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-
D. M. OSBORNE & CO. tJ. MISSOURI PAC. RY. CO.
85
plainant's remedy is by an action at law to recover damages, and not by bill for injunction. Stetson v. Railroad Co., 75 Ill. 74, referred to and explained in Rigney v. Chicago, 102 III. 79; Hutton v. Railway Co., 7 Hare, 259; Lister v. Lobley, 7 Adol. & E. 124. If there are any decisions to the contrary on this point, complainant's counsel do not seem to have discovered them. as none are cited. An attempt is made to draw a distinction between the constitutions of Missouri and Illinois, and to found an ai'gument thereon, in that the constitution of Missouri expressly requires compensation to be paid in advance of the taking of private property, whereas the constitution of Illinois contains no such express provision. The distinction, however, has no significance, as the courts of Illinois have held that the constitution of that state requires compensation to be made before any property is taken, so that the constitutions of the two states are essentially the same in that respect. PhiUips v. Commissioners, 119, Ill. 627, 10 N. E. Rep. 230; Railroad 00. v. Gntes, 120 Ill. 86, 11 1\.. E.Rep. 527. The fact that the constitution of the state requirescompensatioll to be made in advance of the actual taking of property doe$ not appear to me to have much bearing on the point to be determined on this demurrer. The question at issue is whether a complainant, who claims damages resulting incidentally to his property from the laying of a railroad track in a public street under'a legislative and municipal license, can wait until the work is done, and then enjoin its operation, although none of his property is actually taken, or whether he should in such case be left to his remedy at law for the damage inflicted? 'Unless the wrong-doer is insolvent, or unless some other cause exists to .render the legal remedy -of no avail, it appears to me that on general principles he should be left to his legal remedy, and it was so held in the cases first above cited. 'The rule does not deprive the complainant of the protection intended to be afforded by the constitution, nor does it work any hardship. It simply requires the complainant to be diligent in applying for such relief as .equity may afford. It must not be forgotten that the constitution does not prohibit property from being taken or damaged fot public use. It provides simply that compensation must be made for property so taken -or damaged. Complainant is not in the attitude of one who has a right to say that in no event shall the street in front of his property be oc.cupied by railroad tracks. If the state and municipality authorize such use (as they have done in this case) it must subtnit to the inconveniencA. It is entitled to insist on compensation lor the damage done, (which is generally held to be the deterioration in the value of the lJroperty,) but as those damages can be assessed by a jury, and the remedy at law is adequate, there seems to be no occasion to apply for injunctive relief, and no propriety in granting such relief after the work is done .and the road is in operation or is ready for operation. I shall overrule the demurrer and the exceptions, holding that the matters pleaded in the ;:,nswer at least show that complainant is not entitled to equitable relief.
86
REPORTER.
REYER 11. MACKAY.
(Circuit Oourt, ,N. D. lllinoia. May 21, 1888. i.QmETING TITLE-VENUE.
A court of equity, having jurisdiction of the partIes, has also jurisdiction to compel defendant to release and discharge an apparent cloud upon the title to land situated in another state.
2.
SAME-VomJWGMENT.
Where a judgment Is absolutely void for want of jurisdiction, a party af· fected by it is not compelled to apply for relief in the Court which rendered it, but may bring a suit in equity in another state to avoid its consequences.
8.
A judgment of a state court, rendered against non-resident defendants with· out personal service upon either, and without appearance, decreeing that cer· tain land, situated in the state, held by one of the defendants. was conveyed to and held by her in fraud of the creditors of the other defendant, and direct· , tng its sale to satisfy such qredjtors, is absolutely, void for want of jurisdic· tion; and a court of equity in another state will entertain ,a bill to set aside, as a cloud on the title, the sherUf's deed upon sale under lIuch judgment. SAME-TITLE OF COMPLAINANT.
SAME-ATTACHMENT OF LAND uF NON-RESIDENTIl.
4.
Although a deed complained of as a cloud upon title is void, yet a complain· ant who has parted with his title to the property, and is only 8 warrantor in the chain of title, may apply to a oourt of equity to have the cloud removed.
In Equity. Bill. to removeclo'Qd on title. O. F. Woodruff. for complainant. ' Pry & Babb, for defenc1ant.
On demurrer to bill
, BLODGETT, J. This is a demurrer to a bill filed by complainant to D;love a cloud,upon the title to a tract of land alleged to be owned by complainant situate in the state of Iowa. The substance of the case stated in the bill is that oneAdam Remer was indebted to Duncan Mackay, the defendant, upon a promissory note, and they were both citizens and residents of the state of Illinois. Remer's wife in some way obtained title to the tract of land in Iowa now in question., Defendant Mackay caused a suitto be ,brought against Remer and his wife, in the county in Iowa where the land was situated; the complainant, under the Iowa Code of Practice, stating in substance that Adam Remer was indebted to the plaintiff in the am.ount due on the note; that both ,defendants were residents of the state of Iowa, and that Adam Remer had purchased the trll,ct of land in question, for which he had paid the consideration, and had· cam;ed the title to be conveyed to his wife for the purpose of ing, delaying, and defraUding the creditors of. him, the said Adam; and prayed an attachment and judgment against Adam as a non-resident debtor; and also prayed that Mrs. Remer should beadjud/1;ed to hold the title in fraud of Remer's creditors and in trust for Remer, and that the property should be subjected to the payment of his (Mackay's) debt. No personal service was obtained in any form upon either of the defendants, but constructive service was made by publication of notice, as prescribed by the Iowa statute in suits against non-residents; and in due time the case came on for trial. The record of the trial shows that the court,
