UNITED STATES UNITED STATES
'II.
83 (No. 4,998.)
V.
L. HUFFMASTER.
(OwC'Uitpo'U'I't,N. D. Oalifornia.
May 21, 1888.)
COURTS-FEDERAL CmcUIT COURTS-JURISDICTIONAL AlIOlJNT.
Under the act 4... March 8, 18fl7, (24 St. at Large, 562,) the United Stat"A cfr· cuit oourts have no jurisdiction of an Rcdon to recover money or property wherein the t:Jnited 8tates are plaintiffs. unless the amou"t or value of the matter in controversy tlAceeds the sum of exclusive of costs.
(S1/llabtt, b1/ the OOU'I't.)
J. Oarey, U. S. Atty., for plaintiff. Wm. H. Cook, for defendant. Before SAWYER, Circuit Judge. SAWYER, J. This is an action to recover the possession of 60 corda of wood cut upon the public lands, alleged to be of the value of $372. The suit was commenced on July 12, 1887, and it therefore falls under the provisions of the act of March 3, 1887, amendatory of the act of 1875, to determine the jurisdiction of the circuit courts of the United States, etc;, (24 St. 552.) The provision of section 1, conferring jurisdiction, is, in al1respects affecting the question of jurisdiction in this case, substantially the same as in the act of 1875, except that it raises the value of the matter in controversy in order to give jurisdiction from $500 to $2,000. The value of the wood sought to be recovered being much less than $2,000, the court has no jurisdiction, and, as in the preceding case, (No. 3;704,) and for the reasons therein given, the suit must be dismissed, without for want of jurisdiction, and·it is so ordered.
a.
UNITED STATES'll.
C. HUFFMASTER. (No.4,997.)
(OlreuitOourt, N. D. Oalifornia. .T. 0. Carey, U. S. Atty., for plainti1f. Wm. H. Oook, for defendant. Before SAWYER. Circuit JUdge.
Aay 21, 1888.\
,SAWYER.J. ·This·is an action similar to the last, to recover 150 cords of wood put upon public lands, of the alleged value of $960, commenced on July 12, 1l:Stl7. For r£>asons given in the two preceding cases, (Nos. 3,704 and 4,998,) t.he suit must be dismissed. without prejudice, for want of jurisdiction, and it is 80 oraered.
84 D. M.
FEDERAL REPORTER.
OSBORNE
&
CO.
v.
MISSOURI PAC.
Ry.
(Circuit Court, E. D. Missouri. E.D. May 26,1888.) EmNENT DOMAI'N-RIGHTS OF ABUTTERS-INJUNCTION.
Equ:ty will not enl.ertain a bill of an abutting proprietor to enjoin a rail· road l-ompany from operating its trains ovor a track laid in a pubUc street under legislative authority, on the ground that he has not been compensated for the incidental damages, where comVJainaat's property has not been actually taken, and he has made no effort to arrest the work. nor given notice that he claims damages, until after the track has been laid. though the con· stttAltion of the state (eonst. Mo. art. 2, § 21) requires compensation in advance for the taking or damagin/\,of propel'tyfor public uEle. In such case he must be loft to his remedy at law.
In Equity. Bill for injunction·. On demurrer and exceptions to .amended anSWl;lr. Mills & Ftitcrajt, for complainant. T. J. Portis and Bennett Pike. for defendant. THAYER, J. For the purposes of this decision I shall assume examining the question fully) that the damages described in the bill of complaint are of the kind contemplated by that clause of the conSotitution of the state of Missouri which prohibits property from being taken or damaged for public use without just compensation first ascertained and paid. Article 2, § 21. It may be further conceded as an elementaJ}y proposition that if defendant has damaged complainant's property i;p. the sense of the constitution, (article 2, § 21, wupra,) it cannot act either at law or in equity lmder a municipal ordinance or under an act of the legislature. In Missouri, however, for many years railroad companies have been authorized by a general law to use the streets of cities or villages for the purpose of laying their tracks, provided they are granted Vide section 765, Rev. St. Mo. 1379. such privilege by the to alleges that That portion of the answer in this case that is the city of St. Louis had passed an ordinimce permitting the defendant to lay a side tra.ckalong Gratiot street for a certain distance, and furthermore that, acting under the ordinance in question, it had actually laid its track along the street in question before complainant filed its bilt in this case to restrain it from· so doing. The question that arises on the de:murrer therefore is, whether a court of equity will entertain a bill at the suit of an abutting proprietor to enjoin a railroad company from operating its "trains over a track laid in a public street under legislative authOl ity, in ·.a case where none of complainant's property hus been taken· and the complainant has taken no action to arrest the work, and so far as appears has given no notice that damages will be claimed, until after the track is completed and the road is in operation or ready for operation? As I had occasion to suggest, when this case was formerly before me on a motion to l:ltrike out parts of the answer, other courts have decided this question in the negative under statutes substantially the same as that which is in force in Missouri, holding in effect that in such cases the com-
