not appear by the record, because the amount is not stated in the original petihowever;'fn the petition for removal to this court, tion.. and lani of opinion that the allegation in that petition'is sufficient. Gold WaShing de Water Co. v. J{UJjes, 96 U. S. 199; Brigea v. Sperry, 95 U. S. 401'. ' . . , ." '. :. On. the demurrer the defendant alleges that petitions show no case ror relief' unaer'the statute. The' argument is that sipce the lands of .the arid, their rights ill the water of Tat,nuck brook app?rtenanHo'those lands, the cannot a 'remedy statute unless it be held to have extraterrltonal effect, Which; 'of course, is' inadmissible. I .canp.ot'agree wi,th this ar. It been held by CQurtot' Massaphusetts that ,. the 'owner of Inndhi an adjoining state may have, as appurtenant to such in lliIldior water hi, Massachusetts, which may be protebteaJ>y 'sUit.inthe'courts of that state. ManvilU:Co. v. Oityof Woree8Ur, 138 MaSs. 89., I ,am strongly inclined to the opinion that the decision in that ,casins of binding force on this coui-tin the case at bar; be' riOt so, I ariiinclined to followthlit case as being of high 'authority,"andwellsupported by the reasoriingofthe opinion. . In the case of Banigan, arorther question arises. The petitioner, it holds, ,legal title to' land. trust for hun:self and another person, who IS. not alleged'to be a CItIzen of ii'tate other than' M'assachusetWilind the defendant contends that, in deofjurisdictiori, the court is.to ]?ok at the citizenship of the real owners, and not to that of the trustee alone. I think is right. In Barnevv. BaltirrwreOity; 6 Walt. 280, it was 'lie1d'lli:at 'wher'e:a conveyance of the subject-ttlatter of the controversy had ,been made for the. purpose of vesting an interest in parties competent to the federal courts, but the real ownership in the prop.. erly remainEldin the assig1lor, the coutt had no jurisdiction. The ground 'ofthis decisibn'is that the person who is the owner of the property is .the real the suit... The purposes and intentions of the parties are evidentlyl:J.ot held to be material, since the. court quotes with apin McDpnald'v. Smalley, 1 pet; 620, to the effect that the cour6Vill' 'take jurisdiction where. the interest of the assignor has conveyed, 81thougl:! with the avowed purpose of enabling the suit, cotirt.. Tothe saml;' TUcker,10'Fed.'Rep. 884;libunta'l.n 'v. Pawn oj .A.nyelwa,''1'2
895' Fed. Rep; 8. In this caee'it,does nOt appear for what purpose the legal titlewascausEidto vestitl. Mr.Banigan,bnt it, does appear that the real ownership is jointly in him and another person, who, for aU that appears in the record, may be a citizen of Massachusetts. This case, therefore, should be remanded; and in the other cases the motions to remand wUl be' denied, and the demurrers will be overruled.
JOHNSTON '/I; DONVAN
and another.
(Oircuit Oourt; B. D. NetIJ York. March 18, 1887.) 1. RBvOVAL 011' CAUSES-REMAJlD-SECOND REMOVAL-SAME GROUNDS.
t.
When a cause has been removed from a state court to the United States circuit court, and remanded on motion, because the petition for remova.ldoes not set'l1p the diverse citizenship of the partiesl\t the c,ommencement of the sutt as weHas at the time of removal, a second removal:On the same grounds is not allowable. The decision on the motion to remand is conclusive, except upon appeal. . . Upon' granting. a motion to' remand a cause to the state court, nO is necessary for the purpose ot an appeal other than that proVided for by'Rev. St. U. S. § 1001.
In Equity. Walter C. Gilson, for plaintiff. Gwrge O. Holt, for defendants. WHEELER, J. This cause was removed from. the; state court to this court, on the ground that the parties were citizens of different states, by the defendants. On motion of the plaintiff it was remanded becallse the petition did not setforlh the diverse citizenship of the parties at the commencement of the suit as well as at the time of removal. The defendantshave now removed the cause again on the same ground. The plti.inti1l' has moved to remand again, because, as he claims, a second removal on the same grounds is not allowable. The defendants insist that the former petition was so defective that. it did not really effect a. removal, and that, therefore, this is the only removal, and not a second removal. The former petition did, however, bring the cause into this court,and within its jurisdiction, so that a motion to remand was necessary. If the former motion to remand had not been made, this court would have properly retained the case. Davie8 v. Lathrop, 13 Fed. Rep. 565; Edwarda v. Omnecticut Mm. Life Ins. OJ" 20 Fed. Rep. 452. The fonner motion to remand was therefore properly before this court, and its decision upon it was conclusive, exqapt upon apIleal. The defendants'right of removal was involved upon such proceedings as the defendants chose to take that brought it in question. That right was adjudica.tedand settled,and could not again be.brought in question upon-new: prooeedings. Railway Co. v. McLean, 108 U.S. 212, 2 Sup.
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